United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 11-1672
Issued: July 20, 2012

Case Submitted on the Record

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

JURISDICTION
On July 12, 2011 appellant filed a timely appeal from the May 19, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which terminated her compensation.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective August 29, 2010.

1
2

5 U.S.C. § 8101 et seq.

The record contains a March 5, 2011 decision of the Branch of Hearings and Review which denied appellant’s
hearing request as untimely. She subsequently sought reconsideration before OWCP, which issued the May 19,
2011 merit denial.

FACTUAL HISTORY
On March 10, 2004 appellant, then 56-year-old flat sorter clerk, filed a traumatic injury
claim alleging she hurt her right shoulder, right wrist and low back that day while bending down
to push flat boxes through rollers that became stuck. OWCP accepted the claim for neck sprain
and strain, right shoulder and upper arm sprain and strain and a complete rupture of the right
rotator cuff. Appellant stopped work on December 3, 2004 and did not return. She underwent
an authorized right shoulder arthroscopic surgery on April 12, 2005 by Dr. Howard B. Krone, a
Board-certified orthopedic surgeon. OWCP paid wage-loss benefits and placed appellant on the
periodic compensation rolls.
On November 22, 2005 Dr. Krone advised that appellant could return to work full time
within specified physical limitations regarding her right upper extremity. He precluded lifting
above shoulder level with no pushing, pulling or lifting over 10 pounds. On January 17, 2006
Dr. Krone advised that appellant was at maximum medical improvement with a full passive
range of motion.
The record reflects that appellant was treated by Dr. Michael G. Hartman, a
neurosurgeon, for cervical radiculopathy and degenerative lumbar disc disease. On February 2,
2006 she underwent a cervical magnetic resonance imaging (MRI) scan that revealed
degenerative disc disease and spondylosis at C4-5 on the right and C6-7 on the left. Based on
this finding, Dr. Hartman kept appellant off work. In response to the physician’s request for
authorization of cervical surgery, on March 8, 2006, an OWCP medical adviser reviewed the
medical records and recommended against surgery. He noted that appellant’s cervical
degenerative disease had not been established as related to the accepted right shoulder injury or
neck strain.
On November 6, 2006 Dr. Ralph D’Auria, an attending physician, noted that appellant
was at maximum medical improvement with regards to her right shoulder but was in need of
surgery for her neck condition. He advised that neurological examination of both upper
extremities was normal. On December 6, 2006 Dr. D’Auria noted that diagnostic testing
revealed cervical radiculopathy predominantly at C7, with multilevel degenerative changes. He
stated that the cervical radiculopathy was of recent onset, within the time frame of appellant’s
March 10, 2004 injury. Dr. D’Auria provided work restrictions based on her right shoulder
condition but noted that she remained disabled due to her cervical condition that required
surgery. On March 3, 2008 in response to a question from OWCP, he advised that appellant’s
right shoulder condition had resolved. Dr. D’Auria stated that it was unclear whether there was
any actual functional aggravation of her condition that could be demonstrated objectively. He
continued appellant’s disability through July 15, 2008.
By decision dated January 14, 2009, OWCP found that appellant’s degenerative disc
disease at C4-5 and C6-7 with cord compression at C4-5 and encroachment of the left C7 nerve
root was not causally related to the March 10, 2004 injury.3 It determined that the medical
reports of Dr. D’Auria did not adequately address how appellant’s preexisting cervical
degenerative disc disease was caused or aggravated by the accepted injury.
3

The record indicates that appellant did not appeal from this decision.

2

In March 2009, OWCP referred appellant, with a statement of accepted facts, the
complete medical record and a list of questions, to Dr. Joseph C. Tatum, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In an April 22, 2009 report, Dr. Tatum
reviewed the history of injury and medical treatment. He noted that, following shoulder surgery
on April 12, 2005, appellant was treated for cervical degenerative disc disease and surgery
recommended. Dr. Tatum noted that, on examination, she stated that she did not have any pain
with her right shoulder but complained of neck pain with radiation into the left upper extremity
with occasional tingling but no significant weakness. Examination of the right shoulder showed
active and passive abduction to 45 degrees above horizontal with tightness. Appellant revealed
full internal and external rotation with excellent firm grip strength and pinch in both hands.
There was no evidence of muscle atrophy in either arm. Dr. Tatum found that appellant’s
accepted neck and right shoulder sprain had cleared and that the right rotator cuff tear had been
repaired and healed. He advised that residuals of the accepted 2004 injury had resolved without
need of further medical treatment and that appellant’s current complaints were due to her
cervical disc disease. Dr. Tatum provided physical restrictions for full-time light-duty work.
On May 26, 2009 OWCP proposed to terminate appellant’s compensation benefits based
on Dr. Tatum’s report. A copy of the notice was not provided to appellant’s attorney.
In a June 25, 2009 letter, appellant disagreed with the proposed termination. In a
June 29, 2009 report, Dr. Mark W. Feeman, an osteopath and a Board-certified physiatrist, noted
a history that in the March 10, 2004 incident she was jerked forward by a malfunctioning
conveyor mail sorting machine. He diagnosed right rotator cuff injury with surgical repair and
cervical spondylosis without myelopathy. Dr. Feeman stated that appellant’s C7 nerve root was
aggravated by the work-related injury as she was jerked forward. He noted that she complained
of numbness in the right upper extremity with trouble raising her right arm. Dr. Feeman noted
that diagnostic testing revealed mild right neural foraminal narrowing with a disc/osteophyte
complex at C6-7, cord compression at C4-5 and encroachment of the C7 nerve root. He
provided an impression of chronic right shoulder pain; status post rotator cuff injury and right
rotator cuff repair with residual limitation in right shoulder range of motion related to March 10,
2004 work injury; cervical spondylosis without myelopathy; cervical radiculitis aggravated by
the 2004 work injury; and possible carpal tunnel syndrome. Dr. Feeman stated that appellant
could return to work with restrictions, but was unable to perform her date-of-injury position.
OWCP found a conflict in medical opinion between Dr. Feeman, for appellant and
Dr. Tatum, the second opinion examiner, as to the extent of disability and residuals due to the
March 10, 2004 injury. It referred appellant to Dr. Bennett J. Axelrod, a Board-certified
orthopedic surgeon, for an impartial medical examination.
In a January 13, 2010 report, Dr. Axelrod reviewed the history of injury, medical
treatment and set forth findings on physical examination. He noted that appellant complained
predominately of pain on the right side of her neck with occasional numbness in both hands,
worse on the right. Dr. Axelrod reviewed the reports of Dr. D’Auria, noting that, on
November 6, 2006, he advised that appellant had full right shoulder range of motion without
complaint of pain and had reached maximum medical improvement. He reviewed magnetic
resonance imaging (MRI) scan testing obtained of the cervical spine on January 15, 2008, which
showed degenerative disc disease with disc-osteophyte complex at C4-5 and C6-7, without
evidence of neural compression at either level. Dr. Axelrod noted there was no evidence of
3

significant stenosis at either level and that there was no evidence for cervical fusion surgery
based on these findings. He reviewed the medical records of Dr. Tatum and Dr. Feeman. On
examination, Dr. Axelrod found the cervical and lumbar spines to be within normal limits as to
range of motion, stability, motor strength and reflex testing. Appellant held her neck stiffly
when moving about the examination room, but range of motion testing revealed at least 60
degrees lateral gaze in both directions. She also complained of pain to light pressure at the
surgical incision of the right shoulder. Appellant had good grip strength bilaterally, slightly
diminished on the right with no thenar or interosseous atrophy. Forment’s sign and Finkelstein’s
test were negative bilaterally as was median compression at both wrists. Reflexes were reported.
Dr. Axelrod opined that right shoulder injury of 2004 had completely resolved following
surgical repair and rehabilitation. He also found that the accepted neck strain that occurred in
2004 had also resolved. Dr. Axelrod stated that appellant’s current symptoms of severe pain on
the right side of her neck exceeded his expectations based on the physical examination and
previous and recent radiographic studies. He found that her current neck symptoms were the
result of the natural progression of preexisting underlying degenerative cervical disease and the
natural aging process. Dr. Axelrod advised that no further medical treatment was needed for the
accepted conditions but noted that symptoms related to the natural progression of the arthritic
process in appellant’s neck would continue to follow the natural progression, including gradual
worsening overtime. He noted that she was not able to perform her date-of-injury position or lift
70 pounds due to her age and size.
On February 24, 2010 OWCP proposed to terminate appellant’s compensation based on
Dr. Axelrod’s opinion. Counsel was not provided a copy of this notice.
OWCP received a March 25, 2010 letter from counsel together with a March 17, 2010
report from Dr. Feeman, who disagreed with the findings and conclusions of Dr. Tatum and
Dr. Axelrod that appellant’s work-related conditions had resolved. Dr. Feeman stated that
appellant’s cervical spondylosis and degenerative disc disease would not be in its current state
without the physical stress placed on her cervical spine during the work-related incident of
March 10, 2004. The work injury placed severe physical stress on her cervical spine which
caused a disc-osteophyte complex at C4-5 to result in cord compression and the disc-osteophyte
complex at C6-7 to result in nerve root impingement at the left C7 nerve root and also resulted in
a complete rotator cuff rupture of the right shoulder. Dr. Feeman stated cord compression and
nerve root impingement were not the natural progression of the arthritic process in appellant’s
neck, but rather new conditions directly caused by the March 10, 2004 injury that permanently
aggravated her underlying cervical degenerative disc disease. He referred to a February 11, 2005
MRI scan, restricted range of motion and chronic pain over the acromioclavicular (AC) joint as
residuals of the rotator cuff tear. Dr. Feeman stated that appellant’s rotator cuff surgery was not
100 percent successful as confirmed by Dr. Axelrod’s examination.4
By decision dated April 13, 2010, OWCP terminated appellant’s compensation benefits
effective May 9, 2010. It found the weight of the medical evidence was with Dr. Axelrod, the
impartial medical specialist.
4

The record reflects that appellant subsequently requested authorization to change attending physician’s from
Dr. D’Auria to Dr. Feeman.

4

On May 11, 2010 appellant requested an oral hearing. In a June 22, 2010 decision,
OWCP’s hearing representative set aside the April 13, 2010 decision as counsel was not
provided a copy of the February 24, 2010 pretermination notice. OWCP was directed to reissue
appropriate notice to appellant and counsel. Appellant was placed back on the periodic rolls on
May 9, 2010 pending a new decision.
On June 23, 2010 OWCP reissued the notice of proposed termination which found that
the weight of the medical evidence was with Dr. Axelrod.
On July 22, 2010 counsel submitted the July 20, 2010 report from Dr. Feeman, which
essentially duplicated the contents of his March 17, 2010 report. Dr. Feeman stated that an
April 28, 2010 right shoulder MRI scan confirmed postoperative changes after the 2005 rotator
cuff repair but found no new rotator cuff tear or internal derangement. He stated that appellant
met the criteria for rotator cuff syndrome because of residual range of motion deficit and severe
pain over the AC joint. Dr. Feeman noted that both Dr. Tatum and Dr. Axelrod confirmed that
she was unable to perform her usual job. He concluded that appellant had residuals of her work
injury consisting of cervical spondylosis with myelopathy at C4-5 due to cord compression,
cervical spondylosis with radiculitis at C6-7 due to nerve root impingement and rotator cuff
residuals. Appellant submitted a copy of the April 28, 2010 diagnostic test of the right shoulder.
By decision dated August 5, 2010, OWCP terminated appellant’s compensation benefits
effective August 29, 2010. It found the weight of medical opinion represented by Dr. Axelrod.
In a January 3, 2011 letter, received by OWCP on January 13, 2011, counsel requested an
oral hearing before an OWCP hearing representative. A copy of an oral hearing request form
dated August 15, 2010 was also provided.
By decision dated March 15, 2011, OWCP denied appellant’s request for a hearing on the
grounds that it was not timely filed. It found that her request for a hearing was received on
January 13, 2011, more than 30 days after issuance of the August 5, 2010 decision. OWCP
additionally denied appellant’s request for a hearing on the grounds that the issues involved
could be addressed equally well by submitting new, relevant evidence pursuant to a request for
reconsideration.
In an April 7, 2011 reconsideration request, counsel argued that Dr. Feeman supported
additional diagnoses due to the work-related injury and the claim should be accepted for her
cervical conditions. He contended that Dr. Feeman’s March 17, 2010 report was based on a
comprehensive review of appellant’s medical records and supported ongoing residuals of the
work injury. Counsel argued that the medical reports of Dr. Tatum and Dr. Axelrod did not
support that appellant’s conditions had resolved. Appellant submitted the diagnostic testing of
April 28, 2010.
By decision dated May 19, 2011, OWCP denied modification of the August 5, 2010
termination decision.

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LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to his or her federal employment, it may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.8
Section 8123(a) of FECA 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.9 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.10
ANALYSIS
OWCP accepted that appellant sustained a neck sprain and strain, right shoulder and
upper arm sprain and strain and complete rupture of the right rotator cuff, which was surgically
repaired by Dr. Krone on April 12, 2005. Appellant stopped work on December 3, 2004 and did
not return. She was placed on the periodic rolls in receipt of compensation benefits.
OWCP properly determined that there was a conflict in medical opinion evidence
between Dr. Feeman, for appellant and Dr. Tatum, a Board-certified orthopedic surgeon acting
as an OWCP referral physician, on the issue of whether appellant continued to have disabling
residuals of her March 10, 2004 employment injury.11 In order to resolve the conflict, it properly
referred appellant, pursuant to section 8123(a) of FECA, to Dr. Axelrod for an impartial medical
examination and opinion on the matter.12
5

Bernadine P. Taylor, 54 ECAB 342 (2003).

6

Id.

7

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
8

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., supra note 7.

9

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

10

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

11

Dr. Feeman opined that appellant had residuals from her work-related conditions and was unable to do her
date-of-injury position. In contrast, Dr. Tatum opined that her work-related conditions had resolved and she could
return to light-duty work due to restrictions imposed for her cervical degenerative condition.
12

See supra note 7.

6

Dr. Axelrod was provided with appellant’s medical record, a statement of accepted facts
and questions to be addressed in resolving the conflict of medical opinion between Dr. Feeman
and Dr. Tatum. In a January 13, 2010 report, he provided an extensive review of the medical
reports of record, diagnostic tests and the differing conclusions reached by Dr. Feeman and
Dr. Tatum. Dr. Axelrod also reviewed the reports of Dr. D’Auria, who had found on
November 6, 2006 that appellant had full right shoulder range of motion and had reached
maximum medical improvement. He set findings pertaining to the right shoulder and the
cervical spine. Dr. Axelrod found that the shoulder injury had completely resolved following
surgical repair and rehabilitation as had the accepted neck strain. He noted that appellant held
her neck stiffly on examination but attributed her ongoing symptoms of cervical pain to the
natural progression of her preexisting underlying degenerative cervical condition and natural
aging process. Dr. Axelrod found that the conditions accepted by OWCP did not require further
medical treatment. He opined that appellant was unable to perform her regular job, but noted
that her lifting restrictions were due to her age and size.
The Board finds that Dr. Axelrod offered a medical opinion that is sound, rational and
logical. He clearly advised that the residuals of appellant’s accepted cervical sprain and right
shoulder conditions resolved and did not require further treatment. It is well established that the
opinion of an impartial medical specialist based on a proper history and sufficiently rationalized,
is of special weight. The Board finds that Dr. Axelrod’s opinion is entitled to special weight and
resolved the conflict.13
Following receipt of Dr. Axelrod’s report, appellant submitted the March 17 and July 20,
2010 reports from Dr. Feeman14 who stated his disagreement with the opinion and findings of
Dr. Tatum and Dr. Axelrod and opined that appellant had residuals of her work injury that
necessitated work limitations. The Board has held that reports from a physician who was on one
side of a medical conflict that is resolved by an impartial medical specialist, are generally
insufficient to overcome the special weight accorded to the impartial examiner or to create a new
conflict.15 Dr. Feeman stated that the March 10, 2004 injury permanently aggravated appellant’s
underlying cervical degenerative disc disease and that her claim should be accepted for cervical
spondylosis with myelopathy at C4-5 due to cord compression and cervical spondylosis and
radiculitis at C6-7 due to nerve root impingement. However, these were not conditions accepted
by OWCP in this case and were addressed by Dr. Axelrod.16 Dr. Feeman also opined that
appellant had ongoing residuals of the rotator cuff tear as documented in an April 28, 2010 MRI
scan. The Board notes, however, that Dr. Axelrod attributed appellant’s ongoing limitations in
neck range of motion to her underlying degenerative disease process. Dr. Axelrod reviewed the
opinion of Dr. Feeman and explained that her symptoms and complaints on examination
exceeded his expectations based on the physical examination and diagnostic studies. He
recommended work limitations that he noted were due to appellant’s arthritic process in her neck
and unrelated to the accepted injury.
13

See Sharyn D. Bannick, 54 ECAB 537 (2003).

14

Dr. Feeman’s July 20, 2010 report contains the same information as his March 17, 2010 report.

15

I.J., 59 ECAB 408 (2008).

16

The issue of additional conditions was addressed and denied in the January 14, 2009 OWCP decision.
Appellant did not timely appeal from that decision and it is not presently before the Board.

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The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective August 29, 2010.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective August 29, 2010.
ORDER
IT IS HEREBY ORDERED THAT the May 19, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 20, 2012
Washington, DC

Richard J. Daschbach, 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
__________________________________________
J.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Ann Arbor, MI, Employer
__________________________________________

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

Docket No. 18-1791
Issued: May 17, 2019

Case Submitted on the Record

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

JURISDICTION
On September 24, 2018 appellant filed a timely appeal from an August 30, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $22,979.73 because she concurrently received Social Security Administration (SSA)
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 30, 2018 decision, OWCP received additional evidence and 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.

age-based benefits while also receiving FECA benefits for the period March 1, 2012 through
March 31, 2018; (2) whether OWCP properly found appellant at fault in the creation of the
overpayment thereby precluding waiver of recovery of the overpayment; and (3) whether OWCP
properly required recovery of the overpayment by deducting $300.00 every 28 days from
appellant’s continuing compensation.
FACTUAL HISTORY
On October 18, 2004 appellant, then a 54-year old respiratory therapy supervisor, filed a
traumatic injury claim (Form CA-1) , alleging that on that day she experienced right shoulder and
left neck pain while reaching to adjust oxygen equipment while in the performance of duty. OWCP
adjudicated the claim under File No. xxxxxx700 and accepted right shoulder strain, cervical strain,
left rotator cuff tear, left shoulder bursitis, and post-traumatic stress disorder (PTSD). Appellant
stopped work on the date of injury and returned to limited-duty work on November 13, 2004.3
On March 22, 2005 appellant filed an occupational disease claim (Form CA-2), alleging
that her work duties caused neck pain. OWCP adjudicated the claim under File No. xxxxxx585
and accepted sprain/strain of right shoulder, sprain/strain of neck, and tendinitis of right shoulder.
Appellant was off work intermittently until July 26, 2006 when she underwent an authorized right
shoulder acromioplasty with rotator cuff repair and was off work continuously thereafter. She
returned to limited-duty work on September 11, 2006.4
Appellant stopped work again completely on December 12, 2008. OWCP paid her wageloss compensation on the supplemental rolls until August 29, 2010 when she began receiving
compensation on the periodic compensation rolls.
In letters dated January 27 and February 2, 2012, OWCP informed appellant that her FECA
benefits would be reduced by the amount of SSA retirement benefits received based on age and
federal service.
On EN1032 forms signed by appellant on February 10, 2014, February 14, 2015,
February 23, 2016, February 27, 2017, February 23, 2018, and February 20, 2019, she indicated
that she was not receiving SSA benefits as part of an annuity for federal service. The EN1032
forms signed by appellant provided: “Report any benefits received from the SSA which you
receive as part of an annuity under the FERS. DO NOT report any benefits received from SSA on
account of employment in the private sector.” On the form signed on February 23, 2018 she
indicated that she was not receiving SSA benefits as part of an annuity for federal service, but was
instead receiving SSA retirement benefits.

3
On August 9, 2004 appellant filed a traumatic injury claim (Form CA-1) alleging that on August 3, 2004 she
injured her right shoulder while attempting to keep equipment from falling. OWCP administratively approved the
claim for limited medical expenses. That claim, assigned File No. xxxxxx984, was never formally adjudicated by
OWCP. Appellant stopped work on the date-of-injury and returned to limited-duty work on October 16, 2004.
4
OWCP administratively combined OWCP File Nos. xxxxxx700, xxxxxx984, and xxxxxx585 on November 7,
2007, with OWCP File No. xxxxxx700 serving as the master file.

2

On April 6, 2018 SSA forwarded a Federal Employees Retirement System (FERS)/SSA
dual benefits calculation form to OWCP. The form indicated: beginning in March 2012,
appellant’s SSA rate with FERS was $1,385.20 and without FERS $1,155.50; beginning in
December 2012, her SSA rate with FERS was $1,408.70 and without FERS was $1,175.10;
beginning in December 2013, her SSA rate with FERS was $1,429.90 and without FERS was
$1,192.70; beginning in December 2014, her SSA rate with FERS was $1,454.10 and without
FERS was $1,212.90; beginning in February 2016, her SSA rate with FERS was $2,060.60 and
without FERS was $1,608.30; beginning in December 2016, her SSA rate with FERS was
$2,066.70 and without FERS was $1,613.10; and beginning in December 2017, her SSA rate with
FERS was $2,108.00 and without FERS was $1,645.30.
By letter dated April 13, 2018, OWCP notified appellant that based on information
provided by SSA regarding the amount her SSA age-based benefits were attributable to federal
service, her FECA wage-loss compensation had been adjusted, and that an overpayment of
compensation could exist.
On May 23, 2018 OWCP issued a preliminary determination, finding that an overpayment
of compensation in the amount of $22,979.73 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA age-based benefits that she received from March 1,
2012 through March 31, 2018 were based on credits earned while working in the federal
government, and that this portion of her SSA benefit was a prohibited dual benefit. OWCP found
appellant at fault in the creation of the overpayment and provided an overpayment action request
form and an overpayment recovery questionnaire (Form OWCP-20) for her completion.5 It
explained its calculation of the overpayment, informed appellant of the actions she could take, and
allotted 30 days for her to respond.
On an unsigned overpayment action request forwarded to OWCP on June 19, 2018, along
with an overpayment questionnaire, appellant requested that OWCP make a decision based on the
written evidence. In an attached statement, she noted disagreement with the fault finding,
indicating that at a meeting with SSA, she was not informed that she had to report her SSA
retirement benefit to OWCP. On the overpayment questionnaire, signed by appellant on May 14,
2018, she reported SSA income of $1,974.00. Reported expenses totaled $1,658.76. Appellant
attached financial information including bank statements, utility bills, credit card bills, and medical
bills. She maintained that OWCP did not pay for treatment for her accepted PTSD.
By decision dated August 30, 2018, OWCP finalized the preliminary determination of a
$22,979.73 overpayment of compensation. It determined that appellant was at fault in the creation
of the overpayment and, therefore, she was not entitled to waiver of recovery of the overpayment.
OWCP required recovery by deducting $300.00 every 28 days from her continuing FECA
compensation.

5

OWCP explained that she was to attach documents to the overpayment recovery questionnaire including income
tax returns, bank account statements, bills and cancelled checks, pay slips, and any other records which supported
income and expenses listed.

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LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.6 Section 8116 limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay or
remuneration of any type from the United States.7
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA benefits that are attributable to federal service of the
employee.8 FECA Bulletin No. 97-09 states that FECA benefits have to be adjusted for the FERS
portion of SSA benefits because the portion of the SSA benefit earned as a federal employee is
part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.9
Section 404.310 of SSA regulations provides that entitlement to SSA compensation begins
at 62 years.10 Section 404.409 of SSA regulations provides that for individuals born from 1943 to
1954, full retirement age is 66 years.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $22,979.73.
In its August 30, 2018 decision, OWCP found that an overpayment of compensation was
created for the period March 1, 2012 through March 31, 2018. The overpayment was based on the
evidence received from SSA with respect to age-based benefits paid to appellant. A claimant
cannot receive both compensation for wage loss and SSA retirement benefits attributable to federal
service for the same period.12 The information provided by SSA indicated that appellant received
age-based SSA benefits that were attributable to federal service during the period March 1, 2012
through March 31, 2018.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of age-based SSA retirement benefits that were attributable to
6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see E.K., Docket No. 18-0587 (issued October 1, 2018).

9

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

10

20 C.F.R. § 404.310.

11

Id. at § 404.409.

12

See E.K., supra note 8.

4

federal service. The SSA provided the SSA rate with FERS, and without FERS for specific periods
commencing March 1, 2012 through March 31, 2018. OWCP provided its calculations for each
relevant period based on the SSA worksheet. No contrary evidence was provided.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period March 1, 2012 through March 31, 2018 and finds that an overpayment of compensation in
the amount of $22,979.73 was created.13
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”14
Section 10.433(a) of OWCP regulations provides that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must show
good faith and exercise a high degree of care in reporting events which may affect
entitlement to or the amount of benefits.... A recipient who has done any of the
following will be found to be at fault in 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 he or she knew or
should have known to be incorrect. (This provision applies only to the overpaid
individual).”15
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant was at fault in the creation
of the overpayment thereby precluding waiver of the recovery of the overpayment.

13

See L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).

14

5 U.S.C. § 8129; see A.S., Docket No. 17-0606 (issued December 21, 2017).

15

20 C.F.R. § 10.433(a); see C.Y., Docket No. 18-0263 (issued September 14, 2018); see also 20 C.F.R. § 10.430.

16

20 C.F.R. § 10.433(b); C.Y., id.

5

OWCP found appellant at fault based on the fact that she accepted a payment which she
knew or should have known to be incorrect.
In letters dated January 27 and February 2, 2012, OWCP informed appellant that her FECA
benefits would be reduced by receipt of SSA retirement benefits based on age and federal service.
Appellant signed EN1032 forms on February 10, 2014, February 14, 2015, February 23, 2016,
February 27, 2017, and February 23, 2018, wherein she indicated that she was not receiving SSA
benefits as part of an annuity for federal service. The EN1032 forms signed by appellant provided:
“Report any benefits received from the SSA which you receive as part of an annuity under the
FERS. DO NOT report any benefits received from SSA on account of employment in the private
sector.” Despite being given notice on January 27 and February 2, 2012 that receipt of SSA
benefits would reduce her entitlement to FECA compensation, appellant continued to accept full
wage-loss compensation without an appropriate offset from March 1, 2012 through March 31,
2018 which she knew or should have known was incorrect.17 Moreover, based on the clear
language of the EN1032 forms which she knowingly signed, she failed to provide information she
knew or should have known to be material and accepted payment she knew was incorrect.18 As
such, she is not entitled to waiver of recovery of the overpayment.19
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or her attention is called to the
same. If no refund is made, OWCP shall decrease later payments of compensation, 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 hardship.20
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment of
compensation by deducting $300.00 every 28 days from appellant’s continuing compensation
payments.
The record indicates that appellant’s monthly income from SSA and FECA exceeds her
reported monthly expenses by approximately $3,400.00. OWCP therefore did not abuse its
discretion in requiring recovery of the overpayment at the rate of $300.00 every 28 days from her
continuing compensation payments.21

17

See G.C., Docket No. 18-1062 (issued December 4, 2018).

18

See E.H., Docket No. 18-1009 (issued January 29, 2019).

19

L.L., supra note 13.

20

20 C.F.R. § 10.441; see E.K., supra note 8.

21

G.K., Docket No. 18-0243 (issued August 17, 2018).

6

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$22,979.73 because she concurrently received SSA benefits while also receiving FECA benefits
for the period March 1, 2012 through March 31, 2018. The Board further finds that she was at
fault in the creation of the overpayment, thereby precluding waiver of recovery of the
overpayment, and that OWCP properly required recovery by deducting $300.00 every 28 days
from her continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the August 30, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 18-1363
Issued: February 6, 2019

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 July 2, 2018 appellant filed a timely appeal from a March 2, 2018 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 2, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish that his left foot
conditions were causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On May 31, 2017 appellant, then a 49-year-old customs and border protection officer, filed
an occupational disease claim (Form CA-2) alleging that he developed Haglund’s deformity,
which is a bone spur, in his left heel and foot as a result of his federal employment duties. He
reported that his work duties entailed standing, lifting, sitting, and walking which aggravated his
heel/foot and caused a limp. Appellant noted that he first became aware of his claimed condition
on August 1, 2016 and of its relationship to his federal employment on April 1, 2017. He notified
his supervisor of his condition on May 22, 2017 and was assigned light-duty status performing
administrative work.
By development letter dated August 22, 2017, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised appellant of the type of medical and
factual evidence needed and afforded him 30 days to submit the necessary evidence.
In a September 12, 2017 narrative statement, appellant reported that he sought medical
treatment in August 2016 after he developed pain in his left heel. He discussed his airport
passenger processing duties, noting that he was assigned to exit duties which entailed sitting and
standing for prolonged periods of time to process passengers. Appellant further noted standing for
prolonged periods of time while wearing a heavy ballistic vest and holding a rifle. He reported
that his employment duties of standing, walking, and sometimes running caused his left foot pain
to worsen. Appellant explained that standing for six to eight hours daily for his assignment
continued to aggravate his injury. He sought medical treatment and was diagnosed with Haglund’s
deformity and Achilles tendinitis. On May 15, 2017 appellant’s physician provided him a boot to
wear and placed him on light duty with restrictions of no standing. Appellant noted that on
August 24, 2017 he underwent surgery for his condition and that he had not returned to work.
In support of his claim, appellant submitted medical reports dated August 22, 2016 through
September 6, 2017 from Dr. Erroll Bailey, a Board-certified orthopedic surgeon. Dr. Bailey
reported that appellant complained of left posterior heel pain. He noted that appellant used to work
as a police officer and currently worked security at the Atlanta airport. Dr. Bailey reported that
appellant did a lot of standing and walking which he had done all of his life. He provided physical
examination findings and reviewed diagnostic testing. Dr. Bailey diagnosed left Haglund’s
deformity, insertional Achilles spur, and Achilles tendinosis. He reported that appellant underwent
conservative treatment, but his condition had not improved. In August 2017, appellant underwent
left Haglund’s deformity excision and Achilles tendon repair. In a September 14, 2017 report,
Dr. Bailey stated that appellant was status post excision surgery.
By decision dated November 7, 2017, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish that his diagnosed conditions were
causally related to the accepted factors of his federal employment.

2

On December 4, 2017 appellant requested a review of the written record by an OWCP
hearing representative.
In support of his request, appellant submitted a November 30, 2017 report from
Dr. Mitchell S. Nudelman, Board-certified in family medicine. Dr. Nudelman opined that
appellant’s left Haglund’s deformity and Achilles tendinitis most likely developed due to
prolonged standing at work while wearing a vest and carrying a rifle. He explained that while
appellant may have had an anatomic propensity to develop such conditions, work aggravated and
exacerbated the diagnosed conditions. Dr. Nudelman noted that surgery was performed following
conservative treatment and appellant was expected to make a complete recovery. The report was
cosigned by Dr. Bailey.
By decision dated March 2, 2018, an OWCP hearing representative affirmed the
November 7, 2017 decision finding that the evidence of record failed to establish that appellant’s
diagnosed conditions of left Haglund’s deformity and Achilles tendinitis were causally related to
the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5
To establish causal relationship between the condition, as well as any attendant disability
claimed, and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.6 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
3

Gary J. Watling, 52 ECAB 278 (2001).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

3

This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his left foot
conditions were causally related to the accepted factors of his federal employment.8
In support of his claim, appellant submitted medical reports dated August 22, 2016 through
September 6, 2017 from Dr. Bailey, his treating physician. The Board finds that the reports of
Dr. Bailey are insufficient to establish appellant’s occupational disease claim.9 While Dr. Bailey
noted a firm medical diagnosis of left Haglund’s deformity and Achilles tendinitis, he failed to
provide an opinion on the cause of appellant’s injury.10 Rather, he only generally noted that
appellant engaged in prolonged standing and walking. The Board has held that medical evidence
that does not offer an opinion regarding the cause of an employee’s condition is of no probative
value.11 As Dr. Bailey failed to provide an opinion that appellant’s left Haglund’s deformity and
Achilles tendinitis were caused by his federal employment duties, his reports are insufficient to
meet appellant’s burden of proof.12
Dr. Nudelman’s November 30, 2017 report also fails to establish appellant’s alleged
employment injury.13 He did not discuss appellant’s medical history, physical examination
findings, or provide review of diagnostic testing. Dr. Nudelman’s report lacks the specificity and
detail needed to establish that appellant’s injuries are a result of a work-related occupational
exposure.14
Dr. Nudelman opined that appellant’s left Haglund’s deformity and Achilles tendinitis
most likely developed due to prolonged standing at work while wearing a vest and carrying a rifle.
The Board notes that Dr. Nudelman’s opinion on causation is highly speculative and couched in
equivocal terms as he failed to provide a definitive statement pertaining to the cause of appellant’s
injury. To be of probative value, a physician’s opinion on causal relationship should be one of

7

James Mack, 43 ECAB 321 (1991).

8

See Robert Broome, 55 ECAB 339 (2004).

9

J.I., Docket No. 18-0286 (issued September 17, 2018).

10

D.H., Docket No. 11-1739 (issued April 18, 2012).

11

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

12

K.W., Docket No. 10-0098 (issued September 10, 2010).

13

See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).
14

P.O., Docket No. 14-1675 (issued December 3, 2015); S.R., Docket No. 12-1098 (issued September 19, 2012).

4

reasonable medical certainty.15 The physician noted that while appellant may have had an
anatomic propensity to develop such conditions, work aggravated and exacerbated the diagnosed
conditions. It remains unclear whether appellant’s left foot condition was the result of a preexisting
condition or caused by his occupational employment duties. A well-rationalized opinion is
particularly warranted when there is a history of a preexisting condition.16 Given these
deficiencies, the Board finds Dr. Nudelman’s report lacks convincing quality and is of limited
probative value.17
An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relationship.18 The Board has held that the mere fact that a
condition manifests itself during a period of employment does not raise an inference of causal
relationship.19
The Board finds that the medical evidence of record is insufficient to establish causal
relationship between appellant’s federal employment duties as a customs and border protection
officer and his diagnosed left foot Haglund’s deformity and Achilles tendinitis.20
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his left foot
conditions are causally related to the accepted factors of his federal employment.

15

See Beverly R. Jones, 55 ECAB 411 (2004).

16

T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

17

Supra note 7.

18

D.D., 57 ECAB 734 (2006).

19

Daniel O. Vasquez, 57 ECAB 559 (2006).

20

T.O., Docket No. 18-0139 (issued May 24, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the March 2, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 6, 2019
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL ARKANSAS HEALTH CARE
SYSTEM, Little Rock, AR, Employer
__________________________________________

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Appearances:
Jerry Rogers, for the appellant
Miriam D. Ozur, Esq., for the Director

Docket No. 10-846
Issued: December 15, 2010

Case Submitted on the Record

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

JURISDICTION
On February 12, 2010 appellant, through her representative, filed a timely appeal from
the August 18 and November 20, 2009 merit decisions of the Office of Workers’ Compensation
Programs denying her compensation claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant’s claimed injury of April 24, 2009 was caused by her
willful misconduct.
On appeal, appellant contends that she is entitled to wage-loss compensation benefits.
FACTUAL HISTORY
On May 14, 2009 appellant, then a 47-year-old nursing assistant, filed a traumatic injury
claim alleging that on April 24, 2009 she experienced severe and sharp pain from her neck to her

right shoulder when an employing establishment police officer pulled her very tightly while
handcuffing her arms behind her back.1
The employing establishment controverted the claim on the grounds that appellant caused
the injury by her willful misconduct. It stated that she was taken into custody for disorderly
conduct by the employing establishment police. The employer contended that, at the time of her
injury, appellant was not in the performance of duty and her injury was not work related.
Appellant was leaving the building with a friend who was picking her up from work. The
employing establishment alleged that her injury was proximately caused by her intent to injure or
kill herself or another person or intoxication.
In an investigative report dated April 28, 2009, Jerry Donaldson, an employing
establishment investigating officer, stated that on April 24, 2009 appellant was taken into
custody for causing a disturbance, disorderly conduct and making threats. Officer Donaldson
and Officer Plato were dispatched to appellant’s work area based on a report by Candice
Workman, a nursing manager, and Mark Rogers, a nurse administrator, who suspected that she
was intoxicated. Ms. Workman related to Officer Donaldson that appellant’s speech was slurred,
she appeared to be disorientated and she was sleeping at her desk. She observed appellant
ingesting unknown medication. Mr. Rogers called police operations because appellant refused to
go to the health unit for evaluation. He stated that Jerry S. Rogers, appellant’s boyfriend and
former employee, was en route to take her home. Appellant subsequently agreed to evaluation
and, as she was escorted to the health unit by Officers Donaldson, Plato and Williams, they
encountered Jerry Rogers who yelled loudly and repeatedly at the officers, stating that appellant
was not going anywhere. Officer Plato ordered him to leave the property. Jerry Rogers shouted
that he was leaving but not without appellant; he took her by the arm and yelled loudly as they
walked away. The police officers followed them. Jerry Rogers stopped walking. He turned
towards Officer Donaldson and lunged forward with his shoulders back in a classic combative
stance and screamed unintelligibly. Officer Donaldson placed Jerry Rogers under arrest. Jerry
Rogers turned and attempted to walk away, but Officer Donaldson handcuffed his right wrist.
He tensed up and began screaming for help. Officer Donaldson used soft hand restraint
techniques to force Jerry Rogers’ hands behind his back after he refused to do so. Once
handcuffed, Jerry Rogers was escorted to police operations. Appellant began screaming. She
was escorted to police operations by Officer Williams. Appellant stopped walking and pulled
away from him. Jerry Rogers also refused to walk. As appellant and Officer Williams continued
to walk, she stopped and refused to continue. Officers Donaldson and Williams placed her in
handcuffs. Once appellant and Jerry Rogers arrived at police operations, Miranda rights were
read to them. They refused to answer any questions. Appellant and Jerry Rogers were advised
that a warrant would be sought against them. They were searched and no weapons or contraband
were found. An “ACIC” check was negative. Jerry Rogers was released from police custody.
Appellant agreed to an evaluation by Denise Willis, a nurse, and was escorted to the employing
establishment health unit.

1

The Office previously accepted that appellant sustained right shoulder, upper arm and rotator cuff strains while
in the performance of duty on March 12, 2008 under File No. xxxxxx406.

2

By letter dated June 12, 2009, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It requested that she submit additional evidence
pertaining to the assertions of her employer, specifically the allegations of intoxication and/or the
influence of medications.
On August 7, 2009 appellant denied sleeping at work or taking any medication. She told
a nurse manager that she was waiting for her representative before going to the employing
establishment health unit. Appellant described the events precipitating being handcuffed as
praying “oh God help us” as an employing establishment police officer hurt her arms, as well as
those of Jerry Rogers.2
By decision dated August 18, 2009, the Office denied appellant’s claim, finding that the
evidence did not establish that she sustained an injury while in the performance of duty. It found
that her injury was a result of her own willful misconduct, as she refused to obey orders of the
employing establishment security officers.
On August 24, 2009 appellant requested a review of the written record by an Office
hearing representative.
In a November 20, 2009 decision, an Office hearing representative affirmed the
August 18, 2009 decision.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty, unless
the injury is caused by willful misconduct of the employee.3 Willful misconduct is generally
regarded as deliberate conduct involving premeditation, obstinacy or intentional wrongdoing
with the knowledge that it is likely to result in serious injury, or conduct that is in wanton or
reckless disregard of probable injurious consequences.4
An allegation of willful misconduct is in the nature of an affirmative defense. The
adjudicating agency has the burden, if it makes such an allegation, to prove that there was willful
misconduct and that such misconduct caused the injury. If the adjudicator believes that the
evidence in the case record justifies a finding of the injury being caused by willful misconduct of
the claimant, he or she has the responsibility of making such a finding in the original
adjudication of the case.5
2

Appellant submitted a July 1, 2008 power of attorney to Jerry Rogers authorizing him to act with regard to a
case before the Office.
3

5 U.S.C. § 8102(a)(1).

4

J.J., 61 ECAB ___ (Docket No. 09-982, issued January 6, 2010); J.S., 60 ECAB ___ (Docket No. 08-1654,
issued February 2, 2009); Judith D. Jenkins (Ted L. Jenkins), 32 ECAB 1219 (1981); Abraham Finkelstein, 4 ECAB
130 n.8 (1951).
5

Paul Raymond Kuyoth, 27 ECAB 498, 505 (1976), reaff’d on recon, 27 ECAB 253 (1976).

3

ANALYSIS
The Board has carefully considered the circumstances of appellant’s injury on April 24,
2009 and finds that the weight of the evidence supports a finding of willful misconduct.
Appellant contends that she is entitled to wage-loss compensation benefits as she was in the
performance of duty when she was injured. However, the Board has held that willful misconduct
is a statutory exclusion to coverage. Accordingly, even if appellant sustained an injury in the
performance of duty, there is no coverage under the Act if the injury was caused by her willful
misconduct.6
The Office invoked the affirmative defense of willful misconduct. The Board finds that
the weight of the evidence supports a finding of willful misconduct. The Board gives particular
weight to the account given by Officer Donaldson, an investigating police officer, who was
involved in the April 24, 2009 incident. Officer Donaldson’s statement provides a credible
account of what happened. His investigative report establishes that appellant was being escorted
to the employee health clinic as she appeared to be disoriented. On the way, they encountered
her boyfriend, Jerry Rogers, who interfered repeatedly with the officers and was ordered to leave
the property. Appellant was handcuffed because she stopped walking, screamed and pulled
away from Officer Williams. She was escorted to police operations following the arrest and
handcuffing of Jerry Rogers for the verbal abuse and combative behavior he directed towards
Officer Donaldson. Officer Donaldson stated that, at the time appellant was handcuffed, she was
preparing to leave the premises with Jerry Rogers who did not want her to undergo evaluation at
the employer’s health unit as requested by Ms. Workman and Mark Rogers.
The Board gives less weight to appellant’s statement. Although she stated that she
sustained a right shoulder injury as a result of being handcuffed by an employing establishment
police officer, she failed to provide any specific details about the incident. For instance,
appellant did not describe the circumstances under which she was handcuffed by the police
officer. She did not mention the interference by Jerry Rogers and her subsequent refusal to be
escorted to police operations by the police officers. Appellant did not mention her verbal abuse
or the combative behavior directed towards Officer Williams. She merely stated that she was
waiting for her representative before going to the employing establishment health unit. The
evidence establishes that appellant screamed and pulled away from Officer Williams after she
witnessed Jerry Rogers being arrested and handcuffed by Officer Donaldson. Appellant’s failure
to address these details leads the Board to question her account of the April 24, 2009 incident.
While she denied sleeping at her desk or taking any medication, she did not provide any witness
statements to corroborate her contentions.
Appellant’s claim is similar to that in Soo F. Dong.7 The employee failed to submit
proper identification to security guards and precipitated her injury after she began to strike at the
guards with a shoe. The Board held that her willful misconduct removed her from the
performance of duty.

6

J.S., supra note 4.

7

47 ECAB 800 (1996).

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The Board finds that appellant engaged in willful misconduct as she refused to cooperate
with employing establishment police officers by refusing to walk, screaming and physically
asserting herself while being escorted on April 24, 2009. It was her unjustified deliberate
attempt to physically remove herself from Officer Williams’ custody, in wanton or reckless
disregard of probable injurious consequences that resulted in her injury. The injury that
appellant sustained to her right shoulder as a result of her misconduct is statutorily excluded
from coverage under the Act.8
CONCLUSION
The Board finds that appellant’s claimed injury of April 24, 2009 was caused by her
willful misconduct.
ORDER
IT IS HEREBY ORDERED THAT the November 20 and August 18, 2009 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: December 15, 2010
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

8

Id. (the Board found that appellant’s unjustified deliberate attempt to physically remove an employing
establishment’s privacy officer from the office by force in wanton or reckless disregard of probably injurious
consequences caused any injury appellant sustained to be statutorily removed from coverage under the Act).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN DIEGO HEALTHCARE SYSTEM,
San Diego, CA, Employer
__________________________________________

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

Docket No. 19-0254
Issued: May 9, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 7, 2018 appellant filed a timely appeal from a September 10, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated April 4, 2018, 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 this case.
ISSUE
The issue is whether OWCP properly denied reconsideration of the merits of appellant’s
claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 25, 2016 appellant, then a 37-year-old physician, filed an occupational
disease claim (Form CA-2) alleging that she developed an “itchy red rash from head-to-toe,” and
experienced shortness of breath, hoarseness, and significant weight loss due to workplace
exposures. She explained that her symptoms started when she moved to a new clinic.2 Appellant
identified January 25, 2016 as the date she first became aware of her condition and March 1, 2016
as the date she first realized it was related to her federal employment. She further indicated that
the occupational health unit advised her that it was likely a reaction to formalin from new building
materials.
In a January 5, 2017 development letter, with an attached questionnaire, OWCP advised
appellant to submit additional factual information and medical evidence in support of her claim
and provided a questionnaire for her completion. It afforded her 30 days to submit the requested
information.
In a signed response to the letter dated February 3, 2017, appellant explained that she began
to experience headaches, shortness of breath, coughing, a hoarse throat, and body rashes after
moving to a new clinic in December 2015. She stated her conclusion that she was experiencing a
reaction to the formalin in the new flooring, furniture, and other items in the new clinic. Appellant
further claimed that she was exposed through air/inhalation, and that she had not been diagnosed
until several months after the move. She explained that she requested to be removed from the
space and further investigation of the work environment, but no action was taken, despite other
workers experiencing similar issues. Appellant related that, while the worst of the symptoms had
resolved, she had worsened allergic and asthmatic symptoms and she could not use cosmetics due
to increased skin irritation. She stated that no treatment was effective to cure her symptoms and
that her symptoms interfered with her daily work and personal activities.
By decision dated February 7, 2017, OWCP denied the claim finding that appellant had
not established fact of injury. While it accepted that the factors of employment occurred as alleged
by her, it found that no valid diagnosis had been produced in connection with the injury and, thus,
she had not met the requirements for establishing an injury as defined by FECA. OWCP noted
that it had not received any medical evidence.
On February 5, 2018 appellant submitted a request for reconsideration of the February 7,
2017 decision. With her request, she included an e-mail thread from mid-April 2016 through early
May 2016 relating to underperforming air ventilation units at the employing establishment.
In a note of June 8, 2016 by Dr. Juan C. Fals, a Board-certified specialist in occupational
medicine, it was reported that appellant presented with chronic throat clearing, coughing,
wheezing, full-body rash, and tight skin sensation since January 2016. He related that there was a
fair amount of new furniture, electronics, and flooring which could be off-gassing formaldehyde
or other volatile organic compounds, in addition to dust or mold for which she had previously been

2

Appellant reported that she was working at the Chula Vista Outpatient Clinic at the time of her alleged injury.

2

treated. Dr. Fals advised appellant to continue treatment with her primary care provider and to
keep her office clean and free of dust and mold.
By decision dated April 4, 2018, OWCP reviewed the merits of appellant’s claim, but
denied modification of the prior decision. It found that, while Dr. Fals’ June 8, 2016 report
contained a list of symptoms, he had not provided a definitive diagnosis in connection with her
work factors or provided an opinion on causal relationship.
On June 18, 2018 appellant requested reconsideration of the April 4, 2018 decision. She
explained that she included additional evidence from Dr. Fals and requested reconsideration on
this basis.
The new evidence included a verbatim recitation of the encounter note of June 8, 2016 with
a signed January 26, 2018 addendum. In the addendum, Dr. Fals wrote, “[appellant is] here for [a
follow-up regarding] formalin exposure/sensitization as above, requests copy of note for OWCP.
States symptoms have gradually and markedly improved … with cessation of off[-]gassing as
materials age. Has ongoing good [follow-up] with PCP/Allergist, continue management with them
and RTC/contact me PRN.”
By decision dated September 10, 2018, OWCP denied reconsideration of the merits of
appellant’s claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.5
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6 When a timely application for reconsideration does not meet at least one

This section provides in pertinent part: “[t]he 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).
3

4

20 C.F.R. § 10.607.

5
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the integrated Federal
Employees’ Compensation System. Id. at Chapter 2.1602.4b.
6

Id. at § 10.606(b)(3).

3

of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Although appellant timely requested reconsideration, she neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, she did not
advance relevant legal arguments not previously considered by OWCP. Accordingly, the Board
finds that appellant is not entitled to a review of the merits based on either the first or second
requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not fulfill the third requirement under 20 C.F.R.
§ 10.606(b)(3) because she did not submit relevant and pertinent new evidence not previously
considered by OWCP. OWCP previously denied her claim because the medical evidence of record
did not include a definitive diagnosis in connection with her accepted employment exposure. In
support of her reconsideration request, appellant submitted June 8, 2016 treatment notes by
Dr. Fals with a January 26, 2018 addendum.
In the addendum, Dr. Fals generally noted that appellant’s symptoms had markedly
improved over the past 18 months as the “off-gassing” in the new office space had ceased. While
his treatment notes indicated “formalin exposure/sensitization,” he did not provide a definitive
medical diagnosis in connection with the accepted employment exposure. Although evidence
submitted on reconsideration need not carry appellant’s burden entirely to warrant reopening the
claim for merit review, the new evidence must at least be relevant and pertinent to the issue(s)
upon which the claim was denied.8 While this evidence is new, it does not address the relevant
issues regarding the claim because it does not provide a definitive medical diagnosis.9 Therefore,
appellant also failed to satisfy the third requirement under 20 C.F.R. § 10.606(b)(3).
The Board finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3) in her June 18, 2018 request for reconsideration. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
OWCP properly denied appellant’s request for reconsideration of the merits of the claim
pursuant to 5 U.S.C. § 8128(a).

7

Id. at § 10.608(a), (b).

8

R.R., Docket No. 18-1562 (issued February 22, 2019).

9

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the September 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wilmington, DE, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0915
Issued: September 29, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 18, 2015 appellant, through counsel, filed a timely appeal from a January 20,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Counsel
did not appeal the December 5, 2014 merit decision.1 Therefore, pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does
not have jurisdiction over the merits of this case.

1

In his March 18, 2015 letter requesting appeal and brief, and March 23, 2015 Application for
AB-1), counsel stated that he wished to appeal the January 20, 2015 nonmerit decision. He did
December 5, 2014 merit schedule award decision from which he requested reconsideration.
accordance with counsel’s statements, the Board will not take jurisdiction over the December 5,
award decision.
2

5 U.S.C. § 8101 et seq.

Review (Form
not appeal the
Therefore, in
2014 schedule

ISSUE
The issue is whether OWCP properly denied appellant’s January 8, 2015 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This is the second appeal before the Board in this case. By decision and order issued
February 11, 2003,3 the Board affirmed OWCP’s June 7, 2002 merit decision denying
recurrences of disability commencing October 5, 1994, December 7, 1995, and
February 18, 1996. The law and facts of the case as set forth in the Board’s prior decision are
incorporated by reference. The facts relevant to the present appeal are set forth below.
OWCP accepted that on March 27, 1989 appellant, then a 30-year-old distribution clerk,
sustained a sprain of her left arm from pulling a tub of mail. On November 25, 1991 it also
accepted that she had left thoracic outlet syndrome, for which she underwent resection of the left
first rib in 1991, and a left brachial plexus neurolysis, a scalenectomy, and a sympathectomy in
1993. Appellant remained under medical treatment.4
On April 17, 2003 Dr. Frank J.E. Falco, an attending physician Board-certified in pain
medicine, performed right C3-7 facet joint ablation. In a May 8, 2003 report, he opined that
appellant’s bilateral cervical spine pain and upper extremity numbness and paresthesias were all
related to the accepted 1989 injury and surgeries. March 28, 2005 electromyography and nerve
conduction velocity studies of the arms were normal. Dr. Randeep S. Kahlon, an attending
Board-certified orthopedic surgeon, opined on April 4, 2005 that appellant’s irritable nerves at
the carpal, cubital, and radial tunnels bilaterally indicated a significant distal neuritis from a
proximal lesion.
Appellant claimed a schedule award on November 10, 2008. Dr. Nicholas Diamond, an
attending osteopath, provided a September 10, 2007 impairment rating finding 16 percent
impairment of the left arm due to limited motion, sensory loss, and C5-7 nerve root involvement,
according to the fifth edition of the American Medical Associations, Guides to the Evaluation of
Permanent Impairment (hereinafter, A.M.A., Guides) then in effect. An OWCP medical adviser
opined on March 13, 2008 that appellant had no ratable impairment due to sensory deficit.
By decision dated April 2, 2008, OWCP denied the claim as the medical evidence did not
indicate a ratable impairment due to the accepted injury. Following an August 28, 2008
telephonic hearing, its Branch of Hearings and Review issued an April 17, 2009 decision setting
aside the April 2, 2008 determination and remanding the claim to determine if the accepted
thoracic outlet syndrome caused any ratable impairment. Dr. Diamond provided a September 20,
2009 impairment rating utilizing the sixth edition of the A.M.A., Guides, finding 16 percent
impairment of the left upper extremity due to a class 1 sensory deficit of the upper and middle
trunks of the brachial plexus.
3

Docket No. 02-2261 (issued February 11, 2003).

4

Appellant retired from federal employment in late 1996. She then worked in the private sector.

2

An OWCP medical adviser opined on October 31, 2009 that appellant’s only objective
impairment was restricted left shoulder motion due to the 1991 rib resection. He explained that
the medical record did not support a stretch palsy or brachial plexus involvement. The medical
adviser calculated six percent left arm impairment due to limited shoulder motion, pursuant to
the Table 15-34: Shoulder Range of Motion, p. 475, of the sixth edition of the A.M.A., Guides.
On November 10, 2009 appellant again filed a schedule award claim. By decision dated
December 1, 2009, OWCP granted her a schedule award for six percent impairment of the left
arm, based on the medical adviser’s October 31, 2009 opinion.
In a December 7, 2009 letter, counsel requested an oral hearing, later modified to a
request for a review of the written record. He contended that the district medical adviser failed
to discuss or provide a rating for the diagnosed conditions in the statement of accepted facts and
that OWCP should consider permanent impairment of appellant’s right upper extremity.
Counsel provided an April 2, 2010 report from Dr. Diamond, finding 31 percent impairment of
the left arm due to thoracic outlet syndrome of the brachial plexus neuritis type.
By decision dated June 15, 2010, OWCP’s Branch of Hearings and Review found that the
case was not in posture for a decision due to a conflict between Dr. Diamond, for appellant, and
the medical adviser, for the government, regarding the nature and extent of the accepted thoracic
outlet syndrome. OWCP directed selection of an impartial medical specialist to resolve the
conflict.
On August 4, 2010 OWCP obtained an impartial opinion from Dr. Karl Rosenfeld a
Board-certified orthopedic surgeon, who found 13 percent impairment of the left upper extremity
due to thoracic outlet symptoms in the absence of positive electrodiagnostic findings.
Dr. Rosenfeld noted that, as appellant had reached maximum medical improvement, he did not
expect her condition to change. An OWCP medical adviser reviewed the record on September 7,
2010 and found Dr. Rosenfeld’s opinion did not conform to the A.M.A., Guides. Dr. Rosenfeld
found no left arm impairment as there was no objective evidence of a brachial plexus
impairment.
By decision dated September 8, 2010, OWCP affirmed the prior decision, finding that
appellant had not established that she sustained more than six percent impairment of the left
upper extremity.
In response to appellant’s September 13, 2010 hearing request, on December 27, 2010 an
OWCP hearing representative found that the case was not in posture for a hearing, and remanded
the case to obtain clarification from Dr. Rosenfeld. Dr. Rosenfeld provided a February 28, 2011
report, concurring that there were no objective signs of brachial plexus involvement.
By decision dated March 24, 2011, OWCP denied appellant’s claim for an additional
schedule award, as Dr. Rosenfeld found no objective impairment of the left upper extremity.
Counsel requested a hearing which was held on August 8, 2011.5 He contended that the medical
5

Counsel submitted June 30 and November 1, 2011 reports from Dr. J. Douglas Patterson, an attending Boardcertified orthopedic surgeon, requesting authorization for bilateral carpal tunnel releases, a left ulnar nerve release,
and multiple trigger finger releases.

3

adviser was disqualified from serving in appellant’s case as he assisted Dr. Diamond in
formulating his September 2009 impairment rating. Dr. Diamond provided an August 3, 2011
report contending that Dr. Rosenfeld did not perform a complete or appropriate examination, and
ignored objective signs of impairment.
By decision dated September 19, 2011, the hearing representative set aside the March 24,
2011 decision, and remanded the case to obtain additional clarification from Dr. Rosenfeld.
Dr. Rosenfeld submitted an October 10, 2011 letter, stating that appellant did not have objective
findings of thoracic outlet syndrome.
OWCP then found a conflict of opinion between Dr. Diamond, for appellant, and a
second OWCP’s medical adviser regarding the nature and extent of the injury-related
impairments. It selected Dr. Jerry L. Case, a Board-certified orthopedic surgeon, to resolve the
conflict. Dr. Case submitted a January 30, 2012 report that was not imaged completely into the
case record. The medical adviser reviewed the record on March 29, 2012, finding that
Dr. Case’s findings supported 13 percent impairment of the left upper extremity due to thoracic
outlet syndrome with brachial plexus impairment.
By decision dated April 25, 2012, OWCP issued a schedule award for an additional 7
percent impairment of the left upper extremity, for a total of 13 percent. Counsel disagreed, and
in a May 3, 2012 letter requested a hearing.
By decision dated July 9, 2012, a representative of OWCP’s Branch of Hearings and
Review found that the case was not in posture for a hearing as Dr. Case’s report could not be
reviewed in its entirety. The hearing representative remanded the case for reconstruction of the
case record. In a July 17, 2012 letter, counsel requested a hearing.
On July 24, 2012, the medical adviser reviewed the case record. He opined that, as
Dr. Case found no objective signs of a brachial plexus lesion, appellant did not have a ratable
impairment of the left upper extremity.
By decision dated July 30, 2012, OWCP found that appellant had not established that she
sustained more than the 13 percent impairment of the left upper extremity previously awarded,
based on Dr. Case’s opinion as the weight of the medical evidence. Counsel disagreed and in an
August 3, 2012 letter requested a hearing, which was held November 28, 2012. At the hearing,
he contended that OWCP must image Dr. Case’s entire report into the record, and obtain
clarification from him regarding the nature and extent of the injury-related condition.
By decision dated February 19, 2013, the hearing representative vacated OWCP’s
July 30, 2012 decision and remanded the case for reconstruction of the record. On remand,
OWCP imaged Dr. Case’s complete January 30, 2012 report into the record. Dr. Case opined
that appellant had 13 percent impairment of the left upper extremity due to thoracic outlet
syndrome, a vascular condition. He opined that she did not have brachioplexopathy, as she had
no objective neurologic findings.
OWCP determined that Dr. Case’s opinion was insufficient to resolve the conflict
between the medical adviser and Dr. Diamond. It selected Dr. Andrew Gelman, an osteopath

4

Board-certified in orthopedic surgery, as an impartial medical examiner, to resolve the conflict.6
Dr. Gelman provided a May 15, 2013 report finding no ratable impairment of the left upper
extremity due to thoracic outlet syndrome or a brachial plexus lesion. In a July 10, 2013 report,
the medical adviser concurred with Dr. Gelman’s assessment.
By decision dated July 11, 2013, OWCP denied appellant’s claim for an additional
schedule award, based on Dr. Gelman’s opinion as the weight of the medical evidence. Counsel
disagreed, and in a July 16, 2013 letter requested a hearing. He provided a November 8, 2013
report from Dr. Diamond, asserting that Dr. Gelman did not perform a thorough examination. At
the hearing, held November 15, 2013, counsel asserted that Dr. Gelman could not serve as
impartial medical examiner as he treated appellant in 1989 and 1990.
By decision dated January 29, 2014, an OWCP hearing representative vacated OWCP’s
July 11, 2013 decision, finding that Dr. Gelman was disqualified from serving as impartial
medical examiner as he previously treated appellant. He remanded the case to OWCP for
selection of a new impartial medical examiner.
On February 27, 2014 OWCP selected Dr. Donald B. Haskins, a Board-certified
orthopedic surgeon, as impartial medical examiner. It included a bypass history report listing 13
other physicians considered in appellant’s commuting area: one retired; two had previously
participated in the case; three could not be reached; two were spine, neck, and back specialists;
one was a “foot doctor only;” four did not perform impairment ratings.
In a March 25, 2014 report, Dr. Haskins reviewed the medical record and a statement of
accepted facts and concurred that appellant had reached maximum medical improvement. He
related appellant’s symptoms of neck and left arm pain and paresthesias throughout the left arm
and hand. Dr. Haskins noted restricted motion of the cervical spine, “normal” range of motion in
the left elbow, “limited” motion in the left wrist, no left scapular atrophy, surgical scars in the
left distal radius and bilateral carpal tunnel regions, bilateral ulnar nerve release scars, and no
objective focal sensory loss to light tough in either arm. He noted reviewing Dr. Gelman’s 1989
and 1990 reports as well as his May 15, 2013 impartial report. Dr. Haskins diagnosed thoracic
outlet syndrome status postsurgical procedures and a left wrist sprain. He noted nonoccupational
conditions of a left wrist fracture, nerve entrapment of the elbows and wrists, trigger finger,
cervical spine abnormalities, and complex regional pain syndrome. Dr. Haskins explained that
appellant had no ratable impairment due to residuals of thoracic outlet syndrome or the two
surgical procedures. He opined that she did not have a brachial plexus lesion. Dr. Haskins noted
that he “did not have Semmes-Weinstein equipment for light touch testing,” but that appellant
had “either perceived or minimal sensory changes” resulting in a grade 1 or mild impairment
according to Table 15-14, page 425. He found no motor deficiency as appellant had normal
manual strength. Dr. Haskins noted a grade modifier for Functional History (GMFH) of two, a
grade modifier for Physical Findings (GMPE) of zero, and a grade modifier for Clinical Studies
(GMCS) of one. He then calculated a left upper extremity impairment of four percent, based on
brachial plexopathy. The medical adviser review the record on April 18, 2014 and found that
6

By decision dated March 20, 2013, OWCP denied counsel’s February 25, 2013 request to participate in the
selection of a new impartial medical examiner, as he did not provide an acceptable reason for his request. The
March 20, 2013 decision is not before the Board on the present appeal.

5

appellant had no ratable impairment of the left upper extremity as she had normal manual
strength, and no objective sensory deficit.
By decision dated April 23, 2014, OWCP denied appellant’s claim for an additional
schedule award, finding that Dr. Haskins’ opinion established that she had not sustained greater
than the 13 percent impairment of the left upper extremity for which she received schedule
awards.
In an April 28, 2014 letter, counsel requested a hearing, which was held
October 20, 2014. At the hearing, he asserted that OWCP should have removed Dr. Gelman’s
May 15, 2013 impartial report from the record following his disqualification from participating
in the case. Counsel contended that, in selecting Dr. Haskins, OWCP improperly bypassed two
spine surgeons who could have provided the required opinion, as appellant had cervical spine
complaints. He also argued that Dr. Haskin’s opinion could not represent the weight of the
medical evidence as he did not provide complete upper extremity range of motion measurements,
and did not perform Semmes-Weinstein monofilament testing. Counsel contended that
Dr. Diamond’s reports outweighed Dr. Haskin’s opinion.
By decision dated December 5, 2014, the hearing representative affirmed OWCP’s
April 23, 2014 decision. He found that Dr. Haskins’ report was sufficiently detailed and wellrationalized to represent the weight of medical opinion in the case. The hearing representative
also found that Dr. Haskins’ reliance on clinical findings and the studies of record provided
sufficient evaluation of sensory functioning, without need for Semmes-Weinstein monofilament
testing. He further found that OWCP was not required to exclude Dr. Gelman’s report as it was
not obtained through improper telephone contact, by means of leading questions, or improperly
influenced by surveillance video of the injured worker. The hearing representative also noted
that as Dr. Diamond was on one side of the conflict Dr. Haskins was appointed to resolve, his
reports could not outweigh Dr. Haskins’ opinion.
In a January 8, 2015 letter, counsel requested reconsideration, contending that
Dr. Haskins’ report could not carry the weight of the medical evidence as he did not perform
Semmes-Weinstein monofilament testing or a complete neurologic examination. He contended
that Dr. Diamond’s opinion was sufficient to establish 31 percent impairment of the left upper
extremity. Counsel provided a December 22, 2014 report from Dr. Diamond, asserting that
appellant had 31 percent impairment of the left arm, and that Dr. Haskins’ failure to perform
Semmes-Weinstein monofilament testing negated the probative value of his neurologic
assessment.
By nonmerit decision dated January 20, 2015, OWCP denied reconsideration, finding that
the evidence submitted in support of the request was “cumulative and thus substantially similar
to evidence or documentation that is already contained in the case file and was previously
considered.”

6

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) submit relevant and
pertinent new evidence not previously considered by OWCP.8 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.9
In support of a request for reconsideration, appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.10 She need only
submit relevant, pertinent evidence not previously considered by OWCP.11 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.12
ANALYSIS
The Board finds that OWCP appropriately denied reconsideration as counsel’s argument
was duplicative of his prior arguments. At the October 20, 2014 hearing, counsel asserted that
the report of Dr. Gelman, a Board-certified orthopedic surgeon providing an opinion to OWCP,
should have been excluded from the record after he was disqualified from serving as an impartial
medical examiner. He also argued that OWCP improperly bypassed two spine surgeons in
selecting Dr. Haskins and that Dr. Haskins’ report was fatally flawed as he failed to perform
Semmes-Weinstein monofilament testing or provide complete range of motion measurements.
Counsel asserted that the reports of Dr. Diamond, an attending osteopath, outweighed those of
Dr. Haskins. In its December 5, 2014 merit decision, OWCP answered each of his contentions,
explaining that Dr. Haskins’ report was sufficient to represent the weight of the medical
evidence, that OWCP was not required to exclude Dr. Gelman’s report, and that Dr. Diamond’s
opinion could not outweigh that of Dr. Haskins as Dr. Diamond was on one side of the conflict
of opinion Dr. Haskins was selected to resolve.
In his January 8, 2015 request for reconsideration, counsel repeated his October 20, 2014
arguments that Dr. Haskins failed to perform Semmes-Weinstein testing or a complete
examination, and that Dr. Diamond’s opinion was sufficient to establish 31 percent impairment
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(2).

9

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

10

Helen E. Tschantz, 39 ECAB 1382 (1988).

11

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

12

Annette Louise, 54 ECAB 783 (2003).

7

of the left arm. Evidence which is duplicative or cumulative or repetitive in nature is insufficient
to warrant reopening a claim for merit review.13 Counsel also provided a December 22, 2014
report from Dr. Diamond, which although new, was repetitive of both his prior opinions and of
counsel’s contentions. It is therefore insufficient to warrant consideration on the merits.
A claimant may be entitled to a merit review by submitting new and relevant evidence or
argument. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
On appeal counsel contends that OWCP did not properly use the physician directory
system in selecting Dr. Haskins, as it bypassed two spine specialists who could have offered an
opinion on appellant’s cervical spine. He also argues that OWCP improperly failed to exclude
Dr. Gelman’s report from the record after he was disqualified, thereby tainting Dr. Haskins’
opinion as he referenced Dr. Gelman’s opinion in his report. Counsel also asserts that
Dr. Haskins’ examination was deficient as he did not provide range of motion measurements for
the left elbow or left wrist, perform Semmes-Weinstein monofilament testing, or provide an
adequate neurologic examination. The Board notes that these arguments pertain to the merits of
the claim, which are not before the Board on the present appeal. Also, counsel’s arguments were
considered and rejected by OWCP prior to its December 5, 2014 merit decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s January 8, 2013 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).

13

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

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 20, 2015 is affirmed.
Issued: September 29, 2015
Washington, DC

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

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

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

9