United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

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Appearances:
Brook L. Beesley, for the appellant
No appearance, for the Director

Docket No. 08-2390
Issued: September 23, 2009

Oral Argument June 16, 2009

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 2, 2008 appellant filed a timely appeal from the May 30, 2008 merit
decision of the Office of Workers’ Compensation Programs terminating her compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation effective March 1, 2006 on the grounds that she no longer had residuals of her
employment injuries after that date.
FACTUAL HISTORY
This is the second appeal in this case. In a June 13, 2003 decision, the Board reversed a
July 13, 2000 Office decision finding that it improperly terminated appellant’s compensation

effective July 13, 2000.1 The Board found that the termination was improper because there was
a conflict in the medical evidence regarding whether appellant continued to have work-related
residuals.2 The facts and the circumstances of the case are set forth in the Board’s prior decision
and are incorporated herein by reference.
On January 29, 2004 Dr. Brian Wicks, an attending Board-certified orthopedic surgeon,
performed right arm surgery, including carpal tunnel release, ulnar nerve decompression and
epicondylectomy. The surgery was authorized by the Office.
On remand, the Office referred appellant and the case record to Dr. William T. Thieme, a
Board-certified orthopedic surgeon, for an impartial medical examination and opinion regarding
whether appellant continued to have residuals of her employment injuries.
On March 3, 2005 Dr. Thieme detailed appellant’s medical history and the treatment of
her neck and right upper extremity problems. Appellant reported intermittent aching pain
involving primarily the right side of her neck, right shoulder and right upper arm and forearm.
She reported continuous numbness and tingling in the right hand involving the whole hand
except for the ulnar aspect of the little finger. On examination there was very mild tenderness to
palpation over the distal right clavicle, the biceps tendon, the subscapularis and the
supraspinatus. Examination of shoulder strength showed give-way weakness in abduction,
flexion, extension and internal and external rotation. However, appellant did manifest normal
intrinsic motor strength. Dr. Thieme stated that there was circumferential numbness to light
touch in a forearm/glove distribution in the right hand and global hypesthesia of the right upper
extremity to sharp touch from the shoulder down. There was no wasting in the hands. Tinel’s
sign was positive at the right wrist, negative at the left, positive at the right elbow and negative at
the left elbow. Phalen’s test was mildly positive on the right.
Dr. Thieme diagnosed work-related cervical sprain, resolved; work-related right shoulder
sprain, resolved; work-related right carpal tunnel syndrome and release with mild residual righthand numbness and a positive Tinel’s at the wrist; work-related right lateral epicondylitis,
resolved; right ulnar nerve entrapment, not work related with nonanatomic numbness in the left
hand; and nonanatomic distribution of sensory impairment in the right upper extremity. He
found that there was no evidence of cervical radiculopathy. Dr. Thieme indicated that appellant
had no objective evidence of her work-related cervical sprain and right shoulder sprain and stated
1

Docket No. 01-1714 (issued June 13, 2003). The Office accepted that on November 13, 1998 appellant, then a
40-year-old rural carrier associate, sustained an employment-related right cervical strain, right posterior shoulder girdle
strain and right lateral epicondylitis when she pulled a mail tray, which was stuck on a seat. Appellant worked 12.36
hours per week at the time of her injury. In July 1999, the Office accepted that she sustained right carpal tunnel
syndrome due to performing repetitious tasks with her upper extremities at work. Appellant last worked for the
employing establishment on April 25, 1999. Between January and October 2001, she worked for a private employer on
an intermittent basis as a laundry worker. The Office paid appellant compensation for wage loss after 2001.
2

The conflict was between Dr. James A. Williams, an attending Board-certified family practitioner, and
Dr. Alexander C. Miller, a Board-certified orthopedic surgeon, who served as an Office referral physician. In a
December 10, 1999 report, Dr. Miller determined that appellant had no work restrictions related to her employment
injuries and indicated that she could work eight hours per day with no restrictions. In contrast, Dr. Williams noted
in several reports dated between late 1999 and mid 2000 that she was totally disabled and had employment-related
cervical sprain, right shoulder strain/sprain, right lateral epicondylitis and right carpal tunnel syndrome.

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that these conditions had completely resolved by the time she began to work as a laundry worker
for a private employer in January 2001. Appellant did not have any objective residuals of a
work-related condition that would prevent her from working as a rural carrier associate.
Appellant submitted a February 15, 2005 report from Dr. Michael S. McManus, an
attending Board-certified internist, who stated that appellant had positive right shoulder
impingement signs, a positive Tinel’s sign over the ulnar notch of the right elbow and decreased
sensation to pinprick in the right hand (greater in the median than the ulnar dermatome).
Dr. McManus diagnosed chronic mild right C6 radiculopathy, work related; chronic mild
impingement syndrome right shoulder, work related; status post right carpal tunnel release for
carpal tunnel syndrome, work related; status post medial epicondylotomy and ulnar nerve
decompression right elbow for cubital tunnel syndrome, work related; and chronic mild right
lateral epicondylitis of right elbow, stable, work related.
In a May 18, 2005 letter, the Office advised appellant that it proposed to terminate her
compensation for wage-loss and medical benefits on the grounds that she no longer had residuals
of her employment injury. The weight of the medical evidence rested with the opinion of
Dr. Thieme, the impartial medical specialist.
In an April 18, 2005 report, Dr. McManus reiterated the findings and diagnoses contained
in his February 15, 2005 report. However, he did not provide any indication in this report that
the diagnosed conditions were work related. In a June 17, 2005 report, Dr. McManus stated that
he disagreed with the findings of Dr. Thieme. He stated:
“Dr. Thieme states that [appellant] has no residual impairment or deficit as a
result of the diagnoses accepted under the above claim. However, this is in
contradiction to the impression of multiple prior medical providers and diagnostic
studies. On serial examinations, [appellant] has evidence of a chronic right C6
deficit, impingement syndrome of the right shoulder, limited right elbow
extension status post medial epicondylotomy and ulnar nerve decompression and
a residual deficit in her right hand motor function with an associated sensory
deficit involving both the median and ulnar nerves. In addition, Dr. Thieme feels
[she] requires no work restrictions and can return to her full work duty. However,
again this is in contradiction to the impression of multiple prior examiners….”
In a July 18, 2005 decision, the Office terminated appellant’s compensation effective
July 18, 2005 based on the opinion of Dr. Thieme. In an October 26, 2005 decision, it set aside
the July 18, 2005 decision, as Dr. Thieme’s opinion was in need of further clarification,
particularly with regard to appellant’s right carpal tunnel syndrome and epicondylitis.
The Office asked Dr. Thieme to answer additional questions about appellant’s condition,
including whether there were objective findings to show residuals of the work-related right
carpal tunnel syndrome, right epicondylitis and January 29, 2004 surgery. In a January 11, 2006
report, Dr. Thieme stated that there was no clear objective evidence of residuals of either carpal
tunnel syndrome or epicondylitis other than a positive Tinel’s sign at the right wrist. He found
that examination of appellant revealed right arm and hand pain in a nonanatomic distribution.
The generalized weakness in appellant’s right arm was not accompanied by measured muscle

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wasting and therefore was “a reflection of pain behavior and symptom magnification, rather than
objective abnormality.” Dr. Thieme stated that his examination of appellant revealed no
residuals, which would prevent her from performing her date-of-injury job as a rural mail carrier
for 12.36 hours per week. He indicated that a September 2004 physical capacity evaluation
showed that she was physically capable of performing a light/medium level of work for eight
hours per day.3
In a March 1, 2006 decision, the Office terminated appellant’s compensation effective
March 1, 2006 on the grounds that she had no residuals of her employment injuries after that
date. It determined that the weight of the medical evidence rested with the opinion of
Dr. Thieme.
Appellant requested a hearing before an Office hearing representative. At the March 26,
2008 hearing, she contended that the reports of Dr. McManus showed that she continued to have
work-related residuals.
Appellant submitted reports of Dr. McManus, dated between
March 2006 and May 2008, which were similar to those previously submitted.
In a May 30, 2008 decision, the Office hearing representative affirmed the March 1, 2006
decision.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act,4 once the Office has accepted a claim
it has the burden of justifying termination or modification of compensation benefits.5 The Office
may not terminate compensation without establishing that the disability ceased or that it was no
longer related to the employment.6 The Office’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.7
Section 8123(a) of the Act provides in pertinent part: “If there is 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.”8 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of

3

Appellant submitted June 17 and October 17, 2005 reports in which Dr. McManus provided findings and
diagnoses that were similar to those contained in his February 15, 2005 report.
4

5 U.S.C. §§ 8101-8193.

5

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

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Id.

7

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

8

5 U.S.C. § 8123(a).

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such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.9
ANALYSIS
The Office accepted that on November 13, 1998 appellant sustained an employment-related
right cervical strain, right posterior shoulder girdle strain and right lateral epicondylitis when she
pulled a mail tray which was stuck on a seat. Appellant worked 12.36 hours per week at the time
of her injury. In July 1999, the Office accepted that she sustained right carpal tunnel syndrome due
to performing repetitious tasks with her upper extremities at work. Appellant last worked for the
employing establishment on April 25, 1999. Between January and October 2001, she worked for a
private employer on an intermittent basis as a laundry worker. On January 29, 2004 Dr. Wicks, an
attending Board-certified orthopedic surgeon, performed right arm surgery, including carpal
tunnel release, ulnar nerve decompression and epicondylectomy. The surgery was authorized by
the Office.
In a prior appeal, the Board found a conflict in the medical opinion between
Dr. Williams, an attending Board-certified family practitioner, and Dr. Miller, a Board-certified
orthopedic surgeon serving as an Office referral physician, regarding whether appellant
continued to have residuals of her employment injuries. On remand, the Office properly referred
appellant, pursuant to section 8123(a) of the Act, to Dr. Thieme, a Board-certified orthopedic
surgeon, for an impartial medical examination and an opinion on the matter.
Dr. Thieme found on examination that appellant exhibited very mild tenderness to
palpation over the distal right clavicle, the biceps tendon, the subscapularis and the
supraspinatus. Examination of shoulder strength showed give-way weakness in abduction,
flexion, extension and internal and external rotation. However, appellant did manifest normal
intrinsic motor strength. Dr. Thieme stated that there was circumferential numbness to light
touch in a forearm/glove distribution in the right hand and global hypesthesia of the right upper
extremity to sharp touch from the shoulder down. There was no wasting in the hands.
Dr. Thieme indicated that appellant had no objective evidence of her work-related cervical strain
and right shoulder strain and stated that these conditions had completely resolved by the time she
began to work as a laundry worker for a private employer in January 2001. He also indicated
that her work-related right carpal tunnel syndrome and epicondylitis had resolved and found that
she did not have any objective residuals of a work-related condition that would prevent her from
performing her date-of-injury job, rural carrier associate.
The Board has reviewed the opinion of Dr. Thieme and notes that it has reliability,
probative value and convincing quality with respect to its conclusions regarding the relevant
issue of the present case. Dr. Thieme’s opinion is based on a proper factual and medical history
in that he had the benefit of an accurate and up-to-date statement of accepted facts, provided a
thorough factual and medical history and accurately summarized the relevant medical evidence.10
He provided medical rationale for his opinion by explaining that appellant had very limited
9

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

10

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

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findings on examination. Dr. Thieme noted that examination of appellant revealed right arm and
hand pain in a nonanatomic distribution. The generalized weakness in appellant’s right arm was
not accompanied by measured muscle wasting and therefore was “a reflection of pain behavior
and symptom magnification, rather than objective abnormality.”
At oral argument, appellant’s representative contended that the reports of Dr. McManus,
an attending Board-certified internist, showed that appellant continued to have work-related
residuals. Dr. McManus stated that appellant had several work-related conditions. In a June 17,
2005 report, he noted that he disagreed with the findings of Dr. Thieme. Dr. McManus noted,
“On serial examinations, [appellant] has evidence of a chronic right C6 deficit, impingement
syndrome of the right shoulder, limited right elbow extension status post medial epicondylotomy
and ulnar nerve decompression and a residual deficit in her right hand motor function with an
associated sensory deficit involving both the median and ulnar nerves.” He advised that
appellant continued to be totally disabled.
The Board finds that Dr. McManus’ reports are of diminished probative value, as he did
not provide adequate medical rationale in support of his conclusion on causal relationship.11
Dr. McManus did not explain why appellant’s continuing symptoms were work related. Such
medical rationale is especially necessary in the present case as appellant had not worked for the
employing establishment since 1999. Dr. McManus did not explain why appellant’s continuing
complaints were not due to some nonwork-related condition. His reports are insufficient to
overcome the special weight accorded Dr. Thieme as an impairment specialist. For these reasons,
the Office properly found that the weight of the medical evidence with respect to continuing
residuals of the accepted employment injuries rested with the opinion of Dr. Thieme.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective March 1, 2006 on the grounds that she no longer had residuals of her
employment injuries after that date.

11

See Leon Harris Ford, 31 ECAB 514, 518 (1980) (finding that a medical report is of limited probative value on
the issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 30, 2008 decision is affirmed.
Issued: September 23, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Corpus Christi, TX, Employer
__________________________________________

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

Docket No. 07-1627
Issued: November 23, 2007

Case Submitted on the Record

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

JURISDICTION
On March 20, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated March 6, 2007 denying her request for a hearing and a
December 5, 2006 decision on the merits of her claim for compensation. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established an injury in the performance of duty on
October 11, 2006; and (2) whether the Office properly denied her request for a hearing before an
Office hearing representative.
FACTUAL HISTORY
On October 30, 2006 appellant, then a 44-year-old aircraft parts repairer, filed a traumatic
injury claim (Form CA-1) alleging that she sustained an injury in the performance of duty on
October 11, 2006. She alleged that, while at her workstation, she became ill, lost consciousness
and fell, striking her head on the floor.

By letter dated November 9, 2006, the Office requested that appellant submit additional
factual and medical evidence regarding her claim. Appellant submitted witness statements with
respect to the October 11, 2006 incident.
Appellant also submitted medical evidence. In a hospital report dated October 12, 2006,
Dr. Rob Tschauner indicated that appellant had been admitted on October 11, 2006 after a
syncopal episode at work.1 He provided a history that appellant was not feeling well on
October 11, 2006 and was seen by a nurse at the employing establishment. According to
Dr. Tschauner, the nurse recommended that appellant go home, but she was not released and
returned to her workstation. Appellant then reported losing consciousness and striking her head
as she collapsed, with a headache afterward. Dr. Tschauner noted that appellant had a history of
iron deficiency anemia due to hypermenorrhagia.
In a report dated October 13, 2006, Dr. Larry Grabhorn, a physician at the employing
establishment health unit, indicated that appellant was seen by a nurse on October 11, 2006. He
reported that appellant had stated that she was upset with the way she was treated by her
supervisors. Dr. Grabhorn diagnosed “pallor, depress with anxiety, tachycardic.” Appellant also
submitted a note dated November 8, 2006 from Dr. Tschauner who diagnosed post-traumatic
headaches and stated that she was disabled from October 12 to November 22, 2006.
By decision dated December 5, 2006, the Office denied the claim for compensation. It
found that the medical evidence was insufficient to establish an injury from the employment
incident.
In a letter dated January 26, 2007 and postmarked January 27, 2007, appellant requested
an oral hearing before an Office hearing representative. By decision dated March 6, 2007, it
determined that the hearing request was untimely. The Office stated that it had considered the
request and determined that the issue could equally well be addressed by requesting
reconsideration and submitting new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that he or she sustained an injury while in the performance of duty.3 In
order to determine whether an employee actually sustained an injury in the performance of duty,
the Office begins with an analysis of whether “fact of injury” has been established. Generally
“fact of injury” consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. The second component is whether the

1

Only page one of a four page report was submitted to the record.

2

5 U.S.C. §§ 8101-8193.

3

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

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employment incident caused a personal injury and generally this can be established only by
medical evidence.4
The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.5 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.6
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant fell and struck her head on October 11, 2006.8 To
meet her burden of proof, appellant must submit probative medical evidence sufficient to
establish a diagnosed condition causally related to the employment incident. The October 12,
2006 report from Dr. Tschauner was incomplete and failed to provide an opinion on causal
relationship. Dr. Grabhorn did not provide a relevant medical opinion. Dr. Tschauner diagnosed
post-traumatic headaches in his November 11, 2006 note, but he did not provide a complete
history or a rationalized medical opinion on causal relationship between the diagnosed condition
and the October 11, 2006 employment incident. The medical evidence of record is not sufficient
to establish that the October 11, 2006 incident caused an injury

4

See John J. Carlone, 41 ECAB 354, 357 (1989).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

6

Id.

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

The Office did not deny the claim on the grounds that appellant had sustained an idiopathic fall. The Board
notes that, to support a finding of an idiopathic fall, it would be the Office’s burden to show that the fall was the
result of a nonoccupational pathology rather than an unexplained fall. See Id.

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It is appellant’s burden of proof to establish the elements of her claim. Based on the
evidence before the Office at the time of the December 5, 2006 decision, she did not meet her
burden of proof in this case.9
LEGAL PRECEDENT -- ISSUE 2
The statutory right to a hearing under 5 U.S.C. § 8124(b)(1) follows the initial final merit
decision of the Office. Section 8124(b)(1) provides as follows: “Before review under section
8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary
under subsection (a) of this section is entitled, on request made within 30 days after the date of
issuance of the decision, to a hearing on his claim before a representative of the Secretary….”
If the request is not made within 30 days or if it is made after a reconsideration request, a
claimant is not entitled to a hearing as a matter of right.10 The Board has held that the Office, in
its broad discretionary authority in the administration of the Federal Employees’ Compensation
Act,11 has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and that the Office must exercise this discretionary authority in deciding
whether to grant a hearing.12 The Office’s procedures, which require the Office to exercise its
discretion to grant or deny a hearing when the request is untimely or made after reconsideration,
are a proper interpretation of the Act and Board precedent.13
ANALYSIS -- ISSUE 2
The merit decision was dated December 5, 2006. Appellant requested an oral hearing
before an Office hearing representative in a letter postmarked January 27, 2007.14 Since this is
more than 30 days after the December 5, 2006 decision, it is untimely and she is not entitled to a
hearing as a matter of right. With respect to an untimely hearing request, the Office must
exercise its discretion in deciding whether to hold a hearing. In this case, it advised appellant
that she could submit additional relevant evidence on the issue through the reconsideration
process. This is considered a proper exercise of the Office’s discretionary authority.15 The
Board finds that the Office properly denied the request for an oral hearing in this case.

9

The Board is limited to review of evidence that was before the Office at the time of its final decision. 20 C.F.R.
§ 501.2(c).
10

Claudio Vazquez, 52 ECAB 496 (2001).

11

5 U.S.C. §§ 8101-8193.

12

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

13

Claudio Vazquez, supra note 10. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Review of the Written Record, Chapter 2.1601.4(b)(3) (June 1997).
14

The date of the hearing request is the date of mailing, as determined by the postmark. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(a) (June 1997).
15

See Mary E. Hite, 42 ECAB 641, 647 (1991).

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CONCLUSION
Appellant did not meet her burden of proof to establish an injury in the performance of
duty on October 11, 2006. With respect to her request for an oral hearing, the Office’s Branch of
Hearings and Review properly denied the request.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 6, 2007 and December 5, 2006 are affirmed.
Issued: November 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Port Gibson, MS, Employer
__________________________________________

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

Docket No. 16-0611
Issued: May 13, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 1, 2016 appellant filed a timely appeal from an October 8, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between the last merit decision dated May 12, 2015 and the filing of the appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted new evidence. The Board, however, is precluded from reviewing evidence
which was not before OWCP at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No.
09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57
ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal, appellant contends that she submitted medical evidence signed by a nurse
practitioner and a medical doctor.
FACTUAL HISTORY
On March 24, 2015 appellant, then a 46-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she experienced pain on her right side, neck, back, and leg
when she attempted to avoid hitting a deer that had run in front of her car on that date while in
the performance of duty. She stopped work on March 30, 2015.
An authorization for examination and/or treatment (Form CA-16) was signed and issued
by the employing establishment on March 24, 2015.
In a March 24, 2015 medical report, Marvell Spears, a family nurse practitioner, noted
that appellant was involved in a motor vehicle accident. He also noted her complaint about neck
and right side pain. Mr. Spears provided examination findings and diagnosed unspecified
thoracic or lumbosacral neuritis or radiculitis, lumbago, and muscle spasm.
In a March 30, 2015 certificate of return to work, LaDella Thomas, a receptionist at
Claiborne City Family Health Center, reported that appellant was unable to work through
April 11, 2015. She could return to work on April 13, 2015.
By letter dated April 6, 2015, OWCP notified appellant of the deficiencies of her claim
and afforded her 30 days to submit additional medical evidence. It also requested that the
employing establishment submit medical evidence if appellant had been treated at its medical
facility.
In a March 30, 2015 report, Mr. Spears reiterated appellant’s diagnoses of unspecified
thoracic or lumbosacral neuritis or radiculitis, lumbago, and muscle spasm. In an April 10, 2015
certificate of return to work, he reported that appellant would be able to resume work on
April 13, 2015.
In an April 10, 2015 duty status report (Form CA-17), Dr. Colette Scott, an attending
family practitioner, provided clinical findings and advised that appellant could return to full-time
work on April 13, 2015. The Form CA-17 was cosigned by Mr. Spears.
By decision dated May 12, 2015, OWCP accepted that the March 24, 2015 incident
occurred as alleged. However, it denied appellant’s claim as the medical evidence did not
contain a medical diagnosis in connection with the accepted employment incident. Appellant
was advised that a nurse or nurse practitioner was not considered a qualified physician under
FECA.
In an appeal request form and letter dated August 6, 2015 and received by OWCP on
August 10, 2015, appellant requested reconsideration. She contended that the evidence
submitted was signed by a nurse practitioner and a medical doctor, Dr. Scott.
Appellant resubmitted Mr. Spears’ March 24 and 30, 2015 reports and Dr. Scott’s
April 10, 2015 Form CA-17 report. She submitted Mr. Spears’ April 10, 2015 report in which he
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again diagnosed unspecified thoracic or lumbosacral neuritis or radiculitis, lumbago, and muscle
spasm.
In an October 8, 2015 decision, OWCP denied further merit review of appellant’s claim.
It found that the evidence submitted was not from a qualified physician as a nurse or a nurse
practitioner are not considered physicians under FECA.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of the FECA,3
OWCP’s regulation provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant’s application for review must be received within one year of the
date of that decision.5 Section 10.608(b) of the implementing regulations states that any
application for review that does not meet at least one of the requirements listed in 20 C.F.R.
§ 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.6
ANALYSIS
Appellant disagreed with OWCP’s denial of her traumatic injury claim. She requested
reconsideration and asserted that the evidence submitted in support of her claim was signed by a
qualified physician. The underlying issue on reconsideration is medical in nature, whether the
accepted March 24, 2015 work incident caused or contributed to an injury.
The Board finds that OWCP properly denied appellant’s August 6, 2015 request for
reconsideration. In her request, appellant asserted that she submitted evidence signed by a nurse
practitioner and a medical doctor, Dr. Scott. While the April 10, 2015 Form CA-17 report was
cosigned by Mr. Spears, a nurse practitioner, and Dr. Scott, a family practitioner, this report is
duplicative of evidence previously considered by OWCP in its May 12, 2015 decision.
Moreover, although signed by Dr. Scott, the report does not address medical causation which is
the threshold issue in the case. Evidence that repeats or duplicates evidence already in the case
record has no evidentiary value and does not constitute a basis for reopening a claim for merit
review.7 Evidence or argument which does not address the particular issue under consideration
does not constitute a basis for reopening a case.8
3

Supra note 1. Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

7

Denis M. Dupor, 51 ECAB 482 (2000).

8

See K.T., Docket No. 15-1916 (issued February 1, 2016).

3

The Board finds that the remaining evidence submitted in support of appellant’s request
for reconsideration is insufficient to justify a merit review of her claim. The March 24 and 30
and April 10, 2015 reports from Mr. Spears have no probative medical value as they were signed
only by a nurse practitioner and not countersigned by a physician. A nurse practitioner is not a
physician as defined under FECA.9 As the underlying issue is medical in nature,10 reports from a
layperson, such as a nurse practitioner, do not constitute medical evidence and their findings and
opinions do not suffice for purposes of establishing FECA benefits.11 Therefore, these reports
are of no relevance to the issue of causal relationship and do not comprise a basis for reopening a
case for a merit review.12
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal, appellant contends that she submitted medical evidence signed by a nurse
practitioner and a medical doctor. As explained, the evidence submitted by appellant is
insufficient to reopen her claim for merit review.
The Board notes that the employing establishment executed a Form CA-16 on March 24,
2015 authorizing medical treatment. The Board has held that where an 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, it creates a contractual obligation, which
does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim.13 Although OWCP denied appellant’s claim for an injury, it did
not address whether she is entitled to reimbursement of medical expenses pursuant to the Form
CA-16. Upon return of the case record, OWCP should rule on the matter.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).

9

L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA). The term physician
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2).
10

Carol A. Lyles, 57 ECAB 265 (2005) (causal relationship is a medical issue which must be resolved by
competent medical opinion).
11

Edward Matthew Diekemper, 31 ECA 224, 225 (1979).

12

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

13

See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R. §§ 10.300, 10.304.

4

ORDER
IT IS HEREBY ORDERED THAT the October 8, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 13, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 19-1971
Issued: May 20, 2020

Case Submitted on the Record

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

JURISDICTION
On September 26, 2019 appellant filed a timely appeal from a July 8, 2019 merit decision
and an August 29, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that an injury
occurred in the performance of duty on May 31, 2019, as alleged; and (2) whether OWCP properly

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

denied appellant’s request for a review of the written record by an OWCP hearing representative
as untimely filed under 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On June 3, 2019 appellant, then a 57-year-old customer services supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on May 31, 2019 she was injured while in the
performance of duty. She explained that she was in the letter distribution area of the workroom
floor when she lifted a tray of letters and sustained a right shoulder strain. On the reverse side of
the claim form the employing establishment acknowledged that appellant was injured in the
performance of duty on May 31, 2019, but controverted her claim, stating that its knowledge of
the facts about the alleged injury did not agree with her statements because in 2014 she sustained
right hand carpal tunnel syndrome for which she received physical therapy and medical treatment
twice a month.
In a June 6, 2019 development letter, OWCP informed appellant that the evidence received
to date was insufficient to support her claim for compensation benefits. It advised her of the type
of factual and medical evidence necessary to establish her claim and attached a questionnaire for
her completion. OWCP afforded appellant 30 days to submit the necessary evidence.
June 3, 2019 urgent care records signed by Ana Bermea, a nurse practitioner, indicated that
appellant complained of right shoulder pain. Ms. Bermea noted that on May 31, 2019 appellant
was injured at work when she lifted a five-pound box of mail. A physical examination of
appellant’s right shoulder revealed diffuse pain and pain upon abduction. Ms. Bermea diagnosed
a right shoulder sprain and recommended that appellant take pain medication as needed and return
to work with restrictions. A June 3, 2019 urgent care visit summary indicated that appellant
presented with shoulder and right arm pain and noted a diagnosis of a right shoulder sprain/strain.
A June 3, 2019 duty status report (Form CA-17) signed by Ms. Bermea indicated that
appellant was injured on May 31, 2019 by lifting a box that was over five pounds. She further
indicated that the injury caused appellant’s right shoulder sprain diagnosis, and that appellant could
return to work with restrictions.
On June 3, 2019 appellant received a prescription for pain medication authorized by
Dr. Wilner Jeudy, Board-certified in family practice.
June 10, 2019 urgent care records signed by Ms. Bermea indicated that appellant
complained of right shoulder pain which increased when laying down at night. Ms. Bermea
reported that appellant sustained a work-related injury to her right shoulder and right arm on
May 31, 2019 while lifting a five-pound box of mail. She continued to diagnose a right shoulder
sprain and recommended physical therapy. A June 10, 2019 Form CA-17 signed by Ms. Bermea
indicated that appellant was injured on May 31, 2019 when she lifted a box of mail and experienced
right shoulder pain. Ms. Bermea repeated the diagnosis of a right shoulder sprain and indicated
that appellant could resume work with the restrictions.
On June 24 and July 1, 2019 Dr. Haala Hai, an osteopath Board-certified in family
medicine, indicated that appellant complained of right shoulder pain due to lifting a five-pound

2

box of mail at work on May 31, 2019. She reported that appellant experienced weakness in her
arm, especially when lifting. Dr. Hai diagnosed a right shoulder sprain, recommended medication,
and provided work restrictions.
A June 21, 2019 Form CA-17 containing an illegible signature indicated that appellant was
injured while lifting a box over five pounds on May 31, 2019, diagnosed a right shoulder sprain,
and provided work restrictions.
By decision dated July 8, 2019, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish that the events occurred on May 31, 2019,
as alleged. It concluded, therefore, that the requirements had not been met to establish an injury
as defined by FECA.
Appellant continued to submit additional medical evidence. By an appeal request form
dated August 7, 2019, and postmarked on August 8, 2019, she requested a review of the written
record by a representative of OWCP’s Branch of Hearings and Review.
By decision dated August 29, 2019, OWCP’s Branch of Hearings and Review denied
appellant’s request for a review of the written record, finding that it was untimely filed as it was
not postmarked within 30 days of the issuance of the July 8, 2019 decision. After exercising its
discretion, the Branch of Hearings and Review further found that the merits of the claim could
equally well be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty, as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.7 First,
3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

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

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyet, 41 ECAB 992 (1990).
7
R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2019);
Bonnie A. Contreras, 57 ECAB 364 (2006).

3

the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged.8 Second, the employee
must submit sufficient evidence, in the form of medical evidence, to establish that the employment
incident caused a personal injury.9
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.10 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established. An employee’s
statements alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has established that the May 31, 2019 incident occurred in
the performance of duty, as alleged.
Appellant’s CA-1 claim form, filed on June 3, 2019, alleged that on May 31, 2019 she
lifted a tray of letters at work and sustained a right shoulder strain. She sought medical treatment
from an urgent care center on June 3 and 10, 2019, and urgent care records and a Form CA-17
from those dates signed by Ms. Bermea indicate that appellant complained of right shoulder pain
and was injured at work when she lifted a box of mail on May 31, 2019. June 24 and July 1, 2019
urgent care records signed by Dr. Hai noted that appellant complained of right shoulder pain due
to lifting a box of mail at work on May 31, 2019.
The Board finds that appellant has established that the incident involving lifting a box of
mail and experiencing right shoulder pain while at work occurred on May 31, 2019, as alleged.
Appellant provided consistent statements on her claim form and in her medical records which
establish that the alleged employment incident occurred on May 31, 2019.12 She has provided a
single account of the mechanism of injury that has not been refuted by any evidence in the record.13
On the reverse side of appellant’s claim form the employing establishment acknowledged that
8

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9

A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 7.
10

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

11

F.H., Docket No. 18-0869 (issued January 29, 2020); D.B., supra note 8.

12

S.B., Docket No. 19-1499 (issued January 27, 2020).

13

Id.

4

appellant was injured in performance of duty on May 31, 2019. As stated above, an employee’s
statements alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.14 The Board
therefore finds that appellant has established that the May 31, 2019 employment incident occurred
in the performance of duty, as alleged.
As appellant has established that the May 31, 2019 employment incident factually
occurred, the question becomes whether this incident caused a personal injury.15 The Board will,
therefore, remand the case for consideration of the medical evidence. Following this and other
such further development as deemed necessary, OWCP shall issue a de novo decision addressing
whether appellant has met her burden of proof to establish a condition causally related to the
accepted May 31, 2019 employment incident.
CONCLUSION
The Board finds that that appellant has established that an incident occurred in the
performance of duty on May 31, 2019, as alleged. The Board further finds, however, that the case
is not in posture for decision as to whether appellant has established a condition causally related
to the accepted May 31, 2019 employment incident.16

14

Supra note 11.

15

Supra note 12.

16

In light of the disposition for Issue 1, Issue 2 is rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the July 8, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: May 20, 2020
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
DEPARTMENT OF THE INTERIOR,
COLORADO RIVER AGENCY, Poston, AZ,
Employer
__________________________________________

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

Docket No. 15-1608
Issued: November 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 21, 2015 appellant filed a timely appeal from a July 6, 2015 nonmerit decision of
an Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from November 10, 2014, the date of the most recent OWCP merit decision to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether appellant abandoned his request for a hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 2, 2014 appellant, then a 42-year-old irrigation system operator, filed a traumatic
injury claim (Form CA-1) alleging that on May 30, 2014 he sustained a left shoulder injury when
he attempted to adjust a check gate.
By decision dated November 10, 2014, OWCP denied appellant’s claim because the
medical evidence was insufficient to establish a medical condition in connection with the
accepted work incident.
On November 25, 2014 appellant requested a telephone hearing before an OWCP hearing
representative.
In an April 23, 2015 letter, OWCP notified appellant that a telephone hearing was
scheduled for June 10, 2015 at 2:15 p.m. It provided the telephone number and passcode for
accessing the hearing. The notice also noted the hearing representative’s telephone number and
fax number. The notice was mailed to appellant’s address of record.
Appellant did not appear at the scheduled hearing.
By decision dated July 6, 2015, OWCP found that appellant abandoned his request for a
hearing. The decision noted that the hearing was scheduled for June 10, 2015, but he failed to
appear as instructed. The decision also found that there was no evidence that appellant had
contacted OWCP prior to or subsequent to the scheduled hearing to explain his failure to
participate. OWCP concluded that appellant had abandoned his hearing request.
On appeal appellant argued that he never received written notification of an oral hearing.
He advised that he has a public mailbox and that a clerk at the post office informed him that the
letter should have been sent via certified mail, requiring a signature upon receipt. Appellant also
argued the merits of his claim.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.2 Unless
otherwise directed in writing by the claims examiner, OWCP’s hearing representative will mail a
notice of the time and place of the hearing to the claimant and any representative at least 30 days
before the scheduled date.3 OWCP has the burden of proving that it mailed notice of a scheduled
hearing to a claimant.4

2

Id. at § 8124(b)(1); 20 C.F.R. § 10.616(a).

3

20 C.F.R. § 10.617(b).

4

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

2

A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the
claimant to appear at the second scheduled hearing without good cause shown, shall constitute
abandonment of the request for a hearing. Where good cause is shown for failure to appear at
the second scheduled hearing, review of the matter will proceed as a review of the written
record.5
Where it has been determined that a claimant has abandoned his or her request for a
hearing, OWCP’s Branch of Hearings and Review will issue a formal decision on the record.6
ANALYSIS
By decision dated November 10, 2014, OWCP denied appellant’s claim for traumatic
injury. Appellant submitted a timely request for a telephone hearing. In an April 23, 2015 letter,
OWCP notified appellant of the time, telephone number, and access code for the June 10, 2015
scheduled telephone hearing. The notice was mailed to his latest address. Appellant did not
appear at the appointed time. He did not request a postponement of the hearing or explain his
failure to appear at the hearing within 10 days of the scheduled hearing date of June 10, 2015.
The Board, therefore, finds that appellant abandoned his request for a hearing.
On appeal appellant argued that he did not receive written notification of an oral hearing
and the letter should have been sent via certified mail, requiring a signature upon receipt, if it
was important. The record indicates that OWCP’s April 23, 2015 letter notifying him of the date
and time of the hearing was sent to appellant’s address of record. Absent evidence to the
contrary, a letter mailed in the ordinary course of business is presumed to have been received by
the intended recipient. This presumption is commonly referred to as the mailbox rule. It arises
when the record reflects that the notice was properly addressed and duly mailed.7 The record
contains no supporting evidence to rebut the presumption that appellant received OWCP’s
April 23, 2015 letter in due course. Appellant also argued the merits of his claim. However, the
Board lacks jurisdiction to review the merits of the claim. Its jurisdiction is limited to review of
the July 6, 2015 nonmerit decision which found that he abandoned his request for an oral
hearing.
CONCLUSION
The Board finds that OWCP properly found that appellant abandoned his request for a
hearing.

5

20 C.F.R. § 10.622(f).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
7

See Kenneth E. Harris, 54 ECAB 502, 505 (2003).

3

ORDER
IT IS HEREBY ORDERED THAT the July 6, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 13, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF VETERAN’S AFFAIRS,
VETERAN’S HEALTH ADMINISTRATION,
Omaha, NE, Employer
__________________________________________

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

Docket No. 13-1994
Issued: January 24, 2014

Case Submitted on the Record

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

JURISDICTION
On August 28, 2013 appellant filed a timely appeal from an August 7, 2013 schedule
award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained more than a two percent impairment of the left
leg for which she received a schedule award.
FACTUAL HISTORY
On July 16, 2012 appellant, then a 52-year-old practical nurse, filed a traumatic injury
claim (Form CA-1) alleging that on July 11, 2012 she sustained a left knee injury when she
1

5 U.S.C. § 8101 et seq.

slipped on water and fell. On September 24, 2012 OWCP accepted the claim for left knee grade
1 medial collateral ligament sprain. On October 15, 2012 it expanded the claim to include left
knee plica syndrome.
Appellant was treated by numerous physicians including Dr. Nathan C. Birch, Boardcertified in internal medicine. A July 11, 2012 magnetic resonance imaging (MRI) scan of the
left knee revealed grade 1 medial collateral ligament (MCL) sprain and mild medial and
patellofemoral compartment degenerative joint disease. In a September 28, 2012 orthopedic
note, Dr. Brent R. Hood, an attending orthopedic surgeon, reported that appellant’s most recent
MRI scan of the left knee showed that the MCL sprain had healed with no further edema.
On November 5, 2012 appellant underwent a left knee arthroscopic debridement of the
plica and a chondroplasty of the medial and femoral condyles.
On May 1, 2013 appellant filed a claim for a schedule award (Form CA-7). She
submitted an April 26, 2013 report from Dr. Birch, who reported that her left knee condition had
reached maximum medical improvement (MMI). Dr. Birch did not provide any assessment of
permanent impairment.
By letter dated May 9, 2013, OWCP requested that appellant provide a detailed medical
report from a treating physician outlining her current condition, whether she had permanent
impairment as a result of her work-related condition and whether maximum medical
improvement had been reached.
In a May 13, 2013 report, Dr. Birch reported that appellant’s left knee condition had
reached a permanent and fixed state. He noted that she had some swelling of the knee and was
limited in her ability to bend the knee. Dr. Birch deferred a rating of impairment.
On January 13, 2013 OWCP referred the record to an OWCP district medical adviser
(DMA). In a January 17, 2013 report, Dr. Daniel D. Zimmerman recommended that OWCP
refer appellant for a second opinion evaluation.
On June 18, 2013 OWCP referred appellant, together with a statement of accepted facts,
to Dr. Morgan T. Laholt, Board-certified in physical medicine and rehabilitation, for a second
opinion evaluation.
In a July 18, 2013 report, Dr. Laholt reviewed the statement of accepted facts and
medical record and provided a summary of the medical and diagnostic reports. Upon physical
examination, he diagnosed grade 1 medial collateral ligament sprain and post-traumatic plica.
Dr. Laholt stated that maximum medical improvement had been reached as of April 26, 2013.
Using Table 16-3, Knee Regional Grid, of the A.M.A., Guides, he placed appellant in the
diagnostic category of “soft tissue” based on her diagnosis of plica syndrome and medial
collateral ligament sprain.2 Dr. Laholt stated that her medial collateral ligament strain had healed
as evidenced by MRI scan, did not require intervention or show any laxity on physical
examination. He found that this yielded a class 1 rating with a default impairment of one percent
2

A.M.A., Guides 509, Table 16-3.

2

based on significant consistent palpatory and radiographic findings.3 Dr. Laholt found a
functional history grade modifier of 2 due to appellant’s use of a single gait aide and antalgic
limp.4 The physical examination modifier was one based on continued swelling and tenderness.5
The clinical studies modifier was one given that her MRI scan confirmed mild pathology.6
Applying the net adjustment formula, Dr. Laholt concluded that appellant had a two percent
permanent impairment to the left lower extremity.7
In a July 25, 2013 report, Dr. Zimmerman stated that the date of maximum medical
improvement was the date of Dr. Laholt’s examination on July 18, 2013. He agreed with
Dr. Laholt’s impairment rating of two percent of the left leg which was established by the
A.M.A., Guides.8
By decision dated August 7, 2013, OWCP granted appellant a schedule award for two
percent permanent impairment of the left leg. The date of maximum medical improvement was
noted as July 18, 2013. The award covered a period of 5.76 weeks from July 18 to
August 27, 2013.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.9 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.10
The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For lower extremity impairments, the evaluator identifies the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History

3

Id.

4

Id. at 516, Table 16-6.

5

Id. at 517, Table 16-7.

6

Id. at 519, Table 16-8.

7

Supra note 2.

8

Id.

9

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

10

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth
edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).

3

(GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).11 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 Evaluators are directed to
provide reasons for their impairment rating choices, including choices of diagnoses from
regional grids and calculations of modifier scores.13
ANALYSIS
OWCP accepted appellant’s claim for left knee plica syndrome and left knee grade 1
medial collateral ligament sprain. The issue is whether she has more than a two percent
permanent impairment of the left leg. The Board finds that appellant has not met her burden of
proof to establish that she has greater impairment of her leg.
Appellant was seen by OWCP’s medical adviser, who requested OWCP refer her to a
second opinion physician. The Board finds that Dr. Laholt, the second opinion physician,
examined appellant’s left knee on July 18, 2013 under the relevant standards of the sixth edition
of the A.M.A., Guides. Dr. Laholt found that according to Table 16-3, Knee Regional Grid,
appellant fell under the diagnosis-based category of “soft tissue” including plica. He selected
class 1 based upon significant palpatory and radiographic findings with a mid-range default
value of one percent lower extremity impairment.14 Dr. Laholt addressed the grade assignments
and found a grade modifier of 2 for functional history due to appellant’s continued use of a
single gait aide and antalgic limp; a grade modifier of 1 for physical examination based on
continued swelling and tenderness; and a grade modifier of 1 for clinical studies given that her
diagnostic studies confirmed mild pathology.15 He applied the net adjustment formula and
subtracted 1, the numerical value of the class, from the numerical value of the grade modifier for
each component (functional history, physical examination and clinical studies). He added those
values, resulting in a net adjustment of 1.16 Dr. Laholt stated that the regional grid identified the
impairment rating value for the impairment class as class 1, grade D or two percent permanent
impairment of the lower left extremity.17 Based on the final impairment of class 1 grade D, he
concluded that appellant had a two percent permanent impairment of the left leg.18
Dr. Zimmerman reviewed Dr. Laholt’s report and applied the appropriate tables and
grading schemes of the A.M.A., Guides to find that appellant had two percent permanent
impairment of the lower left extremity.
11

Supra note 2 at 493-531.

12

Id. at 521.

13

R.V., Docket No. 10-1827 (issued April 1, 2011).

14

Supra note 2.

15

Supra note 4-6.

16

((2-1) + (1-1) + (1-1) = 1). Supra note 2.

17

Supra note 2.

18

Id.

4

Regarding the date of maximum medical improvement, the Board finds that OWCP
properly relied on Dr. Zimmerman’s determination that appellant reached MMI on July 18, 2013.
Dr. Laholt based the date on Dr. Birch’s April 26, 2013 report which advised that appellant had
reached MMI. The report contained no other information. In a follow-up May 13, 2013 report,
Dr. Birch stated that he was unable to provide a definitive diagnosis for a final impairment
rating. The determination of the date for MMI ultimately rests with the medical evidence.19 It is
usually considered to be the date of the evaluation by the physician who is accepted as definitive
by OWCP.20 In this case it was Dr. Laholt’s July 18, 2013 examination which was found
definitive as to the extent of permanent impairment related to appellant’s accepted injury.
Appellant has a two percent permanent impairment of the lower extremity. The date of
MMI pertains to the date on which the schedule award will begin, not the amount of the award.21
For complete or 100 percent impairment of a leg, a claimant is entitled to a maximum of 288
weeks of compensation. As appellant has two percent impairment of the left leg, she is entitled
to two percent of 288 weeks of compensation or 5.76 weeks, which was the amount of
compensation awarded in this case.22 The Board finds that the date of maximum medical
improvement was properly determined as July 18, 2013, based on the examination by Dr. Laholt.
Appellant may request an increased schedule award based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in
permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she has more than a two percent
permanent impairment of the lower left extremity for which she received a schedule award. The
Board further finds that he reached maximum medical improvement on July 18, 2013.

19

L.H., 58 ECAB 561 (2007).

20

Mark Holloway, 55 ECAB 321, 325 (2004).

21

M.W., Docket No. 11-574 (issued October 21, 2011).

22

See 5 U.S.C. § 8107(c)(2); 20 C.F.R. § 10.404.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decision dated August 7, 2013 is affirmed.
Issued: January 24, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
South Holland, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-1987
Issued: July 25, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 25, 2017 appellant filed a timely appeal from a September 5, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $58,235.33 for the period March 25, 2013 through December 11, 2016; (2) whether he
was at fault in the creation of the overpayment, and thus, not entitled to waiver of recovery of the
overpayment; and (3) whether OWCP properly deducted $1,500.00 every 28 days from appellant’s
continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 16, 2011 appellant, then a 64-year-old public health veterinarian, filed a traumatic
injury claim (Form CA-1) alleging that, on June 15, 2011, he twisted his right knee and fell on his
back going down stairs. He stopped work on June 15, 2011 and returned to work on June 16, 2011.
OWCP accepted the claim for a tear of the right medial meniscus, a right knee contusion, and right
chondromalacia patellae.
The employing establishment had been accommodating appellant with light-duty work.
However, as of February 8, 2013, it was no longer able to continue accommodating appellant under
its Alternative Duty Program (ADP).
On March 28, 2013 the employing establishment, on appellant’s behalf, submitted a claim
for wage-loss compensation (Form CA-7) for the period March 25 through April 5, 2013. The
form indicated that appellant had not applied for or received payment under any federal retirement
or disability law. Appellant did not sign the form. Instead, the signature line provided the name
of an official with the employing establishment. Between April 24 and May 14, 2013, the
employing establishment submitted three additional Form CA-7s on appellant’s behalf, seeking
wage-loss compensation for the combined period April 7 through May 18, 2013. These additional
forms were not signed by appellant, but instead listed the name of an employing establishment
official. These latter Form CA-7s did not include any information regarding whether appellant
applied for or received payment under any federal retirement or disability law.
On May 29, 2013 appellant completed a Form CA-7 requesting wage-loss compensation
from May 19 to June 1, 2013. On the Form CA-7 he checked the box marked “No” (section 6c)
indicating he had not applied for or received payment under any federal retirement or disability
law.
On May 31, 2013 OWCP paid appellant wage-loss compensation for temporary total
disability for the period March 25 through May 18, 2013. The disbursement was via electronic
funds transfer (EFT). The noted reason for the payment was because the employing establishment
could no longer accommodate appellant with a full-time, limited-duty position.
Over the next several months, the employing establishment continued to file a series of
Form CA-7s on appellant’s behalf, and without his signature.2 Appellant completed and signed
an August 9, 2013 Form CA-7 requesting wage-loss compensation from July 28 to August 10,
2013 and an October 17, 2013 Form CA-7 requesting wage-loss compensation from October 6
to 19, 2013. On these forms, appellant affirmatively represented that he had not applied for or
received payment under any federal retirement or disability law.
By letter dated November 21, 2013, OWCP notified appellant that he would receive wageloss compensation for disability on the periodic rolls effective November 17, 2013. In an attached
Form EN1049, it further informed appellant that he had to report any retirement income received
from an employing establishment and that he could not receive both FECA benefits and FERS
2
The employing establishment completed and signed CA-7 forms dated June through November 2013 on behalf of
appellant. It did not respond to the question of whether he received payments under federal retirement or disability
law.

2

retirement benefits without an appropriate offset for SSA retirement benefits. OWCP advised
appellant to immediately report if he filed for or received benefits from SSA.
Appellant, on September 19, 2014, signed a Form EN1032 covering the period June 19,
2013 to September 19, 2014.3 He indicated on the form that he received retirement benefits from
SSA as part of an annuity for his federal service. Appellant signed EN1032 forms on
September 18, 2015 and September 28, 2016, again indicating that he received retirement benefits
from SSA based in part on his federal service.
On November 9, 2016 OWCP requested that SSA complete a FERS/SSA Dual Benefit
Calculation Form. In a December 7, 2016 response, SSA provided appellant’s SSA rate with
FERS and his SSA rate without FERS from September 2012 through December 2016. With
FERS, appellant’s SSA rate was $1,712.50, effective September 12, 2012, $1,741.60 effective
December 2012, $1,853.80 effective December 2013, $1,908.90 effective December 2014 and
2015, and $1,914.60 effective December 2016. Without FERS, his SSA rate was $540.50 effective
September 12, 2012, $549.60, effective December 2012, $557.80 effective December 2013,
$567.20 effective December 2014 and 2015, and $568.90 effective December 2016.
OWCP calculated the amount of wage-loss compensation appellant should have received
with a FERS offset. Effective December 1, 2012, the monthly offset was $1,192.00 ($1,741.60 -549.60) or $1,100.31 every 28 days; effective December 1, 2013 the monthly offset was $1,296.00
($1,853.80-557.80) or $1,196.31 every 28 days; effective December 1, 2014 and 2015, the
monthly offset was $1,341.70 ($1,908.90 -- 567.20) or $1,238.49 every 28 days; and effective
December 1, 2016, the monthly offset was $1,345.70 ($1,914.60 - $568.90), or $1,242.18 every
28 days. OWCP divided the 28-day offset amount to find the daily offset amount. It multiplied
this amount by the number of days in each period from March 25, 2013 to December 10, 2016 and
then added these amounts to find a total overpayment of $58,235.33.
On January 23, 2017 OWCP notified appellant of its preliminary determination that he
received an overpayment of wage-loss compensation in the amount of $58,235.33 for the period
March 25, 2013 to December 11, 2016 because it failed to deduct the portion of the SSA benefits
that he received due to his federal employment from his compensation. It further advised him of
its preliminary determination that he was at fault in the creation of the overpayment as he indicated
on a May 29, 2013 Form CA-7 that he had not applied for and did not receive a payment under
federal disability or retirement law even though he began receiving SSA retirement compensation
based in part on his federal service in September 2012. OWCP thus found that appellant accepted
a payment that he knew or should have known that he was not entitled to receive. It requested that
he complete the enclosed overpayment recovery questionnaire and submit supporting financial
documents. Additionally, OWCP notified appellant that, within 30 days of the date of the letter,
he could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing.

3
By decision dated September 30, 2014, OWCP reduced appellant’s wage-loss compensation based on his refusal
to participate with vocational rehabilitation under 5 U.S.C. § 8113(b). On April 29, 2015 it vacated its September 30,
2015 decision as the medical evidence of record was insufficient to show that he could engage in vocational
rehabilitation.

3

Appellant, on February 6, 2017, requested a prerecoupment hearing by teleconference. He
contested the finding that an overpayment existed, the amount of any overpayment, and asserted
that it occurred through no fault of his own and requested waiver. Appellant maintained that he
timely reported his SSA monthly benefits when he turned 66. In a completed overpayment
recovery questionnaire, he provided his monthly income as $7,245.00 listed assets of $25,946.00.
Appellant also listed his expenses.
During the prerecoupment hearing, held by telephone on July 26, 2017, appellant testified
that, at the time that he signed the May 29, 2013 CA-7 form, he had not yet applied for retirement
benefits. He subsequently clarified that he answered “no” to the question on the CA-7 form
regarding whether he received a payment under federal retirement law because he believed that
the question referred to SSA disability retirement or federal retirement. Appellant noted that he
correctly reported his receipt of SSA benefits on the CA-1032 forms after he received OWCP’s
November 21, 2013 letter explaining that he needed to report SSA benefits based on age. He
maintained that the amount of his wage-loss compensation from OWCP varied and that he had no
way to know whether it was offsetting part of his SSA retirement from 2013 to 2017. Counsel
argued that appellant was not fault in creating the overpayment because he correctly completed
the required forms based on his understanding at the time. He also asserted that he received the
SSA benefits based on age, not retirement status. The hearing representative noted the expenses
listed for food and clothing on the overpayment recovery questionnaire appeared high and
requested a supplemental statement regarding these expenses. He also requested a copy of the
condominium maintenance bill, noting that appellant indicated that he paid $950.00 for rent or a
mortgage, but that he did not have a mortgage on the condominium that he owned.
In a form dated August 15, 2017, appellant listed his monthly expenses as $3,670.00 and
provided supporting financial documentation.
On August 22, 2017 counsel argued that he was not at fault in the creation of the
overpayment, noting that English was not his native language. He maintained that the forms did
not sufficiently advise him of the duty to report his SSA benefits and that he reported the benefits
after OWCP provided him with a detailed explanation of the reporting requirements. Counsel
argued that Board case law and OWCP procedures provided that the benefit of the doubt regarding
a fault finding should be resolved in favor of the claimant. He further asserted that OWCP should
waive recovery of the overpayment.
By decision dated September 5, 2017, OWCP’s hearing representative found that appellant
received an overpayment of wage-loss compensation in the amount $58,235.33 from March 25,
2013 to December 11, 2016 because OWCP failed to offset from his compensation the amount
that he received from SSA for retirement benefits based on his federal services. OWCP further
found that he was at fault in the creation of the overpayment as he responded that he did not receive
and had not applied for any federal retirement benefits, including SSA benefits, on a CA-7 form,
and as OWCP notified him on November 21, 2013 of the need to report SSA benefits. The hearing
representative considered appellant’s income and expenses and found that it would recover the
overpayment by deducting $1,500.00 per month from his continuing compensation payments.
On appeal appellant contends that he indicated that he was not receiving SSA benefits on
the March 28, 2013 Form CA-7 because he believed that it applied to disability, arguing that the

4

response was insufficient to support a finding of fault. He notes that he reported his SSA benefits
on the EN1032 forms.
LEGAL PRECEDENT -- ISSUE 1
A FECA beneficiary may not receive wage-loss compensation concurrently with a federal
retirement or survivor annuity.4 To avoid payment of a dual benefit, FECA wage-loss
compensation benefits shall be reduced by the amount of Social Security Act benefits attributable
to the employee’s federal service.5 However, an offset is not required where the employeebeneficiary is covered under the Civil Service Retirement System (CSRS) and/or the SSA agerelated benefits are attributable to private sector employment.6
The offset of FECA benefits by SSA benefits attributable to employment under FERS is
calculated as follows: where a claimant has received SSA benefits, OWCP will obtain information
from SSA on the amount of the claimant’s benefits beginning with the date of eligibility to FECA
benefits.
SSA will provide the actual amount of SSA benefits received by the
claimant/beneficiary. It will also provide a hypothetical SSA benefit computed without FERS
covered earnings. OWCP will then deduct the hypothetical benefit from the actual benefit to
determine the amount of benefits which are attributable to federal service and that amount will be
deducted from FECA benefits to obtain the amount of the overpayment.7
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a tear of the right medial meniscus, a right knee
contusion, and right chondromalacia patellae due to a June 15, 2011 fall. It paid wage-loss
compensation for total disability beginning March 25, 2013. Appellant received SSA benefits
based in part on his federal service effective September 2012. As noted, the portion of the SSA
benefits he earned as part of his FERS retirement package and the receipt of benefits under FECA
concurrently constituted a prohibited dual benefit.8 Appellant, consequently, received an
overpayment of compensation.
SSA provided appellant’s SSA rate with FERS and his hypothetical SSA rate without
FERS. The difference between the amounts must be deduced from FECA benefits. Based on the
information provided by SSA, OWCP determined that he received an overpayment of
compensation in the amount of $58,235.33 for the period March 25, 2013 through
December 11, 2016. The Board has reviewed OWCP’s calculations of the dual benefits that

4

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

5

5 U.S.C. § 8116(d)(2); 20 C.F.R. § 10.421(d).

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Claims, Chapter 2.812.9c
(May 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4e(2)
(January 1997).
7

See L.B., Docket No. 11-2076 (issued August 29, 2012).

8

See H.H., Docket No. 16-1063 (issued September 15, 2016).

5

appellant received and finds that it properly determined that he received a $58,235.33 overpayment
of compensation.9
LEGAL PRECEDENT -- ISSUE 2
OWCP may consider waiving an overpayment only if the individual to whom it was made
was not at fault in either accepting or creating the overpayment.10 Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she receives
from OWCP are proper.11 The recipient must show good faith and exercise a high degree of care
in regard to receipt of their benefits.12
A recipient who has done any of the following will be found to be at fault with respect to
creating an overpayment: (1) made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; or (2) failed to provide information which he or she
knew or should have known to be material; or (3) accepted a payment which the recipient knew or
should have known to be incorrect.13
When an overpayment has been made to an individual who is entitled to further payments,
OWCP shall decrease later payments of compensation, taking into account the probable extent of
future payments, the rate of compensation, the financial circumstances of the individual, and any
other relevant factors, so as to minimize any hardship.14
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment as he
accepted payments that he knew or should have known were incorrect. It must thus establish that,
at the time he received the compensation in question, he knew or should have known that the
payment was incorrect.15
OWCP found that appellant knew or should have known that he received incorrect
workers’ compensation payments covering the period March 25, 2013 through
December 11, 2016. It based its fault determination on appellant having completed a May 29,
2013 Form CA-7,16 as well as him having received a November 21, 2013 letter informing appellant

9

See L.M., Docket No. 16-1035 (issued November 27, 2017).

10

Id. at § 10.433(a).

11

Id.

12

Id.

13

Id. at § 10.433(a)(1-3).

14

Id. at § 10.441(a).

15

See A.L., Docket No. 09-1529 (issued January 13, 2010); Robin O. Porter, 40 ECAB 421 (1989).

16
On the May 29, 2013 Form CA-7, appellant checked the “No” box indicating that he had not applied for or
received payment under any federal retirement or disability law.

6

that he could not receive both FECA benefits and FERS-based retirement benefits without an
appropriate offset.
The Board finds that OWCP has not established that appellant was at fault in creating the
overpayment covering the period March 25 through November 16, 2013 based on his completion
of a May 29, 2013 Form CA-7.17 Although Form CA-7 requests information about whether a
claimant applied for or received payment under any federal retirement or disability law, the form
does not otherwise provide any information regarding the potential consequences of receiving
FECA wage-loss compensation simultaneously with other federal retirement or disability benefits.
The May 29, 2013 Form CA-7, which appellant signed, does not accurately reflect his retirement
status. However, the record is devoid of evidence showing that at that time he was otherwise aware
that his FERS-based SSA retirement benefits constituted a prohibited dual benefit.18 As discussed
infra, OWCP provided appellant detailed information regarding FERS/SSA offset in late
November 2013. Regarding the amount of the overpayment covering the period March 25 to
November 16, 2013, the Board finds that OWCP has not sufficiently explained how appellant’s
completion of the May 29, 2013 Form CA-7 put him on notice that the payments he accepted on
or after May 29, 2013 were incorrect. Thus, OWCP has not established that for the overpayment
covering the period March 25 through November 16, 2013 appellant accepted payments that he
knew or should have known were incorrect.19 Accordingly, OWCP’s finding of fault with respect
to the above-noted period of compensation shall be set aside.
The Board further finds that appellant was at fault for the creation of the overpayment of
compensation from November 17, 2013 through December 11, 2016.
By letter dated
November 21, 2013, OWCP advised appellant that it was placing him on the periodic
compensation rolls. It explained that he would soon receive a first payment of $2,847.08 (net) for
the period November 3 through 16, 2013, and beginning November 17, 2013 he would receive
regular payments every 28 days in the amount of $5,694.16 (net). OWCP’s November 21, 2013
letter also included Form EN1049, which informed appellant of his rights and responsibilities as a
FECA benefits recipient. On the subject of retirement benefits, the EN1049 advised appellant as
follows:
“You must report to the OWCP any retirement income you receive from any
Federal agency. This is because a person who receives compensation benefits
under the FECA is not permitted to receive benefits under the Civil Service
Retirement System (CSRS) or the Federal Employees’ Retirement System (FERS).

17

An initial payment of $11,396.31 (net) covering the period March 25 through May 18, 2013 was disbursed via
electronic funds transfer (EFT) on May 31, 2013. Appellant continued to receive payments approximately every two
weeks ($2,847.08 -- net), which covered the period May 19 through November 16, 2013. Effective November 17,
2013, OWCP placed appellant on the periodic compensation rolls and began paying wage-loss compensation every
28 days ($5,694.16 -- net).
18

See R.C., Docket No. 14-1383 (issued December 5, 2014).

19
See Sinclair L. Taylor, 52 ECAB 227, 231 (2001) (finding that a letter advising appellant to notify OWCP
immediately if he received benefits from the Department of Veterans Affairs (DVA) was not sufficient to support a
finding that he knew or should have known that he was not entitled to both DVA benefits and FECA wage-loss
compensation).

7

If you are covered under FERS, the OWCP must deduct from your compensation
… at least part of any Social Security Retirement benefits to which you are entitled
based on age. This is because a portion of FERS benefits is included in Social
Security retirement benefits. Therefore, advise the OWCP immediately upon filing
for or receiving Social Security Retirement benefits.”
Unlike Form CA-7, the above-noted November 21, 2013 correspondence (EN1049) clearly
put appellant on notice regarding the importance of accurately reporting his receipt of SSA agerelated retirement benefits, and the potential of creating an overpayment when FERS-based SSA
benefits are not properly offset.
Payment records indicate that compensation for the period November 3 through
November 16, 2013 was paid via electronic funds transfer (EFT) on November 22, 2013.
Although the EFT post-dated OWCP’s November 21, 2013 correspondence, it is not evident from
the record that appellant received the EN1049 prior to accepting payment for the period
November 3 - 16, 2013. However, the initial 28-day periodic roll payment for the period beginning
November 17, 2013 was disbursed via EFT on December 14, 2013. By then, appellant would have
received OWCP’s November 21, 2013 correspondence, and thus, he knew or should have known
that any additional payments accepted were incorrect.20
Despite having received notice that SSA age-related retirement benefits would reduce his
entitlement to FECA compensation, appellant continued to accept full FECA benefits covering the
period November 17, 2013 through December 11, 2016.21 The Board thus finds that appellant was
at fault under the third standard as he accepted compensation that he knew or should have known
that he was not entitled to receive and, as such, recovery of the overpayment of compensation for
this period cannot be waived.22
As OWCP has not established that appellant was at fault in the creation of the overpayment
covering the period March 25 through November 16, 2013, the case will be remanded to OWCP
to consider waiver of recovery of the overpayment for this period.23
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $58,235.33 for the period March 25, 2013 through
December 11, 2016. The Board further finds that he was not at fault in the creation of the
overpayment covering the period March 25 through November 16, 2013, but with respect to the
overpayment of compensation for the period November 17, 2013 through December 11, 2016,
appellant was at fault, and thus, he is not entitled to waiver of recovery for this portion of the total

20

There is no record that the November 21, 2013 correspondence was returned to OWCP as undeliverable.

21

See J.C., Docket No. 16-1889 (issued May 17, 2017); R.H., Docket No. 15-0563 (issued October 13, 2015).

22

See S.U., Docket No. 17-1281 (issued April 2, 2018).

23
In view of the Board’s disposition of the issue of fault, it is premature to consider the issue of whether OWCP
properly set the rate of recovery of the overpayment.

8

overpayment. The case will be remanded for OWCP to consider waiver of recovery of the
overpayment covering the period March 25 through November 16, 2013.
ORDER
IT IS HEREBY ORDERED THAT the September 5, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: July 25, 2018
Washington, DC

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

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

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

9