United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, MID-COLUMBIA
NATIONAL WILDLIFE REFUGE COMPLEX,
Burbank, WA, Employer
__________________________________________

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

Docket No. 15-0137
Issued: July 17, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 24, 2014 appellant filed a timely appeal from July 25 and August 1, 2014
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for subpoenas;
(2) whether it properly determined that appellant received an overpayment of compensation in
the amount of $3,416.47 for the period May 5 through July 13, 2013 because OWCP based its
calculations on incorrect hourly wage information; and (3) whether OWCP properly denied
waiver of the recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that an OWCP hearing representative made incorrect
calculations, reached improper conclusions, and improperly denied his request for subpoenas.
He objected to the hearing representative’s statement that he had not been fully transparent in
supplying his financial information, and noted that OWCP did not request any clarification.
Appellant also argued that a third-party mail contractor did not get the information to OWCP in a
timely manner.
FACTUAL HISTORY
On December 27, 2012 appellant, then a 66-year-old engineering equipment operator,
filed a traumatic injury claim alleging that, on December 18, 2012, after carrying metal office
furniture up and down flights of stairs most of the day, he had moderate pain and swelling in his
right knee joint. On March 12, 2013 OWCP accepted his claim for other and unspecified
derangement of right medial meniscus.
On April 10, 2013 appellant stopped work and underwent surgery to correct the medial
meniscus tear. He returned to full-time limited-duty work on July 14, 2013 and full-time full
duty on August 28, 2013. Appellant used leave for the time he initially missed from work but
requested compensation covering the time periods from May 5 through July 13, 2013 in five
CA-7 forms. The employing establishment listed appellant’s hourly pay rate on these forms as
$36.66. This figure was based on a weekly rate of $1,471.34. However, when appellant
requested leave buy-back for the period April 10 through May 4, 2013, the employing
establishment calculated an hourly rate of $25.31. In an e-mail sent on August 19, 2031, a
budget technician for the employing establishment confirmed that appellant’s hourly wage rate
was $25.31.
On August 30, 2013 OWCP made a preliminary determination that appellant had been
overpaid $2,733.18 for the period May 19 to July 13, 2013 because the calculations concerning
his compensation were incorrect as to the hourly wage rate. On September 10, 2013 it issued a
corrected preliminary determination, noting an earlier starting date for compensation payments
of May 5, 2013. OWCP determined that appellant was overpaid compensation in the amount of
$3,416.47 for the period May 5 to July 13, 2013.2 It further determined that he was not at fault in
the creation of the overpayment and advised that, if he disagreed with the amount of the
overpayment, he had a right to a hearing. OWCP informed appellant that, if he wished to request
waiver of the overpayment, he must provide financial information within 30 days. It informed
him that, if he did not provide the financial information within 30 days, his waiver request would
be denied. OWCP finalized its overpayment determination on October 8, 2013 and a corrected
final determination on October 15, 2013.
On October 17, 2013 OWCP received appellant’s request for a prerecoupment hearing on
the issues of fault and possible waiver of overpayment. Appellant believed the overpayment
occurred through no fault of his own and that the supervisor for the employing establishment
2

Appellant was entitled to $1,523.72 for the period May 5 to 18, 2013 and $6,094.86 for the period May 19 to
July 13, 2013, for a total of $7,618.58. However, he received $2,207.01 for the period May 5 to 18, 2013, $4,414.02
for the period May 19 to June 15, 2013, $2,207.01 for the period June 16 to 29, 2013, and $2,207.01 for the period
June 30 to July 13, 2013, for a total of $11,035.05.

2

made numerous errors in policy and judgment. He listed monthly income of $2,700.00 plus
rental income of $1,000.00 a month. Appellant listed expenses for food of $300.00 a month,
utilities of $300.00 a month, and other expenses of $400.00 a month. He noted that he owed
Chase Home Mortgage $12,000.00 ($600.00 a month payment), Wells Fargo $9,000.00 ($300.00
monthly payment), GESA Credit Union $17,000.00 ($300.00 monthly payment); and U.S. Bank
$20,000.00 ($400.00 monthly payment). The total monthly income listed was $3,700.00 and
total expenses were $2,600.00. On May 19, 2014 appellant submitted supporting documents.
He forwarded earnings and leave statements, bank statements, tax information, utility bills, bills
regarding automobile expenses, bills regarding rental expenses, medical bills, food receipts, and
credit card bills.
By letter dated November 22, 2013, appellant requested that subpoenas be issued for six
individuals at the employing establishment.
At the hearing held on May 7, 2014, the hearing representative reviewed appellant’s
financial documentation.
In a decision dated July 25, 2014, OWCP hearing representative denied appellant’s
request for subpoenas, finding that appellant “has failed to show what evidence can only be
secured by subpoena of the six identified individuals.” He also affirmed the corrected
determination of an overpayment in the amount of $3,416.47. The hearing representative also
found appellant not at fault in the creation of the overpayment. After adjusting expenses
provided by appellant, he denied waiver of recovery of the overpayment. The hearing
representative found that appellant had not provided a “full picture of his active accounts”; that
he did not provide current income documentation; and that he did not satisfactorily document his
rental portfolio. Thus, he stated, “I am unable to determine his actual monthly income with any
confidence.” The hearing representative set a payment schedule.
By decision dated August 1, 2014, OWCP again advised appellant that his request for
waiver of recovery of the overpayment was denied.
LEGAL PRECEDENT -- ISSUE 1
Section 8126 of FECA provides that the Secretary of Labor, on any matter within his
jurisdiction under the subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.3 The implementing regulations provide that a claimant
may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issues subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers, or other documents.
Subpoenas are issued for documents only if they are relevant and cannot be obtained by other
means and for witnesses only where oral testimony is the best way to ascertain the facts.4 In
requesting a subpoena, a claimant must explain why the testimony is relevant to the issues in the

3

5 U.S.C. § 8126(1).

4

20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001).

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case and why a subpoena is the best method or opportunity to obtain such evidence because there
is no other means by which the testimony could have been obtained.5
To request a subpoena, the requestor must submit the request in writing and send it to the
hearing representative as early as possible, but no later than 60 days (as evidenced by postmark,
electronic market or other objective date mark) after the date of the original hearing request.6
Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment or actions taken which are clearly contrary to logic and probable deduction
from established facts.7
ANALYSIS -- ISSUE 1
An OWCP hearing representative denied appellant’s request for subpoenas, finding that
appellant had not shown why he needed the subpoenas or why the evidence could not be
obtained in some other manner. He noted that appellant had been found not at fault in the
creation of the overpayment, so the employing establishment could not afford him any more
protection. The hearing representative also noted that appellant failed to identify with any
specificity what facts were to be obtained at the hearing.
The Board finds that the hearing representative acted within his discretion in denying the
subpoena. By letter dated November 22, 2013, appellant requested that subpoenas be issued for
six individuals at the employing establishment, including personnel staff and his supervisor.
However, he provided no evidence as to the necessity of these witnesses to determine appellant’s
case. Documents submitted from the employing establishment established the proper rate of pay.
Accordingly, the Board finds that the hearing representative properly determined that appellant
did not establish that he needed the subpoenas.
LEGAL PRECEDENT -- ISSUE 2
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of duty.8
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.
ANALYSIS -- ISSUE 2
Appellant was paid compensation with the wrong hourly rate during the period May 5
through July 13, 2013. He should have been paid compensation based on an hourly wage of
$25.31, but instead he was paid at the hourly rate of $36.66. Appellant received $11,035.05 in
5

Id.

6

20 C.F.R. § 10.619(a)(1).

7

See R.H., Docket No. 14-220 (issued May 2, 2014). Claudio Vazquez, 52 ECAB 496 (2001).

8

5 U.S.C. § 8102(a).

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compensation when he should have received $7,618.58. This resulted in an overpayment of
compensation in the amount of $3,416.47. The Board affirms OWCP’s determination that
appellant received an overpayment in the amount of $3,416.47.
LEGAL PRECEDENT -- ISSUE 3
If OWCP finds that the recipient of an overpayment was not at fault, repayment will still
be required unless: (1) adjustment or recovery of the overpayment would defeat the purpose of
FECA; or (2) adjustment or recovery of the overpayment would be against equity and good
conscience.9
Recovery will defeat the purpose of FECA if both: (a) the individual from whom
recovery is sought needs substantially all of his current income (including periodic benefits
under FECA) to meet current ordinary and necessary living expenses; and (b) the individual’s
assets do not exceed the resource base (including but not limited to cash, the value of stocks,
bonds, savings accounts, mutual funds) of $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent, plus $960.00 for each additional dependent. If an
individual has current income or assets in excess of the allowable amount, a reasonable
repayment schedule can be established over a reasonable, specified period of time. It is the
individual’s burden to submit evidence to show that recovery of the overpayment would cause
the degree of financial hardship sufficient to justify waiver.10 An individual is deemed to need
substantially all of his or her income to meet current ordinary and necessary living expenses if
monthly income does not exceed monthly expenses by more than $50.00.11
Recovery of an overpayment is considered to be against equity and good conscience
when any individual who received an overpayment would experience severe financial hardship
in attempting to repay the debt.12 Recovery of an overpayment is also considered to be against
equity and good conscience when any individual, in reliance on such payments or on notice that
such payments would be made, gives up a valuable right or changes her position for the worse.13
Section 10.438 of the regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in the denial

9

20 C.F.R. § 10.434. See 5 U.S.C. § 8129(b).

10

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a) (October 2004). See Miguel A. Muniz, 54 ECAB 217 (2002); 20 C.F.R. §§ 10.436, 10.437.
11

Sherry A. Hunt, 49 ECAB 467, 473 (1998).

12

20 C.F.R. § 10.437(a)

13

Id. at § 10.437(b).

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of waiver and no further request for waiver shall be considered until the requested information is
furnished.14
ANALYSIS -- ISSUE 3
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.15
OWCP hearing representative determined that, as appellant’s income greatly exceeded
his expenses, he was not entitled to waiver of recovery of the overpayment. He noted some
discrepancies in appellant’s financial information. Nevertheless, when looking at appellant’s
own financial form, appellant listed monthly income of $2,700.00 plus rental income of
$1,000.00 a month, for a total of income of $3,700.00. He listed food of $300.00 a month,
utilities of $300.00 a month, and other expenses of $400.00 a month. Appellant noted that he
made monthly payments to Chase Home Mortgage of $600.00, Wells Fargo of $300.00, GESA
Credit Union of $300.00; and U.S. Bank of $400.00. The total monthly income listed was
$3,700.00 and total expenses were $2,600.00. Accordingly, appellant’s monthly income
exceeded his documented reasonable monthly expenses by $1,100.00. The Board finds that he is
not entitled to waiver as he did not need substantially all of his income to meet current ordinary
and necessary expenses.16
The Board, therefore, finds that OWCP properly concluded that recovery of the
overpayment would not cause financial hardship to appellant and defeat the purpose of FECA.
Moreover, as appellant made no argument that he gave up a valuable right or changed his
position for the worse in reliance of the overpaid compensation, OWCP properly determined that
recovery would not be against equity and good conscience. It properly denied waiver of the
overpayment.
With respect to recovery of the overpayment in compensation, the Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation
under FECA.17 As appellant is no longer receiving wage-loss compensation, the Board does not
have jurisdiction with respect to the recovery of the overpayment.18
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for subpoenas. The
Board further finds that OWCP properly determined that he received an overpayment of
14

Id. at § 10.438; Linda Hilton, 52 ECAB 476 (2001).

15

Id.

16

See R.M., Docket No. 07-1066 (issued February 6, 2009).

17

Cheryl Thomas, 55 ECAB 610 (2004).

18

A.M., Docket No. 14-1885 (issued January 13, 2015).

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compensation in the amount of $3,416.47 for the period May 5 through July 13, 2013 because
OWCP based its calculations on an incorrect hourly wage information and that OWCP properly
denied waiver of the recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 1 and July 25, 2014 are affirmed.
Issued: July 17, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy 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
__________________________________________
R.K., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Brookhaven, NY, Employer
__________________________________________

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

Docket No. 20-0049
Issued: April 10, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 7, 2019 appellant, through counsel, filed a timely appeal from a July 3, 2019
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted July 31, 2018 employment incident.
FACTUAL HISTORY
On August 9, 2018 appellant, then a 56-year-old customer service representative, filed a
traumatic injury claim (Form CA-1) alleging that on July 31, 2018 she fell onto her knees, wrists,
shoulders, and elbows when walking down the hallway while in the performance of duty. She
stopped work on July 31, 2018.
In an August 14, 2018 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the factual and medical evidence
necessary to establish her claim and also provided a questionnaire for completion. OWCP afforded
appellant 30 days to provide the necessary factual information and medical evidence.
Appellant subsequently submitted a July 31, 2018 work status letter by Justin Fink, a
physician assistant, who noted that she was treated in the emergency department on that date and
could return to work on August 6, 2018 without restrictions. Mr. Fink also provided an emergency
department after-visit summary report, which indicated that the reason for her visit was “fall,
shoulder pain, wrist pain, and knee pain.” He diagnosed knee contusion.
OWCP also received diagnostic examination findings dated July 31, 2018 which included
a right shoulder x-ray examination report showed mild acromioclavicular and glenohumeral
osteoarthritis, a right elbow x-ray examination report that also revealed mild osteoarthritis, and, a
bilateral knee x-ray examination further showed mild bilateral tricompartmental osteoarthritis.
Appellant submitted an August 3, 2018 work status note by Dr. Daniel J. Laieta, an
osteopathic physician Board-certified in internal medicine, who indicated that she was treated in
his office and could return to work on August 13, 2018.
In an August 17, 2018 report, Dr. Richard M. Savino, a Board-certified orthopedic
surgeon, recounted that on July 31, 2018 appellant fell at work and injured her right shoulder, back,
elbow, and both knees. He noted that her current complaint was for her right shoulder. Dr. Savino
indicated that appellant had a history of fibromyalgia, which was exacerbated with the fall. Upon
examination of her right shoulder, he observed tenderness over the supraspinatus tendon and soft
crepitus. Sensory examination was normal and strength was 5/5. Dr. Savino diagnosed right
shoulder contusion and right shoulder impingement syndrome. He completed a work status note
and work capacity evaluation (OWCP-5c), which indicated that appellant could return to work
with restrictions of no lifting over 20 pounds and no prolonged use of the right shoulder.
On August 20, 2018 appellant began to undergo physical therapy treatments and submitted
a series of treatment notes and billing sheets.
In an August 28, 2018 letter, D.S., a manager, indicated that appellant had been approved
for Family and Medical Leave Act leave on April 10, 2018 and that the condition listed on the
form was fibromyalgia and osteoarthritis. In an August 28, 2018 witness statement submitted via
2

e-mail, R.G., a management and program assistant, recounted that on July 31, 2018 at 6:00 a.m.
she heard a loud thud sound and saw appellant on the floor.
In a September 5, 2018 work status note, Dr. Rasel M. Rana, an osteopathic physician
Board-certified in orthopedic surgery, related that appellant experienced back and neck pain after
a fall at work on July 31, 2018. Upon examination of appellant’s cervical spine, he observed
moderate tenderness on palpation and moderate pain with range of motion. Examination of
appellant’s lumbar spine revealed moderate tenderness on palpation and moderate pain with
simulated truncal motion. Spurling and straight leg raise testing was positive on the right.
Dr. Rana diagnosed cervical sprain, lumbar sprain, cervical spondylosis with radiculopathy,
cervical disc degeneration, degenerative lumbar spinal stenosis, lumbosacral spine osteoarthritis,
degenerative cervical spinal stenosis, and right lumbar and cervical radiculopathy. He completed
a work status note, which indicated that appellant could return to limited-duty work for four hours
per day.
In a September 10, 2018 attending physician’s report (Form CA-20), Dr. Rana noted a date
of injury of July 31, 2018 and clinical x-ray findings. He diagnosed cervical and lumbar sprain,
cervical spondylosis and radiculopathy, right lumbar radiculopathy, cervical spinal stenosis, and
degenerative lumbar spinal stenosis. Dr. Rana checked a box marked “yes” indicating that
appellant’s condition was caused or aggravated by an employment activity. He reported that she
“fell @ work.”
In a September 11, 2018 work status note, Dr. Rana indicated that appellant could return
to work limited duty for four hours per day beginning on September 5, 2018.
By decision dated September 25, 2018, OWCP denied appellant’s claim. It accepted that
the July 31, 2018 incident occurred as alleged and that right shoulder, lumbar, and cervical
conditions had been diagnosed, however, it denied her claim finding that she had failed to establish
causal relationship between the accepted employment incident and the diagnosed conditions.
On September 26, 2018 appellant accepted a part-time, limited-duty job offer as a customer
service representative.
On April 5, 2019 appellant requested reconsideration and submitted additional medical
evidence.
Appellant submitted July 31, 2018 emergency department hospital records by Mr. Fink,
who recounted her complaints of shoulder, wrist, and knee pain after a fall at work. Mr. Fink
provided physical examination and diagnostic testing findings and diagnosed knee contusion.
In a September 25, 2018 report, Dr. Savino noted that appellant’s right shoulder symptoms
were improving. He reported right shoulder examination findings of tenderness over the
supraspinatus tendon and soft crepitus with no swelling, erythema, or deformities. Dr. Savino
diagnosed right shoulder impingement syndrome and right shoulder contusion.
In a March 14, 2019 examination report, Dr. Laieta noted appellant’s complaints of severe
low back pain. He reported lumbar examination findings of moderate tenderness of the right
paravertebral muscles and diagnosed lumbar strain and fibromyalgia.
3

By decision dated July 3, 2019, OWCP denied modification of the September 25, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
In order to determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established. 7
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. 8 Second, the employee must submit evidence, in the form
of probative medical evidence, to establish that the employment incident caused a personal injury. 9
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence.10 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment incident identified by the employee. 11 The weight of the medical

3

Id.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

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

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB
354 (1989).
10

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

11
M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).

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evidence is determined by its reliability, its probative value, its convincing quality, the care of
analysis manifested, and the medical rationale expressed in support of the physician’s opinion.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted July 31, 2018 employment incident.
In support of her claim, appellant submitted reports from Dr. Rana dated September 5
to 11, 2018. In his initial report, Dr. Rana accurately described the July 31, 2018 employment
incident and related her complaints of neck and back pain. He reported examination findings of
moderate tenderness on palpation of the cervical and lumbar spines. Dr. Rana diagnosed cervical
sprain, lumbar sprain, cervical spondylosis with radiculopathy, cervical disc degeneration,
degenerative lumbar spinal stenosis, lumbosacral spine osteoarthritis, degenerative cervical spinal
stenosis, and right lumbar and cervical radiculopathy. In a September 10, 2018 Form CA-20, he
checked a box marked “yes” indicating that appellant’s condition was caused or aggravated by an
employment activity. Dr. Rana noted that she “fell @ work.” Without explaining physiologically
how the accepted employment incident caused or contributed to the diagnosed conditions, the
physician’s report is of limited probative value. 13 Dr. Rana’s opinion is therefore insufficient to
establish the claim. 14
In reports dated August 17 and September 25, 2018, Dr. Savino described the July 31,
2018 employment injury and provided examination findings. He diagnosed right shoulder
contusion and right shoulder impingement. While Dr. Savino discussed the July 31, 2018
employment incident, he did not specifically address the cause of the diagnosed conditions.
Medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship. 15 Likewise, in reports dated August 3,
2018 and March 14, 2019, Dr. Laieta also reported a diagnosis of lumbar strain, but did not opine
as to the cause of the diagnosed condition.16
The July 31, 2018 right shoulder, right elbow, and bilateral knee x-ray examination reports
are also insufficient to establish appellant’s claim. The Board has held that reports of diagnostic
tests lack probative value as they do not provide an opinion on causal relationship between her
employment duties and the diagnosed conditions. 17

12

James Mack, 43 ECAB 321 (1991).

13

See A.B., Docket No. 16-1163 (issued September 8, 2017).

14

See E.H., Docket No. 19-1282 (issued December 23, 2019).

15

See B.P., Docket No. 19-0777 (issued October 8, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018).

16

See J.H., Docket No. 19-0838 (issued October 1, 2019); S.G., Docket No. 19-0041 (issued May 2, 2019).

17

G.S., Docket No. 18-1696 (issued March 26, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

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Appellant also submitted July 31, 2018 hospital records from Mr. Fink who treated her in
the emergency department for a knee contusion. A physician assistant, however, is not considered
a “physician” as defined under FECA, and thus the records are of no probative value. 18
On appeal counsel argues that OWCP had accepted that an injury occurred and that the
claimant did not have to prove a causal connection when there is an obvious fall and injury.
However, as set forth above appellant has not submitted rationalized medical evidence establishing
that her medical condition is causally related to the accepted July 31, 2018 employment incident,
the Board finds that she has not met her burden of proof. 19
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 medical
condition causally related to the accepted July 31, 2018 employment incident.

18
5 U.S.C. § 8102(2) of FECA provides as follows: physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants,
nurses, and physical therapists are not competent to render a medical opinion under FECA). 5 U.S.C. § 8101(2);
20 C.F.R. § 10.5(t). George H. Clark, 56 ECAB 162 (2004) (physician assistant is not a physician under FECA).
19

See K.K., Docket No. 19-1193 (issued October 21, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the July 3, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 10, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN JUAN VETERANS MEDICAL CENTER,
San Juan, PR, Employer
__________________________________________

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

Docket No. 19-1188
Issued: November 6, 2019

Case Submitted on the Record

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

JURISDICTION
On May 6, 2019 appellant filed a timely appeal from an April 24, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a cervical spine
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On March 15, 2019 appellant, then a 40-year-old social worker, filed an occupational
disease claim (Form CA-2) alleging that she developed pain in her neck, arm, and back, as well as
1

5 U.S.C. § 8101 et seq.

a severe headache as a result of her federal employment. She explained that “daily I have to load
a gate to get out of the VA official car and to enter the car too.” Appellant noted that she first
became aware of her claimed condition and realized that it was caused or aggravated by factors of
her federal employment on February 12, 2019. She did not stop work.
In an accompanying narrative statement, appellant provided that she began working at her
current position during the last week of September and again described her mechanism of alleged
injury. She noted that she had been experiencing symptoms of her condition as early as
January 2019, but did not realize her federal employment was causing her injury at that time.
Appellant explained that, after a February 2019 visit with her primary care provider, she realized
that the lifting of the “clinic gate” was the only repetitive lifting of a heavy object that she
performed daily. She also provided two photographs of the clinic gate.
Appellant submitted a February 19, 2019 magnetic resonance imaging (MRI) scan of
appellant’s cervical spine performed by Dr. Ana Maria Gomez, a Board-certified radiologist,
revealed straightening of the normal cervical lordosis, mild multilevel spondylotic changes of the
cervical spine and mild left neural foraminal narrowing at C5-6.
In a March 12, 2019 medical report, Dr. Juan Valentin Carro, a Board-certified physiatrist,
noted appellant’s history of cervical pain and stiffness related to lifting a heavy object at work. He
diagnosed cervical facet arthropathy, spondylosis, and myositis. Dr. Carro also opined that the
lifting appellant performed as a part of her employment duties may have been a cause of her
symptoms.
By development letter dated March 18, 2019, OWCP advised appellant that it required
additional factual and medical evidence to determine whether she was eligible for FECA benefits.
It requested that she respond to its questionnaire and submit medical evidence which contained a
physician’s opinion supported by a medical explanation as to how work activities in her federal
employment caused, contributed to or aggravated her medical condition. OWCP afforded
appellant 30 days to submit the requested evidence.
In a separate development letter of even date, OWCP requested that the employing
establishment provide additional information regarding appellant’s occupational disease claim,
including comments from a knowledgeable supervisor regarding the accuracy of appellant’s
statements, and a copy of her position description and physical requirements of her position. It
afforded the employing establishment 30 days to submit the necessary evidence.
In an April 12, 2019 response to OWCP’s questionnaire, appellant described her
employment-related activities as lifting a gate twice daily since October 2018 whenever she had
to leave to visit her patients. She also explained that the pain she has experienced in her neck,
back, and arm as a result has caused her a lot of anxiety.
In a partially illegible April 22, 2019 medical note, Dr. Carro provided that appellant’s
symptoms were related to her lifting heavy objects at work. He also advised that she avoid lifting
the gate to the parking lot.
By decision dated April 24, 2019, OWCP denied appellant’s occupational disease claim.
It accepted her duties as a social worker as described, but denied her claim because the medical
2

evidence of record was insufficient to establish causal relationship between her diagnosed cervical
conditions and the accepted factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.7 The opinion of the physician must be based
on a complete factual and medical background of the employee, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a cervical spine
condition causally related to factors of her federal employment.
In his March 12, 2019 medical report, Dr. Carro diagnosed cervical facet arthropathy,
spondylosis and myositis and opined that the lifting she performed as a part of her employment
2

Id.

3

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

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

3

duties may have been a cause of her symptoms. Dr. Carro’s opinion that the repetitive lifting of
the gate “may” have been a cause of her symptoms is speculative in nature. The Board has held
that medical opinions that are speculative or equivocal in character are of diminished probative
value.9 The physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty and must be supported by medical rationale, explaining the nature of the relationship
between the diagnosed condition and appellant’s specific employment factor(s).10 For these
reasons, Dr. Carro’s March 12, 2019 report is insufficient to establish appellant’s burden of proof.
Dr. Carro’s April 22, 2019 medical note provided that appellant’s symptoms were related
to her lifting of heavy objects at work. He also advised that she avoid lifting the gate for the
parking lot at work. Although his opinion generally supported causal relationship between the
accepted employment factors and appellant’s diagnosed conditions, Dr. Carro’s medical note did
not offer rationale sufficient to explain how or why he believed appellant’s work activities resulted
in or contributed to the diagnosed conditions.11 For this reason, Dr. Carro’s April 22, 2019 medical
note is also insufficient to establish appellant’s burden of proof.
Additionally, appellant submitted a February 19, 2019 cervical spine MRI scan conducted
by Dr. Gomez. The Board has held that diagnostic tests lack probative value as they do not provide
an opinion on causal relationship between appellant’s employment duties and the diagnosed
conditions.12 Accordingly, the February 19, 2019 MRI scan is also insufficient to establish causal
relationship.
As there is no rationalized medical evidence of record explaining how appellant’s
employment duties caused or aggravated her conditions, appellant has not met her burden of proof
to establish her claim.
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 cervical spine
condition causally related to the accepted factors of her federal employment.

9

H.A., Docket No. 18-1466 (issued August 23, 2019).

10

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, supra note 8.

11

Id.

12

See J.M., Docket No. 17-1688 (issued December 13, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the April 24, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 6, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Forest Park, IL, Employer
__________________________________________

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

Docket No. 17-1821
Issued: December 13, 2018

Case Submitted on the Record

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

JURISDICTION
On August 26, 2017 appellant filed a timely appeal from a March 1, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated January 29, 2016 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 over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 1, 2017 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On April 23, 2015 appellant, a then 35-year-old sack sorting machine operator, filed an
occupational disease claim (Form CA-2) alleging bipolar depression which he attributed to a
hostile work environment including harassment and “deceptive practices” by management staff.
He noted that he first became aware of his claimed condition on April 5, 2014 and first realized its
relation to his federal employment on February 19, 2015. Appellant stopped work on
February 23, 2015.
In a May 19, 2015 e-mail message, Tour 3 Manager C.L. stated that she had no knowledge
of appellant’s allegation that management was aware of his emotional condition until one week
prior when she received his CA-2 claim form. She indicated that he was questioned by his
supervisor, W.A., regarding why he did not report for overtime. C.L. stated that appellant “started
getting very loud in the main aisle which leads to the employee’s entrance, when he was informed
by [W.A.] that he would have to leave with all the loud talking and calling [W.A.] ‘stupid,’ [but]
he kept standing in the aisle talking loud and [belligerently].”
In an undated narrative statement, W.A., indicated that he did not give appellant instruction
to stay in his unit for overtime. He stated that it was standard operating procedure to report to the
tour office for an overtime assignment. W.A. stated that appellant’s coworkers heard the overtime
call and reported to the tour office for their overtime assignments, but appellant did not, so he
questioned him about where he was for overtime. He contended that he did not harass appellant
and was not aware of his emotional condition.
In a June 1, 2015 letter, the employing establishment controverted appellant’s claim.
By development letter dated June 5, 2015, OWCP advised appellant of the deficiencies of
his claim and afforded him 30 days to submit additional evidence and respond to its inquiries.
In response, appellant submitted medical evidence, a September 25, 2015 narrative
statement detailing a timeline of his past Equal Employment Opportunity (EEO) complaints, and
a copy of his EEO settlement dated September 10, 2014.
By decision dated January 29, 2016, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that his emotional condition arose during the course
of his federal employment and within the scope of compensable work factors.
On January 31, 2017 appellant requested reconsideration. He submitted a statement dated
January 25, 2017 arguing that he developed an emotional condition due to a number of incidents
that occurred in a hostile work environment. Appellant further submitted EEO investigative
affidavits and documentation related to his prior EEO complaints and resubmitted a copy of his
September 10, 2014 EEO settlement.

2

By decision dated March 1, 2017, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by it within one year of the date of the decision for which review is sought.5
OWCP will consider an untimely request for reconsideration only if the request
demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit decision.”6
The request must establish on its face that such decision was erroneous.7 Where a request is
untimely and fails to present any clear evidence of error, OWCP will deny the request for
reconsideration without reopening the case for a review on the merits.8
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. OWCP’s regulations9 and procedures establish a one-year
time limit for requesting reconsideration. Timeliness is determined by the “received date” as

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
3

4

20 C.F.R. § 10.607.

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

20 C.F.R. § 10.607(b).

7

Id. To establish clear evidence of error, a claimant must submit evidence relevant to the issue that was decided
by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise, and explicit and it
must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 ECAB 227 (1991). It is not
enough to merely show that the evidence could be construed to produce a contrary conclusion. Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). 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 OWCP’s decision. Thankamma Mathews, 44 ECAB 765, 770 (1993).
8

20 C.F.R. § 10.608(b).

9

Id. at § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

3

recorded in iFECS.10 The most recent merit decision was OWCP’s January 29, 2016 decision. As
appellant’s reconsideration request was not received by OWCP until January 31, 2017, more than
one year after the January 29, 2016 decision, it was untimely filed. Consequently, he must
demonstrate clear evidence of error by OWCP in the denial of his claim.11
The Board finds that appellant has demonstrated clear evidence of error on the part of
OWCP. In its March 1, 2017 decision, OWCP denied appellant’s request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error. It indicated that it
had received a “recent letter requesting reconsideration” of its January 29, 2016 decision and
denied appellant’s request based on a decision “outlined in the enclosure.” The Board finds,
however, that appellant had submitted more than a single letter requesting reconsideration. In
support of his January 31, 2017 reconsideration request, appellant submitted a statement arguing
that he developed an emotional condition due to a number of incidents that occurred in a hostile
work environment. Appellant further submitted EEO investigative affidavits and documentation
related to his prior EEO complaints and resubmitted a copy of his September 10, 2014 EEO
settlement. In its March 1, 2017 decision, OWCP failed to provide an explanation as to why its
prior decision was improperly decided. It indicated that it had provided reasons for its denial
which were “outlined in [an] enclosure,” but no such enclosure exists within the decision or in the
case file. OWCP’s failure to provide factual findings and explain the basis for its conclusion that
appellant did not demonstrate clear evidence of error precludes the Board’s review of the
decision.12
The Board, having duly considered the matter, finds that OWCP failed to properly explain
the findings with respect to the issue presented. Thus, OWCP, in its March 1, 2017 decision, did
not discharge its responsibility to set forth findings of fact and a clear statement of reasons
explaining the disposition so that appellant could understand the basis for the decision, i.e.,
whether he demonstrated clear evidence that OWCP’s last merit decision was incorrect.13
The Board will therefore set aside OWCP’s March 1, 2017 decision and remand the case
for an appropriate decision on appellant’s untimely reconsideration request.
CONCLUSION
The Board finds that this case is not in posture for decision.

10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (January 2004); see
C.B., Docket No. 13-1732 (issued January 28, 2014).
11

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

12

Id. at § 10.126; see also R.C., Docket No. 16-0563 (issued May 4, 2016).

13

See id. at § 10.126.

4

ORDER
IT IS HEREBY ORDERED THAT the March 1, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion.
Issued: December 13, 2018
Washington, DC

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

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

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

5


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

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Appearances:
William H. Brawner, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2185
Issued: April 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 5, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs’ dated January 24 and June 19, 2008 denying his claim for
compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether appellant has established that he is entitled to compensation for total
disability due to his accepted employment injury from November 29 through December 1, 2007.
Appellant’s representative argues on appeal that the Office erred in finding that appellant
was not entitled to compensation benefits because his wage loss was due to a reduction-in-force
(RIF). He contends that appellant is entitled to lost wages due to the employing establishment’s
decision to withdraw suitable work by denying him a full 40-hour week. Appellant’s
representative also contends that the medical evidence establishes that appellant was totally
disabled during the claimed period.

FACTUAL HISTORY
On June 20, 2006 appellant filed an occupational disease claim alleging that, he had
developed a shoulder condition as a result of his federal employment duties, which included
lifting and distributing heavy loads. His claim was accepted for a right shoulder strain. On
November 20, 2006 appellant underwent approved arthroscopic surgery on his right shoulder,
which involved subacromial decompression, distal clavical excision and superior labral repair.
On March 7, 2007 appellant accepted a position as a modified part-time flexible (PTF)
clerk, which required him to perform the duties of a lobby director. The position description
provided that, he would not be required to lift more than 2 pounds routinely or more than 10
pounds occasionally, reach with his right arm or work overtime. On January 11, 2005 appellant
filed a claim for compensation for total disability for the period November 29 through
December 1, 2007.
Appellant submitted a December 7, 2007 report from Dr. Julie E. Peltz, a treating
physician, reflecting that she had examined appellant on November 30, 2007, who related
appellant’s reports that his work required him to do repetitive heavy lifting and reaching
throughout his shift and that he had experienced a significant increase in right shoulder pain after
he “cased several days in a row.” He informed Dr. Peltz’ that, he had worked only a half-day on
November 28, 2007 and was “off” the following two days. Dr. Peltz provided the following
objective findings: “Active ROM: abd I8O deg, flex I8O deg, ER 45 deg, IR T5 -- mild
discomfort with all ROM. Strength 5/5 shoulder except for 4+/5 ER -- still improving over time.
Very mildly positive impingement sign.” Dr. Peltz diagnosed right shoulder strain and right trap
strain, indicating that the date of injury was June 20, 2006. In a section entitled “Limitations,”
she stated that appellant was temporarily totally disabled from November 28 through
December 1, 2007.
The record contains a time analysis sheet for the period June 28 through
November 28, 2007. The Office’s January 17, 2008 record of a telephone conversation reflects
the employing establishment’s representation that appellant was not sent home because of an
inability to accommodate his restrictions. Rather, the employing establishment stated that all
employees were sent home because no work was available.
In a decision dated January 24, 2008, the Office denied appellant’s claim for
compensation for the period November 29 through December 1, 2008, finding that the
employing establishment did not have work available for part-time flexible employees during the
period claimed and that the compensation period claimed was not related to appellant’s accepted
employment injury. On February 4, 2008 appellant, through his representative, requested an oral
hearing.
In a January 18, 2008 report, Dr. Peltz diagnosed a partial rotator cuff tear, labral tear and
rotator cuff impingement, indicating that appellant’s condition was causally related to the
accepted employment injury. She opined that appellant had a one percent permanent impairment
of his right upper extremity.

2

In a January 24, 2008 letter from the employing establishment, Laura Garcia certified that
all part-time flexible employees, including appellant were sent home early due to “no work
available.” She asserted that appellant was not sent home due to his accepted work-related
injury. The record contains follow-up reports from Dr. Peltz dated January 25 and May 23,
2008, which reiterated previous diagnoses and a November 20, 2006 operative report.
In a letter dated March 26, 2008, appellant’s representative modified his hearing request
to a request for review of the written record. He contended that appellant was entitled to
compensation for the period in question because the employing establishment had withdrawn
light duty (under section 2-1500 of the Office procedure manual) by refusing to allow him to
work 40 hours and that he received fewer hours that he would have, had he not been injured.
The representative also contended that the Office used an incorrect pay rate when calculating his
entitlement to previous compensation.
In a decision dated June 19, 2008, an Office hearing representative affirmed the Office’s
January 24, 2008 decision, denying appellant’s compensation claim. The representative found
that there was no evidence establishing that the employing establishment had withdrawn
appellant’s light-duty job. Rather, the evidence established that the work stoppage in this case
was caused by a RIF, which included full-duty and light-duty employees. The representative
further found that the medical evidence did not establish that appellant was disabled for the
position had work been available.
LEGAL PRECEDENT
When an employee who is disabled from the job he held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence
establishes that he can perform the limited-duty position, the employee has the burden of proof to
establish a recurrence of total disability and that he cannot perform such limited-duty work. As
part of this burden, the employee must show a change in the nature or extent of the injury-related
condition or a change in nature and extent of the light-duty job requirements.1
The Office’s definition of 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 injury or new exposure.
The term also means the inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn, except for when such withdrawal occurs for reasons of
misconduct, nonperformance of the job duties or a RIF.2 The Board has held that when a
claimant stops work for reasons unrelated to the accepted employment injury, there is no
disability within the meaning of the Federal Employees’ Compensation Act.3
1

See John I. Echols, 53 ECAB 481 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

2

See 20 C.F.R. § 10.5(x).

3

See John I. Echols, supra note 1; John W. Normand, 39 ECAB 1378 (1988). Disability is defined to mean the
incapacity because of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total. See 20 C.F.R. § 10.5(f).

3

Under the Office’s procedure manual, it is noted that a reemployed claimant may face
removal from employment due to closure of an installation, cessation of special (pipeline)
funding or termination of temporary employment or RIF. If it is not clear whether the claimant’s
situation involves a RIF or the withdrawal of light duty, the claims examiner should request the
personnel document on which the removal was based. Such occurrences as a RIF are not
considered recurrences of disability and further action may be warranted according to whether a
formal loss of wage-earning capacity determination has been made.4
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim by the weight of the evidence.5 For each period of disability
claimed, the employee has the burden of establishing that he was disabled for work as a result of
the accepted employment injury.6 Whether a particular injury causes an employee to become
disabled for work and the duration of that disability, are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.7 To meet his burden, a
claimant must submit rationalized medical opinion evidence, based on a complete factual and
medical background, supporting a causal relationship between the alleged disabling condition
and the accepted injury.8
Under the Act, the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.9 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.10 An employee who has a physical impairment causally related to his federal
employment, but who nonetheless has the capacity to earn the wages he was receiving at the time
of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.11 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his employment, he is entitled to compensation for any loss of wages.
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.12 (July 1997).
5

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
6

See Amelia S. Jefferson, supra note 5; see also David H. Goss, 32 ECAB 24 (1980).

7

See Edward H. Horton, 41 ECAB 301 (1989).

8

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).

9

S.M., 58 ECAB ___ (Docket No. 06-536, issued November 24, 2006); Bobbie F. Cowart, 55 ECAB 746 (2004);
Conard Hightower, 54 ECAB 796 (2003); 20 C.F.R. § 10.5(f).
10

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

11

Merle J. Marceau, 53 ECAB 197 (2001).

4

claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.12
ANALYSIS
The Office accepted appellant’s claim for a right shoulder strain and subsequent
arthroscopic surgery. Appellant received appropriate compensation benefits until March 7, 2007,
when he accepted a position as a modified part-time flexible clerk under the work restrictions of
Dr. Peltz. On January 11, 2008 he filed a claim for compensation for the period November 29
through December 1, 2007, contending that he was entitled to compensation for the period
November 29 through December 1, 2007 due to the employing establishment’s decision to
withdraw his limited-duty work by denying him a full 40-hour week. Appellant also contended
that the medical evidence established that he was totally disabled during the claimed period. The
Board finds that appellant was not disabled during the claimed period and the Office properly
denied his compensation claim.
The record reflects that appellant worked a half-day on November 28, 2007 and did not
work at all from November 29 through December 1, 2007. He alleged that, he was sent home
due to the employing establishment’s inability to accommodate his restrictions and, therefore, he
is entitled to compensation. However, appellant has not submitted any evidence to support his
assertion that his position was withdrawn for the reasons claimed. On the other hand, Ms. Garcia
of the employing establishment certified that all part-time flexible employees, including
appellant were sent home early on the dates in question because no work was available. She
specifically indicated that appellant was not sent home due to his accepted work-related injury.
A claimant may be considered disabled when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness
is withdrawn, except when such withdrawal occurs for reasons of misconduct, nonperformance
of the job duties or a RIF.13 The Board has held that when a claimant stops work for reasons
unrelated to the accepted employment injury, there is not disability within the meaning of the
Act.14 In this case, appellant’s absence from work was due to the employing establishment’s
lack of available work for any and all part-time flexible employees, whether they were full duty

12

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

13

See 20 C.F.R. § 10.5(x).

14

See John I. Echols, supra note 1; John W. Normand, supra note 3. Disability is defined to mean the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of injury. It may be
partial or total. See 20 C.F.R. § 10.5(f).

5

or light duty, rather than to an inability to accommodate appellant’s restrictions. The Board finds
that the withdrawal of available work in this case was analogous to a RIF.15 Therefore, the work
stoppage imposed by the employing establishment did not constitute a recurrence of disability.16
Relevant medical evidence of record, consisting primarily of reports from Dr. Peltz, does
not establish that appellant was totally disabled from November 29 through December 1, 2007
due to his accepted employment injury. Following a November 30, 2007 examination, Dr. Peltz
stated that appellant’s work required him to do repetitive heavy lifting and reaching throughout
his shift. She indicated that appellant had experienced a significant increase in right shoulder
pain after he “cased several days in a row.” Range of motion testing produced mild discomfort
with all range of motion. Shoulder strength was 5/5 (except for 4+/5 ER) and still improving
over time. Appellant had a mildly positive impingement sign. Dr. Peltz diagnosed right
shoulder strain and right “trap” strain, indicating that the date of injury was June 20, 2006. In a
section entitled “Limitations,” she stated that appellant was temporarily totally disabled from
November 28 through December 1, 2007. On January 18, 2008 Dr. Peltz diagnosed a partial
rotator cuff tear, labral tear and rotator cuff impingement and stated that appellant’s condition
was causally related to the accepted employment injury. Various follow-up reports reiterated
previous diagnoses.
Dr. Peltz’ reports do not contain a rationalized opinion explaining how the residuals or
sequelae of appellant’s employment injury prevented him from continuing in his employment on
the dates in question. Her blanket statement that appellant was “TTD” from November 29 to
December 1, 2007, does not constitute probative medical evidence. The Board has long held that
medical conclusions, unsupported by rationale, are of little probative value.17 Although Dr. Peltz
provided examination findings, she did not explain how those findings resulted in appellant’s
disability. She noted that appellant had experienced an increase in pain following several days of
casing. However, an increase in pain alone does not constitute objective evidence of disability.18
Moreover, Dr. Peltz’s opinion that appellant was totally disabled on November 29, 2007 was
necessarily based on appellant’s report, since her examination of appellant did not occur until the
following day. She also failed to accurately describe appellant’s job duties19 or to explain why
his current condition would prevent him from performing those duties. For all of these reasons,
15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.12 (July 1997) (“A reemployed claimant may face removal from employment due to
closure of an installation, cessation of special (‘pipeline’) funding or termination of temporary employment or
reduction in force (RIF). (A true RIF affects full-duty and light-duty workers alike. If it is not clear whether the
claimant’s situation involves a RIF or the withdrawal of light duty, the CE should request the personnel document
on which the removal was based). Such occurrences are not considered recurrences of disability (see FECA PM 21500.3b)….”
16

See supra note 2.

17

Willa M. Frazier, 55 ECAB 379 (2004).

18

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.7.a(1), (May 1997).

19

The Board notes that appellant’s position as a modified part-time flexible clerk required him to perform the
clerical duties of a lobby director and restricted him from lifting more than 2 pounds routinely or more than 10
pounds occasionally, reach with his right arm or work overtime; whereas, Dr. Peltz stated that appellant’s work
required him to do repetitive heavy lifting and reaching throughout his shift.

6

Dr. Peltz’ reports are of diminished probative value and are insufficient to establish appellant’s
claim.
In summary, appellant failed to submit rationalized medical opinion evidence, based on a
complete factual and medical background, either establishing that he was totally disabled from
November 29 through December 1, 2007 or supporting a causal relationship between his claimed
disabling condition and the accepted injury.20 The Board finds that the medical evidence of
record is not sufficient to establish that appellant was disabled from November 29 through
December 1, 2007. The Board also finds that appellant failed to establish that the employing
establishment improperly withdrew his light-duty assignment. Therefore, the Office properly
denied his compensation claim.21
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish entitlement to
compensation due to total disability for the period November 29 through December 1, 2007.

20

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006). Dr. Peltz stated that appellant’s work
required him to do repetitive heavy lifting and reaching throughout his shift and that he had experienced a
significant increase in right shoulder pain after he cased several days in a row. The Board notes that appellant’s
allegation may constitute a claim for a new traumatic injury, rather than a claim for a recurrence of disability. See
supra note 2.
21

The Board notes that the representative’s contention that the Office used an incorrect pay rate when calculating
his entitlement to previous compensation is not relevant to the issue in this case.

7

ORDER
IT IS HEREBY ORDERED THAT the June 19 and January 24, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 10, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, New York, NY, Employer
)
__________________________________________ )
R.T., Appellant

Appearances:
Capp P. Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0575
Issued: September 30, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On January 20, 2020 appellant, through counsel, filed a timely appeal from a
September 12, 2019 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 to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish continuing disability
or residuals, on or after September 21, 2014, causally related to the accepted March 30, 1981
employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
OWCP accepted that on March 30, 1981 appellant, then a 26-year-old deputy marshal,
sustained lumbosacral derangement and degeneration of the lumbar or lumbosacral intervertebral
disc when she slipped while exiting a vehicle while in the performance of duty. She stopped work
on the date of injury and has not returned. OWCP paid appellant compensation for total disability
on the periodic rolls.
By decision dated September 16, 2014, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective September 21, 2014, based on a May 15, 2014
medical report of Dr. Peter J. Millheiser, a Board-certified orthopedic surgeon serving as a second
opinion physician, who opined that, based on the lack of current objective physical findings, she
had no residuals or disability causally related to her accepted March 30, 1981 employment injury
and that she could return to her regular work as a deputy marshal on a full-time basis without
restrictions. Appellant, through counsel, then appealed to the Board.
By decision dated March 28, 2016, the Board affirmed the September 16, 2014 decision,
finding that the opinion of Dr. Millheiser constituted the weight of the medical opinion evidence
that appellant’s accepted March 30, 1981 employment injury had resolved without residuals or
disability.4
On March 27, 2017 appellant, through counsel, requested reconsideration and submitted
evidence. In a March 3, 2017 letter, Barbara F. Stern, Ph.D., a licensed psychologist, noted
appellant’s financial hardship, and that appellant struggled with back injuries and disability issues
and as a result, was overwhelmed with anxiety and depression.
OWCP, by decision dated May 11, 2017, denied modification of its termination decision,
finding Dr. Stern’s opinion insufficient to outweigh the opinion of Dr. Millheiser.
Thereafter, OWCP continued to receive additional evidence. In an October 27, 2017
report, Dr. Rommel R. Francisco, a Board-certified orthopedic surgeon, noted that appellant

3

Docket No. 15-0438 (issued March 28, 2016); Docket No. 14-0075 (issued April 3, 2014); Order Dismissing
Petition for Reconsideration, Docket No. 09-0675 (issued February 25, 2010); Docket No. 09-0675 (issued
October 14, 2009).
4

Docket No. 15-0438 (issued March 28, 2016).

2

presented with a complaint of chronic back pain. He conducted a physical examination and
diagnosed lumbago and radicular pain of both lower extremities.
Dr. Gary P. Laux, an attending Board-certified physiatrist, noted in reports dated
December 18, 2017 and February 19, 2018, that appellant presented for a follow-up evaluation of
pain in her lower extremities, lumbago, and lumbosacral facet joint syndrome. He discussed
examination findings and reviewed diagnostic test results. Dr. Laux provided assessments of
lumbosacral facet joint syndrome, radicular pain of both lower extremities, lumbago, and chronic
lumbar radiculopathy. He noted that appellant reported that these injuries stemmed from an
incident on March 30, 1981 when she slipped while getting out of a vehicle
A February 16, 2018 electromyogram/nerve conduction velocity (EMG/NCV) study by
Dr. Jeffrey Rubin, a Board-certified neurologist, revealed neurophysiologic evidence consistent
with chronic right-sided L4 greater than L5 radiculopathy.
On May 10, 2018 appellant, through counsel, requested reconsideration of the May 11,
2017 decision and submitted additional reports by Dr. Laux. In an April 6, 2018 report, Dr. Laux
noted that he had reexamined appellant and again reviewed diagnostic test results. He again
diagnosed lumbosacral facet joint syndrome, chronic lumbar radiculopathy, and lumbago.
Dr. Laux also reiterated the history of injury on March 30, 1981 as related by her.
In an April 24, 2018 report, Dr. Laux noted that he had reviewed Dr. Millheiser’s May 15,
2014 report and advised that he disagreed with Dr. Millheiser’s conclusions that there were no
signiﬁcant objective ﬁndings to support residuals which prevented appellant from returning to
work as a deputy marshal. He reviewed the Department of Labor’s (DOL) definition of the U.S.
deputy marshal position, which required medium strength level work, exerting up to 50 pounds
occasionally and up to 25 pounds frequently. Dr. Laux opined that there were objective findings
of residuals and disability causally related to appellant’s March 30, 1981 employment injuries and
that she was not capable of performing medium strength level work. He noted that, during his
examinations, as indicated in his office notes and records, she demonstrated bilateral lumbar
paraspinal muscle spasms and tenderness. Dr. Laux referenced his January 25, 2018 office notes
and positive straight leg raising tests performed on October 25 and December 18, 2017.
Additionally, he noted that NCV studies demonstrated neurophysiologic of chronic right-sided
L4-5 radiculopathy, an October 25, 2017 lumbar spine x-ray showed multilevel degenerative
changes, and a December 15, 2017 lumbar spine magnetic resonance imaging (MRI) scan revealed
degenerative disc disease at L2-3 to L5-S1 and multilevel foraminal central canal stenosis.
Dr. Laux maintained that this correlated with appellant’s complaint of low back pain with radicular
symptomatology and the EMG/NCV study of her bilateral lower extremities. He concluded that
the plethora of objective studies demonstrated continuing residuals from the accepted injury.
Dr. Laux noted that some of these objective studies, such as the most recent MRI scan and the
February 16, 2018 NCV studies were not available to Dr. Millheiser at the time of his 2014
examination. Based upon his clinical examinations as correlated by the objective studies dating
back to June 8, 1981, he opined that appellant still had residuals of her accepted injuries. Dr. Laux
concluded that this condition prevented her from resuming her duties as a deputy marshal because
she was not capable of performing the physical requirements of such a position.

3

By decision dated August 14, 2018, OWCP denied modification of its May 11, 2017
decision. It found that the medical evidence submitted, including Dr. Laux’s April 6 and 24, 2018
reports, were insufficiently rationalized to outweigh Dr. Millheiser’s opinion.
Appellant thereafter submitted a May 11, 2019 statement in which she described the work
duties she actually performed as a deputy marshal. She also described the physical requirements
of her position, which included sitting at a desk six to eight hours, sitting at a court and jailhouse
and driving a vehicle four to eight hours, riding a train four to five hours, walking at least four
miles in the span of three hours, standing four to six hours sometimes continuously, carrying
supplies or ﬁles weighing 10 to 15 pounds, and physically restraining prisoners and suspects.
On June 12, 2019 appellant, through counsel, again requested reconsideration and
submitted a June 7, 2019 report from Dr. Laux who noted that he had reviewed appellant’s
May 11, 2019 statement. Dr. Laux referenced his April 24, 2018 report in which he identified
objective findings in support of his opinion that she had continuing employment-related residuals.
He advised that any relief from appellant’s symptoms were only temporary as indicated in his
ofﬁce notes and records. Dr. Laux further advised that she had not been and was not capable of
performing the physical requirements of her job as indicated in her May 11, 2019 statement. He
maintained that appellant was unable to sit at her desk six to eight hours as her condition required
her to lie down intermittently throughout the day at unpredictable intervals. Dr. Laux further noted
that she was not capable of sitting at the court house or jail or driving a vehicle four to eight hours
per day, or riding a train four to five hours due to her low back condition, which included pain,
spasms, and radicular symptoms, as indicated in his office notes and records. Additionally, he
noted that appellant could not walk up to four miles per day due to her lumbar radiculopathy.
Dr. Laux also noted that she was not capable of standing four to six hours per day. Appellant could
lift 15 pounds from the floor for a relatively short distance. Dr. Laux noted that he had no
knowledge regarding how high or the distance she could lift weight. Lastly, he advised that
appellant was not physically capable of restraining prisoners or suspects due to her low back
condition and she endanger herself and others if relied upon to do so.
OWCP, by decision dated September 12, 2019, denied modification of its August 14, 2018
decision.
LEGAL PRECEDENT
Once OWCP properly terminates a claimant’s compensation benefits, the burden shifts to
him or her to establish continuing disability or residuals after that date, causally related to the
accepted injury.5 To establish causal relationship between the condition as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence based on a complete medical and factual background, supporting such causal
relationship.6

5

See D.G., Docket No. 19-1259 (issued January 29, 2020); S.M., Docket No. 18-0673 (issued January 25, 2019);
J.R., Docket No. 17-1352 (issued August 13, 2018).
6

Id.

4

ANALYSIS
The Board finds that the case is not in posture for decision.
As the Board had previously affirmed the termination of appellant’s wage-loss
compensation and medical benefits on March 28, 2016 absent further merit review of this issue by
OWCP pursuant to section 8128 of FECA, this issue is res judicata.7 The only issue before the
Board is whether she has established continuing disability or residuals on and after September 21,
2014, causally related to the March 30, 1981 employment injury.
In support of her requests for reconsideration, appellant submitted a series of medical
reports from Dr. Laux. In an April 24, 2018 report, Dr. Laux disagreed with Dr. Millheiser’s
May 15, 2014 conclusion that there were no significant objective findings establishing residuals
of her accepted employment injuries that prevented her from returning to her deputy marshal
position without restrictions. He opined that appellant continued to have residuals of her workrelated March 30, 1981 injury and was totally disabled causally related to the accepted March 30,
1981 employment injury. Dr. Laux explained that DOL’s definition of a deputy marshal position,
objective test results, and examination findings supported his opinion that she was not physically
capable of performing the physical requirements of her position. In a June 7, 2019 report, he
advised that appellant only experienced temporary relief from her symptoms and explained why
she was not capable of performing the specific physical requirements of her deputy marshal
position.
The Board finds that, although Dr. Laux’s reports are insufficient to discharge appellant’s
burden of proving that she had continuing disability or residuals, on or after September 21, 2014
due to the accepted March 30, 1981 employment injury, his opinion is of sufficient probative value
to require further development of the case record by OWCP, and is uncontroverted in the record.8
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done.9
On remand OWCP shall refer appellant, along with a statement of accepted facts and the
case record, to an appropriate Board-certified specialist for a second opinion examination and an
evaluation regarding whether she has continuing disability and residuals on or after September 21,
2014 causally related to the accepted March 30, 1981 employment injury. After this and such
further development as deemed necessary, it shall issue a de novo decision.

7

E.H., Docket No. 19-1352 (issued December 18, 2019); O.W., Docket No. 19-0316 (issued June 25, 2019); V.G.,
Docket No. 17-0583 (issued July 23, 2018); D.M., Docket No. 18-0067 (issued May 9, 2018); P.B., Docket No.
17-1687 (issued May 8, 2018).
8

E.P., Docket No. 14-1298 (issued January 7, 2015); Walter J. Fisher, Docket No. 03-0615 (issued May 22, 2003).

9

E.P., id.; A.A., 59 ECAB 726 (2008); Phillip L. Barnes, 55 ECAB 426 (2004); Walter J. Fisher, id.

5

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 12, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with decision of the Board.
Issued: September 30, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
DEPARTMENT OF THE AIR FORCE,
TINKER AIR FORCE BASE, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-43
Issued: May 2, 2008

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 13, 2007 appellant filed a timely appeal from the September 27, 2007 merit
decision of the Office of Workers’ Compensation Programs, which found an overpayment.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
her case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment in the amount of $2,293.90; and (2) whether the Office properly denied waiver of
the overpayment.
FACTUAL HISTORY
On September 21, 2006 appellant, then a 53-year-old industrial engineering technician,
slipped in a puddle of water and fell onto the floor injuring her right foot, ankle and shoulder.
The Office accepted appellant’s claim for sprain of the right shoulder, upper arm and rotator cuff

as well as bursae and tendinitis in the right shoulder.
November 6, 2006.

Appellant returned to work on

On April 24, 2007 appellant had right shoulder subacromial decompression rotator cuff
repair. On April 23, 2007 she filed a claim for compensation from April 17 through
July 15, 2007. In a May 14, 2007 letter, Dr. James A. Rosacker, an orthopedic surgeon, stated
that appellant would be off work for at least eight weeks after her April 24, 2007 surgery. On
July 11, 2007 appellant returned to work. On August 9, 2007 the Office paid appellant for the
time period from July 4 through August 4, 2007.
On August 13, 2007 the Office made a preliminary determination that appellant received
an overpayment of $2,293.90 because she returned to work full time on July 11, 2007 but was
paid for lost wages through August 4, 2007. The Office found that she was without fault in
creating this overpayment. The Office included an OWCP-20 overpayment recovery
questionnaire with its decision and informed appellant that she would need to submit it in order
to determine her eligibility for a waiver. The Office created a worksheet to determine the
amount of overpayment for the period.
On August 23, 2007 appellant contested the overpayment and requested waiver.
Appellant argued that the Office was notified in sufficient time to prevent overpayment and that
she did not receive the check until after the time period. No other information was submitted.
On September 27, 2007 the Office issued a decision finding that appellant was without
fault in the creation of overpayment but not entitled to a waiver of recovery.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act places limitations on the right to receive
compensation. While an employee is receiving compensation, she may not receive salary, pay or
remuneration of any type from the United States, with certain exceptions.1 It is therefore well
established that an employee is not entitled to compensation for temporary total disability after
returning to work.2 Temporary total disability is defined as the inability to return to the position
held at the time of injury or earn equivalent wages or perform other gainful employment.3
ANALYSIS -- ISSUE 1
Appellant does not contest the fact or amount of the overpayment. The Office paid
compensation for total disability from July 4 through August 4, 2007 but appellant returned to
work on July 11, 2007 and was thereby being paid by both the Office and her employer from that
1

5 U.S.C. § 8116(a).

2

E.g., Tammi L. Wright, 51 ECAB 463, 465 (2000) (where the record established that the employee returned to
work at the employing establishment for four hours a day from August 7, 1996 to January 8, 1997 but received
compensation for total disability for that same period, the Board found that the employee received an overpayment
of compensation).
3

20 C.F.R. § 10.400(b) (1999).

2

date through August 4, 2007 creating an overpayment. Appellant is not entitled to receive
temporary total disability and actual earnings for the same period.4 An overpayment was created
when appellant returned to work but continue to receive wage-loss compensation. The Office
calculated her overpayment to be $2,293.90 for the time period from July 11 through
August 4, 2007. The Board finds that an overpayment was created in the amount of $2,293.90.
LEGAL PRECEDENT -- ISSUE 2
When an overpayment has been made to an individual because of an error of fact or law,
the Office may consider waiving the overpayment only if the individual to whom it was made
was not at fault in accepting or creating the overpayment.5 If the Office finds that the recipient
of an overpayment was not at fault, repayment will still be required unless adjustment of benefits
or recovery of the overpayment would: (1) defeat the purpose of the Act; or (2) be against equity
and good conscience.6
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of the Act or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.7
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.8
ANALYSIS -- ISSUE 2
The Office found that appellant was not at fault in the creation of the overpayment.
Although appellant was not at fault in creating the overpayment, she is still required to return the
amount unless recovery would defeat the purpose of the Act or be against equity and good
conscience. The purpose of the overpayment recovery questionnaire sent to appellant is to
acquire the necessary information to determine whether appellant is entitled to a waiver of
overpayment on one of the two grounds. As appellant did not complete and submit this form, the
Office had no option but to deny the waiver. The regulations clearly state that failure to submit
the requested information within 30 days of the request will result in denial of waiver and that no
further request for a waiver will be considered until the requested information is submitted.9
4

See Danny E. Haley, 56 ECAB 393 (2005).

5

Id. at § 10.433(a).

6

Id. at § 10.434.

7

Id. at § 10.438(a).

8

Id. at § 10.438(b).

9

Id.

3

CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment in the amount of $2,293.90 and that the Office properly denied waiver of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the September 27, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 2, 2008
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

4