United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Myers, FL, Employer
__________________________________________

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Appearances:
Joanne Marie Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1275
Issued: September 27, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 3, 2016 appellant, through his representative, filed a timely appeal from a
January 13, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits
effective April 10, 2015 pursuant to 5 U.S.C. § 8106(c)(2).
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.

FACTUAL HISTORY
OWCP accepted that on July 27, 2011 appellant, then a 57-year-old city letter carrier,
sustained a lumbar sprain/strain, mid-back contusion, contusion of ribs, and chest wall contusion
when he fell and struck the bumper of his vehicle. Appellant’s physicians restricted him to
sedentary duty with lifting, carrying, pulling, and pushing limited to 10 pounds. He did not
return to work. The employing establishment confirmed that there was no work available within
his restrictions as of September 9, 2011. Appellant received wage-loss compensation on the
daily rolls beginning September 10, 2011, and on the periodic rolls beginning
November 20, 2011. He remained under medical care.
On December 19, 2011 Dr. Dean D. Lin, an attending Board-certified neurosurgeon,
found that appellant’s continuing lumbar myofascial strain with mild spondylosis remained
completely related to the accepted injuries. Appellant remained off work.
To determine appellant’s work capacity, OWCP obtained a second opinion on May 12,
2012 from Dr. William Dinenberg, a Board-certified orthopedic surgeon, who opined that the
accepted lumbosacral strain remained active and partially disabling. Dr. Dinenberg opined that
appellant could perform full-time sedentary duty, with lifting, pushing, and pulling limited to 10
pounds.
In a July 5, 2012 report, Dr. Vidya P. Kini, an attending Board-certified physiatrist,
diagnosed chronic low back pain with lumbar radiculopathy secondary to sacroiliac dysfunction
from the accepted injury superimposed on spondylosis, and possible diabetic neuropathy. She
found appellant able to perform full-time sedentary duty, with lifting limited to 10 pounds.
Dr. Neil R. Schultz, an attending Board-certified physiatrist, noted that a November 10,
2011 magnetic resonance imaging (MRI) scan showed multilevel chronic degenerative disc
disease without significant stenosis. He diagnosed a back contusion and lumbar sprain.
Dr. Schultz prescribed physical therapy, in which appellant participated through March 2013.
On April 12, 2013 Dr. Schultz found that appellant was approaching maximum medical
improvement and was able to perform full-time sedentary work, with lifting, pulling, and
pushing limited to 10 pounds. In an April 25, 2013 report, Dr. Schultz related that appellant had
increased lumbar symptoms, and diagnosed a possible disc herniation. On May 16, 2013 he
reviewed appellant’s prescription medications, which included Tramadol and Hydrocodone.
Dr. Schultz diagnosed lumbar radiculopathy. He found appellant able to perform full-time
sedentary duty as of May 23, 2013.
OWCP obtained a second opinion on July 9, 2013 from a Dr. Fanourios L. Federigos, a
Board-certified orthopedic surgeon. Dr. Federigos reviewed the medical record and a statement
of accepted facts. On examination, he found lumbosacral paravertebral tenderness bilaterally,
and decreased lumbar motion. Dr. Federigos diagnosed a lumbosacral sprain/strain, degenerative
disc disease with spondylosis, narrowing of the right L4-5 foramina, and persistent muscle
spasticity. He opined that appellant had persistent fasciitis due to the July 27, 2011 injury, which
also exacerbated lumbar spondylosis and L4-5 foraminal stenosis. Dr. Federigos found that the
accepted rib contusion had resolved. He found that appellant had attained maximum medical

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improvement. Dr. Federigos permanently restricted appellant to sedentary duty, with lifting
limited to 10 pounds and for no more than two hours a day. Appellant was not to twist, bend, or
stoop. He could sit for up to five hours a day.
In a July 18, 2013 report, Dr. Schultz opined that appellant was “unable to drive due to
sedation and drowsiness from the medications that he is prescribed,” and could not operate a
motor vehicle to or from work, or while working. He limited bending, stooping, and twisting to
two hours a day. Dr. Schultz explained on October 9, 2013 that appellant was taking prescribed
Meloxicam, Gabapentin, Cyclobenzaprine, Tramadol, and Hydrocodone. He noted that
Gabapentin caused significant drowsiness and impaired concentration, and would negatively
affect appellant’s ability to operate a motor vehicle. Appellant had to take Hydrocodone during
the workday, which caused significant drowsiness and dizziness. Dr. Schultz noted that
appellant had not driven since May 2013 due to “significant drowsiness and poor concentration.”
He opined that appellant was “not capable of driving to any degree whatsoever,” but could
consider taking public transportation. Dr. Schultz submitted periodic reports through May 8,
2014 finding appellant able to perform full-time sedentary duty. He noted that appellant had
advised the department of motor vehicles that he could not drive due to impairment from
prescription narcotics and had surrendered his driver’s license. Appellant remained off work.
Dr. Schultz noted on May 25, 2014 that the accepted injuries remained present and
disabling. He diagnosed a lumbar sprain, mid-back contusion, lumbar radiculopathy, and L3-4,
L4-5, and L5-S1 disc bulges. Dr. Schultz permanently restricted appellant to full-time sedentary
duty, with lifting, pulling, and pushing up to 10 pounds. He reiterated this opinion through
November 2014.
On November 4, 2014 the employing establishment offered appellant a permanent
assignment as a modified mail processing clerk at Page Field Station in Fort Myers, working five
days a week with Sunday and Thursday off. The position was available beginning November 8,
2014, with a start date of November 15, 2014. The job required occasional lifting, pushing, and
pulling up to 10 pounds, with sedentary clerical duties. Appellant rejected the offer on
November 19, 2014, contending that it was “not suitable.”
In a January 15, 2015 letter, OWCP advised appellant that the offered modified mail
processing clerk position was found to be suitable work in accordance with the medical
limitations prescribed by Dr. Schultz. The position remained open and available to appellant.
OWCP advised him of the penalty provisions under FECA for refusing an offer of suitable work
and afforded him 30 days to either accept the position or provide good cause for his refusal.
In a January 16, 2015 report, Dr. Schultz noted that appellant took prescribed Meloxicam,
Topiramate, Tramadol ER, Cyclobenzaprine, and Hydrocodone. He found appellant able to
perform full-time sedentary duty. Dr. Schultz opined that the medications decreased appellant’s
pain levels and improved his daily functioning.
Appellant contended in a January 31, 2015 letter that the offered position was not suitable
work as he was unable to drive due to medication side effects. He explained that he could not
get to work without driving, as the offered position was in Fort Myers and he lived in Cape
Coral, a 12- to 13-mile distance. Appellant contended that he lived in an area where the closest

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bus stop was 1.1 miles from his home and that he could not walk that distance. Also, it was .9
miles from the nearest bus stop to the employing establishment, and he would have to change
buses three times, with a 90-minute commute each way. The bus schedule would also cause
appellant to be either early or late for the start of his shift. Appellant asserted that side effects
from Hydrocodone, Topiramate, Tramadol and Cyclobenzaprine impaired his daily functioning
such that he could not leave his home unaccompanied due to falling twice a week.
In a March 3, 2015 letter, the employing establishment advised that appellant had “retired
on regular retirement” rather than accept the offered position.
In a March 17, 2015 letter, OWCP advised appellant that his reasons for refusing the
offered position were not valid and that he had 15 days to accept and report to the position or his
entitlement to wage-loss compensation and schedule award benefits would be terminated. It
noted that the offered position remained open and available to him.
On March 26, 2015 appellant accepted the offered modified position, but noted that he
would not report for work because he had submitted an application for retirement. He elected to
receive retirement benefits in preference to FECA benefits effective April 1, 2015.
By decision dated April 10, 2015, OWCP terminated appellant’s wage-loss compensation
and schedule award eligibility effective that day under 5 U.S.C. § 8106(c)(2), finding that he
refused an offer of suitable work.
On April 27, 2015 appellant requested a telephonic oral hearing, which was held on
November 10, 2015. At the hearing, appellant’s representative contended that OWCP should
have referred appellant for limited vocational rehabilitation to determine if transportation costs
could be reimbursed as a vocational rehabilitation expense. She also contended that OWCP
should have investigated whether the narcotic side effects would adversely impact his ability to
perform the offered position safely. Appellant submitted additional evidence.
In April 10, 2015 reports, Dr. Schultz reiterated prior diagnoses and work restrictions.
He noted that appellant was only being followed for medication management. Dr. Schultz
explained that appellant would “not be able to return to his prior position as a city carrier in the
future and his work status will be permanently restricted to sedentary capacity with infrequent
lifting, pulling, and pushing up to 10 pounds.” He opined that the prescribed medications
reduced appellant’s pain symptoms and improved his ability to perform activities of daily living
and work activities. Dr. Schultz affirmed that appellant would perform “[f]ull[-]time sedentary
duty with occasional lifting, carrying, pulling, and pushing up to 10 pounds.”
In a July 2, 2015 report, Dr. Schultz noted that appellant had increased dizziness during
the past month when rising from a seated position. He opined that appellant’s dizziness was
likely orthostatic, that he might need better regulations of his blood pressure medications.
Dr. Schultz increased appellant’s Hydrocodone from 5 milligrams to 10 milligrams. He found
appellant’s orthopedic condition unchanged through December 21, 2015.
By decision dated January 13, 2016, an OWCP hearing representative affirmed the
April 10, 2015 termination decision, finding that the medical evidence failed to establish that
appellant could not travel to and from work or perform the duties of the offered position. He
4

noted that while appellant contended that taking a bus or taxi to and from work would be
difficult or expensive, he did not contend that he was medically unable to do so. The hearing
representative further found that OWCP was not obligated to refer appellant for limited
vocational rehabilitation to investigate his transportation options as he had refused to return to
work. However, had appellant agreed to return to work, OWCP would have investigated if taxi
fare to and from work could be covered as a vocational rehabilitation expense.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits. It has authority under section 8106(c)(2) of FECA to terminate
compensation for any partially disabled employee who refuses or neglects to work after suitable
work is offered:
“A partially disabled employee who -- refuses or neglects to work after suitable
work is offered to, procured by, or secured for him is not entitled to
compensation.”
OWCP procedures provide factors to be considered in determining what constitutes
“suitable work” for a particular disabled employee including the employee’s current physical
limitations, whether the work is available within the employee’s demonstrated commuting area,
the employee’s qualifications to perform such work and other relevant factors.3 The issue of
whether an employee has the physical ability to perform a modified position offered by the
employing establishment is primarily a medical question that must be resolved by medical
evidence.
The Board has recognized that section 8106(c) is a penalty provision that must be
narrowly construed as it may bar entitlement to future wage-loss compensation.4 Section
10.517(a) of FECA’s implementing regulations provide that an employee who refuses or
neglects to work after suitable work has been offered or secured by the employee, has the burden
of showing that such refusal or failure to work was reasonable or justified.5 Pursuant to section
10.516, the employee shall be provided with the opportunity to make such a showing before a
final determination is made with respect to termination of entitlement to compensation.6
An acceptable reason, if supported by medical evidence, for refusing an offer of suitable
work can be an inability to travel to work.7 OWCP’s procedures provide that the inability to
travel to work is an acceptable reason if the inability is because of residuals of the employment
3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4
(June 2013).
4

Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

5

20 C.F.R. § 10.517(a); Ronald M. Jones, 52 ECAB 190 (2000).

6

Id. at § 10.516.

7

C.W., Docket No. 10-2074 (issued May 23, 2011); Mary E. Woodard, 57 ECAB 211 (2005); Glen L. Sinclair,
36 ECAB 664 (1985).

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injury.8 This holding is consistent with the Board’s holding that all impairments, whether work
related or not, must be considered in assessing the suitability of an offered position.9
ANALYSIS
OWCP accepted that appellant sustained a lumbar sprain/strain, mid-back contusion,
contusion of ribs, and chest wall contusion when he fell and struck the bumper of his vehicle on
July 27, 2011. Appellant stopped work on the date of injury and did not return. He received
total disability compensation on the daily and periodic rolls beginning on September 10, 2011.
Dr. Schultz, an attending Board-certified physiatrist, held appellant off work. He
prescribed narcotic medication to address ongoing symptoms of the accepted injuries.
Dr. Schultz found that appellant was medically able to perform full-time sedentary work, as of
May 23, 2013. On July 9, 2013 OWCP obtained a second opinion from Dr. Federigos, a Boardcertified orthopedic surgeon, who concurred that the accepted lumbar strain continued to be
active and partially disabling. Dr. Federigos agreed with Dr. Schultz that appellant could
perform full-time sedentary duty with lifting, pulling, and pushing limited to 10 pounds.
In reports from July 18, 2013 through November 2014, Dr. Schultz noted that appellant
could no longer drive due to drowsiness and impaired concentration from narcotic medications
prescribed for the accepted injury, and that appellant had surrendered his driver’s license as of
March 12, 2014. On October 9, 2013 he found appellant capable of taking public transportation.
On November 4, 2014 the employing establishment offered appellant a permanent
position as a modified mail processing clerk. The sedentary position involved clerical duties,
requiring occasional lifting, pulling, and pushing up to 10 pounds. OWCP properly found that
these duties conformed to the limitations given by Dr. Schultz and Dr. Federigos. The position
was approximately 13 miles from appellant’s residence, well within his commuting area.
Following OWCP’s determination that the position was suitable, appellant provided his
January 31, 2015 letter explaining that the nearest bus stop was 1.1 miles from his home, and the
bus stop closest to the employing establishment was .9 miles away. He noted that the buses ran
at times inconvenient to the start and end of his work shift. The Board has also held that an
inability to travel to work should be considered as part of the suitability determination itself,
independent of a claimant’s acceptance or rejection of the job.10
Neither Dr. Schultz nor Dr. Federigos limited the physical activities needed for appellant
to utilize public transportation, including walking, sitting, being outdoors at night, or in or out of
hot or cold environments.
Dr. Schultz opined that appellant should consider public
transportation. Therefore, their opinions do not preclude appellant from walking to and from a
bus, or riding the bus, as he described in his January 31, 2015 letter. OWCP properly considered
appellant’s inability to drive, the proposed commuting distance, and his ability to take public
8

Supra note 3 at Chapter 2.814.5(a)(3) (June 2013). See also Donna M. Stroud, 51 ECAB 264 (2000).

9

Edward J. Stabell, 49 ECAB 566 (1998).

10

Id.

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transportation in finding the offered modified mail processing clerk position was suitable work.
Therefore, OWCP discharged its burden of proof to terminate compensation under section
8106(c) of FECA.11
On appeal appellant’s representative cites to the Board’s holdings in C.W.,12 and Mary E.
Woodard,13 in contending that OWCP did not properly address appellant’s inability to drive
when determining whether the offered position was suitable work. In C.W., the claimant was
unable to drive due to side effects of prescribed narcotic medications. OWCP found an offered
position to be suitable work, without addressing whether appellant was capable of commuting to
and from work by a means other than driving. The present case can be distinguished from C.W.
as appellant’s attending physician found him medically able to use public transportation. OWCP
considered this evidence as part of its suitability determination.
Similarly, the present case may be distinguished from Woodard, where the Board found
that OWCP mischaracterized the claimant’s refusal of a night shift position due to a medical
inability to drive at night as a personal desire to work a different schedule. The Board held that
OWCP failed to consider the medical aspect of her claim in finding the position suitable work.
In the present case, OWCP did review the medical evidence, which demonstrated that appellant
could commute using public transportation.
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 OWCP properly terminated appellant’s compensation benefits
effective April 10, 2015 pursuant to 5 U.S.C. § 8106(c)(2).

11

Cf. B.S., Docket No. 09-1067 (issued February 2, 2010) (the Board found that OWCP did not meet its burden of
proof to terminate the claimant’s compensation under 5 U.S.C. § 8106(c) because her attending physician restricted
her to driving no more than four hours a day, whereas the offered position required a six-hour commute); R.F.,
Docket No. 15-0506 (issued August 12, 2016) (the Board reversed OWCP’s termination of the claimant’s
compensation benefits under 5 U.S.C. § 8106(c) because there was a conflict of medical opinion at the time of the
termination as to whether the claimant was unable to drive due to side effects from prescribed narcotic medication);
L.D., Docket No. 12-0816 (issued April 9, 2013) (the Board reversed OWCP’s termination of appellant’s
compensation benefits under 5 U.S.C. § 8106(c), finding OWCP failed to consider a driving limitation in
determining whether an offered position was suitable work).
12

Docket No. 10-2074 (issued May 23, 2011).

13

57 ECAB 211 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 13, 2016 is affirmed.
Issued: September 27, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Jacksonville, FL,
Employer
__________________________________________

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

Docket No. 19-1418
Issued: March 4, 2020

Case Submitted on the Record

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

JURISDICTION
On June 17, 2019 appellant filed a timely appeal from a May 23, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $15,652.19 for the period January 1, 2014 through March 2, 2019, for which he was
without fault, as he concurrently received age-related Social Security Administration (SSA)
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the May 23, 2019 decision, OWCP and the Board 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.

retirement benefits while receiving FECA wage-loss compensation; and (2) whether OWCP
properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On August 30, 1993 appellant, then a 41-year-old electronic technician, filed a traumatic
injury claim (Form CA-1) alleging that on that date he injured his back when pushing a cart of
equipment while in the performance of duty. OWCP accepted the claim for lumbar sprain and
herniated nucleus pulposus (HNP) at L5-S1 and paid intermittent wage-loss compensation
benefits. It paid appellant wage-loss compensation on the periodic rolls as of August 17, 2000.
In a letter dated December 2, 2013, OWCP advised appellant of the conditions under which
he would be paid compensation benefits. It indicated that he should advise OWCP immediately
upon filing for, or receiving, SSA age-related retirement benefits as his 62nd birthday was
approaching.
In a letter dated December 11, 2013, appellant advised OWCP that he had applied for SSA
age-related retirement benefits and that he would begin receiving these benefits in approximately
February 2014.
On March 21, 2019 OWCP notified appellant by letter that he had been receiving SSA agerelated retirement benefits since January 1, 2014 and that the SSA had confirmed that a portion of
his SSA benefits were attributed to his years of federal service. It explained that his federal service
increased his monthly social security payment by $263.50, which must be offset against his
continuing compensation benefits. OWCP explained that, effective March 3, 2019, his
compensation benefits would be offset by the portion of his SSA retirement benefits attributable
to his federal service on account of age, resulting to a new net compensation payment of $778.77,
every 28 days.3
In a Federal Employees Retirement System (FERS) Dual Benefits Calculation transmittal
dated March 12, 2019, SSA advised OWCP that appellant had concurrently received FECA
benefits and retirement benefits through FERS from January 1, 2014 through December 1, 2018.
It provided the amount that he received in retirement benefits, including the amount earned through
FERS and the amount that he would have received without FERS. Including FERS, appellant was
entitled to a monthly SSA rate of $877.40 effective January 2014, $892.30 effective December
2014, $892.30 effective December 2015, $894.90 effective December 2016, $912.80 effective
December 2017, and $938.30 effective December 2018. SSA further advised that, without FERS,
appellant would have been entitled to a monthly SSA rate of $631.00 effective January 2014,
$641.70 effective December 2014, $641.70 effective December 2015, $643.60 effective December
2016, $656.50 effective December 2017, and $674.80 as of December 2018.
In a March 21, 2019 FERS offset calculation worksheet, OWCP found that an overpayment
of compensation benefits had been created in the amount of $15,652.19 for the period January 1,
2014 through March 2, 2019.

3
The record reflects that, effective March 3, 2019, OWCP adjusted appellant’s compensation benefits to reflect his
FERS/SSA offset.

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On March 29, 2019 OWCP issued a preliminary determination that appellant was overpaid
in the amount of $15,652.19 for the period January 1, 2014 through March 2, 2019 because his
FECA benefits were not reduced by the FERS portion of his SSA retirement benefits. It calculated
the overpayment by determining the difference between his SSA amount with and without FERS
for each period. OWCP then multiplied the daily offset amount by the number of days in each
period to find a total overpayment of $15,652.19. It further made a preliminary determination that
appellant was without fault in the creation of the overpayment because he relied on erroneous
information given in writing by OWCP. OWCP requested that he complete the enclosed
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documentation. Additionally, it notified appellant that, within 30 days of the date of the letter, he
could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing.
Appellant, in an April 16, 2019 overpayment action request form, requested that OWCP
make a decision based on the written record. He also requested waiver of recovery of the
overpayment. In an accompanying Form OWCP-20, appellant indicated that he had $175.00 in
funds on hand and a total monthly income of $1,123.00, accounting for $804.00 per month in
social security benefits and $319.00 in retirement benefits. He reported total monthly expenses
amounting to $2,290.00 which included $35.00 property tax; $500.00 food; $10.00 clothing;
$300.00 utilities; and $100.00 for other expenses. Appellant further indicated monthly debt that
included $487.00 to a credit union; $111.00 to a credit union loan; $500.00 to a credit card; $147.00
Life Insurance; $100.00 Synchrony Bank; and $122.00 Medicare. Appellant explained that his
FECA benefits made up the difference between his other income sources and his expenses. He
indicated that he was in no position to repay this compensation error which had occurred through
no fault of his own. No evidence documenting his expenses was provided.
On April 29, 2019 appellant elected OPM benefits in preference to FECA benefits. In a
letter dated May 10, 2019, OWCP advised OPM of appellant’s election, effective April 29, 2019.
By decision dated May 23, 2019, OWCP finalized its preliminary overpayment
determination finding that appellant had received an overpayment of compensation in the amount
of $15,652.19 for the period January 1, 2014 through March 2, 2019, because it failed to offset his
compensation payments by the portion of his SSA age-related retirement benefits that were
attributable to his federal service. It determined that he was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment of compensation based on the
financial information provided. OWCP requested that appellant forward payment in the amount
of $435.00 each month.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment.4 Section 8116 limits the right of an employee to receive compensation.

4

5 U.S.C. § 8102(a).

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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 the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA age-related retirement benefits that are attributable to
federal service of the employee.6 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $15,652.19 because he concurrently received age-related SSA
retirement benefits while receiving FECA benefits for the period January 1, 2014 through March 2,
2019 without an appropriate offset.8
In its May 23, 2019 decision, OWCP found that an overpayment of compensation was
created for the period January 1, 2014 through March 2, 2019. The overpayment was based on the
evidence received from SSA with respect to retirement benefits paid to appellant. Appellant has
not challenged the fact or amount of the overpayment. The record indicates that, while appellant
was receiving compensation for total disability under FECA, he was also receiving SSA age-based
retirement benefits. A claimant cannot receive both compensation for wage-loss and SSA agebased benefits attributable to federal service for the same period.9 The information provided by
SSA established that appellant received age-based SSA benefits that were attributable to federal
service during the period January 1, 2014 through March 2, 2019. Consequently, the fact of
overpayment has been established.10
To determine the amount of the overpayment, the portion of age-related SSA retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to the specific amount of age-related SSA retirement
benefits. The SSA provided the SSA rate with FERS, and without FERS for specific periods
commencing January 1, 2014 through March 2, 2019. OWCP provided its calculations for each
relevant period based on the SSA worksheet. No contrary evidence was provided.

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007).

7

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

8

T.B., Docket No. 18-1449 (issued March 19, 2019).

9

See E.K., Docket No. 18-0587 (issued October 1, 2018).

10

L.M., Docket No. 19-1197 (issued January 8, 2020).

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The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period January 1, 2014 through March 2, 2019 and finds that an overpayment of compensation in
the amount of $15,652.19 was created.11
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.12
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.13
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary 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 the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.14 Additionally 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 in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.15
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. The information is also used to
determine the repayment schedule, if necessary.16 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished.17

11

See D.C., Docket No. 17-0559 (issued June 21, 2018).

12

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
13

See Robert Atchison, 41 ECAB 83, 87 (1989).

14
20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
15

Id. at § 10.437(a)(b).

16

Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

17

Id. at § 10.438(b).

5

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $15,652.19
overpayment of compensation.18
The fact that a claimant is without fault in creating an overpayment does not preclude
OWCP from recovering the overpayment.19 Even though OWCP found appellant without fault in
the creation of the overpayment, waiver must be considered, and repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience.20 Appellant, however, had the responsibility to provide the appropriate
financial information to OWCP.21
In its preliminary determination dated March 29, 2019, OWCP clearly explained the
importance of providing the completed overpayment questionnaire and financial information,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. It advised appellant that it would deny waiver of recovery
of the overpayment if he failed to furnish the requested financial information within 30 days.
While appellant submitted a completed Form OWCP-20, he did not provide the necessary financial
documentation supporting his claimed income and expenses. As a result, OWCP did not have the
necessary information to determine whether recovery of the overpayment would defeat the purpose
of FECA or whether recovery would be against equity and good conscience.22 It, therefore, waiver
of recovery of the overpayment.
Appellant has submitted no evidence that he had relied upon the incorrect payments to his
detriment or that he would experience severe financial hardship attempting to repay the debt.23
Consequently, as he did not submit the information required under section 10.438 of OWCP’s
regulations, which was necessary to determine his eligibility for waiver, OWCP properly denied
waiver of recovery of the overpayment.24

18

A.C., Docket No. 18-1550 (issued February 21, 2019).

19

See D.H., Docket No. 19-0384 (issued August 12, 2019): V.H., Docket No. 18-1124 (issued January 16, 2019).

20

20 C.F.R. § 10.436.

21

Id. at § 10.438; see N.J., Docket No. 19-1170 (issued January 10, 2020).

22

G.G., Docket No. 19-0684 (issued December 23, 2019).

23

See V.T., Docket No. 18-0628 (issued October 25, 2018).

24
With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where OWCP
seeks recovery from continuing compensation benefits. B.W., Docket No. 18-1412 (issued February 8, 2019). As
appellant was not in receipt of continuing compensation at the time of OWCP’s final overpayment decision, the Board
does not have jurisdiction over the method of recovery of the overpayment in this case.

6

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$15,652.19 for the period January 1, 2014 through March 2, 2019. The Board further finds that
OWCP properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the May 23, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 4, 2020
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Philadelphia, PA,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1388
Issued: March 17, 2017

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 June 23, 2016 appellant, through counsel, filed a timely appeal from a March 23,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established more than seven percent right upper
extremity permanent impairment for which she previously received a schedule award.
FACTUAL HISTORY
On August 13, 2013 appellant, then a 50-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on July 31, 2013 she sustained injuries to her right hand and
fingers while in the performance of duty. She alleged that she was attempting to separate two
containers and one fell on her right hand and fingers. OWCP accepted the claim for closed distal
tuft fracture of the right index finger. Appellant stopped working on July 31, 2013.
On April 23, 2015 appellant submitted a claim for compensation (Form CA-7) and
indicated that she was claiming a schedule award. She submitted a January 29, 2015 report from
Dr. Nicholas Diamond, an osteopath, in support of her claim. Dr. Diamond provided a history
and results on examination, including range of motion (ROM) for the right fingers. Based on
loss of ROM in the right index, long, and ring fingers, he opined that appellant had 15 percent
right upper extremity permanent impairment based on the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment.
OWCP referred appellant for a second opinion examination with Dr. Robert Smith, a
Board-certified orthopedic surgeon. In a report dated April 25, 2014, Dr. Smith opined that
appellant could return to full-duty work as a mail handler. Appellant returned to work and
received wage-loss compensation through May 16, 2014.
OWCP referred the relevant evidence to an OWCP medical adviser. In a report dated
July 8, 2015, the medical adviser, Dr. Arnold Berman, a Board-certified orthopedic surgeon,
opined that appellant had seven percent right upper extremity permanent impairment. He found
that the diagnosis-based impairment (DBI) methodology was proper in this case and that
Dr. Diamond had included digits that were not accepted as employment related. Dr. Berman
applied Table 15-2, the digit regional grid, and indicated that appellant had 39 percent right
index finger permanent impairment. He concluded that under Table 15-11 this resulted in seven
percent right upper extremity permanent impairment.
By decision dated October 21, 2015, OWCP issued a schedule award for 22.74 weeks of
compensation commencing January 29, 2015. It described the permanent impairment as “Hand
(Right) [eight percent], 1st Finger (Right) [seven percent].”
On November 4, 2015 appellant, through counsel, requested a hearing before an OWCP
hearing representative. A hearing was held on February 17, 2016. Counsel argued that
Dr. Diamond represented the weight of the medical evidence, or in the alternative, that a conflict
between Dr. Diamond and Dr. Berman had been created.
By decision dated March 23, 2016, the hearing representative modified the October 21,
2015 decision to reflect seven percent right upper extremity permanent impairment, for 21.84
weeks of compensation. He found the DBI evaluation method was proper, as a rating based on

2

loss of ROM was appropriate only when no other approach was available. Dr. Berman was
found to represent the weight of the medical evidence.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.3 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.4 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.5
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled, “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).6 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.7
ANALYSIS
The issue on appeal is whether appellant has more than seven percent right upper
extremity permanent impairment. Appellant submitted a January 29, 2015 report from
Dr. Diamond opining that he had 15 percent right upper extremity permanent impairment based
on the loss of ROM methodology for the evaluation of permanent impairment. An OWCP
medical adviser, Dr. Berman, opined that appellant had seven percent right upper extremity
permanent impairment, using the DBI methodology.
3

See 20 C.F.R. §§ 1.1-1.4.

4

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
5

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
7

Isidoro Rivera, 12 ECAB 348 (1961).

3

The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.8
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.9 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.10
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the March 23, 2016
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision with respect to an upper
extremity permanent impairment.

8

T.H., Docket No. 14-0943 (issued November 25, 2016).

9

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

10

Supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 23, 2016 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: March 17, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., daughter of M.S., Power of Attorney for
D.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WADE PARK MEDICAL CENTER,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 10-1147
Issued: February 14, 2011

Case Submitted on the Record

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

JURISDICTION
On March 15, 2010 appellant, through her attorney, filed a timely appeal from a
February 24, 2010 merit decision of the Office of Workers’ Compensation Programs denying her
claim for death benefits.1 Pursuant to 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 the employee’s death was causally related to her accepted
employment injury.

1

Appellant, one of the employee’s daughters, filed the claim for death benefits on behalf of her disabled sister.
She has power of attorney for her sister for all business and legal transactions.

FACTUAL HISTORY
In 1986 the Office accepted that the employee, then a 42-year-old staff nurse, sustained
generalized anxiety disorder, irritable bowel syndrome, atrophic gastritis, psychogenic
gastrointestinal disease and hypoglycemia due to anxiety.2 It paid her compensation for total
disability beginning April 19, 1986. At the time of her death on April 21, 2008, the employee
received compensation at the three-quarters augmented rate paid to claimants with dependents as
she supported her disabled adult daughter.
On March 30, 2009 appellant, the employee’s daughter, filed a claim for death benefits
on behalf of her disabled, adult sister, for whom she had general power of attorney.3 She listed
the cause of the employee’s death as hypoglycemia.
A May 28, 2009 death certificate indicated that the cause of death was pending
investigation. A supplementary medical certification accompanying the death certificate listed
the cause of death as hypertensive atherosclerotic cardiovascular disease.
By letter dated April 29, 2009, the Office advised appellant’s representative that it had
denied the employee’s claim that she sustained hypertension due to factors of her federal
employment. It noted that the death certificate listed hypertensive atherosclerotic cardiovascular
disease as the cause of death. The Office requested additional medical information, including a
copy of the autopsy and a reasoned medical opinion relating the accepted conditions to the
employee’s death.
On May 21, 2009 appellant requested that Dr. David G. Litaker, a Board-certified
internist, review the evidence and address whether the employee’s hypoglycemia and generalized
anxiety disorder caused or contributed to her death. In a May 28, 2009 report, Dr. Litaker
advised that he had not examined the employee. He reviewed the medical evidence and the
results of laboratory tests from the Veterans Affairs Medical Center (VAMC). Dr. Litaker noted
there was no mention of an anxiety disorder or a diagnosis of atherosclerotic cardiovascular
disease in 2007 and 2008 medical reports from the VAMC. He determined that a May 14, 2002
echocardiogram showed findings “consistent with the diagnoses of hypertension of long-standing
diastolic heart failure and the immediate cause of death listed on the supplementary medical
certification.” Dr. Litaker listed the medical and psychiatric diagnoses that “may have
contributed to [the employee’s death]” as diabetes with unspecified complications,
hyperlipidemia, morbid obesity, unspecified diastolic heart failure, hypertension, borderline
personality disorder and chronic, generalized anxiety. He stated, “The severity of [the

2

The Office determined that the employee had established as compensable work factors that she had to prioritize
the needs of patients and worked in a ward that was understaffed.
3

The record contains a portion of a decision by the Social Security Administration finding appellant’s sister
disabled on and after July 22, 1999 through at least April 24, 2000.

2

employee’s] generalized anxiety disorder cannot be clearly ascertained, given the absence of
documentation on its evaluation or treatment by VA medical providers.” Dr. Litaker related:
“Hypoglycemia, resulting from use of medications used to treat diabetes mellitus
may have resulted in tachycardia and increased myocardial oxygen demand.
Chronic anxiety in the absence of an acute exacerbation may have contributed to
reduced heart rate variability, a risk factor for cardiovascular morbidity and
mortality. An acute exacerbation of anxiety, if present prior to death, may have
resulted in tachycardia and increased myocardial oxygen demand. In instances in
which myocardial oxygen demand is increased but myocardial oxygen supply is
limited due to atherosclerosis, myocardial infarction may ensue. It is also likely,
based on concerns raised in the medical record, that inconsistent dietary intake,
inconsistent use of diabetes and hypertension-related medications, or changes
made to the complex medical regimen by the [employee] may have increased the
probability of hypoglycemia and/or death from underlying, undiagnosed
cardiovascular disease.”
In an undated report received July 6, 2009, Kenneth Felker, Ph.D., a clinical
psychologist, related that he treated the employee from 1988 until he retired in December 2005.
He advised that the employee showed symptoms of generalized anxiety disorder throughout her
therapy and opined that her “medical diagnoses, in my opinion, were exacerbated by her
anxiety.” Dr. Felker noted that the employee had difficulty accepting her separation from the
employing establishment. He stated, “Though it is always difficult to assign a simple causation
to a death, it is my opinion that [the employee’s] medical conditions were aggravated by her
chronically-elevated anxiety and these medical conditions led to her death.” Dr. Felker indicated
that he was unable to address her condition from January 2006 onwards.
By decision dated July 15, 2009, the Office denied appellant’s claim for death benefits. It
found that the medical evidence was insufficient to establish that the employee’s accepted work
injury caused or contributed to her death.
On July 23, 2009 appellant, through her attorney, requested an oral hearing held on
December 9, 2009. She noted that her sister received disability benefits from the Social Security
Administration. The hearing representative indicated that he would confirm that the Office had
accepted the employee’s daughter as a dependent. Counsel contended that the death certificate
listed diabetes as a secondary cause of death, which was equivalent to the accepted condition of
hypoglycemia. He noted that progress reports indicated that the employee received treatment for
hypoglycemia prior to her death.
On October 19, 2009 counsel questioned whether the Office had accepted the employee’s
daughter, for whom appellant had power of attorney, as a dependent. He further noted that the
death certificate finding diabetes as a cause of death created a presumption that the death was
due to diabetes, which he equated to hypoglycemia.
In a report dated April 22, 2008, received by the Office on December 8, 2009, a coroner
determined that the cause of death was hypertensive atherosclerotic cardiovascular disease with
another condition as diabetes mellitus.

3

On December 23, 2009 Dr. Alan E. Kravitz, a Board-certified internist, reviewed the
medical evidence of record and autopsy report. He expressed amazement that the employee used
“oral agents for diabetes II along with beta blockers….” Dr. Kravitz related that, while
hypertensive cardiovascular disease with cardiomegaly may “be a cause of death, the
combination of oral hypoglycemics and beta blockers is one that more likely than not in [the
employee] caused interactions. The record [is] unclear, in part stating that [she] was taking
labetalol and later stating that [she] is allergic to atenolol and metaprolol.” Dr. Kravitz
concluded, “It is my opinion that the combination of drugs as stated above played a role in her
death by causing hypoglycemia blunted by the beta blockers. This would substantially accelerate
the allowed medical condition.”
By decision dated February 24, 2010, the Office hearing representative affirmed the
July 15, 2009 decision. She found that the Office paid compensation to the employee at a
dependent rate for her adult, disabled daughter. The hearing representative determined that the
medical evidence was insufficient to show that the accepted hypoglycemia resulting from anxiety
caused or contributed to the employee’s death.
LEGAL PRECEDENT
The United States shall pay compensation for the death of an employee resulting from
personal injury sustained while in the performance of duty.4 An appellant has the burden of
proving by the weight of the reliable, probative and substantial evidence that the employee’s
death was causally related to his or her federal employment. This burden includes the necessity
of furnishing medical opinion evidence of a cause and effect relationship based on a proper
factual and medical background.5 The opinion of the physician must be one of reasonable
medical certainty and must be supported by medical rationale.6 The mere showing that an
employee was receiving compensation for total disability at the time of death does not establish
that the employee’s death was causally related to his or her federal employment.7
ANALYSIS
The Office accepted that the employee sustained generalized anxiety disorder, irritable
colon, atrophic gastritis, psychogenic gastrointestinal disease and hypoglycemia due to
employment-related anxiety. The employee died on April 21, 2008. The Office determined that
the employee’s adult disabled daughter, for whom appellant has general power of attorney,
qualified to apply for death benefits under the Federal Employees’ Compensation Act.8 In order
4

5 U.S.C. § 8102(a).

5

Viola Stanko (Charles Stanko), 56 ECAB 436 (2005).

6

L.R. (E.R.), 58 ECAB 369 (2007); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

7

Susanne W. Underwood, (Randall L. Underwood), 53 ECAB 139 (2001).

8

Section 8133 of the Act provides for compensation for the death of an employee in the performance of duty for
surviving spouses and children. 5 U.S.C. § 8133. The Act provides that a child is “one who at the time of death of
the employee is under 18 years of age or over that age and incapable of self-support, and includes stepchildren,
adopted children and posthumous children, but does not include married children.” 5 U.S.C. § 8101(9).

4

to establish entitlement to death benefits, appellant must submit rationalized medical evidence
showing that the employee’s death was causally related to her accepted employment injury.9
On May 28, 2009 Dr. Litaker noted that the medical reports and test results he reviewed
from the VAMC did not indicate that the employee received treatment for anxiety or
cardiovascular disease. He found that diabetes, hyperlipidemia, morbid obesity, diastolic heart
failure, hypertension, borderline personality disorder and chronic, generalized anxiety “may have
contributed” to the death of the employee. Dr. Litaker could not comment on the seriousness of
the employee’s anxiety disorder as there were no records from the VAMC addressing the
condition. He asserted that medications for diabetes may have caused hypoglycemia and
tachycardia and that acute anxiety “may have contributed to reduced heart rate variability, a risk
factor for cardiovascular morbidity and mortality.” Dr. Litaker’s opinion that hypoglycemia and
anxiety may have contributed to the employee’s death is speculative in nature and thus of
diminished probative value.10 Further, he did not relate the anxiety to the employee’s accepted
work injury over 20 years prior. Consequently, Dr. Litaker’s report is insufficient to meet
appellant’s burden of proof.
On July 6, 2009 Dr. Felker discussed his treatment of the employee for continued
symptoms of generalized anxiety disorder from 1988 until 2005. He opined that her anxiety
exacerbated her coexisting medical conditions which resulted in her death. Dr. Felker, however,
also asserted that he was not able to comment on the employee’s condition after January 2006,
and consequently his opinion on her death in 2008 is of diminished probative value. Further, he
did not provide any rationale for his causation finding. A mere conclusion regarding causal
relationship without supporting medical rationale is of little probative value.11
On December 23, 2009 Dr. Kravitz questioned the employee’s use of beta blockers and
oral medications for diabetes. He noted that, while the cause of death was hypertensive
cardiovascular disease with cardiomegaly, the use of oral hypoglycemics and beta blockers
accelerated her condition “by causing hypoglycemia blunted by the beta blockers.” Dr. Kravitz
did not attribute the employee’s death to the accepted condition of anxiety-related hypoglycemia
but instead to medication used for diabetes taken in conjunction with beta blockers.
Consequently, his opinion is insufficient to meet appellant’s burden of proof. Further,
Dr. Kravitz did not bolster his opinion that the employee died in part from an interaction of
medication with any objective findings.
On March 14, 2008 a coroner determined that the employee died from hypertensive
atherosclerotic cardiovascular disease with another condition as diabetes mellitus. The Office
did not accept diabetes as an accepted condition but rather anxiety-related hypoglycemia.
Appellant has not submitted a medical report from a physician who provides an accurate history
of the employee’s work injury, addresses the cause of death on April 21, 2008 and explains with
9

Jacqueline Brasch (Ronald Brasch), supra note 6.

10

Rickey S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need
not be one of absolute medical certainty, the opinion must not be speculative or equivocal; the opinion should be
expressed in terms of a reasonable degree of medical certainty).
11

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009).

5

sound medical reasoning how the injury contributed to the death. Consequently, she has not met
her burden of proof.12
CONCLUSION
The Board finds that the employee’s death is not causally related to her accepted
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 24, 2010 is affirmed.
Issued: February 14, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

Jacqueline Brasch (Ronald Brasch), supra note 6.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 19-0821
Issued: September 12, 2019

Case Submitted on the Record

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

JURISDICTION
On March 7, 2019 appellant filed a timely appeal from a September 13, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 13, 2018 decision, OWCP received additional evidence. The
Board also received additional evidence on appeal. However, the Board’s Rules of Procedure provides: The Board’s
review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision.
Evidence not before OWCP will not be considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On December 28, 2017 appellant, then a 56-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging swelling and pain in her left knee, as well as pain in her lower
back and hip caused by putting more weight on her left side due to factors of her federal
employment. She related that she placed more weight on her left side to alleviate the pain she was
experiencing in her right knee. Appellant noted that she first became aware of her condition and
realized its relation to her federal employment on December 18, 2017. In a narrative statement of
even date, she attributed her pain to standing and casing mail, walking for long periods of time,
and twisting and turning for up to four hours a day. Appellant did not stop work.
In a development letter dated January 17, 2018, OWCP notified appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence necessary to
establish her claim and afforded her 30 days to submit the necessary evidence.
By decision dated February 26, 2018, OWCP denied appellant’s occupational disease
claim finding that she had not submitted medical evidence containing a medical diagnosis in
connection with her injuries.
On March 21, 2018 OWCP received a February 21, 2018 letter from Dr. Nilda Durany,
Board-certified in family medicine. Dr. Durany noted spasms, tenderness, pain, and edema of
appellant’s lumbar spine as well as pain and limited range of motion in her left hip, knee and ankle.
Based on x-rays taken on January 25, 2018 she diagnosed lumbosacral disc degeneration, other
spondylosis with radiculopathy of the lumbar region, unilateral primary osteoarthritis of the left
hip, lumbar radiculopathy, as well as sprains of the left knee and left ankle. Dr. Durany opined
that appellant’s lumbosacral disc degeneration, lumbar osteoarthritis, and left hip osteoarthritis
were caused by her repetitive bending, rotating and twisting her lumbar spine every day for 32
years to case mail while working for the employing establishment. She also noted that appellant’s
lumbosacral disc degeneration and lumbar osteoarthritis were exacerbated and permanently
aggravated on December 18, 2017 causing her lower back and left hip pain and radiculopathy
radiating down her left leg into her left foot.
On April 4, 2018 appellant sought treatment with Dr. Casimir Starsiak, a Board-certified
orthopedic surgeon. Dr. Starsiak noted swelling in her leg and indicated that x-rays of her right
knee revealed severe patellofemoral arthritis and severe medical compartment narrowing with
lateral compartment arthritis. He diagnosed right knee arthritis and recommended a total knee
arthroplasty.
On May 17, 2018 appellant requested reconsideration utilizing the appeal request form
accompanying OWCP’s February 26, 2018 decision.
By decision dated August 15, 2018, OWCP modified its prior decision finding that the
medical evidence of record established diagnosed conditions. However, the claim remained
denied because the medical evidence was insufficient to establish that appellant’s diagnosed
conditions were causally related to the accepted employment duties.

2

On August 28, 2018 appellant again requested reconsideration. In support of her request
for reconsideration she explained in a statement dated August 23, 2018 that she was submitting
additional information to address some of the questions raised as well as providing some
information she believed was already of record, but not referenced in the prior decisions.
Appellant noted that she had been employed by the employing establishment for over 32 years and
the repetitive motions of twisting, turning, bending, and stooping had exacerbated and permanently
aggravated the osteoarthritis in her knee, hip, and lower back, as well as spinal disc degeneration.
By decision dated September 13, 2018, OWCP denied appellant’s request for
reconsideration of the merits of her claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under 5 U.S.C. § 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought.4 If it chooses to grant reconsideration, it reopens and reviews
the case on its merits.5 If the request is timely, but fails to meet at least one of the requirements
for reconsideration, OWCP will deny the request for reconsideration without reopening the case
for review on the merits.6
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In her reconsideration request appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, nor did she advance a new and relevant legal argument not
previously considered. Accordingly, she is not entitled to a review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(3).
Furthermore, appellant failed to submit any new evidence in support of her request for
reconsideration, rather she referenced medical evidence already of record. Therefore, OWCP was
not required to reopen her claim for reconsideration of the merits in accordance with the third

3
20 C.F.R. § 10.608(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
4

Id. at § 10.607(a).

5

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

6

Id. at § 10.608(b); H.H., supra note 3; E.R., Docket No. 09-1655 (issued March 18, 2010).

3

above-noted requirement under section 10.606(b)(3).7 Pursuant to 20 C.F.R. § 10.608, OWCP
properly denied merit review.8
CONCLUSION
The Board finds that OWCP properly denied her request for reconsideration of the merits
of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 12, 2019
Washington, DC

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

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

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

7

C.R., Docket No. 18-1569 (issued March 7, 2019); R.L., Docket No. 18-0175 (issued September 5, 2018).

8

C.C., Docket No. 18-0316 (issued March 14, 2019); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630
(2006) (when an application for reconsideration does not meet at least one of the three requirements enumerated under
section 10.606(b), OWCP will deny the application for reconsideration without reopening the case for a review on the
merits).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.O., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 16-1516
Issued: August 28, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 19, 2016 appellant, through counsel, filed a timely appeal from a May 31, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a right shoulder injury
as a consequence of his accepted left elbow injury.

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.

FACTUAL HISTORY
This case was previously before the Board.3 On November 1, 2004 appellant, then a
37-year-old correctional officer, injured his left upper extremity pushing and pulling food carts.
OWCP initially accepted his traumatic injury claim (Form CA-1) for left elbow strain. Appellant
underwent left elbow surgery on July 16, 2008 and again on February 17, 2009. OWCP
accepted a recurrence of disability with respect to the latter surgery, and on April 30, 2010, it
expanded his claim to include left elbow loose bodies and left cubital tunnel syndrome (ulnar
nerve lesion). On June 7, 2010 appellant underwent left elbow cubital tunnel release and anterior
transposition, which OWCP authorized.4
In late November 2011, appellant reportedly aggravated his left elbow and injured his
right shoulder when he fell while performing physical therapy exercises at home. He submitted a
March 22, 2012 narrative statement indicating that on November 25, 2011 at approximately
6:00 p.m. he was at home in the kitchen “performing the physical therapy prescribed counter top
push-ups exercise” on a stationary table. Appellant attached an illustration of a “PUSH UP
PLUS” exercise routine and stated that the “immediate effects following the fall while doing the
counter top push-ups exercise included left elbow pain, excruciating right shoulder pain, [and]
soreness in [his] right bicep and left elbow.”
By decision dated April 30, 2012, OWCP denied appellant’s claim for a right shoulder
consequential injury. Appellant requested review by a hearing representative. In an October 19,
2012 decision, a representative of OWCP’s Branch of Hearings and Review affirmed the
April 30, 2012 decision. Appellant requested reconsiderations.
Appellant requested a schedule award. In a January 14, 2014 decision, OWCP granted
eight percent permanent impairment of the left upper extremity.
In a January 23, 2014 decision, OWCP denied modification of its October 19, 2012
decision regarding appellant’s claimed right shoulder consequential injury. Appellant appealed
the January 14 and 23, 2014 decisions to the Board.
By decision dated November 10, 2014, the Board affirmed the January 14, 2014 schedule
award decision and set aside the January 23, 2014 decision regarding appellant’s claimed right
shoulder consequential injury. With respect to the issue of consequential injury, the Board found
that his home exercise regimen was part of his treatment following surgery for left cubital tunnel
release. The Board remanded the case for further evidentiary development regarding the issue of
whether appellant sustained an “employment-related right shoulder injury during approved at
3

Docket No. 14-0835 (issued November 10, 2014).

4

Beginning June 7, 2010, OWCP paid appellant wage-loss compensation for temporary total disability. It placed
him on the periodic compensation rolls effective November 21, 2010. Because the employing establishment was
unable to accommodate appellant’s left upper extremity restrictions, OWCP referred him to vocational
rehabilitation. Effective December 16, 2012, OWCP reduced his wage-loss compensation based on his ability to
earn weekly wages of $360.00 in the constructed position of user support analyst. The December 13, 2012 loss of
wage-earning capacity determination was subsequently affirmed by the Branch of Hearings and Review on
April 3, 2013. Effective June 29, 2013, appellant elected to receive benefits from the Office of Personnel
Management. As such, OWCP terminated his FECA wage-loss compensation.

2

home physical therapy sessions, which included the performance of counter top push-up
exercises.” The facts and circumstances of the case, as set forth in the Board’s prior decision, are
incorporated herein by reference.
On remand, OWCP sent a letter dated December 31, 2014 to appellant’s treating
physician Dr. Hannah H. Kim, an occupational medicine specialist, requesting a supplemental
report in order to address the issue of whether self-guided push-ups as described by appellant
were part of the physical therapy regimen for his accepted left arm conditions and, if so, how
push-ups benefited an upper arm condition post three surgical interventions. It further requested
a rationalized medical opinion regarding which right shoulder diagnosis should be accepted as
consequential to the accepted injuries. Dr. Kim did not respond.
By decision dated July 8, 2015, OWCP denied appellant’s claim for a consequential
injury finding that the medical evidence of record was insufficient to establish that his right
shoulder condition was a consequence of his accepted left elbow injury.
On July 15, 2015 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. A telephonic hearing was held on March 15, 2016. Appellant
provided testimony and the hearing representative held the case record open for 30 days for the
submission of additional evidence.
In response, appellant submitted a March 31, 2016 report from Dr. Jacob E. Tauber, a
Board-certified orthopedic surgeon, who noted that appellant had undergone physical therapy in
November 2011 for his left elbow and he injured his right shoulder while performing counter top
push-ups as part of the recuperative therapy. Dr. Tauber reported that appellant was
experiencing frequent pain in his right shoulder and arm. He diagnosed status post left elbow
surgery with consequential right shoulder injury with right shoulder subscapularis tendon tear
and biceps tendon subluxation. Dr. Tauber found that appellant’s self-guided push-ups were
verified by treating physicians at Kaiser Permanente as being part of his postoperative exercise
regimen. He opined that appellant’s right shoulder injury was consequential to his left upper
extremity conditions.
By decision dated May 31, 2016, OWCP’s hearing representative affirmed the prior
decision. She found that the evidence of record did not support that the therapy/shoulder
exercises were medically directed or monitored at the time of the claimed consequential injury.
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employees own intentional conduct.5
A claimant bears the burden of proof to establish a claim for a consequential injury. As part of
this burden, he or she must present rationalized medical opinion evidence, based on a complete
factual and medical background, showing causal relationship.6 Rationalized medical evidence is
5

See S.S., 59 ECAB 315 (2008).

6

See Charles W. Downey, 54 ECAB 421 (2003).

3

evidence which relates a work incident or factors of employment to a claimant’s condition, with
stated reasons of a physician. The opinion must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship of the diagnosed
condition and the specific employment factors or employment injury.7
ANALYSIS
The Board finds that this case is not in posture for decision and must be remanded for
further development.
OWCP accepted appellant’s November 1, 2004 traumatic injury for left elbow strain, left
elbow loose bodies, and left cubital tunnel syndrome (ulnar nerve lesion). Appellant underwent
several left elbow surgical procedures, including a June 7, 2010 cubital tunnel release, and
anterior transposition, which OWCP authorized. He claimed that on November 25, 2011 at
approximately 6:00 p.m. he was at home in the kitchen “performing the physical therapy
prescribed counter top push-ups exercise” on a stationary table, when he fell and injured his right
shoulder. In its November 10, 2014 decision, the Board remanded the case to OWCP for further
evidentiary development regarding the issue of whether appellant sustained an employmentrelated right shoulder injury during approved at home physical therapy sessions, which included
the performance of counter top push-up exercises.
OWCP sent a December 31, 2014 letter to Dr. Kim, appellant’s treating physician,
requesting a supplemental report in order to address the issue of whether self-guided push-ups as
described by appellant were part of the physical therapy regimen for his accepted left arm
conditions and, if so, how push-ups benefited an upper arm condition post three surgical
interventions. It further requested a rationalized medical opinion regarding which right shoulder
diagnosis should be accepted as consequential to the accepted injury. Dr. Kim did not respond.
Thereafter, appellant submitted a March 31, 2016 report from Dr. Tauber who asserted
that appellant was undergoing physical therapy in November 2011 for his left elbow area when
he injured his right shoulder area while performing counter top push-ups as part of the therapy.
Dr. Tauber reported that appellant was experiencing frequent pain in his right shoulder and arm
and diagnosed status post left elbow surgery with consequential right shoulder injury with right
shoulder subscapularis tendon tear and biceps tendon subluxation. He found that appellant’s
self-guided push-ups were verified by treating physicians at Kaiser Permanente as being part of
his postoperative exercise regimen and opined that his right shoulder injury was consequential to
his left upper extremity conditions.
Once OWCP undertakes development of the record it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.8 It failed to develop
the evidence as instructed by the Board. When Dr. Kim failed to respond to request for her
opinion, appellant was not referred to a second opinion physician for an examination to
7

Id.

8

See Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, claiming as executrix of the estate of
Lionel F. Richard, 53 ECAB 430 (2002); William J. Cantrell, 34 ECAB 1233 (1993); Dorothy L. Sidwell, 36 ECAB
699 (1985).

4

determine whether he sustained a right shoulder injury as a consequence of physical therapy for
his accepted left elbow injury.9
For these reasons, the May 31, 2016 decision will be set aside and the case remanded to
OWCP to refer appellant to an appropriate Board-certified specialist for a second opinion
regarding whether he sustained an employment-related right shoulder injury during approved at
home physical therapy sessions, which included the performance of counter top push-up
exercises. Following such development as OWCP deems necessary, it shall issue an appropriate
merit decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 31, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded for further development
consistent with this decision.
Issued: August 28, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.7(e) (September 2010); J.G., Docket No. 09-1714 (issued April 7, 2010). If a reply is not received from the
treating physician within the specified time frame (usually 30 to 45 days), or if the reply is equivocal, OWCP should
consider a second opinion. Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Atlanta, GA,
Employer
__________________________________________

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

Docket No. 18-1342
Issued: February 26, 2019

Case Submitted on the Record

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

JURISDICTION
On June 28, 2018 appellant filed a timely appeal from a March 29, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish total disability from
work on October 26, 2017 due to her employment-related right shoulder condition.
FACTUAL HISTORY
On July 28, 2017 appellant, then a 52-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that, on July 27, 2017, she injured her right shoulder when
1

5 U.S.C. § 8101 et seq.

lifting trays while working on a delivery bar code sorter machine. She did not stop work. OWCP
accepted her claim for right upper arm/shoulder strain on September 26, 2017.
On November 21, 2017 appellant filed a claim for compensation (Form CA-7) for
intermittent wage loss for the period October 5 through November 8, 2017. On the reverse side of
the claim form, the employing establishment noted that appellant stopped work on October 5, 2017
and returned to limited-duty work on October 8, 2017. On the attached time analysis form (Form
CA-7a), appellant claimed 1.77 hours of lost wages on October 5, 2017; 1.77 hours on October 10,
2017; 8 hours on October 26, 2017; 1.43 hours on November 2, 2017; and 1.36 hours on
November 8, 2017, for a total of 14.33 hours. She indicated that the reason for her absence was
because she “[w]ent to [d]octor.” The eight-hour request for October 26, 2017 noted a magnetic
resonance imaging (MRI) scan.
On December 5, 2017 OWCP paid compensation for a total of 4.56 hours of lost wages on
October 5, and November 2 and 8, 2017. It subsequently paid compensation for 1.77 hours of
wage loss on October 10, 2017.
By development letter dated December 5, 2017, OWCP advised appellant that the evidence
of record was insufficient to support her claim for eight hours of lost wages on October 26, 2017
to obtain medical care.2 It explained that, as a rule, no more than four hours of compensation
should be allowed for routine medical appointments. In this instance, appellant had not submitted
any documentation to support her absence on October 26, 2017. OWCP afforded appellant 30
days to submit the requested medical documentation.
OWCP subsequently received physical therapy treatment notes for October 10, 17, 19, and
24 and November 2, 2017.
In a December 6, 2017 report, Dr. Neil J. Negrin, a Board-certified orthopedic surgeon,
related appellant’s complaints of shoulder rotator cuff pain. Examination revealed tenderness in
the supraspinatus fossa and full range of motion. Dr. Negrin reported that appellant had returned
to work. He administered a corticosteroid injection and advised her to follow-up in two months.
Dr. Negrin also completed a duty status form report (Form CA-17) which described appellant’s
work restrictions.3
By decision dated January 3, 2018, OWCP denied appellant’s claim for eight hours of lost
wages on October 26, 2017. It found that the medical evidence of record was insufficient to
establish that she sought treatment on that date or that she was otherwise disabled from work on
October 26, 2017. OWCP noted that neither the physical therapy treatment records, nor
Dr. Negrin’s December 6, 2017 report mentioned any treatment on October 26, 2017.
On February 12, 2018 appellant requested reconsideration.

2

OWCP also requested documentation to support her claimed wage loss on October 10, 2017. It subsequently paid
appellant for 1.77 hours of wage loss on October 10, 2017.
3

Appellant subsequently claimed eight hours of lost wages on December 6, 2017, which OWCP approved.

2

OWCP received an October 25, 2017 initial evaluation report by Dr. Negrin, who provided
examination findings and noted a diagnosis of rotator cuff tendinitis and subacromial bursitis.
Dr. Negrin related: “Patient will remain off for the rest of the day and tomorrow the 26th and return
to work on the 27th.” He administered a corticosteroid injection, which provided “complete relief
of [appellant’s] pain.” Dr. Negrin advised that she continue with physical therapy and return for
follow-up in two weeks.
In reports dated February 7 and 28, 2018, Dr. Negrin reevaluated appellant for right
shoulder pain. He provided examination findings and reported diagnoses of resolved rotator cuff
tendinitis, resolving subacromial bursitis, and acromioclavicular (AC) joint synovitis. In a
February 28, 2018 report, Dr. Negrin indicated that appellant was able to return to work without
restrictions.
By decision dated March 29, 2018, OWCP denied modification of the January 3, 2018
decision. It found that, although Dr. Negrin had taken appellant off work, he did not sufficiently
explain how appellant was disabled from performing her light-duty assignment on
October 26, 2017.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence.5 For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.6 Whether a
particular injury causes an employee to become disabled from work, and the duration of that
disability, are medical issues that must be proven by a preponderance of probative and reliable
medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.9 When, however, the medical evidence establishes that the residuals or sequelae of an

4

Id.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

Dominic M. Descaled, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-09 (1982).

7

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
8

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999).

9

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

3

employment injury are such that, from a medical standpoint, prevent the employee from continuing
in his or her employment, he or she is entitled to compensation for any loss of wages.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish total disability
from work on October 26, 2017 due to her employment-related right shoulder condition.
Appellant alleged on the Form CA-7a that she was disabled from work on October 26,
2017 due to a doctor’s appointment, which included an MRI scan. There is, however, no medical
evidence submitted to establish that appellant had a medical appointment on the claimed date.11
Furthermore, the medical evidence of record does not establish that appellant was disabled
from work on October 26, 2017 as a result of her accepted July 27, 2017 employment injury.12
The only medical evidence which addressed the claimed date of disability was a report dated
October 25, 2017 by Dr. Negrin who conducted an examination and noted a diagnosis of rotator
cuff tendinitis and subacromial bursitis. Dr. Negrin also administered a corticosteroid injection,
which provided “complete relief of [appellant’s] pain.” He recommended that appellant be off
work for the rest of that date and the following date, October 26, 2017. Although Dr. Negrin
excused her from work on October 26, 2017, he did not explain why she was unable to work as a
result of her accepted right arm injury.13 He did not rely on any objective findings or provide any
medical rationale for how appellant’s accepted right arm injury had worsened to the extent that
she was disabled from work on the claimed date. This report, therefore, is of diminished probative
value and is insufficient to establish her disability claim.14
As noted above, appellant has the burden of proof to establish by the weight of the
substantial, reliable, and probative evidence a causal relationship between her claimed disability
on October 26, 2017 and the accepted July 27, 2017 employment injury.15 The reports of her
physician do not provide a rationalized medical opinion substantiating that appellant was disabled
from work on October 26, 2017 due to her accepted right arm injury. Accordingly, the Board finds
that the medical evidence submitted is insufficient to meet appellant’s burden of proof.16

10

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

11

In order to establish entitlement to compensation for any time missed from work due to medical treatment for an
employment-related condition, a claimant must submit supporting medical evidence. Dorothy J. Bell, 47 ECAB 624
(1996); Zane H. Cassell, 32 ECAB 1537 (1981).
12

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180, 182 (1948).

13

See M.M., Docket No. 16-0541 (issued April 27, 2010).

14

S.B., Docket No. 13-1162 (issued December 12, 2013).

15

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); see also Amelia S. Jefferson, 57 ECAB 183 (2005).

16

Alfredo Rodriguez, 47 ECAB 437 (1996).

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 total disability
from work on October 26, 2017 due to her employment-related right shoulder condition.
ORDER
IT IS HEREBY ORDERED THAT the March 29, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 26, 2019
Washington, DC

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

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

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

5