United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Fresno, CA,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0701
Issued: March 3, 2022

Case Submitted on the Record

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

JURISDICTION
On April 1, 2021 appellant, through counsel, filed a timely appeal from a February 23,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 23, 2021 decision, OWCP received additional evidence, and
appellant submitted additional evidence upon 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.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $16,873.21 during the periods July 1, 2014 through
July 20, 2019 and February 3 through April 15, 2020, for which she was without fault, as she
concurrently received Social Security Administration (SSA) age-related retirement benefits and
FECA wage-loss compensation benefits without appropriate offset; and (2) whether OWCP
properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On June 3, 1992 appellant, then a 40-year-old data transcriptionist, filed a claim for
occupational disease (Form CA-2) alleging that she sustained injuries due to factors of her federal
employment. OWCP accepted her claim for calcifying tendinitis of the right shoulder, right
complete rotator cuff tear, and right tenosynovitis of the hand and wrist.
By decision dated September 2, 1999, OWCP finalized a proposed reduction of appellant’s
compensation, finding that she was not totally disabled and capable of earning wages in the
constructed position of a hostess.
Appellant began working as a self -employed childcare provider in January 2001. OWCP
compensation history records indicate that she received payments for loss of wage -earning
capacity (LWEC) on the periodic rolls as of June 16, 2002.4
On July 16, 2020 OWCP provided SSA with a FERS/SSA dual benefits form to obtain
information regarding appellant’s receipt of SSA age-related retirement benefits.
On July 29, 2020 SSA completed the dual benefits form, which reported appellant’s SSA
age-related retirement benefit rates with a FERS offset and without a FERS offset from July 2014
through December 2019. Beginning July 2014, the SSA rate with FERS was $718.20 and without
FERS was $481.20. Beginning December 2014 and December 2015, the SSA rate with FERS was
$730.40 and without FERS was $489.30. Beginning December 2016, the SSA rate with FERS
was $732.50 and without FERS was $490.80. Beginning December 2017, the SSA rate with FERS
was $747.10 and without FERS was $500.60. Beginning December 2018, the SSA rate with FERS
was $795.10 and without FERS was $514.50. Beginning December 2019, the SSA rate with FERS
was $810.00 and without FERS was $522.70.
In a letter dated August 28, 2020, OWCP notified appellant that, based on information
provided by SSA regarding the amount of her age-related retirement benefits which were
attributable to federal service, her FECA wage-loss compensation had been adjusted. It explained
that she was in receipt of SSA age-related retirement benefits every four weeks in the amount of
$810.00. However, appellant’s federal service increased her monthly SSA age-related retirement
benefit payments by $287.30, which must be offset as this portion of her SSA age-related
retirement benefits was attributable to her federal service. OWCP explained that the $287.30
4

In a claim for compensation (Form CA-7) dated May 16, 2018, appellant requested a schedule award. By decision
dated October 2, 2019, OWCP granted her a schedule award for an additional 9 percent permanent impairment of the
right upper extremity, for a total of 16 percent permanent impairment. The award ran for 28.08 weeks from
September 15, 2019 through February 2, 2020.

2

monthly offset would be adjusted to a 28-day payment cycle to result in a $265.20 offset.
Appellant was advised that, following the SSA offset and deduction of health benefits premiums,
her 28-day gross FECA payment would be reduced from a gross payment of $531.00 to a new net
FECA compensation payment of $20.18, every 28 days. Her compensation benefits were adjusted
effective August 16, 2020.
In a FERS offset overpayment calculation worksheet dated August 31, 2020, OWCP
calculated appellant’s total overpayment amount from July 1, 2014 through September 20, 2019
and February 3 through August 15, 2020 as $16,873.21. It noted that, as she received a schedule
award from July 21, 2019 through February 2, 2020, this period was not affected by the FERS
offset. OWCP indicated that from July 1 until November 30, 2014 the amount of the overpayment
was $1,195.42; from December 1, 2014 to November 30, 2015 the amount of the overpayment
was $2,901.15; from December 1, 2015 to November 30, 2016 the amount of the overpayment
was $2,909.10; from December 1, 2016 to November 30, 2017 the amount of the overpayment
was $2,908.37; from December 1, 2017 to November 30, 2018 the amount of the overpayment
was $2,966.13; from December 1, 2018 to July 20, 2019 the amount of the overpayment was
$2,146.13; and from February 3 to August 15, 2020 the amount of the overpayment was $1,846.93.
On September 1, 2020 OWCP issued a preliminary overpayment determination that
appellant had received an overpayment of compensation, for which she was without fault, in the
amount of $16,846.93 because she concurrently received SSA age-related retirement benefits and
FECA wage-loss compensation for the periods July 1, 2014 through September 20, 2019 and
February 3 through August 15, 2020. It provided an overpayment calculation and found that she
was without fault in the creation of the overpayment. 5 OWCP requested that appellant submit a
completed overpayment recovery questionnaire (Form OWCP-20). It further requested that she
provide supporting financial documentation, including copies of income tax returns, bank account
statements, bills, pay slips, and any other records to support income and expenses. Additionally,
OWCP provided appellant with an overpayment action request form and further notified her that,
within 30 days of the date of the letter, she could request a telephone conference, a final decision
based on the written evidence, or a pre-recoupment hearing.
On September 11, 2020 appellant requested a pre-recoupment hearing before a
representative of OWCP’s Branch of Hearings and Review regarding possible waiver of recovery
of the overpayment. The hearing was held on January 6, 20201.
In a Form OWCP-20 dated January 21, 2021, appellant listed her monthly income as
consisting of $1,192.00 in SSA benefits and $16.73 in state or local welfare payments. Her
monthly expenses were listed as $704.81 for rent or mortgage; $400.00 for food; $100.00 for
clothing; $240.00 for utilities; and $100.00 for other expenses. Appellant’s assets included $10.00
in cash on hand, a checking account balance of $8,081.46 and a savings account balance of
$10,008.70. No supporting financial documentation was received.
By decision dated February 23, 2021, OWCP’s hearing representative finalized the
preliminary overpayment determination that appellant had received an overpayment of
compensation, for which she was without fault, because she had received FECA wage -loss
compensation benefits concurrently with SSA retirement benefits. He modified the total
5

The Board notes that OWCP’s overpayment calculation included in its preliminary overpayment determination of
September 1, 2020 reflected a total overpayment amount of $16,873.21.

3

overpayment amount to $16,873.21 for the periods July 1, 2014 through July 20, 2019 and
February 3 through August 15, 2020. The hearing representative noted that appellant’s assets of
$18,090.16 exceeded the resource base of $6,200.00 and therefore she did not meet hardship
criteria and recovery of the overpayment would not defeat the purpose of FECA. He further noted
that she had not submitted documentation supporting her income and expenses. However, the
hearing representative concluded that minimum collection guidelines would not collect the debt
promptly as she was currently receiving $4.29 in net compensation on the periodic rolls every 28
days. In this regard, he indicated that appellant’s monthly income included $1,192.00 in SSA agerelated retirement benefits plus $16.73 in state assistance, for a total income of $1,208.73. As
appellant had expenses of $1,544.81, the hearing representative determined that they exceeded her
income by $336.08. However, he noted that appellant had $8,081.46 in her checking account and
$10,008.70 in her savings account, for a total of $18,090.16 in her bank accounts. As to appellant’s
continuing compensation payments, and the recovery of the overpayment, the hearing
representative stated: “The claimant is being paid $4.29 in net compensation benefits on the
periodic roll and paying the overpayment at $1.07 ($4.29 x 25% = $1.07) every 28 days would not
collect the debt promptly.” He concluded therefore that, as appellant’s assets exceeded the
overpayment, she should repay the overpayment in full, immediately.6
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.7 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. 8
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA age-related retirement benefits that are attributable to
federal service of the employee. 9 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit.10

6

With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing
those cases where OWCP seeks recovery from continuing com pensation benefits under FECA. As the hearing
representative required recovery in full, the Board does not have jurisdiction with respect to the recovery of the
overpayment under the Debt Collection Act. See T.C., Docket No. 21-0612 (issued December 2, 2021); R.W., Docket
No. 18-1059 (issued February 6, 2019); Cheryl Thomas, 55 ECAB 610 (2004).
7

5 U.S.C. § 8102(a).

8

Id. at § 8116.

9

20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802
(issued August 20, 2018).
10

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

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ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$16,873.21 for the periods July 1, 2014 through July 20, 2019 and February 3 through April 15,
2020, for which she was without fault, because she concurrently received SSA age-related
retirement benefits and FECA wage-loss compensation for that period without appropriate offset.
The record indicates that, while appellant was receiving wage-loss compensation under
FECA, she also received SSA age-related retirement benefits attributable to her federal service
during the relevant period. A claimant cannot concurrently receive FECA wage-loss compensation
and SSA age-related retirement benefits attributable to federal service without an appropriate
offset.11 Consequently, the fact of the overpayment has been established.
To determine the amount of the overpayment, the portion of SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA on
July 29, 2020 with respect to the specific amount of SSA age-related retirement benefits that were
attributable to federal service. The SSA provided the SSA age-related retirement benefit rates with
FERS and without FERS for specific periods from July 2014 through December 2019. In a FERS
offset overpayment calculation worksheet dated August 31, 2020, OWCP calculated appellant’s
total overpayment amount from July 1, 2014 through September 20, 2019 and February 3 through
August 15, 2020 as $16,873.21, noting that, as she received a schedule award from July 21, 2019
through February 2, 2020, this period was not affected by the FERS offset.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
periods July 1, 2014 through September 20, 2019 and February 3 through August 15, 2020 finds
that an overpayment of compensation in the amount of $16,873.21 was created. 12
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. 13 The waiver or refusal to waive an overpayment of compensation by OWCP is a
matter that rests within OWCP’s discretion pursuant to statutory guidelines. 14
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.436
to 10.438 of OWCP’s regulations. 15 Section 10.436 provides that recovery of an overpayment
would defeat the purpose of FECA if recovery would cause hardship because the beneficiary needs
substantially all of his or her income (including compensation benefits) to meet current ordinary
11

See D.M., Docket No. 19-1369 (issued June 30, 2020).

12

See L.W., supra note 9; L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued
June 21, 2018).
13

5 U.S.C. § 8129.

14

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

15

20 C.F.R. §§ 10.436-10.438.

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and necessary living expense, and, also, if the beneficiary’s assets do not exceed a specified amount
as determined by OWCP from data provided by the Bureau of Labor Statistics. 16
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt
and when an individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 17 OWCP’s procedures
provide that, to establish that a valuable right has been relinquished, an individual must
demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and
that his or her action was based primarily or solely on reliance on the paym ent(s) or on the notice
of payment. 18
Section 10.438 of OWCP’s regulations provides that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. Failure
to submit the requested information within 30 days of the request shall result in denial of waiver
and no further request for waiver shall be considered until the requested information is furnished. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 20 In order to establish
that, recovery of the overpayment would defeat the purpose of FECA, appellant must show that
she requires substantially all of her income to meet current ordinary and necessary living expenses
and that her assets do not exceed the established limit as determined by OWCP procedures. 21 It
considered her financial information, as reported in her completed Form OWCP-20, to determine
if recovery of the overpayment would defeat the purpose of FECA. Appellant did not submit any
supporting financial documentation.

16
Id. at § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a.(3) (September 2020). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a.(2).
17

Id. at § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

18

Supra note 16 at Chapter 6.400.4(c)(3) (September 2020).

19

20 C.F.R. § 10.438.

20

Id. at § 10.436.

21

D.M., Docket No. 19-1311 (issued February 4, 2020); supra note 15.

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The Board finds that OWCP properly determined that appellant’s assets of $18,090.16
exceeded the relevant resource base of $6,200.00 for an individual as provided in OWCP’s
procedures. 22 Additionally, the evidence of record does not demonstrate that recovery of the
overpayment would be against equity and good conscience. Appellant did not submit any evidence
that she relied upon the incorrect payments to her detriment or that she would experience severe
financial hardship attempting to repay the debt. 23
As appellant has not established that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery. 24
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$16,873.21, during the periods July 1, 2014 through July 20, 2019 and February 3 through
April 15, 2020, for which she was without fault, as she concurrently received SSA a ge-related
retirement benefits and FECA wage-loss compensation benefits without proper offset. The Board
further finds that OWCP properly denied waiver of recovery of the overpayment.

22

See supra note 16 at Chapter 6.400.4.a.(2) (September 2020).

23

See supra note 16 at Chapter 6.400.4a.(3) (September 2020); D.M., supra note 21.

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Id.

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ORDER
IT IS HEREBY ORDERED THAT the February 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, DISTRIBUTION
CENTER, Des Moines, IA, Employer
__________________________________________

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

Docket No. 16-0503
Issued: September 13, 2016

Case Submitted on the Record

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

JURISDICTION
On January 21, 2016 appellant filed a timely appeal from an October 2, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established that she sustained a recurrence of disability
on March 18, 2015 causally related to the accepted employment conditions.

1
2

5 U.S.C. § 8101 et seq.

On appeal appellant submitted additional medical evidence that was not before OWCP at the time of the
October 2, 2015 decision. The Board can review only evidence that was before OWCP at the time of the final
decision on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
The case has previously been before the Board. Appellant initially filed an occupational
disease claim (Form CA-2) dated January 8, 1997 alleging bilateral carpal tunnel syndrome
causally related to her federal employment as a letter sorting machine operator. She indicated
that June 21, 1996 was the date she first became aware of the condition. Appellant was off work
intermittently. OWCP accepted the claim for bilateral carpal tunnel syndrome.
On January 12, 2011 appellant filed a claim for a recurrence of disability (Form CA-2a).
She indicated on the claim form that the recurrence of disability began November 29, 2010.
Appellant reported that she had no symptoms until she began performing a new job assignment.
By letter dated March 7, 2011, OWCP advised her that it was developing the claim as a claim for
a new injury and a new case file was created.3 By decision dated April 20, 2011, it denied the
claim for a new injury.
Appellant requested reconsideration and submitted a March 29, 2011 report from
Dr. Eugene Cherny, a Board-certified hand surgeon. Dr. Cherny diagnosed the following
bilateral conditions: carpal tunnel syndrome, cubital tunnel syndrome, ulnar tunnel syndrome,
and pronator syndrome. He opined that the conditions were causally related to repetitive activity
in her new position since August 2010.
OWCP reviewed the merits of the claim and denied modification by decision dated
July 22, 2011. Appellant again requested reconsideration. By decision dated September 29,
2011, OWCP denied merit review of the claim.
The record indicates that appellant underwent multiple nerve decompression surgery for
the left arm on October 26, 2011 and on December 18, 2011 underwent right arm surgery.
Dr. Cherny indicated in a March 6, 2012 note that she could return to regular duty, and she
returned to work.
Appellant appealed to the Board on November 21, 2011. By decision dated May 21,
2012, the Board remanded the case for further development.4 The Board set aside OWCP’s
July 22 and September 29, 2011 decisions and found that the March 29, 2011 report from
Dr. Cherny was sufficient to require further development of the evidence.
On August 7, 2012 OWCP reported that the accepted conditions were bilateral carpal
tunnel, cubital tunnel, ulnar tunnel, and pronator syndromes. By letter dated September 19,
2012, the accepted conditions were reported as bilateral carpal tunnel syndrome, bilateral ulnar
nerve lesion, and bilateral “other mononeuritis of upper limb.” On September 27, 2012 OWCP
indicated that additional accepted conditions were left keloid scar and right ulnar nerve injury.
Appellant submitted a claim for compensation (Form CA-7) for the period October 17,
2011 to March 6, 2012. By decision dated December 13, 2012, OWCP denied the claimed
3

The claims have been administratively combined under the current case file.

4

Docket No. 12-0234 (issued May 21, 2012).

2

period of disability through October 26, 2011. It indicated that compensation had been paid
following the October 26, 2011 left arm surgery.
Appellant appealed to the Board. In a decision dated June 11, 2013, the Board affirmed
the December 13, 2012 OWCP decision, finding that the medical evidence of record was
insufficient to establish an employment-related disability from October 17 to 25, 2011.5
The record contains a light-duty job offer for a mail handler position, accepted by
appellant on May 23, 2013, which became effective on June 1, 2013. On September 6, 2013
appellant submitted a claim for a schedule award (Form CA-7). By report dated June 10, 2014,
Dr. Cherny opined that she had six percent permanent impairment of each arm based on her
compression neuropathies. Appellant was referred for a second opinion examination by
Dr. Anandeep Kumar, a Board-certified physiatrist. In a report dated August 24, 2014,
Dr. Kumar opined that she had 10 percent permanent impairment of each arm. An OWCP
medical adviser opined in a September 19, 2014 report that the permanent impairment was five
percent to each arm.
By decision dated December 23, 2014, OWCP issued a schedule award for five percent
permanent impairment to each arm. The period of the award was August 7, 2014 to
March 13, 2015.
By report dated October 9, 2014, Dr. Cherny reported that appellant was seen
September 4, 2014 with symptoms of increased bilateral shoulder and cervical spine pain. He
indicated that the shoulder pain had improved, but she was still symptomatic. Dr. Cherny
diagnosed bilateral upper extremity pain and reported that appellant could work with a 10-pound
lifting restriction with no lifting above the shoulder.
Appellant filed a claim for a recurrence of disability (Form CA-2a) on April 23, 2015.
On the claim form she reported that the date of the recurrence was October 9, 2014, and that the
date she stopped work after the recurrence was March 18, 2015. She reported that numbness,
tingling, and swelling in her arms had returned. In addition, appellant indicated that she had
returned to her regular duties and the same problems had returned.
By decision dated July 22, 2015, OWCP denied the claim for a recurrence of disability.
It found that the medical evidence of record was insufficient to establish the claim, as appellant
failed to established disability due to a material change or worsening of her accepted workrelated conditions.
Appellant requested reconsideration on July 30, 2015. She indicated that she experienced
arm symptoms in September 2014 and returned to light duty. In a report dated June 10, 2015,
Dr. Cherny opined that appellant had intermittent symptoms involving her shoulders, but these
had resolved. He noted that an April 2, 2015 electromyogram (EMG) showed moderate bilateral
carpal tunnel syndrome. Per, Dr. Cherny, appellant’s job involved repetitive gripping, twisting,
and pinching, with pushing and pulling of mail carts and occasional lifting. He wrote that she
had been off work since March 18, 2015 with increased upper extremity symptoms. Dr. Cherny
5

Docket No. 13-0665 (issued June 11, 2013).

3

opined that appellant’s recurrent carpal tunnel syndrome was causally related to her job duties,
and a diagnosis of bilateral radial tunnel syndrome “can also be related to her work activities” at
the employing establishment.
By decision dated October 2, 2015, OWCP reviewed the merits of the claim and denied
modification. It found that the evidence of record was insufficient to warrant modification.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening or new exposure to the work environment that
caused the illness.6
An employee who claims a recurrence of disability due to an accepted employment injury
has the burden of proof to establish by the weight of substantial, reliable, and probative evidence
that the disability for which he or she claims compensation is causally related to the accepted
injury. This burden of proof requires that an employee furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that
conclusion with sound reasoning.7 Where no such rationale is present, medical evidence is of
diminished probative value.8
ANALYSIS
In the present case, OWCP accepted that appellant sustained bilateral arm conditions that
included carpal tunnel syndrome. The issue is whether appellant has established a recurrence of
disability causally related to her accepted employment injury. The Board notes that on the Form
CA-2a filed on April 23, 2015, she referred to a date of recurrence as October 9, 2014.
Appellant did receive treatment from Dr. Cherny on that date. However, Dr. Cherny, in the
report of that date, refers briefly to some bilateral shoulder pain and cervical pain. He does not
discuss an accepted condition or a change in an employment-related condition resulting in
disability.
Appellant received compensation paid for a schedule award through March 13, 2015.
She indicated that she stopped work on March 18, 2015 and in support of her claim for a
recurrence of disability submitted a June 10, 2015 report from Dr. Cherny. This evidence is
insufficient to establish a recurrence of disability. Dr. Cherny refers to appellant’s repetitive job
duties and opines that her “recurrent” carpal tunnel syndrome is causally related to those duties.
It is unclear whether he opines that the work she performed after she returned to work in
March 2012 had caused an aggravation of her carpal tunnel syndrome.
6

20 C.F.R. § 10.5(x); R.S., 58 ECAB 362 (2007).

7

I.J., 59 ECAB 408 (2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

8

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

4

To establish a claim for a recurrence of disability commencing March 18, 2015, appellant
must submit probative medical evidence establishing a change in an employment-related
condition that resulted in disability commencing March 18, 2015. Dr. Cherny refers to increased
upper extremity symptoms in his June 10, 2015 report, without further explanation. He does not
provide a rationalized medical opinion establishing a spontaneous change in an accepted
employment-related condition causing disability. Dr. Cherny also opined that a new diagnosis of
bilateral radial tunnel syndrome could also be employment related. Thus, there is no probative
evidence of a spontaneous change in an accepted employment-related condition as of
March 18, 2015.
On appeal, appellant writes that her “recurrent injuries” were associated with her
accepted conditions, and she resubmitted the April 2, 2015 EMG report. For the reasons
discussed above, the evidence of record is insufficient to establish a recurrence of disability on
March 18, 2015.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of disability on
March 18, 2015 causally related to the accepted employment conditions.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 2, 2015 is affirmed.
Issued: September 13, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, SOUTHERN
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MARYLAND PROCESSING & DISTRIBUTION )
CENTER, Capitol Heights, MD, Employer
)
__________________________________________ )
C.L., Appellant

Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 07-2301
Issued: April 16, 2008

Oral Argument March 5, 2008

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

JURISDICTION
On September 10, 2007 appellant filed a timely appeal from an August 28, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs which denied his request for
reconsideration, and of a July 23, 2007 decision which denied his occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and
nonmerit decisions.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
developed an occupational disease in the performance of duty; and (2) whether the Office
properly denied appellant’s request for reconsideration without conducting a merit review.
FACTUAL HISTORY
On May 1, 2007 appellant, then a 40-year-old mail handler, filed an occupational disease
claim alleging that he developed a bulging disc at the L3 level of his spine as well as nerve

impingement, scar tissue and arthritis in the performance of duty. He first noticed problems with
his low back in February 2007 and first related his condition to his employment on
April 18, 2007. Appellant noted that he had back surgery on April 4, 2007 and attributed his
back condition to standing on a hard concrete floor at work. He stopped work on April 18, 2007.
In a July 2, 2007 statement, appellant attributed his condition to walking and standing on
a concrete surface at work and commuting more than one hour each way by automobile, as well
as to his need for medications which caused drowsiness. He stated that he worked for four hours
per day, five days per week.
In an April 5, 2007 report, Dr. Alan Kronthal, a Board-certified diagnostic radiologist,
detailed the results of a lumbar magnetic resonance imaging (MRI) scan. He noted appellant’s
history, which included sciatica, back pain with radiation into the right hip and leg, and a
previous lumbar surgery. Dr. Kronthal diagnosed status post surgery on the right side at L4-5
and likely L5-S1 with slight enhancing epidural fibrosis, mild to moderate foraminal narrowing
at the right L5-S1 level due to facet arthritis, likely arthritic endplate edema at L5-S1 and
probable right hemangioma at the L3 level.
In an April 18, 2007 report, Dr. Bruce Ammerman, a treating Board-certified
neurosurgeon, noted appellant’s complaints of back pain with radiation into the right leg as well
as numbness and tingling in the sole of his right foot. He reviewed the diagnostic testing reports
and believed that it was inappropriate for appellant to drive a long distance to work or to stand on
a hard concrete surface. On June 25, 2007 Dr. Ammerman reported that appellant needed certain
accommodations to return to work. He was restricted from driving more than 30 minutes or
working on hard surfaces. Dr. Ammerman stated that the employing establishment had not yet
provided the required accommodations and advised that appellant was to remain off work until
his restrictions were met. He opined that appellant would eventually be able to return to a
sedentary job.
By decision dated July 23, 2007, the Office denied appellant’s occupational disease claim
on the grounds that the medical evidence was insufficient to establish a causal relationship
between his diagnosed condition and the accepted employment factors.
By correspondence dated August 14, 2007, appellant informed the Office that
Dr. Ammerman had passed away and he was searching for a new treating physician. He also
requested reconsideration on August 14, 2007. Appellant noted that Dr. Ammerman had
intended to write a medical report addressing causal relationship and that he was attempting to
find a new physician.
By decision dated August 28, 2007, the Office denied appellant’s request for
reconsideration without conducting a merit review, finding that appellant had not identified the
grounds on which reconsideration was sought and had not presented new evidence or argument
warranting a merit review.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.2
These are the essential elements of each and every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.3
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.4 The test for determining whether
appellant sustained a compensable occupational disease or injury is three-pronged. To establish
the factual elements of the claim, appellant must submit: “(1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.”5
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.6 The
opinion of the physician must be based on a complete factual and medical background of the
claimant7 and must be one of reasonable medical certainty8 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.9

1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

5

Michael R. Shaffer, 55 ECAB 386, 389 (2004); citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, supra note 3.
6

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

7

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

8

John W. Montoya, 54 ECAB 306 (2003).

9

Judy C. Rogers, 54 ECAB 693 (2003).

3

ANALYSIS -- ISSUE 1
The Board finds that appellant established that he stood on a concrete surface at work for
four hours per day, five days per week. However, he has not established a causal relationship
between his job duties and his diagnosed back condition.10
In support of his claim, appellant submitted April 18 and June 25, 2007 reports from
Dr. Ammerman, noting appellant’s complaints of back pain and stating that it was inappropriate
for appellant to stand on a hard concrete surface or drive more than 30 minutes. On April 18,
2007 Dr. Ammerman stated that appellant could return to work when his recommended
accommodations were met. However, on June 25, 2007 he reported that the employing
establishment still had not met the recommended accommodations and consequently appellant
was unable to work. The Board finds that Dr. Ammerman’s April 18 and June 25, 2007 reports
are insufficient to establish causal relationship. As noted, causal relationship is a medical issue
which must be proven by the provision of a physician’s rationalized medical opinion.11
Although Dr. Ammerman noted appellant’s diagnosed condition and stated that he was unable to
stand on a concrete surface or drive more than 30 minutes, he did not provide sufficient
explanation or rationale to establish how standing at work caused or contributed to appellant’s
low back condition. He did not describe appellant’s medical history or support causal
relationship with reasoning or a detailed explanation of how standing at work caused or
aggravated appellant’s diagnosed condition.12
Accordingly, the Board finds that
Dr. Ammerman’s April 18 and June 25, 2007 notes are insufficient to establish a causal
relationship between appellant’s diagnosed condition and factors of his employment. Similarly,
Dr. Kronthal’s diagnostic report is insufficient to establish the claim as he did not specifically
relate a diagnosed condition to specific factors of appellant’s employment.
At oral argument, appellant explained that he had previously undergone two back
surgeries: an L4-5 discectomy, which was performed by mistake; and an L5-S1 discectomy. He

10

The Board notes that the Office received new evidence after issuing its most recent merit decision. The Board
cannot consider this evidence for the first time on appeal because the Office did not consider this evidence in
reaching its final decision. The Board’s review is limited to the evidence in the case record at the time the Office
made its final decision. 20 C.F.R. § 501.2(c). Appellant may resubmit the evidence with a request for
reconsideration by the Office.
11

See supra note 6.

12

See supra notes 7, 9. Although Dr. Ammerman also attributed appellant’s condition to the act of driving to
work, there is no evidence that this was a requirement of appellant’s employment. See William W. Knispel, 56
ECAB 639, 642 (2005) (an injury sustained by an employee having fixed hours and place of work while going to or
coming from work is generally not compensable because it does not occur in the performance of duty).

4

also noted that he had a previous claim accepted for a low back condition.13 However, the record
before the Board does not contain evidence pertaining to appellant’s prior surgeries and accepted
back condition. As the Board’s review is limited to the evidence in the instant record, the Board
is unable to consider appellant’s prior back surgeries and accepted condition or what effect, if
any, they may have had on his present condition.14
LEGAL PRECEDENT -- ISSUE 2
Under section 8128 of the Federal Employees’ Compensation Act, the Office has
discretion to grant a claimant’s request for reconsideration and reopen a case for merit review.
Section 10.606(b)(2) of the implementing federal regulations provides guidance for the Office in
using this discretion.15 The regulations provide that the Office should grant a claimant merit
review when the claimant’s request for reconsideration and all documents in support thereof:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”16
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)(2), the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.17 When reviewing an Office decision denying a merit review, the function of the
Board is to determine whether the Office properly applied the standards set forth at section

13

At oral argument, appellant seemed to indicate that his claim was predicated on an aggravation involving his
separate claim before the Office. The Board notes that appellant’s back surgeries and prior accepted condition
appear to involve the same body part, namely, his lumbar spine. The Office’s procedures provide that claims should
be doubled in instances when “correct adjudication of the issues depends on frequent cross-reference between files.”
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.0400.8(c)
(February 2000). The procedure manual provides, as an example of a case requiring doubling: “A new injury case
is reported for an employee who previously filed an injury claim for a similar condition or the same part of the body.
For instance, a claimant with an existing case for a back strain submits a new claim for a herniated lumbar disc.” Id.
at (c)(1). Because it appears that appellant’s present claim involves the same body part or condition as his previous
accepted claim, on return of the case record the Office should combine the files.
14

See 20 C.F.R. § 501.2(c).

15

20 C.F.R. § 10.606(b)(2) (1999).

16

Id.

17

20 C.F.R. § 10.608(b) (1999).

5

10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in
support thereof.18
ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s request for reconsideration
because appellant did not meet the above-listed three criteria warranting a merit review. In his
August 14, 2007 reconsideration request, appellant asserted that his injury was work related and
noted that his physician had passed away before he was able to prepare a report addressing
causal relationship in detail.19 However, he did not advance a new legal theory or assert that the
Office misapplied or misinterpreted a point of fact or law. Appellant did indicate that once he
found a new treating physician, he would submit a report discussing causal relationship in detail.
However, he was not able to find a new physician and consequently he did not submit a detailed
report addressing causal relationship, or any other new and relevant evidence, in connection with
his reconsideration request. Accordingly, the Board finds that appellant’s request for
reconsideration did not meet any of the above-listed criteria and consequently that the Office
properly denied his request without conducting a merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
developed an occupational disease in the performance of duty and the Office properly denied his
request for reconsideration without conducting a merit review.

18

Annette Louise, 54 ECAB 783 (2003).

19

At oral argument, appellant noted that, after his treating physician passed away, he was never granted
authorization to obtain a new treating physician. The Board notes that section 8103 of the Act provides that the
employee may initially select a treating physician. 5 U.S.C. § 8103; Billy Ware Forbess, 45 ECAB 157, 162 (1993).
The regulation implementing the Act provides that an employee who wishes to change physicians or see a new
treating physician must submit a written request to the Office explaining why he needs a new physician and the
Office may approve the request at its discretion. 20 C.F.R. § 10.401(b); Billy Ware Forbess, supra note 19 at 162.
Here, it appears that the Office has not exercised its discretion, as appellant advised the Office of his attending
physician’s death and his need for a new physician. The Office has not yet addressed the request.

6

ORDER
IT IS HEREBY ORDERED THAT the August 28 and July 23, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 16, 2008
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF ENERGY,
ENVIRONMENTAL MEASUREMENTS
LABORATORY, New York, NY, Employer
__________________________________________

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)

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

Docket No. 07-109
Issued: April 19, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 16, 2006 appellant filed a timely appeal from a July 12, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration as it was untimely and did not establish clear evidence of error. As there is no
merit decision within one year of the filing of this appeal, the Board lacks jurisdiction to review
the merits of appellant’s claim.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the July 12, 2006 decision.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration of
the merits of his claim on the grounds that it was not timely filed and did not establish clear
evidence of error.

1

5 U.S.C. § 501.2(c).

FACTUAL HISTORY
This case is before the Board for the third time. In the first appeal, the Board affirmed a
January 8, 1997 decision denying reimbursement of travel expenses for the period 1989 to 1994.2
In a decision dated January 5, 2004, the Board affirmed a February 12, 2003 decision terminating
appellant’s compensation and entitlement to medical benefits effective February 23, 2003.3 The
Board found that the opinion of the impartial medical examiner, Dr. Joseph John Estwanik, a
Board-certified orthopedic surgeon, represented the weight of the medical evidence and
established that appellant had no further employment-related condition or disability due to his
accepted conditions of lumbosacral strain and paraspinous muscle spasm. The Board further
affirmed an April 9, 2003 decision denying appellant’s request for reconsideration under
5 U.S.C. § 8128.
Appellant requested assistance from his congressional representative in a letter dated
April 11, 2006. On May 23, 2006 the Office informed the representative that appellant should
follow his appeal rights.
On July 5, 2006 appellant requested reconsideration based on newly submitted medical
evidence. He referenced the April 11, 2006 letter he sent to his congressional representative. In
the April 11, 2006 letter, appellant contended that the Office did not meet its burden of proof to
show that his employment injury ceased. He asserted that the statement of accepted facts
provided to Dr. Estwanik inaccurately indicated that he slipped and fell rather than twisted his
back. The Office and Board also erred in finding that the reports of appellant’s attending
physician were not of equal weight to the impartial medical examiner. Dr. Estwanik did not
determine that appellant’s degenerative disc disease was not related to his employment injury.
Appellant submitted a report dated May 23, 2006 from Dr. John J. Hanna, a chiropractor,
who listed findings of muscle spasm in the cervical and lumbar spine and right trapezius.
Dr. Hanna found that x-rays revealed degenerative changes but “no evidence of dislocation,
fracture or gross osseous pathology as visualized.” He diagnosed cervical brachial syndrome,
cervical and lumbar spondylosis, myospasms, sciatic nerve injury, lumbar disc degeneration and
cervical, lumbar and sacral segmental dysfunction. Dr. Hanna opined that appellant’s condition
resulted from his twisting injury.
By decision dated July 12, 2006, the Office denied appellant’s request for reconsideration
on the grounds that it was untimely and failed to establish clear evidence of error.
LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.4
2

Jaja K. Asaramo, Docket No. 97-1442 (issued June 15, 1999). The decision is not contained in the case record.

3

Jaja K. Asaramo, 55 ECAB 200 (2004). The Board also denied appellant’s petition for reconsideration.
Denying Petition for Reconsideration, Docket No. 03-1327 (issued April 12, 2005).
4

5 U.S.C. §§ 8101-8193.

2

The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.5 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.6 The Office procedures state
that the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review shows “clear
evidence of error” on the part of the Office.7 In this regard, the Office will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.10 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.11
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. The Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.12 A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues, including a
5

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

6

Veletta C. Coleman, 48 ECAB 367 (1997)

7

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “[The Office] will consider an
untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of
[it] in its most recent decision. The application must establish, on its face, that such decision was erroneous.”
20 C.F.R. § 10.607(b).
8

See Nelson T. Thompson, 43 ECAB 919 (1992).

9

Dorletha Coleman, 55 ECAB 143 (2003); Leon J. Modrowski, 55 ECAB 196 (2004).

10

Id.

11

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

12

20 C.F.R. § 10.607(a).

3

decision of the Board.13 The Board issued the last merit decision in this case on January 5, 2004.
As appellant’s July 5, 2006 request for reconsideration was submitted more than one year after
the last merit decision of record, it was untimely. Consequently, he must demonstrate clear
evidence of error by the Office in denying his claim for compensation.14
Appellant asserted that the Office failed to meet its burden of proof to terminate his
compensation benefits. He argued that the opinion of the impartial medical examiner was based
on an inaccurate history of injury and failed to address whether his degenerative disc disease was
employment related. Appellant additionally maintained that the reports of his attending
physician should be accorded equal weight with the impartial medical examiner. The Board,
however, affirmed the Office’s termination of appellant’s compensation based on the opinion of
the impartial medical examiner in its January 5, 2004 decision.15 Appellant did not submit any
evidence to the Office in support of his contentions sufficient to warrant consideration by the
Office.16
In support of his request for reconsideration, appellant submitted a report dated May 23,
2006 from his chiropractor, Dr. Hanna. Section 8101(2) of the Act provides that the “term
‘physician’ includes chiropractors only to the extent that their reimbursable services are limited
to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist….”17 A chiropractor cannot be considered a physician under the
Act unless it is established that there is a subluxation as demonstrated by x-ray evidence.18
Dr. Hanna interpreted that x-rays showed degenerative changes but “no evidence of dislocation,
fracture or gross osseous pathology as visualized.” As he did not diagnose a subluxation as
demonstrated by x-ray, he is not considered a “physician” under the Act and his report is of no
probative value.19 Consequently, it is insufficient to establish clear evidence of error.
In accordance with its internal guidelines and with Board precedent, the Office properly
performed a limited review of the evidence to ascertain whether it demonstrated clear evidence
of error. The Office correctly determined that it did not and thus, properly denied appellant’s
untimely request for reconsideration of the merits of his claim.

13

Robert F. Stone, 57 ECAB ___ (Docket No. 04-1451, issued December 22, 2005).

14

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB ___ (Docket No. 05-1637, issued October 18, 2005).

15

See Jaja K. Asaramo, supra note 2.

16

The subject matter adjudicated by the Board in its January 5, 2004 decision is res judicata and is not subject to
consideration by the Board absent further review by the Office. See Robert G. Burns, 57 ECAB ___ (Docket No.
06-380, issued June 26, 2006).
17

5 U.S.C. § 8101(2); see also Mary A. Ceglia, 55 ECAB 626 (2004).

18

The Office’s regulation, at 20 C.F.R. § 10.5(bb), defines subluxation to mean an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrated on x-ray. See
Mary A. Ceglia, supra note 17.
19

Isabelle Mitchell, 55 ECAB 623 (2004).

4

CONCLUSION
The Board finds that Office properly denied appellant’s request for reconsideration on the
grounds that it was not timely filed and did not establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 12, 2006 is affirmed.
Issued: April 19, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 16-1212
Issued: April 17, 2017

Case Submitted on the Record

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

JURISDICTION
On May 18, 2016 appellant filed a timely appeal from a November 24, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from February 27, 2015, the date of the most recent OWCP merit decision, to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claims pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 20, 2013 appellant, then a 54-year-old data collection technician, filed an
occupational disease claim (Form CA-2) alleging that he sustained a back condition due to
1

5 U.S.C. § 8101 et seq.

constant and repetitive lifting of trays, sacks of mail, and parcels. He first became aware of the
condition and related it to factors of his federal employment on March 2, 2012, the date he
stopped work. Appellant subsequently retired on October 28, 2014.
Initial status reports from Dr. Danny Chan, a chiropractor, advised that appellant was
unable to work and was experiencing low back sprain/strain with radicular pain. An April 17,
2012 magnetic resonance imaging (MRI) scan of the lumbar spine revealed a concentric
broad-based bulge at L4-5 and L5-S1. A July 15, 2013 report from Dr. Robert J. Harrison,
Board-certified in internal and occupational medicine, advised that appellant’s work involved
lifting 70-pound bags of mail about 12 times a day. Dr. Harrison reported that, while performing
these duties, appellant felt right lower back pain with radiation down the right leg to the foot. He
reported findings and diagnosed lumbar disc disease with right lower extremity radiculopathy.
Dr. Harrison also reported that appellant should remain off work. He continued following
appellant and placing him off work.
After appellant’s claim was initially denied in decisions dated April 11 and November 25,
2013, on April 18, 2014 OWCP accepted the claim for sprain of the back in the lumbar region
and temporary aggravation of degeneration of the lumbar or lumbosacral intervertebral disc.
Subsequently, by decision dated May 29, 2014, OWCP terminated his compensation benefits
effective May 29, 2014 as the employment-related conditions had resolved. However, by
decision dated September 10, 2014, it vacated the termination decision and reopened appellant’s
claim for the accepted conditions.
In a May 6, 2014 claim for compensation (Form CA-7), appellant requested wage-loss
compensation for the period March 5, 2012 through May 2, 2014. He also submitted a June 3,
2014 claim for compensation (Form CA-7) for the period May 5 through 19, 2014.
By letter dated August 28, 2014, OWCP advised appellant to submit medical evidence
supporting his disability claim.
In a September 22, 2014 letter, Dr. Harrison responded to OWCP’s request for a medical
opinion regarding appellant’s claimed disability from February 8, 2013 through May 19, 2014.
He noted that appellant had been under his care since July 15, 2013. Dr. Harrison advised that a
lumbar spine MRI scan revealed disc disease at L4-5 and L5-S1 with underlying annular tear and
bulge with possible nerve root impingement. He indicated that on examination of the back there
was tenderness to palpation at L4 and L5 with tightness in the lower back region. Dr. Harrison
advised that range of motion was abnormal and straight leg raising was positive on the right. He
noted that he provided multiple work status slips indicating appellant’s inability to work and that
his documentation had not been limited to pain only, but provided evidence for objective
findings.
By decision dated October 15, 2014, OWCP denied appellant’s claim for compensation
for the period March 4, 2012 through May 2, 2014 because the medical evidence of record was
insufficient to establish that his total disability from work was causally related to the work injury.
It found that medical evidence of record included objective findings. However, there was no
rationalized opinion explaining how the objective findings rendered appellant unable to work.

2

On December 1, 2014 appellant requested reconsideration.
In a letter dated November 6, 2014, Dr. Harrison responded to OWCP’s October 15, 2014
denial. He advised that appellant’s condition was permanent and rendered him unable to work
due to low back pain with significant aggravation upon bending, stooping, and lifting.
Dr. Harrison opined that a return to work would result in significant aggravation of his disc
disease that had been objectively demonstrated with MRI scan and examination findings.
In a November 17, 2014 report, Dr. Hoyman Hong, a Board-certified physiatrist to whom
appellant was referred by Dr. Harrison, advised that appellant sustained a low back injury while
lifting several years prior. He noted that appellant was unable to stand for more than an hour
and, therefore, he had difficulty participating in his job activities. Dr. Hong noted that appellant
had been off work for the past month and recommended an L5-S1 transforaminal epidural steroid
injection.
By decision dated February 27, 2015, OWCP denied modification of its prior decision.
Appellant continued to submit medical evidence. In a May 5, 2014 report, Dr. Harrison
advised that appellant complained of right-sided back pain radiating down to the right leg with
numbness and tingling over the right side of the lower leg and toes. He advised that appellant
was off work and assessed sprain of the lumbar region. On examination Dr. Harrison noted
positive straight leg raising on the right at 10 degrees, light touch decreased over the right lateral
calf, forward flexion 50 percent, and extension 75 percent.
In a February 19, 2015 report, Dr. Harrison advised that appellant complained of rightsided low back pain. He reiterated the findings on examination found in earlier reports and
assessed sprain of the lumbar region and displacement of the lumbar intervertebral disc without
myelopathy.
In a March 3, 2015 report, Dr. Hong administered a right L5-S1 and S1 fluoroscopic
guided contrast-enhanced transforaminal epidural steroid and anesthetic injection. He assessed
L5-S1 lumbar disc herniation and right L5-S1 lumbar radiculopathy. An accompanying imaging
report advised that x-rays showed the lumbosacral junctional and demonstrated spinal needles to
the right of L5 and S1.
In an April 2, 2015 report, Dr. Harrison advised that appellant had constant right-sided
low back pain worse with walking and prolonged sitting. He noted that the pain radiated into the
right leg with numbness and tingling over the right side of the lower leg and toes. Dr. Harrison
indicated that appellant was retired and assessed sprain of the lumbar region. Examination
revealed positive straight leg raising on the right at 10 degrees, light touch decreased over the
right lateral calf, forward flexion 50 percent, and extension at 75 percent.
In an April 2, 2015 letter to OWCP, Dr. Harrison contended that appellant worked for the
employing establishment for 34 years where he performed repetitive bending, stooping, and
lifting. He advised that on March 2, 2012 appellant felt the immediate onset of right lower back
pain with radiation into the right lower extremity after lifting a bag of mail. Dr. Harrison
indicated that since then appellant complained of continuous pain in the right lower back with
radiation into the right lower extremity. He noted that his examination findings included positive
3

straight leg on the right and that imaging showed objective evidence of low back injury.
Dr. Harrison advised that appellant was provided with work restrictions that limited lifting,
pulling, pushing, and simple grasping to 10 pounds and limited standing to an hour and included
no bending, stooping, twisting, or climbing. He opined that appellant’s L5-S1 disc disease was
permanent and that he was unable to return to work in his usual and customary occupation.
On September 1, 2015 appellant requested reconsideration.
By decision dated November 24, 2015, OWCP denied appellant’s request for
reconsideration without a merit review.
On appeal appellant contends that he was treated unfairly by OWCP and he requests
compensation for the annual and sick leave used prior to his retirement.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2 its
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.3 To be entitled to a merit review of its decision
denying or terminating a benefit, a claimant’s application for review must be received within one
year of the date of that decision.4 When a claimant fails to meet one of the above standards,
OWCP will deny the application for reconsideration without reopening the case for review on the
merits.5
ANALYSIS
In a February 27, 2015 merit decision, OWCP denied appellant’s claim for wage-loss
compensation because the evidence of record did not establish that he was totally disabled from
work beginning March 4, 2012 due to the accepted sprain of the back in the lumbar region and
temporary aggravation of degeneration of the lumbar or lumbosacral intervertebral disc.
Appellant submitted a timely request for reconsideration received by OWCP on September 1,
2015, which was denied without a merit review.
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim. The underlying issue in this case is whether appellant met his burden of
proof to establish that the period of disability from March 4, 2012 through May 2, 2014 was
causally related to the accepted work injury. This is a medical issue. OWCP’s decisions
2

Id. Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

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informed appellant of the defects of his claim and particularly advised him of why the medical
evidence was deficient. In support of reconsideration, appellant submitted several medical
reports.
In his April 2, 2015 letter to OWCP, Dr. Harrison made findings on examination and
listed work restrictions. He indicated that appellant’s L5-S1 disc disease was permanent and that
he was unable to return to work in his usual and customary occupation. However, this report,
while new is duplicative of evidence previously submitted and was considered by OWCP.
Evidence that repeats or duplicates evidence already in the case record has no evidentiary value
and does not constitute a basis for reopening a case.6 Therefore, this report is insufficient to
require OWCP to reopen the claim for a merit review.
In a May 5, 2014 report, Dr. Harrison assessed sprain of the lumbar region and made
findings on examination. On February 19, 2015 he advised that appellant complained of rightsided low back pain. Dr. Harrison reiterated the findings on examination contained in earlier
reports and assessed sprain of the lumbar region and displacement of the lumbar intervertebral
disc without myelopathy. In his April 2, 2015 report, Dr. Harrison advised that appellant had
constant right-sided low back pain worse with walking and prolonged sitting. He assessed sprain
of the lumbar region and made findings on examination. In his March 3, 2015 report, Dr. Hong
advised that appellant underwent a right L5-S1 and S1 fluoroscopic guided contrast-enhanced
transforaminal epidural steroid and anesthetic injection. These reports, however, do not address
appellant’s disability for work during the claimed period. The Board has held that the
submission of evidence which does not address the particular issue involved in a case does not
constitute a basis for reopening the claim.7 Thus, this evidence is insufficient to require OWCP
to reopen the claim for a merit review.
Furthermore, appellant neither showed that OWCP erroneously applied or interpreted a
specific point of law nor advanced a relevant legal argument not previously considered by
OWCP. Because he failed to meet one of the standards enumerated under section 8128(a) of
FECA, he was not entitled to further merit review of his claim.
On appeal appellant contends that he was treated unfairly by OWCP and he requests
compensation for the annual and sick leave used prior to his retirement. As explained above, the
Board does not have jurisdiction to review the merits of the case. Appellant did not submit any
evidence or argument in support of his reconsideration request that warranted reopening his
claim for a merit review pursuant to 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

6

J.P., 58 ECAB 289 (2007).

7

Johnnie B. Causey, 57 ECAB 359 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the November 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 17, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Chicago, IL,
Employer
__________________________________________

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Appearances:
Michelle Elliott, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1519
Issued: November 24, 2017

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 July 3, 2017 appellant, through his representative, filed a timely appeal from a
May 23, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days elapsed from the most recent merit decision, dated November 3, 2016, to
the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s
claim.3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

With his request for an appeal, appellant submitted additional evidence. The Board’s jurisdiction, however, is
limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore, the Board may
not consider this additional evidence for the first time on appeal; 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely filed under 5 U.S.C. § 8124.
FACTUAL HISTORY
On September 2, 2016 appellant, then a 54-year-old motor vehicle operator, filed a claim
for traumatic injury (Form CA-1). He alleged that on September 1, 2016 he sustained abrasions
to the bilateral knees and right ankle during a robbery attempt. A supervisor indicated no lost
time or medical expense was incurred or expected.
In a medical report dated September 2, 2016, Dr. Peter Sorokin, Board-certified in
occupational medicine, noted that appellant was injured the previous day due to a forward fall to
ground level. He diagnosed appellant with bilateral abrasions and contusions of the knees, and a
right ankle contusion.
In a continuation of pay nurse’s report dated September 14, 2016, a nurse noted that
appellant had been out of work due to stress and pain.
By letter dated September 23, 2016, OWCP notified appellant that it had reopened his
claim for consideration because he had not yet returned to work in a full-time capacity. It
advised him of the evidence needed to establish his claim, noting that he had not yet submitted
sufficient medical evidence to establish his claim. OWCP afforded appellant 30 days to submit
the necessary evidence. No additional evidence was received.
By decision dated November 3, 2016, OWCP denied appellant’s claim. It found that
appellant had not submitted sufficient rationalized medical evidence to establish a causal
relationship between the accepted work incident of September 1, 2016 and his diagnosed
conditions. OWCP noted that Dr. Sorokin stated that appellant’s injuries resulted from a fall,
while appellant stated that they resulted from a robbery attempt.
On April 25, 2017 OWCP received an unsigned and undated appeal request form, with
check marks, indicating both that appellant deserved an oral hearing and reconsideration.
On April 28, 2017 OWCP received another undated appeal request form. This form
indicated that appellant was requesting an oral hearing before an OWCP hearing representative.
With his request, he submitted a police report regarding the attempted robbery, as well as
additional reports from physicians.
By decision dated May 23, 2017, a representative of OWCP’s Branch of Hearings and
Review denied appellant’s hearing request as untimely filed. He noted that OWCP had issued its
decision on November 3, 2016, while appellant’s hearing request was received on April 25,
2017, which was more than 30 days after its decision. OWCP found that appellant was not
entitled to a hearing as a matter of right, as the request was submitted more than 30 days after its
decision. It also considered whether to grant appellant a discretionary hearing, but decided that
the issue in this case could equally well be addressed by his requesting reconsideration before
OWCP and submitting relevant evidence not previously considered.

2

LEGAL PRECEDENT
Section 8124(b) of FECA provides that a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his or her claim before a representative of the Secretary.4 Section
10.615 of FECA implementing regulations provides that a claimant shall be afforded a choice of
an oral hearing or a review of the written record.5 The request must be sent within 30 days of the
date of the decision for which a hearing is sought.6 A claimant is entitled to a hearing or review
of the written record as a matter of right if the request is filed within 30 days.7
While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.8
ANALYSIS
The time limitation to request an oral hearing from OWCP’s Branch of Hearings and
Review expired 30 days after OWCP’s November 3, 2016 decision.9 Appellant’s undated and
unsigned hearing request was received by OWCP on April 25, 2017. Therefore, OWCP properly
found in its May 23, 2017 decision that appellant was not entitled to an oral hearing as a matter
of right because his request was not made within 30 days of the issuance of its November 3,
2016 decision.10
OWCP’s hearing representative then properly exercised her discretion by noting that she
had considered the matter and denied appellant’s request for a hearing because the issue could
equally well be addressed through a request for reconsideration.11 The Board has held that the
only limitation on OWCP’s authority is reasonableness and an abuse of discretion is generally
shown through proof of manifest error, clearly unreasonable exercise of judgment, or actions
taken which are contrary to both logic and probable deduction from established facts.12 The
evidence of record does not indicate that OWCP abused its discretion in its denial of appellant’s

4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. § 10.615.

6

Id. at § 10.616(a).

7

See Leona B. Jacobs, 55 ECAB 753 (2004).

8

20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (October 2011).
9

See S.G., Docket No. 17-0968 (issued September 13, 2017).

10

20 C.F.R. § 10.616(a); supra note 8 at Chapter 2.1601.4(a) (October 2011).

11

M.H., Docket No. 15-0774 (issued June 19, 2015).

12

Daniel J. Perea, 42 ECAB 214, 221 (1990).

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request for an oral hearing. Accordingly, the Board finds that OWCP properly denied her
request for a hearing as untimely under section 8124.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed under 5 U.S.C. § 8124.
ORDER
IT IS HEREBY ORDERED THAT the May 23, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 24, 2017
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

13

R.P., Docket No. 16-0554 (issued May 17, 2016).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, RALEIGH
PROCESSING & DISTRIBUTION CENTER,
Raleigh, NC, Employer
__________________________________________

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

Docket No. 15-1135
Issued: August 26, 2015

Case Submitted on the Record

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

JURISDICTION
On April 23, 2015 appellant filed a timely appeal of a January 28, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder
injury in the performance of duty on December 12, 2014, as alleged.

1
2

5 U.S.C. § 8101 et seq.

Following the January 28, 2015 decision, appellant submitted additional evidence in support of her claim. As
OWCP has not reviewed this evidence in reaching a final decision, the Board may not consider this evidence for the
first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On December 12, 2014 appellant, then a 37-year-old mail handler, filed a traumatic
injury claim alleging on that date she was reaching above her head attaching labels when she
injured her right shoulder. In a statement dated December 12, 2014, she asserted that she was
attaching labels and her right shoulder was hurting when she lifted it.
Appellant’s supervisor controverted the claim as appellant had been complaining of
shoulder pain on December 11, 2014 and was taking over-the-counter medication for the pain.
The supervisor did not believe appellant’s allegation of a traumatic injury on
December 12, 2014.
On December 16, 2014 OWCP requested that appellant provide additional factual and
medical evidence in support of her claim. No response was received.
By decision dated January 28, 2015, OWCP denied appellant’s claim as she had failed to
submit sufficient factual evidence to establish that an employment event occurred on
December 12, 2014, as alleged. It found that she had failed to provide a detailed personal
statement clarifying the date of injury and how her right shoulder injury occurred. OWCP
further noted that appellant failed to provide any medical evidence of a diagnosed condition due
to her employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
3

5 U.S.C. §§ 8101-8193.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

5

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

6

20 C.F.R. § 10.5(ee).

2

incident at the time, place, and in the manner alleged.7 Second, the employee must submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8 The Board has held that medical opinions that
are speculative or equivocal in character diminish the probative value of the medical opinion.9
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof to establish a
traumatic injury claim, as alleged.
Appellant alleged that she sustained a traumatic injury to her right shoulder on
December 12, 2014 while applying labels above her head in the performance of duty.
Appellant’s supervisor controverted her claim, asserted that when requesting the traumatic injury
claim form appellant stated that she had right shoulder pain on December 11, 2014 which
required her to take medication. OWCP requested that appellant clarify the factual basis of her
claim and provide medical evidence of a diagnosed condition in a letter dated
December 16, 2014, but appellant did not present any additional factual evidence or any medical
evidence in support of a right shoulder injury. OWCP denied her claim on January 28, 2015.
The Board further finds that appellant has not met her burden of proof to establish an
injury due to her federal employment as she has submitted no medical evidence in support of her
claim.10
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right
shoulder injury in the performance of duty on December 12, 2014, as alleged.

7

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

8

J.Z., 58 ECAB 529 (2007).

9

A.G., Docket No. 12-659 (issued August 22, 2012); D.D., 57 ECAB 734, 738 (2006).

10

T.M., Docket No. 13-0577 (issued June 13, 2013) (finding that the claimant failed to submit any medical
evidence and therefore failed to prima facie establish her claim for compensation as the result of a traumatic injury.

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ORDER
IT IS HEREBY ORDERED THAT the January 28, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 26, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Barbourville, KY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-0887
Issued: February 21, 2019

Case Submitted on the Record

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

On March 19, 2018 appellant filed a timely appeal from a January 11, 2018 merit decision
and a February 9, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) that denied his claim for a December 22, 2016 left knee injury. The Clerk of the
Appellate Boards docketed the appeal as No. 18-0887.
On December 27, 2016 appellant, then a 57-year-old underground mine safety and health
inspector, filed a traumatic injury claim (Form CA-1) alleging that, on December 22, 2017, he
twisted his left knee when crossing a belt conveyor while inspecting an underground mine. OWCP
assigned this File No. xxxxxx482. By decision dated May 11, 2017, it found the claimed incident
occurred as alleged, but denied the claim because the medical evidence of record was insufficient
to establish causal relationship. Following appellant’s timely request for reconsideration, by
decision dated January 11, 2018, OWCP denied modification of its prior decision, again finding
the medical evidence of record insufficient to establish causal relationship. Appellant again
requested reconsideration, but, by nonmerit decision dated February 9, 2018, it declined to review
the merits of the claim.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. In both merit decisions issued in this case, dated May 11, 2017 and January 11, 2018,

OWCP referenced an additional claim appellant had filed regarding an August 6, 2016 bilateral
knee claim. The August 2016 claim was adjudicated under File No. xxxxxx043. In both OWCP
decisions referenced above, OWCP noted that it had reviewed medical evidence found in File No.
xxxxxx043. It further noted that Dr. Jerry L. Woolum, an attending orthopedic surgeon,
referenced the August 2016 injury in a report dated January 5, 2017 and in an undated report. In
the January 11, 2018 decision, OWCP also referenced an occupational disease claim (Form CA-2),
adjudicated under File No. xxxxxx283, that appellant filed alleging that she injured her knees due
to employment factors.
OWCP’s procedures provide that cases should be combined when correct adjudication of
the issues depends on frequent cross-reference between files.1 In the instant case, File No.
xxxxxx482, OWCP denied appellant’s traumatic injury claim for a left knee injury that occurred
on December 22, 2016. As noted, in both OWCP merit decisions issued in this case, it referenced
a second knee claim for an August 6, 2016 knee injury, adjudicated by OWCP under File No.
xxxxxx482. The Board further notes that in its January 11, 2018 decision, OWCP also indicated
that appellant had filed an occupational disease claim, adjudicated under File No. xxxxxx283,
claiming employment-related conditions of both knees.
As these files have not been combined, the Board is unable to determine whether all
pertinent evidence had been reviewed by OWCP in the instant claim to determine whether
appellant established a left knee injury on December 22, 2016.
The record before the Board does not contain the evidence from either the August 2016
traumatic injury claim, under File No. xxxxxx482, or appellant’s occupational disease claim, under
File No. xxxxxx283, both for knee conditions. The Board, therefore, is unable to properly
adjudicate the instant claim. The Board finds the case is not in posture for decision as the record
before the Board is incomplete and would not permit an informed adjudication of the case by the
Board. The case must be remanded to OWCP for it to combine the files and for further
reconstruction and development deemed necessary, to be followed by an appropriate decision.2

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).
2

See W.B., Docket No. 15-1751 (issued March 8, 2016).

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IT IS HEREBY ORDERED THAT the February 9 and January 11, 2018 decisions of the
Office of Workers’ Compensation Programs are set aside and the case remanded for further
proceedings consistent with this order of the Board.
Issued: February 21, 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

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