United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.C., Appellant
and
U.S. POSTAL SERVICE, BROOKLYN
PROCESSING & DISTRIBUTION CENTER,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 13-254
Issued: April 12, 2013

Case Submitted on the Record

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

JURISDICTION
On November 16, 2012 appellant filed an appeal from a June 5, 2012 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 OWCP properly vacated a March 14, 2012 decision accepting a
February 23, 2012 recurrence of total disability.
FACTUAL HISTORY
On July 25, 2003 appellant, then a 47-year-old mail processor, filed a traumatic injury
claim alleging that she injured her left shoulder at work that day. She stopped work. On
1

5 U.S.C. §§ 8101-8193.

September 12, 2003 OWCP accepted that she sustained employment-related lumbosacral, left
shoulder and left hip sprains. Appellant received continuation of pay and wage-loss
compensation. She returned to part-time modified duty in 2004.
By decision dated December 8, 2004, OWCP denied appellant’s claim that she sustained
a recurrence of total disability on March 20, 2004. On May 20, 2005 it accepted that appellant
sustained a lumbar sprain/strain when she slipped and fell on May 15, 2004.2 In April 2006
appellant was placed on total disability due to the second injury. In July 2006 OWCP
determined that a conflict in medical opinion was created between Dr. Jay S. Simoncic,
appellant’s attending physician, and Dr. Jonathan D. Glassman, who provided a second-opinion
evaluation for OWCP. It referred her to Dr. Norman M. Heyman for an impartial evaluation.3 In
a September 25, 2006 report, Dr. Heyman provided permanent restrictions and advised that
appellant could return to work for four hours a day initially and, within four weeks, to eight
hours daily.
On December 14, 2006 OWCP offered appellant a position in accordance with
Dr. Heyman’s physical restrictions.4 Appellant refused the offered position. By decision dated
June 21, 2007, OWCP terminated her compensation benefits, effective June 5, 2007, on the
grounds that she refused to accept an offer of suitable work. Appellant was paid compensation
through June 5, 2007. The record reflects that she returned to work on August 8, 2007.
Appellant did not appeal this decision with either OWCP or the Board.
By decision dated January 16, 2008, OWCP denied appellant’s claim that she sustained a
recurrence of total disability on October 23, 2007. On January 27, 2008 the employing
establishment offered appellant the modified position which she refused on February 20, 2008.
On May 21, 2008 appellant returned to a modified position for four hours daily. She stopped
work on July 10, 2008 and filed a recurrence claim. In a September 16, 2008 decision, OWCP
denied that appellant sustained a recurrence of disability on July 10, 2008.
On January 29, 2009 appellant accepted a full-time, modified mail processing clerk
position.
In a December 17, 2009 decision, OWCP denied appellant’s request for
reconsideration of the September 16, 2008 decision on the grounds that it was untimely filed and
she failed to present clear evidence of error.
On May 13, 2010 appellant was sent home under the National Reassessment Process
because no work was available within her restrictions. She was paid wage-loss compensation
and placed on the periodic compensation rolls. Appellant returned to a modified position on
May 11, 2011.

2

The instant claim was adjudicated by OWCP under file number xxxxxx715. The May 15, 2004 claim was
adjudicated under file number xxxxxx101. In April 2006 the claims were combined with the former becoming the
master file.
3

All three physicians are Board-certified orthopedic surgeons.

4

OWCP followed proper notice procedures in letters dated April 26 and May 30, 2007.

2

In an August 29, 2011 decision, OWCP found that an overpayment of compensation in
the amount of $5,163.11 had been created for the period May 11 through July 2, 2011 because
appellant received wage-loss compensation after her return to work. By decision dated
November 10, 2011, OWCP denied appellant’s request for a hearing of the August 29, 2011
overpayment decision. Appellant received wage-loss compensation for intermittent periods
when she was sent home because no work was available.
On September 21, 2011 Dr. Maxim Tyorkin, a Board-certified orthopedic surgeon,
recommended left shoulder surgery, which was approved by a medical adviser and authorized by
OWCP. He performed the surgery on February 23, 2012. Appellant filed a recurrence claim,
commencing February 23, 2012. On March 14, 2012 OWCP accepted the February 23, 2012
recurrence and advised appellant to file CA-7 claims for compensation.
By decision dated June 5, 2012, OWCP vacated the March 14, 2012 acceptance and
denied appellant’s recurrence claim. It noted that, as it had issued a decision on June 21, 2007
that terminated her compensation under section 8106(c)(2) of FECA because she refused an offer
of suitable work, she was not entitled to compensation after that date. OWCP noted that
appellant had not appealed the June 21, 2007 decision and advised her that an overpayment of
compensation was being developed regarding compensation she had received after that date.
LEGAL PRECEDENT
Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”5
The employee remains entitled to medical benefits as provided by section 8103 or as justified.6
ANALYSIS
The Board finds that OWCP properly vacated the March 14, 2012 acceptance of a
February 23, 2012 recurrence of total disability.
OWCP issued a decision on June 21, 2007, terminating appellant’s compensation,
effective June 5, 2007, on the grounds that she refused an offer of suitable employment under
section 8106(c). OWCP paid appellant wage-loss compensation from May 22, 2010 to May 11,
2011, when she returned to work, and for intermittent periods thereafter. She filed a recurrence
claim, commencing February 23, 2012 when she underwent authorized left shoulder surgery. On
March 14, 2012 OWCP accepted the recurrence, but in a June 5, 2012 decision, vacated the
acceptance, based on the 2007 decision that terminated her compensation under section
8106(c)(2). It found that she was not entitled to further wage-loss compensation.
The Board finds that OWCP erred in paying appellant compensation after June 5, 2007,
the effective date of the termination under section 8106(c)(2), because she was not entitled to
further wage-loss compensation based on her refusal of suitable employment. Although
5

5 U.S.C. § 8106(c).

6

5 U.S.C. § 8103; see Y.A., 59 ECAB 701 (2008).

3

appellant subsequently returned to work at the employing establishment on August 8, 2007, after
her compensation was terminated for refusing suitable work, this does not change the fact that
she refused suitable employment.7 Appellant remained entitled to medical benefits only
following the June 21, 2007 decision.
Section 8128(a) of FECA provides that the Secretary may review an award for or against
payment of compensation at any time and on his own motion or on request and may end,
decrease or increase the compensation awarded.8 The Board has upheld OWCP’s authority to
reopen a claim at any time on its own motion under section 8128 and, where supported by the
evidence, set aside or modify a prior decision and issue a new decision.9
The evidence of record supports that OWCP properly terminated appellant’s
compensation under section 8106(c)(2). Appellant was barred from future wage-loss
compensation after June 5, 2007, and OWCP issued the March 14, 2012 decision in error.10
Thus, OWCP properly vacated that decision by its June 5, 2012 decision.
Appellant may submit new evidence or argument with a written request for
reconsideration with 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 OWCP properly vacated its March 14, 2012 acceptance of a
February 23, 2012 recurrence of total disability.

7

See M.S., 58 ECAB 328 (2007).

8

5 U.S.C. § 8128(a); see R.C., 59 ECAB 546 (2008).

9

V.C., 59 ECAB 137 (2007).

10

A termination under 8106(c) precludes further monetary compensation benefits arising from the accepted
injury. See Albert Pineiro, 51 ECAB 310 92000); Henry P. Gilmore, 46 ECAB 709 (1995).

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ORDER
IT IS HEREBY ORDERED THAT the June 5, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 12, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEFENSE AGENCIES, CHEATHAM ANNEX,
Williamsburg, VA, Employer
__________________________________________

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

Docket No. 17-1250
Issued: April 24, 2018

Case Submitted on the Record

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

JURISDICTION
On May 17, 2017 appellant, through counsel, filed a timely appeal from a March 17, 2017
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days elapsed following the last merit decision dated April 1, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of 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 OWCP properly denied appellant’s request of reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal counsel argues that submission of new medical evidence required a new merit
review.
FACTUAL HISTORY
On September 12, 1989 appellant, then a 35-year-old warehouse worker, filed a traumatic
injury claim (Form CA-1) alleging that on August 2, 1989 he climbed seven feet to check a serial
number on a pump when he slipped and fell on his back while at work. OWCP accepted his claim
for lumbosacral strain and herniated nucleus pulposus L5-S1, central. Appellant stopped work
immediately after the injury, but returned to work and sustained a subsequent injury on
March 1, 1990, when he was twisting and turning his back while insulating and picking up pieces
that weighed approximately 40 pounds. The subsequent claim was accepted for the condition of
lumbosacral strain.3 Appellant again worked intermittently, but OWCP ultimately placed him on
the periodic rolls and began paying him compensation for temporary total disability on
September 12, 1990.
In response to an OWCP request for an updated report from his treating physician,
appellant submitted a January 13, 2012 report from Dr. Anthony C. Breuer, a Board-certified
neurologist. Dr. Breuer indicated that appellant has a history of falling off a giant submarine
propeller years ago, and that he saw appellant on April 14 and December 28, 2009, June 30, 2010,
and July 6 and October 7, 2011. He noted that there had been no recent laboratory tests or x-rays
or scans. Dr. Breuer indicated that appellant’s diagnosis was chronic low back pain related to his
work injury, waxing and waning over the months and years. He also noted that appellant had been
seen for a more serious neurologic condition, which was not work or injury related.
On October 7, 2013 appellant submitted a letter indicating that Dr. Breuer was no longer
in practice and asked for a list of approved physicians in his area
On May 12, 2014 OWCP referred appellant to Dr. Robert M. Moore, a Board-certified
orthopedic surgeon, for a second opinion to determine the status of his accepted conditions. In a
medical report dated May 27, 2014, Dr. Moore diagnosed lumbar degenerative disc disease and
spondylolisthesis. He opined that there were no medical findings to indicate that the condition of
lumbosacral sprain was still active, however, he further opined that the condition of displacement
of lumbar intervertebral disc was still active, with residuals of this condition being manifested by
limited range of lumbar spine motion on physical examination and radiographic findings of disc
space narrowing and osteophyte formation in the lumbar spine. Dr. Moore found that appellant’s
objective findings were consistent with his subjective complaints. He noted that appellant had
symptoms of intermittent “giving way” of the lower extremity which he believed was more likely
attributable to strokes rather than his lumbar spine condition. Dr. Moore opined that appellant was
3
OWCP initially assigned a new file number for the March 1, 1990 employment injury, OWCP File No.
xxxxxx959, but on April 30, 1990 consolidated the files under OWCP File No. xxxxxx410.

2

partially disabled, with an inability to perform bending, climbing, or lifting greater than 10 pounds
as a result of his work-related lumbar spine condition. Within these restrictions, he believed that
appellant could work an eight-hour day. Dr. Moore did not anticipate significant improvement in
appellant’s lumbar spine condition.
On November 21, 2014 OWCP referred appellant to vocational rehabilitation services. In
a March 7, 2015 report, the rehabilitation counselor noted that the employing establishment was
unable to accommodate appellant’s work restrictions. The counselor indicated that appellant
needed to acquire basic computer skills to be able to qualify for an entry-level position as a
receptionist in the labor market. He noted that it should take three to six months to master the
essential functions through on the job training and a regimen of short-term skill enhancement
computer skills training through the Department of Labor’s Human Resource Development at Pitt
Community College. In an April 3, 2015 rehabilitation report, the counselor indicated that on
March 18, 2015 he spoke to appellant about participating in computer technology awareness class
beginning March 30, 2015, which included eight three-hour classes at the Greenville, North
Carolina center (18 miles away). The counselor also noted that the career center offered a job
seeking skills workshop daily Monday and Thursday. An appointment was made by the
rehabilitation counselor to meet with appellant and the program coordinator on March 23 to
register for the upcoming March 30, 2015 computer class. Appellant failed to appear for the
March 23, 2015 meeting, so the rehabilitation counselor completed the registration form. On
March 30, 2015 appellant did not appear and attend the computer class. On April 3, 2015 the
counselor spoke with appellant who related that he could not drive while taking pain killers. He
noted that almost every time he called on appellant, he was not at home.
In a March 11, 2015 report, Dr. Dmitri S. Kolychev, a Board-certified neurologist, noted
that appellant continued with numbness and trace weakness with dorsiflexion. He noted that
appellant did not want to pursue surgical options.
In an April 15, 2015 letter, OWCP noted that appellant had not undertaken the training
because of chronic back pain and an inability to drive while taking medication. It noted that the
rehabilitation counselor attempted to meet with appellant and review the proposed plan activities
and transferable skills, but each time the counselor would call or schedule a meeting, appellant
was either not available or did not attend the meeting. Based on the counselor’s assessment, it was
determined that appellant would benefit from training and that he had the ability to successfully
complete the training program. OWCP directed appellant to undergo the training program in
computer technology awareness. It informed him that the case would be held open for 30 days to
afford him the opportunity to contact OWCP or the rehabilitation counselor to make the necessary
arrangements to enter the training program. OWCP advised appellant if he did not comply with
the instructions to undergo the approved training program or did not show good cause for not
undergoing the training program, the rehabilitation effort would be terminated and action would
be initiated to reduce his compensation to reflect the probable work-earning capacity had he
completed the applicable programs. It noted that, pursuant to section 8113(b) of FECA,4 an
individual who without good cause fails to apply for and undergo vocational rehabilitation when
so directed, OWCP may reduce compensation prospectively based on what probably would have
4

5 U.S.C. § 8113(b).

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been the individual’s wage-earning capacity had he not failed to apply for and undergo vocational
rehabilitation.
By letter to OWCP dated April 28, 2015, counsel stated that appellant’s problem with class
attendance was transportation. He noted that appellant lived 30 miles from the training site and he
indicated that he could not drive all that way.
The vocational counselor registered appellant for a basic personal computer literacy class
at Pitt Community College that were to be held from June 29 through August 17, 2015. In a July 1,
2015 note, the counselor indicated that appellant did attend the first computer skills class, but the
school changed the location to the Senior Center in Greenville, NC, and appellant stated that he
was not comfortable driving the additional three to seven miles to the senior center. He encouraged
appellant to continue with the class, but appellant indicated that he was not interested in a return
to work and complained about back pain and the effects of the medication.
In an August 11, 2015 report, the counselor discussed appellant’s sporadic attendance at
classes. Appellant attended class on June 29, 2015; on July 6, 2015 appellant indicated that he
would not be attending class that day because he had family visiting; appellant did attend July 13,
2015 class; appellant did not attend the July 20, 2015 class because his back was hurting; appellant
attended the July 28, 2015 class, but left after 1.5 hours of a 3-hour class; appellant did not attend
the August 3, 2015 class because he was hurting; and on August 11, 2015 appellant attended class,
but left after 1.5 hours of a 3-hour class. The counselor stated that appellant was not taking full
advantage of the skill advancement training that was provided to assist him in being marketable
for a telephone sales/customer service or reception job. In a September 7, 2015 closure report, the
rehabilitation counselor noted that this was the second time that appellant had not taken full
advantage of skill advancement training that was provided to assist him in being marketable. He
noted that appellant’s instructor indicated that he was able to accommodate appellant by allowing
him to alternate his body position as needed. The counselor concluded that it did not appear at this
time that appellant was a good candidate for receipt of vocational rehabilitation services.
By decision dated September 30, 2015, OWCP found that appellant failed without good
cause to apply for or undergo vocational rehabilitation when so directed, and that in the absence
of the failure, his wage-earning capacity would have been $352.80 per week. Accordingly,
effective October 1, 2015, it reduced his benefits in accordance with section 8113(b) of FECA.
By letter dated and received by OWCP on December 29, 2015, appellant, through counsel,
requested reconsideration. Counsel argued that appellant made the best effort he could under the
circumstances to complete the classes. He argued that appellant’s pain and medication would have
a serious impact on his ability to function in a sedentary environment requiring protracted and
accurate attention. Counsel also contended that FECA was not adversarial in nature.
In an October 10, 2015 report, Dr. David C. Miller, a Board-certified orthopedic surgeon,
diagnosed lumbar spondylosis, degeneration of lumbar intervertebral disc, and spinal stenosis of
lumbar region. He recommended an L4-S1 laminectomy and L5-S1 fusion.
By decision dated April 1, 2016, OWCP found that the additional submission of medical
evidence was insufficient to modify the September 30, 2015 decision.

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By letter received on March 14, 2017 appellant, through counsel, requested
reconsideration. In support thereof, counsel submitted an October 14, 2016 letter, wherein
Dr. Kolychev indicated that appellant has been a patient in his clinic for several years, that
appellant fell off a giant submarine propeller many years ago, and had been diagnosed with chronic
low back pain, waxing, and waning over the last couple of years. He noted that he treated appellant
with medication and muscle relaxants, that he believed that appellant’s problems were related to
the work injury, and that appellant would continue to have chronic low back pain for the years to
come.
By decision dated March 17, 2017, OWCP denied appellant’s reconsideration request. It
found that Dr. Kolychev’s letter was substantially similar to prior evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA5
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.6 To be entitled to a merit review of
an OWCP decision denying or terminating a benefit, a claimant’s application for review must be
received within one year of the date of that decision.7 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review of the merits.8 The Board has held that submission of evidence or argument which
repeats or duplicates evidence or argument already in the case record9 and the submission of
evidence or argument which does not address the particular issue involved does not constitute a
basis for reopening a case.10
ANALYSIS
OWCP issued a decision on September 30, 2015 finding that appellant, without good
cause, failed to cooperate with vocational rehabilitation when so directed, and reduced his
compensation pursuant to section 8113(b) of FECA. By merit decision dated April 1, 2016, it
denied modification of the September 30, 2015 decision. By decision dated March 17, 2017,
OWCP denied further merit review pursuant to 5 U.S.C. § 8128(a).

5

Under section 8128(a) of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or application. Id. at § 8128(a).
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

10

Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

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The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim as he did not submit any evidence with his reconsideration request to warrant
merit review under 5 U.S.C. § 8128(a).
In his application for reconsideration appellant, through counsel, did not attempt to show
that OWCP erroneously applied or interpreted a specific point of law, nor did he advance a new
and relevant legal argument not previously considered by OWCP.11
In the underlying merit decision, OWCP determined that appellant did not cooperate with
the vocational rehabilitation efforts as he did not fully cooperate with the rehabilitation counselor
or regularly attend classes. It therefore determined that appellant had the ability to work as a
receptionist and reduced his compensation accordingly.
A claimant may be entitled to a merit review by submitting relevant and pertinent new
evidence which addresses the underlying merit issue, but appellant did not submit such evidence
in this case.12 On reconsideration, appellant submitted an October 14, 2016 letter wherein
Dr. Kolychev indicated that appellant had low back pain, waxing and waning over the last couple
of years. He noted that appellant was being treated with medication and muscle relaxants; that he
believed that appellant’s problems were related to the work injury; and that appellant would
continue to have chronic low back pain for many years to come. This report is repetitive of prior
medical reports.13 Furthermore, this evidence did not address the particular issue involved in the
underlying decision, which was whether appellant failed to cooperate with vocational
rehabilitation, and therefore does not constitute a basis for reopening a case.14
As appellant did not show that OWCP erred in applying a point of law, advance a relevant
legal argument not previously considered, or submit relevant and pertinent new evidence not
previously considered by OWCP, it properly denied his reconsideration request.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

11

See J.G., Docket No. 16-1576 (issued November 18, 2016).

12

See L.C., Docket No. 17-0518 (issued July 21, 2017).

13

E.M., Docket No. 09-0039 (issued March 3, 2009); D.K., 59 ECAB 141 (2007). The Board has found that the
submission of evidence which repeats or duplicates evidence already in the case record does not constitute a basis for
reopening a case.
14

V.T., Docket No. 17-0383 (issued April 18, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated March 17, 2017 is affirmed.
Issued: April 24, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, MOUNT
WASHINGTON POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 21-1416
Issued: March 1, 2022

Case Submitted on the Record

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

JURISDICTION
On September 26, 2021 appellant filed a timely appeal from an August 18, 2021 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 medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 17, 2021 appellant, then a 47-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed tarsal tunnel syndrome due to factors of her federal
employment. She indicated that her ankle would hurt while she worked, but did not hurt if she
1

5 U.S.C. § 8101 et seq.

avoided walking, standing, or ascending and descending stairs. Appellant noted that she first
became aware of her condition on February 1, 2021 and realized its relationship to her federal
employment on March 16, 2021. She stopped work on March 12, 2021.
In a progress note dated March 18, 2021, Dr. Pardeep Paul Singh Dhanoa, a Board-certified
family medicine specialist, noted that appellant complained of right plantar foot pain for the past
three months, followed by left foot pain which she attributed to overcompensation. He noted that
she asserted that the pain was the worst at the end of the day and for the past few weeks it had
spread to her heels. Dr. Dhanoa diagnosed bilateral foot pain and bilateral bunion and
recommended rest, ice, stretching, a referral to podiatry, and that appellant remain off work until
March 20, 2021.
In a medical note dated April 16, 2021, Dr David A. Wood, a podiatrist, recounted
appellant’s complaints of chronic foot pain, right worse than left, which was constant and
worsened with weight bearing. He noted that his physical examination was remarkable for a
positive Tinel’s sign with tibial nerve percussion, and that her x-rays revealed inferior heel spur,
bunion deformity, and hammertoes. Dr. Wood suspected tarsal tunnel syndrome and
recommended that appellant undergo a magnetic resonance imaging (MRI) scan and a nerve
conduction velocity (NCV) study.
In an after visit summary dated May 6, 2021, Dr. Syed A. Salahuddin, a Board-certified
neurologist, examined appellant and diagnosed tarsal tunnel syndrome.
In a note of even date, Dr. Wood advised appellant that the NCV study had confirmed tarsal
tunnel syndrome. He again recommended an MRI scan to determine the specific cause of the
condition.
In a May 14, 2021 note, Dr. Wood noted that he had reviewed an MRI scan and observed
varicosities distal to the port pedis, which he opined that were likely contributing to tarsal tunnel
syndrome. He recommended surgical release of the tarsal tunnel and porta pedis and ligation of
varicose veins. Dr. Wood explained that tarsal tunnel syndrome was a loose diagnosis without a
definitive mass and that chronic swelling was a potential complication. In a separate note of even
date, he indicated that appellant was unable to work, and that she would be undergoing surgery for
her diagnosed conditions.
In an attending physician’s report (Form CA-20) dated May 25, 2021, Dr. Wood diagnosed
right tarsal tunnel syndrome and varicose veins. He checked a box marked “Yes” indicating that
the conditions were caused or aggravated by an employment activity, which he described as
“overuse of extremities.” Dr. Wood noted that appellant continued to be disabled from working.
In a June 28, 2021 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim and
provided a questionnaire for her completion. By separate development letter of even date, OWCP
requested additional information from the employing establishment, including comments from a
knowledgeable supervisor on the accuracy of appellant’s statements. It afforded both parties 30
days to submit the necessary evidence.

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OWCP thereafter received a form report by Dr. Wood dated April 12, 2021, which noted
chronic foot pain with an onset of March 18, 2021.
Appellant submitted a completed response to OWCP’s development questionnaire dated
July 2, 2021. She attributed her claimed conditions to repetitive walking, bending, stooping,
lifting, and climbing stairs while carrying mail between 8 to 12 hours per day for the past 18 years.
In a letter dated July 21, 2021, Dr. Wood noted that appellant was unable to work due to
her inability to stand or walk for any length of time secondary to tarsal tunnel syndrome.
In a narrative report dated July 27, 2021, Dr. Wood outlined his visits with appellant and
the results of the NCV study and MRI scan. He diagnosed right tarsal tunnel syndrome and
varicosities and indicated that conservative treatments and time off from work had failed to resolve
her conditions. Dr. Wood noted that appellant would be undergoing surgery to include release of
the tarsal tunnel and ligation of varicosities. When asked to describe her specific employment
duties/activities, he indicated that she was unable to stand or walk for any substantial time. When
asked to provide a medical explanation for how appellant’s federal employment duties caused,
contributed to or aggravated her medical condition, Dr. Wood responded that she was unable to
work at that time.
By decision dated August 18, 2021, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish causal relationship between her
diagnosed medical conditions and the accepted employment factors. Consequently, it found that
she had not met the requirements to establish an injury or medical condition causally related to the
accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an emplo yee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation 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
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

alleged to have caused or contributed to the presence or occurrence of the disease o r 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 question that requires rationalized medical opinion
evidence to resolve the issue. 7 The opinion of the physician must be based upon a complete factual
and medical background, 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. 8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
In his July 27, 2021 narrative report, Dr. Wood diagnosed right tarsal tunnel syndrome and
varicosities and discussed appellant’s upcoming surgery. He did not, however, provide an opinion
on causal relationship between her diagnosed conditions and the accepted factors of federal
employment. The Board has held that a medical report lacking an opinion on causal relationship
is of no probative value. 9 Therefore, the Board finds that Dr. Wood’s January 27, 2021 report is
insufficient to establish appellant’s burden of proof.
In his additional reports and notes dated April, May, and July 2021, Dr. Wood diagnosed
right tarsal tunnel syndrome and varicosities, but did not provide an opinion on causal relationship.
Similarly, in his March 18, 2021 note, Dr. Dhanoa diagnosed bilateral foot pain and bunions, but
did not provide an opinion on causal relationship. As noted, the Board has held that a medical
report lacking an opinion on causal relationship is of no probative value. 10 Therefore, these reports
are also insufficient to establish appellant’s burden of proof.
As appellant has not submitted rationalized medical evidence sufficient to establish a
medical condition causally related to the accepted employment factors, the Board finds that she
has not met her burden of proof.

6

P.L., Docket No. 19-1750 (issued March 26, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Dolores C. Ellyett, id.
7

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
8

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018).

9

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

10

Id.

4

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 factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 18, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 14-146
Issued: April 4, 2014

Case Submitted on the Record

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

JURISDICTION
On October 28, 2013 appellant, through her attorney, filed a timely appeal from a
September 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her claim for disability compensation.1 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.
ISSUE
The issue is whether appellant has established that she was disabled from October 12,
2009 to April 7, 2010 causally related to her accepted employment injury.
1

The record also contains an October 3, 2013 OWCP decision denying appellant’s claim for a schedule award.
Appellant has not appealed this decision and thus it is not before the Board at this time. See 20 C.F.R. § 501.3.
Appellant’s attorney has requested a telephone hearing on the October 3, 2013 decision.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 8, 2009 appellant, then a 57-year-old clerk, filed an occupational disease
claim alleging that she sustained a right shoulder tear causally related to factors of her federal
employment. She stopped work on October 9, 2009 and did not return. In an accompanying
October 8, 2009 statement, appellant related that she began experiencing shoulder pain about one
month earlier. OWCP accepted the claim for a disorder of bursae and tendons of the right
shoulder.3
At the time of her September 6, 2009 injury, appellant worked in a limited-duty position
as a modified mail processing clerk pursuant to a June 15, 2009 job offer made in connection
with another claim. The physical requirements of the position consisted of lifting up to 10
pounds intermittently or 5 pounds continuously, standing, walking and climbing no more than
one hour, no reaching over the shoulder, twisting or fine manipulation, simple grasping up to two
hours, pushing and pulling up to 5 pounds continuously and limited bending and stooping.
In a report dated November 4, 2009, Dr. Jacob Salomon, a Board-certified surgeon,
related that he evaluated appellant on September 21, 2009 for right shoulder pain that began at
work on September 6, 2009. He discussed her repetitive work duties of “sorting mail and filing
letters and reaching with her right shoulder.” Dr. Salomon related that appellant also had carpal
tunnel syndrome and cervical and lumbar disc disease which were “filed under different
numbers.” He indicated that a magnetic resonance imaging (MRI) scan study showed a right
rotator cuff tear.4 Dr. Salomon found appellant unable to work on October 6, 7, 12 and 23, 2009.
He stated, “As mentioned, she is also [being] treated for back and neck disease and it is
anticipated that when she does return to work, she will have restrictions on the use of her arm.”
Dr. Salomon diagnosed a “right rotator cuff tear secondary to repetitive motion while at work.”
In a duty status report dated December 21, 2009, Dr. Salomon diagnosed cervical and
lumbar disc disease, back pain and a right shoulder tear. He listed work restrictions.5
On June 7, 2010 appellant filed a claim for wage-loss compensation beginning
May 22, 2010. On the form the employing establishment indicated that there was no work for
her available under the National Reassessment Program (NRP). OWCP paid appellant
compensation beginning May 22, 2010.

3

OWCP previously accepted that appellant sustained lateral epicondylitis of the right elbow under file number
xxxxxx416 and lumbar sprain, displacement of a lumbar disc and spinal stenosis under xxxxxx735, the master file.
4

An October 5, 2009 MRI scan study of the right shoulder showed a tear of the supraspinatus tendon and
moderate degeneration at the acromioclavicular joint.
5

On June 20, 2010 appellant filed a claim for a schedule award. She submitted a June 25, 2010 impairment
evaluation from Dr. Salomon. By decision dated September 28, 2012, OWCP granted appellant a schedule award
for a five percent permanent impairment to the right upper extremity. Following a preliminary review, on
December 12, 2012, an OWCP hearing representative set aside the September 28, 2012 decision. She remanded the
case for an OWCP medical adviser to consider additional evidence.

2

On October 30, 2012 appellant filed a claim for compensation from October 12, 2009 to
April 7, 2010. The employing establishment verified that appellant had used leave without pay
during this time period.
On March 1, 2013 OWCP requested that appellant submit medical evidence addressing
disability from October 12, 2009 to April 7, 2010.
In a report dated March 25, 2013, Dr. Anatoly Rozman, a Board-certified physiatrist,
stated, “Apparently from December 2009, [appellant] has returned to work but her employer
could not accommodate her restrictions and did not let her return back to work with restrictions.”
By decision dated April 18, 2013, OWCP denied appellant’s claim for compensation
from October 12, 2009 to April 7, 2010. It found that she had not submitted any evidence
supported by objective findings establishing that she was unable to work during the claimed
period.
On April 22, 2013 appellant, through her attorney, requested a telephone hearing. At the
telephone hearing, held on July 26, 2013, her attorney noted that she had received compensation
from OWCP on the periodic rolls since May 22, 2010, when the employing establishment
withdrew her limited-duty work under NRP. Appellant related that Dr. Salomon took her off
work in October 2009 after her MRI scan study showed a rotator cuff tear. On December 26,
2010 she telephoned the employing establishment to come back to work but it advised that there
was no work within her restrictions. Appellant did not have anything in writing from the
employing establishment confirming that it had no work available. She was currently off work
due to her shoulder injury.
By decision dated September 9, 2013, OWCP’s hearing representative affirmed the
April 18, 2013 decision.
LEGAL PRECEDENT
The term disability as used in FECA6 means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.7 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.8 When the medical evidence establishes that the
residuals of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in the employment held when injured, the employee is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.9 The Board
will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
6

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

7

Paul E. Thams, 56 ECAB 503 (2005).

8

Id.

9

Id.

3

To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.10
ANALYSIS
OWCP accepted that appellant sustained a disorder of the right shoulder bursae and
tendons due to factors of her federal employment. At the time of her injury, appellant was
performing modified duty lifting up to 10 pounds intermittently and 5 pounds continuously with
no reaching over the shoulder and limited standing and walking. On October 30, 2012 she filed
a claim for compensation for disability from October 12, 2009 to April 7, 2010.
On November 4, 2009 Dr. Salomon diagnosed a right rotator cuff tear due to repetitive
work duties. He related that appellant was unable to work on October 6, 7, 12 and 23, 2009.
Dr. Salomon, however, did not provide any rationale for his opinion that she was disabled or
directly attribute the disability to her right shoulder condition. His report is thus of diminished
probative value.
In a duty status report dated December 21, 2009, Dr. Salomon diagnosed cervical and
lumbar disc disease, back pain and a right shoulder tear. He provided work restrictions.
Dr. Salomon, however, did not address the cause of appellant’s disability or relate it to her
accepted work injury and thus his report is of little probative value.11
On March 25, 2013 Dr. Rozman indicated that it appeared that the employing
establishment was unable to provide work within appellant’s limitations beginning
December 2009. He did not, however, provide a diagnosis, set forth any specific work
restrictions, or list findings on examination and thus his opinion is of little probative value.12
Further, it is not factually established that the employing establishment had no work within
appellant’s restrictions in December 2009.
At the hearing appellant alleged that there was no limited-duty work available for her
from December 2009 through April 2010. She has not submitted any evidence, however,
supporting her allegation.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she was disabled from October 12,
2009 to April 7, 2010 causally related to her accepted employment injury.
10

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

11

See Conard Hightower, 54 ECAB 796 (2003).

12

See Laurie S. Swanson, 53 ECAB 517 (2002) (findings on examination are needed to justify a physician’s
opinion that an employee is disabled for work).

4

ORDER
IT IS HEREBY ORDERED THAT the September 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Harrison, OH, Employer
__________________________________________

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

Docket No. 20-1456
Issued: November 23, 2021

Case Submitted on the Record

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

JURISDICTION
On July 23, 2020 appellant filed a timely appeal from a January 29, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $15,666.00, for which she was without fault,
because she concurrently received FECA wage-loss compensation and Social Security
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 29, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

Administration (SSA) age-related retirement benefits for the period March 20, 2018 through
April 27, 2019 without an appropriate offset; (2) whether OWCP properly denied waiver of
recovery of the overpayment; and (3) whether OWCP properly required recovery of the
overpayment by deducting $300.00 from appellant’s continuing compensation each month.
FACTUAL HISTORY
This case has previously been before the Board on a different issue.3 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows.
On February 25, 2011 appellant, then a 59-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that she injured her right hand and upper arm on October 14,
2010 when she fell while in the performance of duty. Her retirement system coverage was listed
as Federal Employees Retirement System (FERS). OWCP accepted the claim for aggravation of
preexisting right shoulder osteoarthritis and arthropathy, aggravation right shoulder impingement
syndrome; right carpal tunnel syndrome; and right middle and ring finger flexor tenosynovitis. It
paid appellant wage-loss compensation on the supplemental rolls as of March 14, 2011 and on the
periodic rolls as of June 5, 2011.
On April 23, 2019 OWCP forwarded to SSA a FERS/SSA dual benefits calculation form.
On April 27, 2019 SSA completed the FERS/SSA dual benefits calculation form. It
indicated appellant’s SSA benefit rates with a FERS offset and without a FERS offset from
March through December 2018. Beginning March 2018, the SSA rate with FERS was $1,725.70
and without FERS was $561.40. Beginning December 2018, the SSA rate with FERS was
$1,774.00 and without FERS was $577.10.
On May 14, 2019 OWCP prepared a FERS offset calculation worksheet wherein it noted
the calculation of appellant’s SSA offset overpayment from March 20, 2018 through
April 27, 2019. The total overpayment was determined to be $15,666.00. OWCP found that
appellant received an overpayment in the amount of $9,826.18 for the period March 20 through
November 30, 2018, and $5,839.82 for the period December 1, 2018 through April 27, 2019.
In a May 16, 2019 letter, OWCP advised appellant that she had been receiving SSA agerelated retirement benefits since March 20, 2018 and that the SSA confirmed that a portion of her
benefits were attributed to her federal service and required an offset of her FECA compensation
benefits. It indicated that, starting April 28, 2019, $1,104.83 would be offset from her FECA
payments and that her new net compensation payment would be $394.93 . OWCP also informed
appellant that an overpayment of compensation for the period March 20, 2018 through April 27,
2019 had resulted.
On June 21, 2019 OWCP issued a preliminary overpayment determination finding that an
overpayment of compensation in the amount of $15,666.00 had been created. It explained that the
overpayment occurred because appellant’s SSA age-related retirement benefits that she received
3

Order Remanding Case, Docket No. 19-1114 (issued April 30, 2020).

2

from March 20, 2018 through April 27, 2019 were partially based on credits earned while working
for the Federal Government and that this portion of her SSA benefit constituted a prohibited dual
benefit. OWCP found her at fault in the creation of this overpayment. It also forwarded an
overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20)
and requested that appellant provide supporting financial documentation, including income tax
returns, bank account statements, bills and cancelled checks, pay slips, and any other records to
support her reported income and expenses. OWCP afforded her 30 days to respond.
On July 19, 2019 appellant requested a prerecoupment hearing before a representative of
OWCP’s Branch of Hearings and Review. She indicated that she disagreed with the amount of
the overpayment. Appellant also maintained that the overpayment occurred through no fault of
her own and requested waiver of the recovery of the overpayment.
On a partially-completed Form OWCP-20 dated July 18, 2019, appellant listed her total
monthly income as $4,581.59 and her total monthly expenses as $4,796.06. She indicated that she
had a checking account balance of $69,344.00, a Thrift Savings Plan (TSP) account valued at
approximately $110,000.00, and that she owned two properties, in addition to her home, which
were valued at approximately $8,000.00 and $30,000.00.
A prerecoupment hearing was held telephonically on November 14, 2019. During the
hearing, appellant described her household finances. At the conclusion of the hearing, OWCP’s
hearing representative provided appellant with instructions as to how the Form OWCP-20 should
be completed. Additionally, she advised appellant throughout the hearing that she needed to
provide a breakdown of her expenses along with supportive evidence of all income, expenses, and
assets listed on the form. The record remained open for 30 days to afford appellant the opportunity
to submit additional evidence.
Appellant submitted over 300 pages of financial records.
By decision dated January 29, 2020, OWCP’s hearing representative finalized the June 21,
2019 preliminary overpayment determination. She found that the evidence of record was sufficient
to establish that an overpayment of compensation in the amount of $15,666.00 had be en created
for the period March 20, 2018 through April 27, 2019 because appellant concurrently received
SSA age-related retirement benefits and FECA wage-loss compensation without an appropriate
offset. The hearing representative modified the fault determination , however, finding that
appellant was without fault in the creation of the overpayment. Taking into account the record,
the Form OWCP-20 and the information received post hearing, the hearing representative found
that appellant’s total monthly income was $3,244.86 and appellant’s monthly expenses were
$2,626.63. She noted that many of the receipts/statements submitted appeared to pertain to
one-time past expenses. The hearing representative also noted that appellant has significant assets
including approximately $69,000.00 in her checking account, $120,000.00 in a TSP account, as
well as additional assets which include two properties aside from her primary residence with values
of $8,000.00 and $30,000.00 and six vehicles, four of which would be considered assets. She
denied waiver of the overpayment and set recovery of the overpayment at $300.00 from appellant’s
FECA compensation each month.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 4 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 5
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 6 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit. 7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$15,666.00, for which she was without fault, because she concurrently received FECA wage-loss
compensation and SSA age-related retirement benefits for the period March 20, 2018 through
April 27, 2019 without an appropriate offset. 8
The evidence of record indicates that, while appellant was receiving compensation for
wage-loss compensation benefits under FECA, she was also receiving SSA age-related retirement
attributable to her federal service during the relevant period. A claimant cannot receive both
compensation for wage-loss compensation benefits under FECA and SSA age-related retirement
benefits attributable to federal service for the same period. 9 The information provided by SSA
established that appellant received SSA age-related retirement benefits that were attributable to
federal service during the period March 20, 2018 through April 27, 2019. Consequently, the fact
of overpayment has been established.
To determine the amount of the overpayment, the portion of SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. SSA provided its rate with FERS and without FERS for specific periods March
through December 2018. OWCP provided its calculations of the amount that should have been
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see P.B., Docket No. 20-0862 (issued November 25, 2020); see S.M., Docket No. 17-1802
(issued August 20, 2018); L.J., 59 ECAB 264 (2007).
7

FECA Bulletin No. 97-09 (February 3, 1997); see also S.M., Docket No. 20-0152 (issued August 10, 2020).

8

R.C., Docket No. 19-0845 (issued February 3, 2020); A.F., Docket No. 19-0054 (issued June 12, 2019).

9

See N.B., Docket No. 20-0727 (issued January 26, 2021); D.M., Docket No. 19-1369 (issued June 30, 2020).

4

offset during the relevant period of March 20, 2018 through April 27, 2019 based on information
provided by SSA and determined that appellant received an overpayment in the amount of
$15,666.00.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period March 20, 2018 through April 27, 2019 and finds that an overpayment of compensation in
the amount of $15,666.00 was created.10
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 11
Thus, a finding that appellant was without fault does not automatically result in waiver of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good conscience. 12
Section 10.436 of OWCP’s implementing regulations provides that recovery of an
overpayment would defeat the purpose of FECA if such recovery would cause hardship because
the beneficiary from whom OWCP seeks recovery needs substantially all of his or her current
income (including compensation benefits) to meet current ordinary and necessary living expenses
and, also, if the beneficiary’s assets do not exceed a specified amount as determined by OWCP
from data provided by the Bureau of Labor Statistics. 13 An individual’s liquid assets include, but
are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual funds, and
certificates of deposits. Nonliquid assets include, but are not limited to, the fair market value of
an owner’s equity in property such as a camper, boat, second home, furnishings/supplies,
vehicle(s) above the two allowed per immediate family, retirement account balances (such as TSP
or 401(k)), jewelry, and artwork. 14
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt;
and when an individual, in reliance on such payments or on notice that such payments would be
10

See N.B., id.; L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued
June 21, 2018).
11

5 U.S.C. § 8129(a)-(b).

12

Id.; L.S., 59 ECAB 350 (2008).

13

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2020). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).
14

Id. at Chapter 6.400.4b(3)(a), (b).

5

made, gives up a valuable right or changes his or her position for the worse. 15 OWCP’s procedures
provide that, to establish that a valuable right has been relinquished, an individual must
demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and
that his or her action was based primarily or solely on reliance on the payment(s) or on the notice
of payment. 16
OWCP’s 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. 17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the over payment
would defeat the purpose of FECA or be against equity and good conscience. 18
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because her assets exceed the allowable resource base. The Board notes that the case
record reflects that she has over $120,000.00 in assets in her TSP account and over $69,000.00 in
her checking account, amounts which exceeds the allowable resource base of $10, 300.00 for an
individual, such as she, who has a spouse within the meaning of FECA. 19 Appellant also has two
properties, aside from her primary residence, one worth $8,000.00 and another worth $30,000.00.
She also has six vehicles, four of which would be considered assets. 20 As appellant’s current assets
exceed the allowable resource base, appellant has not established that recovery of the overpayment
would defeat the purpose of FECA. 21 Because she has not met the second prong of the two-prong
test of whether recovery of the overpayment would defeat the purpose of FECA, it is unnecessary

15

20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

16

Id. at § 10.437(b)(1); supra note 14.

17

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

18

R.L, Docket No. 20-0186 (issued September 14, 2020).

19

The hearing representative found, and the case record supports, that appellant has monthly income of $3,244.86
and monthly expenses of $2,626.63. The hearing representative explained in detail why some expenses were excluded
as they were either unexplained, unsupported by current information, unclear whether it was a one-time payment or
recurring payment, or not considered ordinary and necessary.
20

See supra note 18.

21

See id.

6

for OWCP to consider the first prong of the test, i.e., whether she needs substantially all of her
current income to meet current ordinary and necessary living expenses.22
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she would
experience severe financial hardship in attempting to repay the debt or that she relinquished a
valuable right or changed her position for the worse in reliance on the payment which created the
overpayment. 23
Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that OWCP properly
denied waiver of recovery of the $15,666.00 overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that, when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as the error is discovered or his or her attention is called to the same.
If no refund is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial circumstances of
the individual, and any other relevant factors, so as to minimize any hardship. 24
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$300.00 from appellant’s compensation payments each month.
The record supports that, in requiring recovery of the overpayment by deducting $300.00
from appellant’s compensation payments each month, OWCP took into consideration the financial
information submitted by her as well as the factors set forth in section 10.441 and found that this
method of recovery would minimize any resulting hardship on her. Therefore, the Board finds
that it properly required recovery of the overpayment by deducting $300.00 from her compensation
payments each month.
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $15,666.00, for which she was not at fault, as she concurrently
received SSA age-related retirement benefits and FECA wage-loss compensation benefits for the
period March 20, 2018 through April 27, 2019, without an appropriate offset. The Board also

22

See T.D., Docket No. 20-0972 (issued January 28, 2021).

23

See T.D., id.; L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 57172 (1989).
24

Supra note 20 at § 10.441(a); see C.M., Docket No. 19-1451 (issued March 4, 2020).

7

finds that OWCP properly denied waiver of recovery of the overpayment and properly required
recovery of the overpayment by deducting $300.00 from her compensation payments each month.
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tustin, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq.,1 for the appellant
Office of Solicitor, for the Director

Docket No. 16-0172
Issued: July 13, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 9, 2015 appellant, through counsel, filed a timely appeal from a
September 30, 2015 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 claim.

1

Please take notice that in all cases in which a representative has been authorized by the Board, no claim for a fee
for legal or other service performed on appeal before the Board is valid unless and until approved by the Board.
20 C.F.R. 501.9(e). No contract for a stipulated fee or on a contingent fee can be charged for representation before
the Board at any time and will not be approved. Id. In Re Edward Snider, Docket No. 88-1091 (issued August 30,
1988). Collecting a fee without the approval of the Board may constitute a misdemeanor, subject to fine or
imprisonment for up to a year or both for the representative. 18 U.S.C. § 292. Demands for payment of fees to a
representative prior to approval by the Board may be reported to the Clerk of the Appellate Boards.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a low back
condition on March 22, 2014 causally related to the accepted employment incident.
FACTUAL HISTORY
On March 24, 2014 appellant, then a 50-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that, while delivering mail on March 22, 2014, he felt low
back pain, which radiated down both of his legs. He explained that the pain worsened until he
could no longer walk. Appellant stopped work on the date of injury and returned to work on
March 27, 2014.3
In support of his current claim, appellant submitted a March 22, 2014 release for activity
note from Western Medical Center, which placed him on temporary total disability status
through March 27, 2014 and a March 25, 2014 duty status report from Performance Medical
Health, which placed him on temporary total disability status through June 1, 2014.
In an April 4, 2014 letter, OWCP advised appellant of the deficiencies in his claim and
requested additional factual and medical evidence, including a detailed narrative report from his
physician which included a history of the injury and a medical explanation with objective
evidence of how the reported work incident caused or aggravated the claimed back condition.
OWCP also noted appellant’s case history under File No. xxxxxx582 and requested additional
factual information. Appellant was afforded 30 days to submit the requested evidence.
In an April 24, 2014 statement, appellant indicated that he had been delivering mail for
approximately 1 hour and 15 minutes on March 22, 2014 when he felt a pop and severe pain in
his upper and lower back and down both of his legs. He was transported to the emergency room.
Appellant also discussed the job offer made to him by the employing establishment. OWCP
received: a copy of the March 21, 2014 job offer, a March 22, 2014 accident notification report,
and copies of March 25 and 26, 2014 magnetic resonance imaging (MRI) scans of the lumbar
spine.
In a March 25, 2014 report, Dr. Hosea Brown, III, an internist, noted that appellant had a
previously accepted claim pertinent to his low back for which surgical intervention had been
recommended. He noted the history of the March 22, 2014 injury, provided examination
findings, reviewed diagnostic tests, and diagnosed lumbosacral radiculopathy (permanent
aggravation), lumbosacral spine degenerative disc disease, multiple levels (permanent
aggravation), and lumbar intervertebral disc syndrome with myelopathy. Dr. Brown opined that
appellant’s medical injuries to his low back occurred as a direct result of the March 22, 2014
incident. He explained that appellant was bending down to place mail into the appropriate slot
3

The record reflects that under OWCP File No. xxxxxx582, appellant has an August 17, 2013 occupational
disease claim accepted for permanent aggravation of a degenerative disc condition and lumbosacral disc bulge with
right leg radiculopathy. On January 6, 2014 the employing establishment offered him a full-time modified position,
which he accepted under protest. By decision dated March 26, 2014, OWCP terminated appellant’s wage-loss
compensation benefits for that claim. (OWCP File No. xxxxxx582)

2

and felt the acute onset of severe paroxysmal low back pain with radiation of his pain into the
posterior aspects of both legs associated with sudden bilateral lower extremity weakness.
Dr. Brown explained that the biomechanical maneuver associated with bending over and placing
the mail into the slot precipitated an acute lumbosacral radiculopathy and permanently
aggravated the lumbosacral spine degenerative disease as well as the intervertebral lumbar disc
herniations that had previously been noted at L4-5 and L5-S1 by prior MRI scan studies. He also
noted that the fact that appellant experienced acute exacerbation of bilateral lower extremity
weakness indicated that he was experiencing acute neurological compromise due to the
decompression and irritation of the spinal nerves as an exit from the lumbar spine at those levels.
Appellant was instructed to remain off work until June 1, 2014.
In an April 8, 2014 report, Dr. Brown continued appellant off work until June 1, 2014 due
to the conditions of diagnosed lumbosacral radiculopathy (permanent aggravation), lumbosacral
spine degenerative disc disease, multiple levels (permanent aggravation), and lumbar
intervertebral disc syndrome with myelopathy. He noted that appellant had been placed on
temporary total disability status since March 22, 2014 due to his severe low back condition.
Dr. Brown also indicated that a March 26, 2014 MRI scan study revealed multilevel disc bulging
and herniations throughout the entire lumbar spine that were most significant at L4-5 and L5-S1
in addition to T11 and T12 with central spinal canal stenosis and neuroforaminal narrowing.
Duty status reports dated March 25 and April 8, 2014 were also provided.
In an April 22, 2014 report, Dr. Brown provided a detailed description of appellant’s job
duties and noted the history of the March 22, 2014 injury. He indicated that on March 21, 2014
appellant had received a new job offer which he accepted under protest, working eight hours a
day with no restrictions. Appellant was to perform two hours of casing, two hours of business,
and four hours of park-and-loop. Dr. Brown indicated that appellant attempted to deliver his
route on March 22, 2014 and his back pain and discomfort steadily increased as he was loading
his vehicle. As appellant bent down to place mail into a gang box, he experienced a popping
sensation with severe pain, numbness, and tingling in his low back with radiation into both legs,
and he could not walk. He went by ambulance to the emergency room. Dr. Brown provided
examination findings and noted his review of diagnostic studies and medical records. He noted
that appellant has a previously accepted claim with a date of injury of June 17, 2013 for the
conditions of degeneration of lumbar or lumbosacral intervertebral discs and displacement of
lumbar intervertebral discs without myelopathy, and that he had previously been working six
hours daily with restrictions in that claim when he was offered an inappropriate job offer of
modified assignment on March 21, 2014.
Dr. Brown found that the work activities were outside of appellant’s previous restrictions
and he was injured in the performance of duty on March 22, 2014. He diagnosed lumbosacral
radiculopathy (permanent aggravation), lumbosacral spine degenerative disc disease, multiple
levels (permanent aggravation), and lumbar intervertebral disc syndrome with myelopathy and
opined that appellant’s injuries to his low back occurred as a direct result of the March 22, 2014
incident. Dr. Brown explained that appellant was bending down to place mail into the
appropriate slot when the acute onset of severe paroxysmal low back pain with radiation
occurred. He further explained that the biomechanical maneuver associated with bending over
and placing the mail into the slot precipitated an acute lumbosacral radiculopathy and
permanently aggravated appellant’s lumbosacral spine degenerative disc disease as well as the

3

intervertebral lumbar disc herniations that had been previously noted at L4-5 and L5-S1 by prior
MRI scan studies and previously accepted in his prior claim. Also, the fact that appellant
experienced an acute exacerbation of bilateral lower extremity weakness indicated that he had
progressive neurological compromise due to the decompression and irritation of the spinal nerves
as they exited from the lumbar spine at those levels. Dr. Brown opined that it was medically
reasonable to infer a relationship of reasonable medical probability between appellant’s
extensive medical injuries to his low back and his work duties on March 22, 2014. He also
opined that appellant required urgent surgical intervention and remained temporarily totally
disabled due to severe low back instability. Duty status reports of April 22, May 12, and June 9,
2014 were provided.
By decision dated July 2, 2014, OWCP denied appellant’s claim, finding that the medical
evidence of record failed to establish that his present back condition was causally related to the
accepted work incident of March 22, 2014.4
On July 8, 2014 appellant, through his counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held February 27, 2015. He testified that under a prior
work-related claim, an OWCP physician released him to work eight hours a day on March 22,
2014 and that he began work on March 22, 2014. Appellant described his work duties of
March 22, 2014 as well as his increased back symptoms, which had cumulated to the point he
could not continue to work.
OWCP received medical records and treatment notes from Sunshine Medical Center and
Downey Medical Center and from Dr. Terence Mayers, a Board-certified surgeon, intermittently
from March 26, 2014 to January 21, 2015, diagnostic test results, and a November 10, 2014
operative report.
In a July 28, 2014 report, Dr. Brown opined that the facts of this case clearly indicated
that appellant sustained a new acute traumatic injury to his low back as a direct result of the
performance of his duties on March 22, 2014. He indicated that appellant was offered an
inappropriate modified-job assignment on March 21, 2014 as the restrictions were outside of the
medical restrictions he placed on appellant. Dr. Brown advised that his medical rationale was set
forth in his April 22, 2014 report wherein he advised that appellant was in the performance of his
work duties and experienced severe paroxysmal low back pain with radiation into the posterior
aspects of both legs and associated with sudden bilateral lower extremity weakness while
bending down to place mail into the appropriate slot. He noted excerpts from his April 22, 2014
report wherein he explained that “the biomechanical maneuver associated with bending over and
placing the mail into the slot clearly precipitated an acute lumbosacral radiculopathy and
permanently aggravated appellant’s lumbosacral spine degenerative disc disease as well as the
intervertebral lumbar disc herniations that had previously been noted at L4-5 and L5-S1 by prior
MRI scan studies and previously accepted by his prior claim. The fact that appellant experienced
an acute exacerbation of bilateral lower extremity weakness indicated that he was experiencing
progressive neurological compromise due to the decompression and irritation of the spinal nerves
4

OWCP noted that given the severity of appellant’s preexisting back condition and the personnel issues that arose
on March 21, 2014 under claim number xxxxx582, the evidence of file was insufficient to establish that he
experienced a new injury on March 22, 2014.

4

as they exited from the lumbar spine at those levels. Therefore, in view of the aforementioned
medical rationale, it is medically reasonable to infer a relationship of reasonable medical
probability between appellant’s extensive medical injuries to his low back and the performance
of the duties of his occupation as a city letter carrier on March 22, 2014.”
Dr. Brown opined that the diagnosed lumbosacral radiculopathy (permanent
aggravation), lumbosacral spine degenerative disc disease, multiple levels (permanent
aggravation), and lumbar intervertebral disc syndrome with myelopathy conditions occurred as a
direct result of the March 22, 2014 incident. He further advised that appellant continued to
experience progressive neurological compromise of lumbar radiculopathy, as well as cauda
equine syndrome with a new acute episode of focal and urinary incontinence on July 26, 2014 as
a direct result of his work-related injury.
By decision dated May 7, 2015, an OWCP hearing representative affirmed the July 2,
2014 decision. She found that there was no rationalized medical evidence of record to establish
that appellant sustained an injury on March 22, 2014 as alleged.
On July 8, 2015 appellant requested reconsideration. Copies of MRI scan reports of the
lumbar spine dated June 19, 2013, March 26, 2014, and July 8, 2015 were also received.
In a June 30, 2015 report, Dr. Brown opined that the conditions accepted under File No.
xxxxxx582, degeneration of lumbar or lumbosacral intervertebral disc and displacement of
lumbar intervertebral disc without myelopathy, were permanently aggravated, and progressed to
a severe lumbosacral radiculopathy as well as a lumbar intervertebral disc syndrome with
myelopathy as a direct result of the March 22, 2014 incident. He indicated that on March 22,
2014 appellant was performing business mail delivery when, after bending down to place mail
into an appropriate slot at a business site, he developed acute paroxysmal onset of severe low
back pain with radiation of the pain into the posterior aspects of both legs with associated
inability to ambulate with sudden paralysis due to severe lower extremity weakness. Dr. Brown
advised that the biomechanical maneuver of bending down to place mail into the appropriate slot
caused an acute permanent aggravation of appellant’s previously accepted medical conditions
with regard to degeneration of lumbar or lumbosacral disc as well as displacement of the lumbar
intervertebral disc, which were clearly documented on the MRI scans. He noted that the June 19,
2013 MRI scan indicated that appellant had lumbar disc herniations at L5-S1, which caused
borderline central spinal stenosis, and the March 26, 2014 MRI scan study, performed four days
after the March 22, 2014 incident, revealed evidence of progressive lumbar disc herniation at
both of those levels which he noted. Dr. Brown indicated that those pathological changes with
progressive intervertebral disc herniation were clearly documented and consistent with
appellant’s symptoms of sudden weakness and paralysis upon bending down to place mail into
the appropriate slots on March 22, 2014. He advised that from the medical facts, as documented
on appellant’s MRI scan studies and physical examinations, appellant experienced an acute
permanent aggravation of lumbosacral radiculopathy as well as an acute permanent aggravation
of lumbosacral spine degenerative disc disease and lumbar intervertebral disc syndrome as a
direct result of the March 22, 2013 incident. Dr. Brown stated that appellant’s symptomatology
after the March 22, 2014 incident was so severe that he had to be transported to the hospital as he
was unable to ambulate as a result of his severe bilateral lower extremity weakness.

5

Dr. Brown further indicated that appellant’s physical examination findings worsened
subsequent to the March 22, 2014 incident with clear documentation of increasing weakness of
his lower extremities as well as inability to ambulate without the assistance of crutches.
Appellant was also noted to have severe intractable low back pain as a direct result of the
progressive lumbar disc herniation causing the severe lumbosacral radiculopathy. He further
indicated that the March 22, 2014 incident permanently aggravated appellant’s lumbar spine
condition which necessitated surgical intervention on November 10, 2014, and as a result of the
March 22, 2014 work incident, appellant suffered lumbosacral radiculopathy (permanent
aggravation), lumbosacral spine degenerative disc disease, multiple levels (permanent
aggravation), lumbar intervertebral disc syndrome with myelopathy, and cauda equine syndrome.
By decision dated September 30, 2015, OWCP denied modification of its prior decision.
It cited an August 25, 2014 medical report from a second opinion physician in appellant’s other
claim, and found that he had not established that his current back condition was not due to a
preexisting back condition, or his other accepted injury.5
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components that must be considered conjunctively. First, the
employee must submit sufficient evidence to establish that he actually experienced the
employment incident that is alleged to have occurred.8 An employee has not met his or her
burden of proof of establishing the occurrence of an injury when there are such inconsistencies in
the evidence as to cast serious doubt upon the validity of the claim.9 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.10

5

The cited second opinion report pertaining to appellant’s other claim does not appear in this record.

6

Joe D. Cameron, 41 ECAB 153 (1989).

7

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

8

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

9

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

10

Deborah L. Beatty, 54 ECAB 340 (2003).

6

The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.11 Neither the fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.12
ANALYSIS
OWCP accepted that the March 22, 2014 incident occurred as alleged, but denied the
claim as the medical evidence of record did not establish causal relationship between the
March 22, 2014 incident and the claimed back condition.
Appellant has a prior claim under File No. xxxxxx582 for permanent aggravation of a
degenerative disc condition and lumbosacral disc bulge with right leg radiculopathy and was
given a new modified-job assignment, which he started on March 22, 2014.
In support of his claim, appellant submitted a series of reports from Dr. Brown who
placed appellant off work and opined that the work injury of March 22, 2014 caused lumbosacral
radiculopathy (permanent aggravation), lumbosacral spine degenerative disc disease, multiple
levels (permanent aggravation), lumbar intervertebral disc syndrome with myelopathy, and
eventually cauda equine syndrome. Dr. Brown noted that the conditions accepted under File No.
xxxxxx582, degeneration of lumbar or lumbosacral intervertebral disc and displacement of
lumbar intervertebral disc without myelopathy, were permanently aggravated and progressed to a
severe lumbosacral radiculopathy as well as a lumbar intervertebral disc syndrome with
myelopathy as a direct result of the March 22, 2014 incident. He indicated a history of injury in
all of his reports. Dr. Brown noted that, on March 22, 2014 appellant was performing business
mail delivery when, after bending down to place mail into an appropriate slot at a business site,
he developed the acute paroxysmal onset of severe low back pain with radiation of the pain into
the posterior aspects of both legs with associated inability to ambulate with sudden paralysis due
to severe lower extremity weakness. He also advised in all his reports that the biomechanical
maneuver of bending down to place mail into the appropriate slot caused an acute permanent
aggravation of appellant’s previously accepted medical conditions with regards to degeneration
of lumbar or lumbosacral disc as well as displacement of the lumbar intervertebral disc, which
were clearly documented on the MRI scan studies. In his June 30, 2015 report, Dr. Brown
specifically noted that the June 19, 2013 MRI scan study indicated that appellant had lumbar disc
herniations at L5-S1, which caused borderline central spinal stenosis, and the March 26, 2014
MRI scan study, performed four days after the March 22, 2014 incident, revealed evidence of
11

Solomon Polen, 51 ECAB 341 (2000).

12

Dennis M. Mascarenas, 49 ECAB 215 (1997).

7

progressive lumbar disc herniation at both of those levels which he noted. He indicated that
those pathological changes with progressive intervertebral disc herniation were clearly
documented and consistent with appellant’s symptoms of sudden weakness and paralysis upon
bending down to place mail into the appropriate slots on March 22, 2014. Dr. Brown advised
that, from the medical facts, as documented on appellant’s MRI scan studies and physical
examinations, that appellant experienced an acute permanent aggravation of lumbosacral
radiculopathy as well as an acute permanent aggravation of lumbosacral spine degenerative disc
disease and lumbar intervertebral disc syndrome as a direct result of the March 22, 2014
incident. He stated that appellant’s symptomatology after the March 22, 2014 incident was so
severe that he had to be transported to the hospital as he was unable to ambulate as result of his
severe bilateral lower extremity weakness. Dr. Brown also indicated that appellant’s physical
examination findings worsened subsequent to the March 22, 2014 incident with clear
documentation of increasing weakness of his lower extremities as well as inability to ambulate
without the assistance of crutches. Appellant was also noted to have severe intractable low back
pain as a direct result of the progressive lumbar disc herniation causing the severe lumbosacral
radiculopathy.
The Board finds that Dr. Brown’s reports support a causal relationship between
appellant’s traumatic injury of March 22, 2014 and his current back conditions. These reports
from Dr. Brown contain a history of injury, diagnosis, and an opinion that appellant’s bending to
place mail in slots with resulting symptomatology precipitated an acute lumbosacral
radiculopathy and permanently aggravated appellant’s lumbosacral spine degenerative disc
disease as well as the intervertebral lumbar disc herniations previously accepted in his prior
claim. Dr. Brown explained that the fact that appellant experienced an acute exacerbation of
bilateral lower extremity weakness indicated that he was experiencing progressive neurological
compromise due to the decompression and irritation of the spinal nerves as they exited from the
lumbar spine at those levels.
The Board finds that while these reports are not sufficient to meet appellant’s burden of
proof as they are not sufficiently rationalized, they do raise an uncontroverted inference of causal
relationship between his current back condition and the March 22, 2014 incident, sufficient to
require further development of his claim. Proceedings under FECA are not adversary in nature
nor is OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence. It has the
obligation to see that justice is done.13 In view of the noted medical evidence, OWCP should
have referred the matter to an appropriate medical specialist to determine whether appellant
sustained a compensable back injury on March 22, 2014.14 The Board also notes while OWCP
noted a report from a second opinion physician who performed an examination for issues
relevant to appellant’s other accepted claim, this report is not of record and OWCP did not find
that it constituted the weight of the evidence in this case.

13

See J.B., Docket No. 08-2009 (issued April 7, 2009); see also Jimmy A. Hammons, 51 ECAB 219 (1999);
Marco A. Padilla, 51 ECAB 202 (1999); John W. Butler, 39 ECAB 852 (1988).
14

C.V., Docket No. 14-1940 (issued May 26, 2015); C.B., Docket No. 13-1091 (issued September 16, 2013);
W.B., Docket No. 12-1896 (issued March 26, 2013); John J. Carlone,41 ECAB 354, 358-60 (1989).

8

On remand, OWCP should prepare a statement of accepted facts and refer appellant to a
second opinion physician for an opinion as to whether he sustained a low back condition causally
related to the accepted March 22, 2014 employment incident.
The case will be remanded for further adjudication of appellant’s claim for a traumatic
injury. Following such further development of the medical evidence as OWCP deems necessary,
it should issue de novo decision on his traumatic injury claim.
CONCLUSION
The Board finds that this case is not in posture for decision as further development of the
medical evidence is required.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 30, 2015 is set aside and the case remanded for
proceedings consistent with this decision of the Board.
Issued: July 13, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9