United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Valrico, FL, Employer
__________________________________________

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

Docket No. 17-1762
Issued: August 9, 2018

Case Submitted on the Record

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

JURISDICTION
On August 14, 2017 appellant filed a timely appeal from a February 24, 2017 merit
decision and a June 7, 2017 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 to consider the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish a right
forearm injury causally related to the accepted September 27, 2016 employment incident; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 5, 2016 appellant, then a 40-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on September 27, 2016 she sustained a right forearm strain when
another vehicle backed into the postal vehicle she was driving while performing her duties.
In a September 27, 2016 authorization for examination and/or treatment (Form CA-16),
the employing establishment authorized appellant’s medical treatment.
In support of her claim, appellant submitted Florida Workers’ Compensation forms dated
October 5 and 8, 2016 signed by Dr. Gary T. Cannon, an examining Board-certified family
practice physician. Dr. Cannon listed the date of injury as September 27, 2016 and checked a box
marked “yes” in response to the question of whether the diagnosed condition was work related.
He diagnosed right forearm unspecified strain. Dr. Cannon advised that the injury/illness in
question was the major contributing cause for the reported medical condition, recommended
treatment, and determined functional limitations and restrictions. He noted that appellant had not
reached maximum medical improvement (MMI). On the October 8, 2016 form, Dr. Cannon
released her to regular duty beginning October 11, 2016.
An October 5, 2016 Form CA-16 Part B -- Attending Physician’s Report, unsigned, but
identified with an “Urgent Care Medicine – Brandon” stamp, provided work restrictions and
diagnosis of right forearm strain/tendinitis. The form noted that appellant complained of right arm
pain with repetitive activities and lifting heavy mail. Physical findings included mid right forearm
tenderness. A box marked “yes” was checked in response to the question regarding causation.
In an October 16, 2016 development letter, OWCP advised appellant of the deficiencies in
her claim and afforded her 30 days to submit additional evidence and respond to its questionnaire.
Dr. Cannon, in October 15 and 22, 2016 Florida Workers’ Compensation forms, reiterated
findings set forth in prior form reports. He noted an injury date of September 27, 2016 and checked
a box marked “yes” to the question of whether the injury/illness was work related. On both forms,
Dr. Cannon noted that no clinical services were anticipated. In the October 22, 2016 form, he
reported that appellant had reached MMI as of October 21, 2016 and that future medical treatment
was anticipated.
By decision dated November 21, 2016, OWCP denied appellant’s traumatic injury claim
as she did not submit medical evidence containing a medical diagnosis in connection with the
accepted September 27, 2016 employment-related incident.
OWCP thereafter received additional medical evidence.
An October 5, 2016 x-ray interpretation noted a September 27, 2016 lifting injury and
found no acute osseous abnormality.

2

Dr. Cannon, in an October 5, 2016 narrative report, noted that appellant was seen for
forearm pain which developed on September 27, 2016 after picking up heavy mail.2 He reported
a history of forearm pain and lifting heavy mail and he also noted her recent motor vehicle accident.
Dr. Cannon noted that appellant related that on September 27, 2016 she was driving a mail truck
when another vehicle backed into the mail truck she was operating. Further, appellant related that,
at the time of the event, her right forearm was on the wheel and she was unsure as to whether she
sustained any injury due to this incident. Physical examination findings and work restrictions were
detailed. Dr. Cannon diagnosed right forearm muscle sprain.
In an October 8, 2016 Form CA-17, Dr. Cannon released appellant to return to regular
work. He noted that she injured her right forearm on September 27, 2016 in a motor vehicle
accident.
In an October 15, 2016 report, Dr. Joseph Schreier, a treating osteopathic Board-certified
family physician, noted that appellant was seen for a September 27, 2016 right forearm injury.
Appellant related that her pain was improving, but the right wrist splint aggravated her pain. A
physical examination revealed normal range of motion and posterior right forearm tenderness.
Dr. Schreier diagnosed right forearm strain.
In an October 22, 2016 duty status report (Form CA-17), Dr. Cannon noted that appellant
was advised that she could return to work on October 22, 2016 and diagnosed right anterior
forearm tenderness. He noted that the injury occurred on September 27, 2016 due to a motor
vehicle accident. Work restrictions were listed.
On January 20, 2017 appellant requested reconsideration.
By decision dated February 24, 2017, OWCP modified its November 21, 2016 decision,
finding that the medical evidence of record was sufficient to establish a medical diagnosis of right
forearm strain. It denied appellant’s claim, however, finding that the etiology of the diagnosed
right forearm strain was unclear.
In a letter and form dated March 6, 2017 and received on March 10, 2017, appellant
requested reconsideration. She related that her right forearm pain began following the accepted
September 27, 2016 employment incident and had not resolved. Appellant further contended that
she had met all the criteria for acceptance of her claim.
On April 28, 2017 OWCP received an April 28, 2017 form requesting reconsideration and
referencing appellant’s March 6, 2017 reconsideration letter. In support of her claim, appellant
resubmitted a previous report dated October 22, 2016 from Dr. Cannon.
By decision dated June 7, 2017, OWCP denied appellant’s request for reconsideration of
the merits of her claim, noting that she had neither raised substantive legal questions nor included
relevant and pertinent new evidence with her request for reconsideration.

2

Appellant is not claiming an injury from this alleged incident of lifting mail.

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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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established.6 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.10 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty, and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.11

3

Id.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6

B.F., Docket No. 09-0060 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8
C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.
9

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
10

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

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ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a right forearm
injury caused or aggravated by the accepted September 27, 2016 employment incident.
In multiple form reports Dr. Cannon diagnosed right forearm sprain with an injury date of
September 27, 2016. He noted that appellant developed right forearm pain. Dr. Cannon did not
mention her motor vehicle incident. However, he checked a box marked “yes” that appellant’s
diagnosed condition was work related. It is well established that a physician’s opinion on causal
relationship that consists of checking “yes” to a form question is of diminished probative value.12
The Board has held that medical reports must be based on a complete and accurate factual and
medical background. Medical opinions based on an incomplete or inaccurate history are of limited
probative value.13
In a narrative report dated October 5, 2016, Dr. Cannon noted that appellant developed
right forearm pain after picking up heavy mail on September 27, 2016 and also related details of
her vehicular accident on that date. He related that her right forearm was on the wheel at the time
of the event and she was unsure as to whether she sustained any injury due to this incident.
Dr. Cannon offered no rationalized medical opinion explaining how the accepted September 27,
2016 employment incident would have caused appellant’s diagnosed right forearm muscle sprain.
Without explaining how, physiologically, the movements involved in the employment incident
caused or contributed to the diagnosed condition, his opinion on causal relationship is equivocal
in nature and of limited probative value.14
Dr. Cannon in CA-17 forms dated October 8 and 22, 2016 diagnosed a right forearm injury
which he attributed to the accepted September 27, 2016 motor vehicle accident. No supporting
rationale was given. The Board has found conclusory opinions insufficient to establish causal
relationship.15 Without explaining how the accepted employment incident caused the diagnosed
right forearm injury, Dr. Cannon’s opinion is of limited probative value on the issue of whether
the diagnosed condition was caused or aggravated by the accepted September 27, 2016
employment incident.16 The Board has found such conclusory opinions insufficient to establish
causal relationship.17

12

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

13

C.L., Docket No. 14-1585 (issued December 16, 2014); J.R., Docket No. 12-1099 (issued November 7,
2012); Douglas M. McQuaid, 52 ECAB 382 (2001).
14
See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).
15

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., supra note 9; Roma A. Mortenson-Kindschi, 57
ECAB 418 (2006).
16

See L.C., Docket No. 18-0011 (issued March 23, 2018).

17

Id.

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The record also contains a report from Dr. Schreier in which he noted that appellant was
seen for a September 27, 2016 right forearm strain. However, he did not offer any opinion as to
the cause of the diagnosed condition. 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.18 Thus, the reports from both Dr. Cannon and Dr. Schreier are of
limited probative value and insufficient to meet appellant’s burden of proof.19
An October 5, 2016 Form CA-16 part B was also received from an unknown medical
provider, which indicated with a checkmark that appellant’s right forearm strain/tendinitis was
caused or aggravated by the accepted September 27, 2016 employment incident. The Board has
held that unsigned reports or ones that bear illegible signatures cannot be considered as probative
medical evidence because they lack proper identification.20
The diagnostic testing of record is also of diminished probative value and is insufficient to
establish appellant’s claim as diagnostic testing does not provide an opinion on the cause of the
diagnosed conditions.21 Thus, this evidence is insufficient to establish her claim.
Causal relationship is a medical question that must be established by probative medical
opinion from a physician.22 In this case, the Board finds that none of the medical evidence
appellant submitted constitutes rationalized medical evidence sufficient to establish causal
relationship between the accepted September 27, 2016 employment incident and her diagnosed
condition.23 Accordingly, the Board finds that she failed to meet her 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 10.607.24

18

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

19

See supra note 14.

20

E.B., Docket No. 17-1862 (issued January 12, 2018); J.E., Docket No. 13-1098 (issued September 3, 2013);
Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).
21

See G.H., Docket No. 17-1387 (issued October 24, 2017).

22

W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005).

23

See T.C., Docket No. 16-0586 (issued August 9, 2016); Patricia J. Bolleter, 40 ECAB 373 (1988).

24
The Board notes that on September 27, 2016 an authorization for examination and/or treatment form (Form CA16) was completed by the employing establishment and authorized medical treatment. Where the employing
establishment properly executes a Form CA-16, which authorizes medical treatment as a result of an employee’s claim
for an employment-related injury, the Form CA-16 creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See
D.M., Docket No. 13-0535 (issued June 6, 2013); L.B., Docket No. 10-0469 (issued June 2, 2010). See also 20 C.F.R.
§ 10.304; Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter
3.300.3(a)(3) (February 2012). The period for which treatment is authorized by a Form CA-16 is limited to 60 days
from the date of issuance, unless terminated earlier by OWCP. See id. at § 10.300(c).

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LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously considered
by OWCP; or (3) constitute relevant and pertinent new evidence not previously considered by
OWCP.25 To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
a claimant’s application for review must be received by OWCP within one year of the date of that
decision.26 When a claimant fails to meet one of the above standards, OWCP will deny the
application for reconsideration without reopening the case for review on the merits.27
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).
The issue is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3),
requiring OWCP to reopen the case for review of the merits of the claim.
In appellant’s March 6, 2017 request for reconsideration she argued that her claim met all
the criteria for acceptance as her pain developed after the accepted September 27, 2016
employment incident and she received timely medical attention. She did not show that OWCP
erroneously applied or interpreted a specific point of law, nor did she advance a new and relevant
legal argument not previously considered by OWCP. Consequently, appellant is not entitled to a
review of the merits of his claim based on the first and second above-noted requirements under
section 10.606(b)(3).
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered by OWCP. In support of her request, appellant resubmitted an
October 22, 2016 report from Dr. Cannon, which had already been considered in OWCP’s
February 24, 2017 decision. Evidence that repeats or duplicates evidence already in the case
record has no evidentiary value and does not constitute a basis for reopening a case.28
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or

25

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-0218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
26

Id. at § 10.607(a).

27

Id. at § 10.608(b). See Y.S., Docket No. 08-0440, issued March 16, 2009; Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
28
R.F., Docket No. 17-1877 (issued February 6, 2018); J.J., Docket No. 17-0614 (issued June 13, 2017);
Candace A. Karkoff, 56 ECAB 622 (2005).

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submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right forearm
injury causally related to the accepted September 27, 2016 employment incident. The Board
further finds that OWCP proper denied her request for reconsideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 7 and February 24, 2017 are affirmed.
Issued: August 9, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF AGRICULTURE, RURAL
DEVELOPMENT, Lebanon, PA, Employer
__________________________________________

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

Docket No. 07-2263
Issued: June 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 6, 2007 appellant, filed a timely appeal of the Office of Workers’
Compensation Programs’ hearing representative’s merit decision dated July 10, 2007 regarding
her wage-earning capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof in reducing appellant’s
compensation based on its determination that the constructed position of dispatcher represented
her wage-earning capacity effective February 19, 2006.
FACTUAL HISTORY
On June 30, 1997 appellant, then a 49-year-old clerk, filed an occupational disease claim
alleging that she developed carpel tunnel syndrome due to writing and typing in the performance
of duty. She underwent a right carpal tunnel release on July 29, 1997. The Office accepted
appellant’s claim for right carpal tunnel syndrome and right carpal tunnel surgical release. Her

attending physician, Dr. Alexander Kalenak, a Board-certified orthopedic surgeon, performed a
second carpal tunnel release on July 31, 1998. The Office referred appellant for a second
opinion evaluation with Dr. R.S. Mathew, a Board-certified orthopedic surgeon, who opined that
appellant could consider returning to light work. The Office found a conflict of medical
evidence and referred appellant to Dr. George Kent, a Board-certified orthopedic surgeon, for an
impartial medical examination. In a report dated June 16, 1999, Dr. Kent found that appellant
was totally disabled due to her recurrent carpal tunnel syndrome.
In a report dated May 31, 2001, Dr. Jeffrey J. Backenstoes, an osteopath and appellant’s
physician, noted appellant’s history of injury and diagnosed mild persistent right carpal tunnel
syndrome “with a great deal of pain.” He opined that appellant was totally disabled.
The Office referred appellant for a second opinion evaluation on October 29, 2003 with
Dr. Perry Eagle, a Board-certified orthopedic surgeon. In a report dated November 18, 2003,
Dr. Eagle noted appellant’s history of injury and medical history. He completed a work capacity
evaluation and found that she could work eight hours a day with restrictions.
The Office referred appellant for vocational rehabilitation counseling on
December 9, 2003. The vocational rehabilitation counselor closed appellant’s file on August 5,
2004 and opined that appellant was capable of performing the duties of a dispatcher which
entailed reading and recording the coded signals received in the central station of an electrical
protective signaling system. This position required sedentary physical demands lifting up to 10
pounds and the ability to reach, handle, finger, feel, talk, hear and see. The vocational
rehabilitation counselor determined that this position was being performed in sufficient numbers
within appellant’s commuting area by contacting the State Employment Service.
Dr. Kalenak examined appellant on May 26, 2004 and July 20, 2004 and diagnosed
bilateral carpal tunnel syndrome based on positive Tinel’s sign bilaterally and atrophy of the
thenar and hypothenar muscles. He noted that electromyography (EMG) and nerve conduction
velocity testing were compatible with entrapment neuropathy along the median nerve bilaterally.
In a letter dated September 30, 2004, the Office proposed to reduce appellant’s
compensation benefits based on her capacity to earn wages as a dispatcher. By decision dated
March 10, 2005, the Office reduced appellant’s compensation benefits based on her capacity to
earn the wages of a dispatcher effective March 20, 2005.
Appellant requested a review of the written record on March 24, 2005. On July 20, 2005
the hearing representative set aside the Office’s March 10, 2005 decision and remanded the case
for referral to an impartial medical examiner to resolve the conflict in medical opinion between
Drs. Backenstoes and Eagle.
The Office referred appellant for an impartial medical examination with Dr. Daniel P.
Hely, a Board-certified orthopedic surgeon, on October 6, 2005. On October 14, 2005 Dr. Hely
reviewed the statement of accepted facts and performed a physical examination. He reported
that appellant had positive Phalen’s test and negative Tinel’s test over the carpal tunnel on the
left and that both tests were positive on the right. Dr. Hely noted that appellant had limited twopoint discrimination in both hands. He reviewed the physical requirements of a dispatcher and

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opined that the position was within appellant’s work abilities. Dr. Hely provided appellant’s
work restrictions indicating that she could work eight hours a day, sitting for eight hours,
walking for six hours, standing for six hours and reaching for four hours as well as reaching
above the shoulder for four hours. He stated that appellant could perform minimal repetitive
movements of the wrist and elbow of up to 10 pounds. Dr. Hely found that appellant could push,
pull and lift up to 10 pounds for one to two hours a day.
In a letter dated November 2, 2005, the Office proposed to reduce appellant’s
compensation benefits based on her capacity to earn wages as a dispatcher. The Office stated,
“Please note, this calculation is subject to change when we receive and review your employing
agency’s response to our request for the current pay rate for the job, grade and step you held on
the date of injury, May 30, 1997.” Appellant disagreed with this proposal on November 14,
2005 and alleged that she was unable to peel potatoes. She submitted reports dated May 24,
July 26, October 18 and November 10, 2005 from Dr. Shirley Albano-Aluquin, a Boardcertified rheumatologist, diagnosing fibromyalgia, osteoarthritis and carpal tunnel syndrome and
opining that appellant was totally disabled due to active fibromyalgia and arthritis.
The Office requested a supplemental report from Dr. Hely on November 25, 2005
addressing whether appellant’s alleged inability to peel potatoes had any effect on his opinion
that she could perform the selected position of dispatcher. On January 3, 2005 Dr. Hely
responded noting that the difficulty of peeling a potato resulted from the need for a “power grip
and repetitive use of the hand and wrist.” He stated that this task would be demanding for
someone with appellant’s condition. However, Dr. Hely concluded that the job of dispatcher did
not require similar tasks and that appellant could function in this position without aggravating
her condition.
By decision dated January 12, 2006, the Office determined that the position of dispatcher
represented appellant’s wage-earning capacity and reduced her compensation benefits effective
February 19, 2006. The Office noted that the employing establishment had not yet provided
appellant’s pay rate information and that when that information was received, the necessary
adjustments would be made to her compensation benefits. The Office calculated appellant’s
wage-earning capacity based on the January 1, 2005 pay rate for the job she held when injured of
$546.00 and concluded that she was entitled to compensation every four weeks in the amount of
$32.78. The Office requested updated pay rate from the employing establishment on
January 12, 2006.
Dr. Hely submitted a report dated January 11, 2006 and stated that the normal tasks of the
dispatcher position were well within appellant’s abilities. He noted that while appellant was
having difficulty peeling a potato, this was a forceful activity and such forceful activities were
not required by the dispatcher position.
Appellant requested a review of the written record on February 6, 2006. She submitted
an EMG study which revealed abnormal electrodiagnositic testing of the right upper extremity
compatible with moderate carpal tunnel syndrome. In a report dated January 27, 2006,
Dr. Albano-Aluquin diagnosed bilateral carpal tunnel syndrome as well as osteoarthritis,
fibromyalgia, diabetes and depression. She stated, “There is no doubt in my mind that

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[appellant’s] current condition precludes her from getting any gainful employment at the present
time.”
The Office issued an “Amended Reduction of Compensation” on May 11, 2006. The
Office stated that the finding that appellant was capable of performing the position of dispatcher
remained unchanged; however, it reduced her compensation benefits based on the current pay
rate with locality pay for the Philadelphia area in appellant’s date-of-injury position at the
appropriate grade and step appellant held at the time of her injury. This reduction was effective
March 19, 2006. The Office listed appellant’s date-of-injury pay rate as $418.40 and the rate of
pay for that position effective January 2006 as $610.06. The Office determined that appellant
was entitled to compensation for a loss of wage-earning capacity of $106.75 per week.1
By decision dated July 24, 2006, the hearing representative affirmed the January 12, 2006
wage-earning capacity determination. Appellant requested review of this decision by the Board.
In an Order Remanding Case dated March 13, 2007,2 the Board remanded the case for the
hearing representative to consider the May 11, 2006 amended decision of the Office. By final
decision dated July 10, 2007, the hearing representative affirmed the January 12 and May 11,
2006 decisions finding that the Office had properly determined appellant’s ability to perform the
duties of the selected position of dispatcher and that the current pay rate computed on May 11,
2006 was correct.3
LEGAL PRECEDENT
Under section 8115(a) of the Federal Employees’ Compensation Act,4 in determining
compensation for partial disability, the wage-earning capacity of an employee is determined by
actual earnings if actual earnings fairly and reasonable represent the wage-earning capacity.
Generally wages actually earned are the best measure of a wage-earning capacity and, in the
absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity must be accepted as such measure.5 If the actual earnings do
not fairly and reasonably represent his or her wage-earning capacity, or if the employee has no
actual earnings, his or her wage-earning capacity is determined with due regard to the nature of
the injury, the degree of physical impairment, his or her usual employment, age, qualifications

1

The record indicates that appellant thanked the claims examiner for the additional compensation.

2

Docket No. 06-1854 (issued March 13, 2007).

3

The hearing representative issued a similar decision on July 5, 2007 which contained a typographical error
regarding the name of appellant’s physician, Dr. Albano-Aluquin. She corrected this error in the July 10, 2007
decision. Following the hearing representative’s July 10, 2007 decision, appellant submitted additional new
evidence. As the Office did not consider this evidence in reaching a final decision, the Board may not review the
evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).
4

5 U.S.C. §§ 8101-8193, § 8115(a).

5

Selden H. Swartz, 55 ECAB 272 (2004).

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for other employment, the availability of suitable employment and other factors and
circumstances which may affect wage-earning capacity in his or her disability condition.6
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick,7 and codified section 10.403(d) of the Office’s
regulations8 will result in the percentage of the employee’s loss of wage-earning capacity.
ANALYSIS
Appellant’s attending physicians, Dr. Kalenak, a Board-certified orthopedic surgeon, and
Dr. Blackenstoes, an osteopath, opined that appellant was totally disabled for work. The Office
referred appellant to Dr. Eagle, a Board-certified orthopedic surgeon, for a second opinion
evaluation. Dr. Eagle determined that appellant was capable of light-duty work with restrictions.
To resolve this conflict of medical opinion evidence, the Office referred appellant to Dr. Hely, a
Board-certified orthopedic surgeon.9
Dr. Hely based his report on the statement of accepted facts and his physical examination
of appellant. He noted that she had continued signs and symptoms of carpal tunnel syndrome,
but found that the selected position of dispatcher was within appellant’s work abilities. Dr. Hely
provided work restrictions which encompassed the duties of a dispatcher. In response to the
Office’s request for a supplemental report, he addressed appellant’s concerns regarding her
inability to peel potatoes and explained why this activity would be more challenging to appellant
than the requirements of a dispatcher. It is well established that, when a case is referred to an
impartial medical specialist for the purpose of resolving a conflict, the opinion of such specialist,
if sufficiently well rationalized and based on proper factual and medical background must be
given special weight.10 The Board finds that Dr. Hely’s reports are entitled to special weight.
He provided detailed physical findings and extensive review of appellant’s physical abilities in
6

Harley Sims, Jr., 56 ECAB 320, 323 (2005).

7

5 ECAB 376 (1953).

8

20 C.F.R. § 10.403(d).

9

The Act provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make an
examination. 5 U.S.C. §§ 8101-8193, 8123. The implementing regulation states that, if a conflict exists between the
medical opinion of the employee’s physician and the medical opinion of either a second opinion physician of an
Office medical adviser or consultant, the Office shall appoint a third physician to make an examination. This is
called a referee examination and the Office will select a physician who is qualified in the appropriate specialty and
who has had no prior connection with the case. 20 C.F.R. § 10.321.
10

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

5

his reports. Dr. Hely reasoned that appellant was capable of performing the duties of a
dispatcher despite her continuing medical residuals and work restrictions due to her accepted
employment injury.
Following Dr. Hely’s reports, appellant submitted a series of reports from Dr. AlbanoAluquin, a Board-certified rheumatologist, who diagnosed carpal tunnel syndrome as well as
fibromyalgia and osteoarthritis. Dr. Albano-Aluquin opined that appellant was totally disabled
due to the conditions of fibromyalgia and arthritis. These reports are not sufficient to overcome
the special weight accorded Dr. Hely’s reports or to create a new conflict. Dr. Albano-Aluquin
did not opine that appellant was totally disabled due to the accepted condition of carpal tunnel
syndrome and did not provide a detailed analysis of the tasks of dispatcher that appellant could
not perform due to her accepted employment-related condition.
The Office properly determined that appellant was capable of work based on the reports
of Dr. Hely, and properly relied upon the vocational rehabilitation counselor’s determination that
the position of dispatcher was within appellant’s education, age and prior experience. The
vocational rehabilitation counselor also determined that this position was reasonably available
through contact with the state employment service. Finally, the Office properly determined
appellant’s percentage of wage-earning capacity based on the best available source of the current
wages for her date-of-injury position.
CONCLUSION
The Board finds that the Office properly determined that the position of dispatcher
represented appellant’s wage-earning capacity.

6

ORDER
IT IS HEREBY ORDERED THAT the July 10, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 14-264
Issued: April 15, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On November 20, 2013 appellant filed a timely appeal from a September 27, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) finding that she received a
$1,179.41 overpayment of compensation and that she was not entitled to waiver of the
overpayment.1 The appeal was docketed as No. 14-264.
The Board has reviewed the case and finds that it is not in posture for decision. In a
June 17, 2013 letter, OWCP notified appellant of its preliminary determination that she received
a $1,179.41 overpayment of compensation because she continued to receive total disability
compensation after she returned to work on April 27, 2013 for one hour per day. It also
informed her of its preliminary determination that she was without fault in creating the
overpayment. OWCP further advised appellant that she could request, within 30 days, a
telephone conference with OWCP, a final decision based on the written evidence or a
prerecoupment hearing before the Branch of Hearings and Review. In an overpayment action
request form, received by OWCP on July 2, 2013, appellant requested a telephone conference
with OWCP regarding the preliminary determination. She checked a box indicating that she
1

OWCP accepted that on November 17, 2012 appellant, a mail processing clerk, sustained several right foot and
ankle injuries, including contusions, abrasions, tenosynovitis and Achilles tendinitis. She received total disability
compensation on the periodic rolls.

believed the overpayment occurred through no fault of her own and that she was requesting
waiver of recovery of the overpayment. In a September 27, 2013 decision, OWCP finalized its
preliminary determinations that appellant received a $1,179.41 overpayment of compensation
and that she was without fault in the creation of the overpayment. It further found, without
explanation, she was not entitled to waiver of the overpayment.2
OWCP is required to follow certain procedures in overpayment cases. Section 10.431 of
FECA’s implementing regulations provides that, before seeking recovery of an overpayment,
OWCP will advise a claimant in writing that the overpayment exists and the amount of the
overpayment.3 The written notification must include a preliminary finding regarding whether the
individual was at fault in the creation of the overpayment.4 Additionally, OWCP is obliged to
advise the individual of his or her right to inspect and copy the government records relating to
the overpayment.5 Lastly, the preliminary notice must inform the individual of his or her right to
challenge the fact or amount of the overpayment, the right to contest the preliminary finding of
fault in the creation of the overpayment, if applicable, and the right to request a waiver of
recovery of the overpayment.6
On June 17, 2013 OWCP informed appellant of its preliminary determinations that she
received a $1,179.41 overpayment of compensation and that she was without fault in the creation
of the overpayment. It notified her of her procedural rights, including the right to request a
telephone conference within 30 days. On July 2, 2013 appellant made a timely request for a
telephone conference and submitted an overpayment recovery questionnaire. OWCP, however,
did not conduct a telephone conference before issuing its final overpayment decision. Therefore,
appellant was not provided the opportunity to provide testimonial evidence regarding the alleged
overpayment.7
The Board finds that this case is not in posture for a decision with regard to the
overpayment of compensation and the case will be remanded for a timely proper response to
appellant’s request for a telephone conference. Following this and such other development as
deemed necessary, OWCP shall issue an appropriate decision.

2

OWCP stated, “You are without fault in the overpayment however you have not provided information to refute
the amount of the overpayment or the finding of without fault. A waiver could not be considered at this present
time.”
3

20 C.F.R. § 10.431(a).

4

Id. at § 10.431(b).

5

Id. at § 10.431(c).

6

20 C.F.R. § 10.431(d).

7

See Scherrie L. Stanley, 53 ECAB 433 (2002).

2

IT IS HEREBY ORDERED THAT the September 27, 2013 decision of the Office of
Workers’ Compensation Programs be set and the case remanded to OWCP for further
development consistent with this order of the Board.
Issued: April 15, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


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

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0349
Issued: October 18, 2019

Case Submitted on the Record

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

JURISDICTION
On December 3, 2018 appellant, through counsel, filed a timely appeal from a June 11,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the June 11, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not b e considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective October 17, 2017, due to her
refusal of an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On March 25, 2016 appellant, then a 56-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she sustained a low back injury when picking up
three heavy parcels while in the performance of duty. OWCP accepted the claim for lumbar spinal
stenosis and lumbar radiculitis. It paid appellant wage-loss compensation on the supplemental
rolls from May 16, 2016 to March 4, 2017, and on the periodic rolls beginning March 5, 2017.
On January 16, 2017 OWCP referred appellant to Dr. Leon Sultan, a Board-certified
orthopedic surgeon, to determine whether she continued to have residuals and disability related to
her accepted March 25, 2016 employment injury.
In a January 31, 2017 report, Dr. Sultan diagnosed post-traumatic lumbar strain/sprain,
preexisting lower lumbar spondylolisthesis, and preexisting lower lumbar degenerative disc
disease. He reviewed appellant’s medical records, and a statement of accepted facts (SOAF).
Dr. Sultan related that her physical examination findings revealed reduced lumbar range of motion,
negative bilateral straight leg testing, negative bilateral Trendelenburg test, bilateral sacroiliac joint
nontender on palpation, and intact toe and heel standing. He opined that appellant continued to
have residuals of the accepted lumbar radiculitis and lumbar spinal stenosis, but was capable of
working with restrictions. Dr. Sultan further opined that she was disabled from performing the
duties of a letter carrier, but could perform sedentary work with no carrying or lifting more than
20 pounds with both hands. He indicated the restrictions he noted were temporary and that he
expected appellant would be able to resume full work with no restrictions by mid-March 2017.
In a March 15, 2017 office visit note, Dr. Cheryl Daves, a Board-certified physiatrist and
pain medicine physician, related appellant’s history of injury and provided examination findings.
She opined the appellant was currently disabled from work due to her employment injury.
On March 31, 2017 the employing establishment offered appellant a modified city carrier
position for eight hours per day in accordance with the work restrictions set by Dr. Sultan. The
physical requirements of the position included up to eight hours of lifting, pulling, and pushing up
to 20 pounds with both hands. The employing establishment listed duties of one to two hours of
casing mail, one to six hours of intermittent delivering mail on foot and by vehicle, and one to six
hours of delivering parcels weighing up to 20 pounds.
On April 5, 2017 appellant declined the offered position. She explained that her refusal
was based on her physician’s opinion that she was totally disabled from work.
On April 17, 2016 OWCP received duty status reports (Form CA-17) dated March 17 and
April 10, 2015 from Dr. Daves which related that appellant was totally disabled from work.

2

Dr. Daves, in an April 10, 2017 report, diagnosed lumbar spondylosis without myelopathy
or radiculopathy. Physical examination findings and medical history were detailed. Dr. Daves
opined that appellant could not return to work due to the pain medication appellant was using.
In a letter dated April 28, 2017, OWCP requested that Dr. Sultan review appellant’s
modified city carrier job offer and provide an opinion on whether appellant was capable of
performing the offered position.
Dr. Sultan, in a supplemental report dated May 2, 2017, opined that the duties in the
modified job offer were appropriate for appellant and that her current medication would not impact
her ability to perform this position.
In a second addendum dated May 17, 2017, Dr. Sultan noted review of additional
documents and again opined that duties of the offered position were suitable. He further noted
that her medication would not impact her ability to perform the offered position. Dr. Sultan
explained that given the examination findings of negative bilateral straight leg raising and low
grade lumbar spine restriction, and lack of objective evidence confirming a positive Patrick testing,
appellant was capable of casing and sorting, delivering mail and parcels, and up to 20 pounds of
lifting, pushing, and pulling with both hands.
Dr. Daves, in a May 31, 2017 Form CA-17, continued to opine that appellant was totally
disabled from work. She explained that appellant’s lumbar facet blocks prevented her from
performing the offered position.
In a report dated June 26, 2017, Dr. Daves detailed physical examination findings and
diagnosed lumbar spondylosis or radiculopathy and lumbar spinal stenosis. She again noted that
the required lumbar facet blocks rendered appellant unable to perform the duties of the offered
position. Dr. Daves opined that appellant’s lumbosacral axial pain was consistent with facet joint
arthropathy.
By preliminary notice dated July 5, 2017, OWCP advised appellant that it found the
employing establishment’s job offer was suitable since it was in accordance with the job
limitations prescribed by Dr. Sultan. It notified her of the provisions of 5 U.S.C. § 8106(c)(2) and
advised that her wage-loss compensation and schedule award benefits could be terminated if she
refused suitable work. OWCP indicated that the case record would be held open for 30 days for
submission of additional evidence.
In a July 24, 2017 attending physician’s report (Form CA-20), Dr. Daves diagnosed lumbar
spondylosis without myelopathy and lumbar spinal stenosis. She again opined that appellant was
totally disabled on and after March 25, 2016.
By notice dated September 15, 2017, OWCP advised appellant that her refusal of the
offered modified city carrier position was not justified. It afforded her 15 additional days to accept
the offered position. Appellant did not accept the offered position.
By decision dated October 17, 2017, OWCP terminated appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective that date, as she refused an
offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It found that Dr. Sultan’s reports

3

constituted the weight of the medical opinion evidence regarding appellant’s work tolerances and
limitations.
In an October 18, 2017 report, Dr. Daves reiterated examination findings and diagnoses
from prior reports. She noted treatment provided included bilateral lumbar facet blocks and lumbar
radiofrequency ablation. Dr. Daves completed a Form CA-17 on October 17 and December 18,
2017, again relating that appellant was totally disabled from work.
In reports dated December 18, 2017 and January 22, 2018, Dr. Arash Yadegar, a Boardcertified physiatrist and pain medicine physician, diagnosed lumbosacral spondylosis without
radiculopathy or myelopathy and chronic low back pain with sciatica. Physical examination
findings included left and right lumbar paraspinal spasms and tenderness, diminished thoracic and
lumbar range of motion, stiffness and pain on bending both sides, and normal bilateral lower
extremities motor and tone.
A January 29, 2018 Form CA-17 from Dr. Daves again related that appellant was totally
disabled from work.
On March 3, 2018 appellant, through counsel, requested reconsideration and submitted a
November 27, 2017 report from Dr. Daves in support of the request. In this report, Dr. Daves
discussed her request for authorization of bilateral lumbar radiofrequency ablation of L3-5.
By decision dated June 11, 2018, OWCP denied modification.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s compensation benefits. 4 Section 8106(c) of FECA
provides in pertinent part, “a partially disabled employee who (2) refuses or neglects to work after
suitable work is offered ... is not entitled to compensation.”5 It is OWCP’s burden of proof to
justify termination of compensation under section 8106(c) due to refusal of suitable work or
neglecting to perform suitable work. 6 The implementing regulations provide that an employee
who refuses or neglects to work after suitable work has been offered or secured for the employee
has the burden of showing that such refusal or failure to work was reasonable or justified and shall
be provided with the opportunity to make such a showing before entitlement to compensation is
terminated.7
To support termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of his/her refusal to accept such employment. 8 In
4

T.M., Docket No. 18-1368 (issued February 21, 2019).

5

5 U.S.C. § 8106(c).

6

P.P., Docket No. 18-1232 (issued April 8, 2019); Joyce M. Doll, 53 ECAB 790 (2002).

7

20 C.F.R. § 10.517(a).

8

P.P., supra note 6; Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon.,
43 ECAB 818 (1992).

4

determining what constitutes suitable work for a particular disabled employee, it considers the
employee’s current physical limitations, whether the work is available within the employee’s
demonstrated commuting area, the employee’s qualifications to perform such work and other
relevant factors.9 OWCP’s procedures provide that acceptable reasons for refusing an offered
position include withdrawal of the offer or medical evidence of inability to do the work or travel
to the job.10 Section 8106(c) will be narrowly construed as it serves as a penalty provision which
may bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer
of employment.11 It is well established under this section of FECA, OWCP must consider both
preexisting and subsequently-acquired conditions in the evaluation of the suitability of an offered
position.12
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective October 17, 2017, due to her
refusal of an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
OWCP accepted the claim for lumbar spinal stenosis and lumbar radiculitis. In order to
determine whether appellant continued to have residuals and disability due to the accepted
March 25, 2016 employment injury, on January 16, 2017, it referred her for a second opinion
evaluation with Dr. Sultan. In his January 31, 2017 report, Dr. Sultan concluded that she continued
to experience residuals of her accepted lumbar radiculitis and lumbar spinal stenosis, but that she
was capable of working with restrictions. He limited appellant to sedentary work with no carrying
or lifting more than 20 pounds with both hands. On March 31, 2017 the employing establishment
offered appellant a modified city carrier job, working eight hours per day in accordance with the
restrictions noted by Dr. Sultan. The physical restrictions of the position included up to eight hours
of lifting, pulling, and pushing up to 20 pounds with both hands. The employing establishment
listed duties of one to two hours of casing mail, one to six hours of intermittent delivering mail on
foot and by vehicle, and one to six hours of delivering parcels weighing up to 20 pounds.
Dr. Sultan provided a well-reasoned medical opinion based on a complete medical background
and objective findings.13
The Board finds that OWCP properly accorded the weight of medical opinion to the reports
of Dr. Sultan who opined that while appellant continued to have residuals of the accepted
March 25, 2016 employment injury, she was capable of working with restrictions. Dr. Sultan
based his opinion on a proper factual and medical history. He also provided appropriate physical
examination findings and medical rationale for his opinion regarding her work limitations and
ability to return to work. The Board finds that Dr. Sultan provided a well-rationalized opinion
based on the medical evidence of record regarding her accepted March 25, 2016 employment
9

20 C.F.R. § 10.500(b); see P.P., id.; Ozine J. Hagan, 55 ECAB 681 (2004).

10

Federal (FECA) Procedure Manual, Part -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5(a) (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
11

P.P., supra note 6; Gloria G. Godfrey, 52 ECAB 486 (2001).

12

P.P., id.; Richard P. Cortes, 56 ECAB 200 (2004).

13

S.E., Docket No. 17-0222 (issued December 21, 2018).

5

injury. OWCP properly relied on his reports to determine appellant’s work restrictions and to
determine that the offered position was suitable. 14
Prior to and subsequent to the suitable work offer, appellant submitted a number of medical
reports from Dr. Daves who opined that appellant was totally disabled from work. In support of
this conclusion, she indicated that the pain medication and the lumbar facet blocks used to treat
appellant prevented her from performing the offered position. However, Dr. Daves offered no
supporting rationale explaining why appellant’s medication or the lumbar block procedures
rendered appellant totally disabled from work. The Board has held that a medical report is of
limited probative value on a given matter if it contains a conclusion which is unsupported by
medical rationale.15 As such, Dr. Daves’ reports are of limited probative value regarding
appellant’s ability to perform the offered position. OWCP requested that Dr. Sultan address
whether appellant’s medication or lumbar facet block procedures would impact her ability to
perform the offered position and he explained that they would have no impact.
Following the termination of appellant’s compensation benefits, OWCP received reports
dated December 18, 2017 and January 22, 2018, from Dr. Yadegar. Dr. Yadegar provided
examination findings and diagnosed lumbosacral spondylosis without radiculopathy or
myelopathy and chronic low back pain with sciatica. After OWCP established that the offered
position was suitable, the burden of proof shifted to appellant to establish that her refusal was
reasonable or justified. 16 Dr. Yadegar did not, however, address the relevant issue of whether
appellant was capable of performing the duties of the offered position, as of October 17, 2017.
Therefore, his opinion is of little probative value. 17
As the reports of Dr. Sultan carry the weight of the medical evidence, the Board finds that
OWCP has met its burden of proof to terminate appellant’s wage-loss compensation and
entitlement to schedule award compensation.
On appeal counsel asserts that OWCP erred in terminating appellant’s compensation
pursuant to section 8106(c) as there is an unresolved conflict in the medical opinion evidence
between Dr. Sultan and appellant’s treating physicians. For a conflict to arise the opposing
physicians’ viewpoints must be of “virtually equal weight and rationale.”18 OWCP properly found
that no conflict existed in the medical opinion evidence, as the reports from appellant’s treating
physicians were not of equal weight with those of Dr. Sultan. It therefore properly accorded weight
of the evidence to Dr. Sultan’s opinion when invoking section 8106(c).

14

A.F., Docket No. 16-0393 (issued June 24, 2016).

15

S.E., supra note 13; C.M., Docket No. 14-0088 issued April 18, 2014).

16

See J.R., Docket No. 18-1532 (issued April 8, 2019).

17

R.R., Docket No. 19-0173 (issued May 2, 2019).

18

See S.T., Docket No. 18-1144 (issued August 9, 2019).

6

CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective October 17, 2017, due to her
refusal of an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the June 11, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 18, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, WAKEFIELD
STATION POST OFFICE, Bronx, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1339
Issued: September 15, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 26, 2020 appellant, through counsel, filed a timely appeal from a January 9, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the January 9, 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.

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective January 9, 2020.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On December 6, 2016 appellant, then a 43-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 26, 2016 she experienced pain in her lower back,
hips, and thighs when standing in the lobby assisting customers while in the performance of duty.
She explained that she was assisting customers to pack their boxes and complete forms needed for
shipping or mailing. Appellant stopped work on November 27, 2016 and has not returned. On the
reverse side of the claim form, the employing establishment indicated that she was not injured in
the performance of duty, noting that there was no way she could have injured her back while
assisting a customer.
By decision dated January 25, 2017, OWCP denied appellant’s traumatic injury claim. It
found that she had not submitted rationalized medical evidence establishing causal relationship
between her diagnosed back conditions and the accepted employment incident.
On February 22, 2017 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
By decision dated August 11, 2017, OWCP’s hearing representative affirmed the
January 25, 2017 decision. She noted that the newly submitted evidence did not sufficiently
explain how the November 26, 2016 work incident caused an injury or what effect it had on
appellant’s preexisting back condition.
On July 31, 2018 appellant, through counsel, requested reconsideration.
By decision dated October 26, 2018, OWCP denied modification of its August 11, 2017
decision. It found that the newly submitted medical evidence failed to differentiate between the
effects of standing and walking in the lobby and appellant’s preexisting conditions. Therefore, the
medical evidence failed to support that the diagnosed medical conditions were caused or
aggravated by the work-related event of standing and walking in the lobby.
Following OWCP’s October 26, 2018 decision, OWCP received progress reports from
Dr. John Mitamura, a Board-certified orthopedic surgeon, dated October 10, November 7, and
December 13, 2018 and January 23, February 26, and March 28, 2019. Dr. Mitamura diagnosed
lumbar spine instability with radiculopathy and opined that appellant was totally disabled from
work. Additional treatment modalities were also requested.

4

Docket No. 19-0322 (issued July 18, 2019).

2

On November 26, 2018 appellant filed a timely appeal to the Board. By decision dated
July 18, 2019,5 the Board set aside OWCP’s October 26, 2018 decision and remanded the case for
further development. The Board found that, while Dr. Mitamura’s reports were not completely
rationalized and were insufficient to meet appellant’s burden of proof to establish her claim, they
were consistent in indicating that she sustained a back injury on November 26, 2018 while
assisting a customer in a standing position and raised an uncontroverted inference between her
diagnosed back conditions and the work-related incident. The Board concluded that the evidence
of record was sufficient to require OWCP to further develop the medical evidence.
Following the Board’s decision, appellant submitted electromyogram and nerve
conduction velocity (EMG/NCV) studies dated September 15, 2005, November 24, 2014, and
March 21, 2016. The 2005 study was consistent with L5-S1 radiculopathy on the right side. The
2014 and 2016 studies documented mild-to-moderate nerve root compromise of the bilateral L5
and S1 nerve roots with spondylolysis at L4-5.
On August 7, 2019 OWCP prepared a statement of accepted facts (SOAF) and referred
appellant, along with a series of questions and the case record, to Dr. Sean Lager, a Board-certified
orthopedic surgeon, for a second opinion evaluation.
In a September 18, 2019 report, Dr. Lager noted that appellant had both prior work and
nonwork-related injuries. Based on her prior back injuries, appellant sustained a temporary
aggravation to a preexisting lumbar condition. Based on his examination, Dr. Lager found that the
aggravation had ceased as his objective findings and subjective complaints did not correlate to a
lumbar issue. Rather, appellant appeared to be disabled due to nonwork-related medical
conditions. Dr. Lager opined that she could return to work in a light-duty capacity with a 10-to
20-pound lifting restriction as she had disc herniation with spondylosis and limited motion and
strength on examination. He also opined that no further medical treatment was indicated. In his
October 18, 2019 Form OWCP-5c, Dr. Lager diagnosed disc herniation with spondylosis and
opined that appellant was restricted to pushing, pulling, and lifting no more than 20 pounds for
two hours and that the restrictions would apply for five months.
On November 6, 2019 OWCP requested clarification of Dr. Lager’s report regarding his
answers to OWCP’s posed questions. In a November 27, 2019 addendum, Dr. Lager indicated
that appellant’s prior injuries accounted for her current condition. He noted that the December 15,
2005 magnetic resonance imaging (MRI) scan report of the lumbar spine showed a protruded disc
herniation posteriorly at the L5-S1 level, which preexisted the November 26, 2016 work injury,
which was a temporary aggravation and which had resolved. Dr. Lager advised that appellant was
disabled due to her prior reported conditions based on the medical evidence provided. Proposed
medical treatment was not medically necessary as it related to the November 26, 2016 work
incident. Dr. Lager opined that, since the temporary aggravation had resolved, appellant could
return to a modified city carrier job with lifting restrictions of 20 pounds and frequent sitting
breaks.
By decision dated January 9, 2020, OWCP accepted appellant’s claim for temporary
aggravation of lumbar herniated disc at L5-S1, resolved as of September 18, 2019. The weight of
the medical evidence was accorded to Dr. Lager’s September 18 and November 27, 2019 reports
that the accepted work incident of November 26, 2016 caused a temporary aggravation of her
5

Id.

3

preexisting lumbar herniation at L5-S1, resolved by the date of his September 18, 2019
examination. It terminated wage-loss compensation and medical benefits for the temporary
aggravation of lumbar herniated disc at L5-S1 effective January 9, 2020.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.6 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment
injury.7 OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background. 8
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability. 9 To terminate authorization for medical treatment,
OWCP must establish that the employee no longer has residuals of an employment-related
condition that require further medical treatment. 10
The Federal (FECA) Procedure Manual provides that the findings of an OWCP referral
physician or impartial medical specialist must be based on the factual underpinnings of the claim,
as set forth in the SOAF. 11 When OWCP’s referral physician or impartial medical specialist does
not use the SOAF as the framework in forming his or her opinion, the probative value of the
opinion is diminished or negated altogether. 12
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 9, 2020.
Preliminarily, the Board notes that it is unnecessary for it to consider the evidence appellant
submitted prior to the issuance of OWCP’s October 26, 2018 decision because the Board

6
S.P., Docket No. 19-0196 (issued June 24, 2020); D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59
ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
7

See S.P., id.; R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989);
Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
8

D.G., supra note 6; M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 29596 (1988).
9

S.P., supra note 6; J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued
February 27, 2019).
10
D.G., supra note 6; L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued
February 5, 2019).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.1
(September 2009).
12

Id. at Chapter 3.600.3(10) (October 1990).

4

considered that evidence in its July 18, 2019 decision. Findings made in prior Board decisions are
res judicata absent any further review by OWCP under section 8128 of FECA.13
Following the Board’s remand decision, OWCP accepted temporary aggravation of lumbar
herniated disc at L5-S1, resolved as of September 18, 2019, based on Dr. Lager’s September 18
and November 27, 2019 reports and terminated appellant’s wage-loss compensation and medical
benefits, effective January 9, 2020.
In his September 18 and November 27, 2019 reports, second opinion physician Dr. Lager
opined that appellant was disabled from work due to nonwork-related medical conditions. In
finding that the temporary aggravation of lumbar herniated disc at L5-S1 had resolved as of
September 18, 2019, he indicated that she had a preexisting disc herniation with spondylosis and
that there was limited motion and strength on examination. Dr. Lager then provided temporary
lifting restrictions for the disc herniation with spondylosis. He opined that appellant’s objective
findings and subjective complaints did not correlate to a lumbar issue and no further medical
treatment was indicated.
The Board finds that Dr. Lager’s opinion is not sufficiently rationalized to carry the weight
of the medical evidence. 14 Dr. Lager’s opinion does not provide a rationalized medical
explanation, based on objective medical evidence, that appellant’s temporary aggravation of
lumbar herniated disc at L5-S1 had resolved as of September 18, 2019. He provided no specific
discussion explaining findings to substantiate his conclusion that her preexisting back condition
had resolved to baseline such that the objective findings noted and temporary restrictions provided
were solely related to the preexisting lumbar herniated disc at L5-S1 and not to the accepted
temporary aggravation of her preexisting lumbar spine condition. This lack of rationale casts doubt
on Dr. Lager’s understanding of the facts of appellant’s claim.15 His opinion that appellant could
return to modified work with temporary restrictions due to a nonwork-related lumbar condition
was conclusory without sufficient medical rationale to support his findings. 16 Furthermore, given
Dr. Lager’s failure to discuss the accepted November 26, 2016 work incident, his opinion is,
therefore, of diminished probative value regarding OWCP’s termination of appellant’s medical
benefits.17
The Board, therefore, finds that OWCP did not meet its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits, effective January 9, 2020.

13

See J.G., Docket No. 19-0937 (issued October 2, 2019); see B.B., Docket No. 17-0294 (issued May 11, 2018).

14

See G.Y., Docket No. 19-1683 (issued March 16, 2021); M.R., Docket No. 17-0634 (issued July 24, 2018).

15

S.R., Docket No. 19-1229 (issued May 15, 2020).

16

Id.

17

P.E., Docket No. 19-0837 (issued October 20, 2020).

5

CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 9, 2020.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 15, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, INDIAN HEALTH SERVICE,
ALASKA AREA NATIVE HEALTH SERVICE,
Sitka, AK
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Sara Kincaid, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0028
Issued: September 3, 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 October 5, 2020 appellant, through counsel, filed a timely appeal from a July 29, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the July 29, 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.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $101,944.10, for which she was without fault, as
she concurrently received Social Security Administration (SSA) age-related retirement benefits
and FECA wage-loss compensation for the period June 1, 2009 through July 20, 2019 without
appropriate offset; and (2) whether OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On April 5, 2004 appellant, then a 56-year-old medical technician, filed a traumatic injury
claim (Form CA-1) alleging that on April 1, 2004, she sustained a back injury when drawing blood
from an infant while in the performance of duty. OWCP initially accepted the claim for lumbar
strain, and later expanded its acceptance of the claim to include permanent aggravation of facet
arthropathy, lumbar degenerative spondylosis at L4-5 and L5-S1, and radiculopathy of the left
lower extremity. Appellant stopped work on March 5, 2007. OWCP paid her wage-loss
compensation on the supplemental rolls as of March 11, 2007 and on the periodic rolls as of
July 8, 2007.
On May 29, 2013 OWCP provided SSA with a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form for its completion. On July 3, 2013 it received a
FERS/SSA dual benefits calculation transmittal form indicating appellant’s SSA benefit rates with
a FERS offset and without a FERS offset from June 2009 through December 2012. Beginning
June 2009, December 2009, and December 2010, the SSA rate with FERS was $1,045.60 and
without FERS was $433.00. Beginning December 2011, the SSA rate with FERS was $1,083.20
and without FERS was $448.50. Beginning December 2012, the SSA rate with FERS was
$1,101.60 and without FERS was $456.10.
On June 1, 2018 OWCP provided SSA with a FERS/SSA dual benefits calculation form
for its completion, but no response was received. On June 3, 2019 it again provided SSA with a
FERS/SSA dual benefits calculation form for its completion.
On June 24, 2019 OWCP received the FERS/SSA dual benefits transmittal form indicating
SSA benefit rates with a FERS offset and without a FERS offset from June 2009 through
December 2018. Beginning June 2009, December 2009, and December 2010, the SSA rate with
FERS was $1,045.60 and without FERS was $454.60. Beginning December 2011, the SSA rate
with FERS was $1,083.20 and without FERS was $471.00. Beginning December 2012, the SSA
rate with FERS was $1,101.60 and without FERS was $479.00. Beginning December 2013, the
SSA rate with FERS was $1,482.70 and without FERS was $486.20. Beginning December 2014
and December 2015, the SSA rate with FERS was $1,507.90 and without FERS was $494.40.
Beginning December 2016, the SSA rate with FERS was $1,512.40 and without FERS was
$495.80. Beginning December 2017, the SSA rate with FERS was $1,542.60 and without FERS
was $505.70. Beginning December 2018, the SSA rate with FERS was $1,585.70 and without
FERS was $519.80.
By letter dated July 30, 2019, OWCP notified appellant that, based on information
provided by SSA regarding the amount of her age-related retirement benefits attributable to her
federal service, it had adjusted her FECA wage-loss compensation and that she would now receive
$2,460.09 every 28 days after the SSA offset.
2

In a worksheet dated July 29, 2019, OWCP calculated a total overpayment of $101,944.10
for the period June 1, 2009 through July 20, 2019 due to its failure to apply the SSA/FERS offset
to her wage-loss compensation for that period.
In a preliminary determination notice dated August 8, 2019, OWCP informed appellant
that she had received an overpayment of compensation in the amount of $101,944.10 because the
SSA/FERS offset was not applied to payments for the period June 1, 2009 through July 20, 2019.
It determined that she was without fault in the creation of the overpayment, because OWCP erred
in not calculating her SSA/FERS offset and deducting the offset from her monthly compensation
payments and it was not shown that she had actual knowledge of the calculation error. With its
preliminary determination, OWCP provided a worksheet that used the figures provided by SSA
noting each period of overpayment and providing calculations, resulting in a total overpayment
amount of $101,944.10 for the period June 1, 2009 through July 20, 2019. OWCP requested that
appellant submitted a completed overpayment recovery questionnaire (Form OWCP -20) to
determine a reasonable repayment method, and advised her that she could request a waiver of
recovery of the overpayment. It requested financial information, including copies of income tax
returns, bank account statements, bills, pay slips, and any other records to support income and
expenses. OWCP advised appellant that it would deny waiver if she failed to furnish the requested
financial information within 30 days. It further notified her that, within 30 days of the date of the
letter, she could contest the overpayment and request a telephone conference, a final decision based
on the written evidence, or a prerecoupment hearing.
On August 19, 2019 appellant requested a telephonic prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review. She contested the fact and amount of
the overpayment and requested waiver of recovery of the overpayment.
On August 26, 2019 appellant submitted a completed Form OWCP-20 and reported the
income she received from SSA benefits, FECA benefits, her spouse’s employment income, and
rental income, household monthly income was listed as totaling $11,448.09. Appellant also listed
specific expense amounts for her monthly rent/mortgage, food, clothing, utilities, and other
expenses, as well as debts being paid by monthly installments, monthly expenses were listed as
totaling $8,033.73. Assets were listed as totaling $183,266.17. On January 14, 2020 appellant
submitted supporting financial documentation regarding her reported income, expenses, assets,
and debts.
A hearing was held on December 12, 2019.4
By decision dated February 12, 2020, the hearing representative finalized the preliminary
determination notice dated August 8, 2019, finding that appellant had received an overpayment of
compensation in the amount of $101,944.10 because the FERS offset was not applied to payments
for the period June 1, 2009 through July 20, 2019. The representative further found that she was
without fault in the creation of the overpayment, but denied waiver of recovery of the overpayment .
The hearing representative required recovery of the overpayment by monthly payments of $900.00
with interest.

4

By decision dated February 4, 2020, OWCP terminated appellant’s wage-loss compensation benefits. Appellant’s
claim remained open for payment of medical benefits.

3

By decision dated February 19, 2020, OWCP finalized its determination that appellant had
received an overpayment of compensation in the amount of $101,944.10 because the FERS offset
was not applied to payments for the period June 1, 2009 through July 20, 2019. It further found
that she was without fault in the creation of the overpayment, but denied waiver of recovery of the
overpayment. OWCP required recovery of the overpayment by monthly payment of $900.00. It
noted that interest would begin to accrue as of the debt of the letter at the rate of the U.S. Treasury
Note.
On May 20, 2020 appellant, through counsel, requested a change in her repayment plan for
the overpayment due to loss of rental income.
By decision dated July 20, 2020, a hearing representative noted that section 8128 of FECA
provided that the Secretary of Labor, or his or her designee, may review an award for or against
payment of compensation at any time on his or her motion. The hearing representative set aside
the February 19, 2020 decision and remanded the case for an amended finalized overpayment
decision, as there was a technical error regarding the interest rate. The hearing representative also
altered the repayment schedule to $800.00 monthly in consideration of the reported loss of
anticipated income from rental property.
By decision dated July 29, 2020, OWCP issued an amended overpayment decision that
appellant had received an overpayment of compensation in the amount of $101,944.10 because the
FERS offset was not applied to payments for the period June 1, 2009 through July 20, 2019. It
further found that she was without fault in the creation of the overpayment, but denied waiver of
recovery of the overpayment, referring to the July 20, 2020 decision. OWCP required recovery of
the overpayment by monthly payments of $800.00.
LEGAL PRECEDENT
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5 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.6
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA benefits that are attributable to federal service of the
employee.7 FECA Bulletin No. 97-09 provides 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. 8

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

8

FECA Bulletin No. 97-09 (February 3, 1997).

4

ANALYSIS -- ISSUE 1
The Board finds that fact of overpayment has been established.
The evidence of record indicates that, while appellant was receiving compensation for
wage-loss compensation benefits under FECA, she was also receiving SSA age-related retirement
benefits based upon her federal service. A claimant cannot receive both wage-loss compensation
under FECA and SSA age-related retirement benefits attributable to federal service for the same
period.9 The information provided by SSA established that appellant received SSA age-related
retirement benefits that were attributable to federal service during the period June 1, 2009 through
July 20, 2019 without appropriate offset. Consequently, the fact of overpayment has been
established.
The Board further finds, however, that this case is not in posture for decision with regard
to the amount of the overpayment.
To determine the amount of the overpayment, the portion of SSA’s benefits that were
attributable to federal service must be calculated. OWCP received two conflicting dual benefits
calculation worksheets from SSA with respect to the specific amount of SSA age-related
retirement benefits that were attributable to federal service.
On July 3, 2013 OWCP received a form reporting appellant’s SSA benefit rates with a
FERS offset and without a FERS offset from June 2009 through December 2012. Beginning
June 2009, December 2009, and December 2010, the SSA rate with FERS was $1,045.60 and
without FERS was $433.00. Beginning December 2011, the SSA rate with FERS was $1,083.20
and without FERS was $448.50. Beginning December 2012, the SSA rate with FERS was
$1,101.60 and without FERS was $456.10.
On June 23, 2019 OWCP received a form indicating SSA benefit rates with a FERS offset
and without a FERS offset from June 2009 through December 2018. Beginning June 2009,
December 2009, and December 2010, the SSA rate with FERS was $1,045.60 and without FERS
was $454.60. Beginning December 2011, the SSA rate with FERS was $1,083.20 and without
FERS was $471.00. Beginning December 2012, the SSA rate with FERS was $1,101.60 and
without FERS was $479.00. Beginning December 2013, the SSA rate with FERS was $1,482.70
and without FERS was $486.20. Beginning December 2014 and December 2015, the SSA rate
with FERS was $1,507.90 and without FERS was $494.40. Beginning December 2016, the SSA
rate with FERS was $1,512.40 and without FERS was $495.80. Beginning December 2017, the
SSA rate with FERS was $1,542.60 and without FERS was $505.70. Beginning December 2018,
the SSA rate with FERS was $1,585.70 and without FERS was $519.80.
The figures provided on July 3, 2013 differed from the figures provided on June 23, 2019
regarding appellant’s SSA benefit rates without FERS, but OWCP did not seek clarification from
SSA as to which set of figures was correct or why they differed. The reason for the discrepancy
is unclear from the record. Because of the unexplained discrepancy, the Board is not in a position
to determine whether OWCP’s finding regarding the amount of overpayment ($101,944.10) is

9

Id. See also P.B., Docket No. 20-0862 (issued November 25, 2020); N.B., Docket No. 18-0795 (issued
January 4, 2019).

5

accurate.10 On remand, OWCP shall seek clarification from SSA regarding the conflicting
information it provided regarding the SSA payments appellant was entitled to receive without
FERS offset. It shall then issue a new preliminary overpayment determination with an
overpayment action request form, a Form OWCP-20, and instructions for appellant to provide
supporting financial information. After such further development as deemed necessary, OWCP
shall issue a de novo decision.11
CONCLUSION
The Board finds OWCP has established that appellant received an overpayment of
compensation. The Board also finds that this case is not in posture for decision regarding the
amount of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the July 29, 2020 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part. The case is remanded for further
action consistent with this decision.
Issued: September 3, 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

10

See R.C., Docket No. 17-0058 (issued August 3, 2017); E.H., Docket No. 16-1465 (issued December 19, 2016);
K.G., Docket No. 16-0553 (issued June 21, 2016).
11

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

6