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

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Appearances:
Frank Pullano, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1703
Issued: June 26, 2018

Case Submitted on the Record

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

JURISDICTION
On August 2, 2017 appellant, through her representative, filed a timely appeal from a
June 16, 2017 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.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of wage-loss compensation in the amount of $49,073.13 for the periods June 13
through October 31, 2009 and July 1, 2010 through November 30, 2015; (2) whether OWCP
properly found that she was at fault in the creation of the overpayment from June 13 through
August 5, 2009 and July 21, 2011 through November 30, 2015; (3) whether OWCP properly
denied waiver of recovery of the overpayment from August 6, 2009 to July 20, 2011; and
(4) whether it properly found that it would recover the overpayment by deducting $360.00 from
appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On May 7, 2009 appellant, then a 67-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on April 27, 2009 she sustained bilateral knee contusions and cervical
strain when she tripped and fell while in the performance of duty. She stopped work on
April 27, 2009. OWCP accepted the claim, assigned OWCP File No. xxxxxx739, for neck sprain,
bilateral knee contusions, and bilateral knee and leg sprains.3
On June 26, 2009 appellant submitted a claim for compensation (Form CA-7) requesting
wage-loss compensation from April 27 to July 11, 2009. On the form, she indicated that she had
not applied for and did not receive a payment under federal retirement or disability law. The
employing establishment advised that appellant’s retirement system was the Federal Employees
Retirement System (FERS). On July 13, 2009 OWCP paid appellant wage-loss compensation for
total disability from June 13 through July 11, 2009.
Appellant, on July 17, 2009, filed a CA-7 form requesting wage-loss compensation from
July 12 to August 7, 2009. She again indicated that she had not applied for or received payments
under federal retirement or disability law. On July 23, 2009 OWCP paid appellant wage-loss
compensation from July 12 through August 1, 2009. By letter dated August 3, 2009, it notified
her that she would receive wage-loss compensation for disability on the periodic rolls effective
August 2, 2009. OWCP advised appellant to report any retirement income received from any
federal agency.
Appellant notified OWCP by telephone on August 6, 2009 that she was receiving benefits
from the Social Security Administration (SSA).
The employing establishment, on May 24, 2010, related that on October 31, 2010 appellant
received a separation incentive of $10,000.00 to voluntarily retire early. She received a second
payment of $5,000.00 on October 29, 2010.

OWCP previously accepted appellant’s December 1994 occupational disease claim, assigned OWCP File No.
xxxxxx062, for bilateral carpal tunnel syndrome, bilateral epicondylitis, bilateral trigger thumbs, and bilateral shoulder
impingement syndrome. It granted her a schedule award for 36 percent permanent impairment of each upper extremity
under OWCP File No. xxxxxx062.
3

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On July 15, 2010 appellant signed a Form EN1032 covering the period April 15, 2009 to
July 15, 2010. She provided on the form that the Office of Personnel Management (OPM) had
assigned her a Civil Service Annuity (CSA) number and that she received a regular retirement
check. Appellant, in a handwritten note, related that she telephoned SSA about her benefits and
was told that she “was supposed to receive them.” She advised on the form that she did not receive
benefits from SSA as part of an annuity due to federal service.
Appellant signed EN1032 forms on July 21, 2011, August 27, 2012, July 27, 2013,
September 21, 2014, and August 17, 2015. She indicated on the forms that she did not receive
benefits from SSA as part of an annuity for federal service. In the August 17, 2015 EN1032,
appellant provided that she received retirement benefits from OPM, but advised that she did not
receive benefits from SSA as part of an annuity for federal service.
OWCP, on September 1, 2015, requested that SSA complete a FERS/SSA Dual Benefit
Calculation Form. In a November 2, 2015 response, SSA provided appellant’s SSA rate with
FERS and her SSA rate without FERS from May 2006 through December 2014. With FERS,
appellant’s SSA rate was $887.30 effective December 2008, $934.30 effective December 2009,
$963.90 effective December 2010, $1,003.00 effective December 2011, $1,020.00 effective
December 2012, $1,035.30 effective December 2013, and $1,052.90 effective December 2014.
Without FERS, her SSA rate was $334.60 effective December 2008 through December 2010,
$346.60 effective December 2011, $352.40 effective December 2012, $357.60 effective
December 2013, and $363.60 effective December 2014.
By letter dated February 4, 2016, OWCP advised appellant that she had received agerelated SSA benefits beginning May 1, 2006 and that a portion of the benefits were due to her
federal service and needed to be offset from her FECA benefits. It notified her that it was adjusting
her compensation to reflect the offset. OWCP informed appellant that it would provide a separate
finding regarding any overpayment of compensation. In a February 2, 2016 payment plate, it
adjusted her compensation to reflect the offset for SSA benefits due to federal service effective
January 10, 2016.
On an EN1032 form signed August 22, 2016 and received by OWCP on August 31, 2016,
appellant indicated that she received benefits from SSA as part of an annuity for federal service.
OWCP calculated the amount of wage-loss compensation appellant should have received
from June 1, 2009 through November 30, 2015 with a FERS offset to find an overpayment amount
of $50,944.87.
On January 23, 2017 OWCP advised appellant of its preliminary determination that she
received an overpayment of wage-loss compensation in the amount of $50,944.87 for the period
June 13, 2009 to January 9, 2016 because it failed to deduce the portion of the SSA benefits that
she received due to her federal service from her workers’ compensation benefits.4 It further
advised her of its preliminary determination that she was at fault in the creation of the overpayment
as she made an incorrect statement as to a material fact and failed to provide information that she
4
The January 23, 2017 preliminary notice of overpayment superseded a December 16, 2016 preliminary notice of
overpayment finding that appellant was without fault in the creation of the overpayment.

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knew or should have known to be material. OWCP requested that appellant complete the enclosed
overpayment recovery questionnaire and submit supporting financial documents. Additionally,
OWCP notified her that, within 30 days of the date of the letter, she could request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing.
Appellant, on February 12, 2017, requested a prerecoupment hearing before an OWCP
hearing representative. She maintained that she was without fault in creating the overpayment.
Appellant related that she was already receiving SSA benefits before she began receiving workers’
compensation benefits and that the employing establishment was aware of her receipt of SSA
benefits. In an accompanying overpayment recovery questionnaire, she listed monthly income of
$3,918.24 and provided monthly expenses, noting that the total amount differed each month.
Appellant indicated that she had assets of $10.00.
On April 4, 2017 OWCP noted that it was deducing health benefits under an inaccurate
plan as appellant had no dependents. It indicated that she had an underpayment of $15,293.03 as
it failed to properly adjust her health benefits.
Appellant’s representative, on April 25, 2017, submitted information regarding SSA
annuities. He further provided a list of her monthly expenses totaling $4,703.05 per month.
Appellant listed expenses of $1,428.13 for her mortgage, $172.02 for Dish television, $145.01 for
car insurance, $54.28 every three months for water, $47.16 for her home telephone, $116.00 for
lawn care, $559.95 for a car payment, $54.00 for garbage collection, $304.76 in credit card
expenses, $40.00 for a mobile telephone, $300.00 for household goods, $69.42 for gas utility,
which she indicated was high in winter, for a shot, $71.68 for electricity, which was higher in
summer, $100.00 for medication, $700.00 for food necessary for a special diet, $100.00 for
gasoline, $280.00 for a shot, and $60.00 for dog food plus other yearly pet expenses. Appellant
also noted that she paid $70.00 every three months for oil changes, $150.00 yearly for furnace
inspections, $150.00 yearly for an air conditioner inspection, $20.00 for air conditioner filters, and
$20.00 every three months for filters for her automobile. She attached supporting financial
documentation.
At the hearing, held on May 8, 2017, appellant’s representative noted that appellant began
receiving benefits from SSA in August 2007. Appellant received wage-loss compensation from
OWCP beginning June 13, 2009 after an April 27, 2009 employment injury. The representative
asserted that she had not retired and thus accurately answered the question on the June 26, 2009
claim for compensation and the EN1032 forms regarding whether she received a retirement check.
He advised that on the forms appellant related that she did not receive benefits as part of an annuity
which he contended differed from indicating that she did not receive any SSA benefits. The
representative noted that on the July 15, 2010 EN1032 form appellant acknowledged that she
received benefits from SSA. He maintained that OWCP obtained information regarding her
earnings on July 19, 2010 and July 7, 2011 showing that she received SSA benefits. Appellant’s
representative indicated that her dog had died. Appellant began working in federal employment
in 1993.
By decision dated June 16, 2017, OWCP’s hearing representative modified the preliminary
overpayment determination to reflect that appellant received an overpayment of compensation in
the amount of $49,073.13 for the period June 13 to October 31, 2009 and February 10, 2010

4

through November 30, 2015. He noted that OWCP had calculated the overpayment from June 13,
2009 until November 2, 2015, but mistakenly indicated in its preliminary overpayment
determination that the period of overpayment was from June 13, 2009 through January 9, 2016
rather than through the correct date of November 30, 2015. The hearing representative adjusted
the ending date of the overpayment accordingly. He further found that appellant was not entitled
to compensation for wage loss from October 31, 2009 through July 1, 2010 due to her receipt of a
separation incentive from the employing establishment. The hearing representative subtracted the
amount of the offset for the period October 31, 2009 through July 1, 2010 from the overpayment
of $50,944.87 to find a new overpayment amount of $49,073.13. He affirmed the finding that she
was at fault from June 13 to August 25, 2009 as she did not report her receipt of SSA benefits on
June 26 and July 17, 2009 CA-7 forms and from July 21, 2011 through November 30, 2015
because she did not report her receipt of SSA benefits on EN1032 forms. The hearing
representative found, however, that appellant was without fault for the overpayment created from
August 6, 2009 to July 20, 2011, noting that her telephone call to OWCP on August 6, 2009 and
her disclosure on her July 15, 2011 EN1032 provided sufficient notice to OWCP of her receipt of
SSA retirement benefits. He determined that appellant was not entitled to waiver of recovery of
the overpayment after finding that the expenses for lawn care, Dish television, and an unexplained
shot were not reasonable and noting that she no longer had pet expenses. The hearing
representative found that, after removing the items that were not reasonable or necessary, her
monthly expenses totaled $3,992.21 and her monthly income totaled $4,454.82, and that she was
thus not entitled to waiver of recovery of the overpayment. He determined that the overpayment
should be recovered by deducting $390.00 per month from continuing compensation, every 28
days. The hearing representative instructed OWCP, upon return of the case record, to adjudicate
whether appellant was entitled to compensation based on its over deduction of her health care
premiums, to address any overpayment of compensation that occurred from December 1, 2015
through January 9, 2016, and to determine whether she received an overpayment due to her receipt
of severance pay for the period October 31, 2009 through February 1, 2010.
On appeal appellant relates that she disclosed her receipt of SSA benefits on her original
EN1032 form. She also asserts that OWCP’s hearing representative erred in discounting her pet
expenses as she immediately got another dog after the death of her prior dog. Appellant maintains
that the hearing representative also did not consider that her utility payments varied depending on
the weather, and that she had to pay lawn care expenses as she was unable to mow her lawn due
to her injury.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.5 Section 8129(a) of FECA provides, in pertinent part: “When an
overpayment has been made to an individual under this subchapter because of an error of fact or

5

5 U.S.C. § 8102(a).

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law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”6
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion of
SSA benefits based on age or death that are attributable to federal service.7 If an employee receives
SSA benefits based on federal service, his compensation benefits shall be reduced by the amount
of SSA benefits attributable to his federal service.
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.8 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA
will also provide a hypothetical SSA benefit computed without FERS covered earnings. OWCP
will then deduct the hypothetical benefit from the actual benefit to determine the amount of
benefits which are attributable to federal service and that amount will be deducted from FECA
benefits to obtain the amount of the overpayment.9
ANALYSIS -- ISSUE 1
OWCP’s hearing representative determined that appellant received an overpayment of
compensation in the amount of $49,073.13 for the period June 13 to October 31, 2009 and
February 2, 2010 through November 30, 2015 because she received wage-loss compensation for
total disability while also receiving SSA retirement benefits attributable to her federal service
without the appropriate offset.10 He modified the amount of the overpayment to exclude the period
October 31, 2009 to February 1, 2010.11 As noted, the portion of the SSA benefits she earned as
part of her FERS retirement package and the receipt of benefits under FECA concurrently

6

Id. at § 8129(a).

7

Id. at § 8116(d); see also N.R., Docket No. 12-1853 (issued June 10, 2013).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (January 1997); Chapter
2.1000.4(e)(2) (January 1997); Chapter 2.1000.11 (January 1997); OWCP does not require an election between FECA
benefits and SSA benefits except when they are attributable to the employee’s federal service. See R.C., Docket No.
09-2131 (issued April 2, 2010).
9

See L.B., Docket No. 11-2076 (issued August 29, 2012).

10

The hearing representative found that appellant was not entitled to compensation from October 31, 2009 through
February 1, 2010 as she was receiving a separation incentive from the employing establishment. He instructed OWCP
to calculate the overpayment created during this period.
11

The hearing representative determined the amount of time that appellant would have been ineligible for
compensation based on the receipt of her separation incentive. He then calculated the amount of the offset included
in the overpayment for the period October 31, 2009 to February 1, 2010 (part of a day), to find $1,871.74. The hearing
representative subtracted $1,871.74 from $50,944.87 to find an overpayment of $49,073.13.

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constituted a prohibited dual benefit.12 Appellant, consequently, received an overpayment of
compensation.
SSA provided appellant’s SSA rate with FERS and her hypothetical SSA rate without
FERS. The difference between the amounts must be deduced from FECA benefits. Based on the
information provided by SSA, OWCP’s hearing representative determined that she received an
overpayment of compensation in the amount of $49,073.13 for the period June 13 to October 31,
2009 and February 1, 2010 to November 30, 2015. The Board has reviewed OWCP’s calculations
of the dual benefits that appellant received and finds that it properly determined that she received
a $49,073.13 overpayment of compensation.13
LEGAL PRECEDENT -- ISSUE 2
Under OWCP regulations, waiver of the recovery of an overpayment may be considered
only if the individual to whom it was made was not at fault in accepting or creating the
overpayment.14 The fact that the overpayment was the result of error by OWCP or another
government agency does not by itself relieve the individual who received the overpayment of
liability for repayment if the individual also was at fault for receiving the overpayment.15 Each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure that
payments she received from OWCP are proper. The recipient must show good faith and exercise
a high degree of care in reporting events that may affect entitlement to or the amount of benefits.
A recipient who has done any of the following will be found to be at fault with respect to creating
an overpayment: (1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; (2) failed to provide information which he or she knew or
should have known to be material; or (3) accepted a payment which he or she knew or should have
known to be incorrect (this provision applies only to the overpaid individual).16
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in creating the overpayment as she made an
incorrect statement regarding a material fact and failed to provide material information.
OWCP’s hearing representative found that the appellant was at fault in the creation of the
overpayment from June 13 through August 5, 2009 and July 21, 2011 through
November 30, 2015. He found that she did not disclose her receipt of federal retirement benefits
on CA-7 forms dated June 26 and July 17, 2009. The hearing representative further found that

12

See H.H., Docket No. 16-1063 (issued September 15, 2016).

13

See L.M., Docket No. 16-1035 (issued November 27, 2017).

14

20 C.F.R. § 10.433(a).

15

Id. at § 10.435(a).

16

Id. at § 433(a); see Kenneth E. Rush, 51 ECAB 116 (1999).

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appellant completed EN1032 forms dated July 21, 2011 to August 22, 2016 advising that she did
not receive retirement benefits from SSA due to an annuity for federal service.
The Board finds that appellant was at fault in creating the overpayment from July 13
through August 5, 2009 and from July 21, 2011 through August 17, 2015 because she made an
incorrect statement as to a material fact which she knew or should have known to be incorrect.
The Board further finds, however, that she was without fault in the creation of the overpayment
from August 18 through November 30, 2015.
Appellant signed EN1032 forms on July 15, 2010, July 21, 2011, August 27, 2012, July 27,
2013, September 21, 2014, and August 17, 2015. The EN1032 forms cover the period
commencing 15 months prior to the signing of the form,17 and thus include the period April 15,
2009 to August 17, 2015. On these forms, appellant advised that she did not receive benefits from
SSA as part of an annuity for federal service. While appellant indicated on the July 15, 2010
EN1032 that she received a regular retirement check, and wrote that she was supposed to receive
SSA benefits, she answered “no” to the question of whether she received benefits from SSA due
to an annuity for federal employment. The Board has held that when a claimant incorrectly states
on an EN1032 form that she did not have any SSA benefits attributable to federal service, OWCP
may properly find her at fault for the period covered.18 Based on the clear language of the forms,
appellant failed to provide information which she knew or should have known to be incorrect.19
The Board thus finds that she was at fault in the creation of an overpayment of compensation from
July 13 through August 5, 2009 and from July 21, 2011 through August 17, 2015.
The Board finds, however, that appellant is without fault in the creation of the overpayment
from August 17 to November 30, 2015. In an August 22, 2016 EN1032, she disclosed her receipt
of SSA benefits based on part on her federal service. Appellant, therefore, did not make an
incorrect statement as to a material fact on the EN1032 covering the period after the last EN1032
form dated August 17, 2015 through August 22, 2016. As OWCP premised its finding of fault on
her failure to report SSA benefits on EN1032 forms for this period, the Board finds that she was
not at fault in the creation of the overpayment during this period.20
The case, consequently, will be remanded to OWCP to consider whether the overpayment
created during this period, August 17 to November 30, 2015 should be waived. In view of the
Board’s disposition of fault, it is premature to address the issues of waiver and recovery of the
overpayment.
On appeal appellant maintains that she disclosed her receipt of SSA benefits on her initial
EN1032 form. As noted by the Board, however, while she indicated on the July 15, 2010 EN1032
that she received a regular retirement check and provided a handwritten notation that she received
SSA benefits, she specifically responded on the form that she did not receive the SSA benefits as
17

See M.J., Docket No. 17-0661 (issued December 14, 2017).

18

See P.P., Docket No. 14-2048 (issued May 13, 2015); B.L., Docket No. 13-1422 (issued June 2, 2014).

19

See A.S., Docket No. 17-0606 (issued December 21, 2017).

20

See supra note 17.

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part of an annuity for federal service. As she failed to properly complete the form and provide
information which she knew or should have known to be material, she is not without fault in
creating the overpayment.21
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of wage-loss compensation in the amount of $49,073.13 for the periods June 13 to October 31,
2009 and July 1, 2010 through November 30, 2015. The Board further finds that OWCP properly
found that she was at fault in the creation of the overpayment from June 13 through August 5,
2009 and July 21, 2011 through August 17, 2015, but improperly found that she was at fault from
August 17 through November 30, 2015. The case will be remanded for OWCP to consider waiver
and recovery of the overpayment for the appropriate periods.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2017 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part and the case is remanded for
further proceedings in accordance with this decision of the Board.
Issued: June 26, 2018
Washington, DC

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

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

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

21

Id.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, VANDENBERG AIR
FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 08-2046
Issued: August 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 21, 2008 appellant, through his representative, filed a timely appeal from the
June 23, 2008 merit decision of the Office of Workers’ Compensation Programs, which denied
modification of the termination of his compensation for refusing suitable work. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation for
refusing an offer of suitable work.
FACTUAL HISTORY
On November 15, 1964 appellant, then a 35-year-old firefighter, sustained an injury in
the performance of duty while raising a 35-foot ladder and placing it on a building during a drill.
The Office accepted his claim for lumbar strain and displacement of lumbar intervertebral disc.

Appellant had surgery on October 24, 1968 for excision of the L4-5 disc and spinal fusion at
L5-S1.
On September 6, 2006 the employer offered appellant, who was living in Homosassa,
Florida, the position of supply technician at his former duty station in California. The Chief of
Workforce Effectiveness wrote: “Although you currently live in Homosassa, Florida, there are
no suitable positions available for which I have the knowledge of or authority to place you.” On
September 15, 2006 appellant stated that he was very pleased to be considered for employment at
his age (77), but for various reasons, including his desire to stay in that part of Florida, he was
not able to accept the offer.
In a decision dated March 28, 2007, the Office terminated appellant’s compensation
under 5 U.S.C. § 8106(c)(2) for refusing an offer of suitable work. It noted that the employer
“advised that they had no available positions in your commuting area” and would pay for
relocation expenses. The Office further noted that it had given appellant 30 days, and then
another 15 days, to accept the position or have his compensation terminated.
On June 23, 2008 the Office reviewed the merits of appellant’s case and denied
modification of its prior decision.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act states that a partially
disabled employee who refuses to seek suitable work, or refuses or neglects to work after
suitable work is offered to, procured by, or secured for him is not entitled to compensation.1 The
Office has authority under this section to terminate compensation for any partially disabled
employee who refuses or neglects suitable work when it is offered. Before compensation can be
terminated, however, the Office has the burden of demonstrating that the employee can work,
setting forth the specific restrictions, if any, on the employee’s ability to work, and has the
burden of establishing that a position has been offered within the employee’s work restrictions,
setting forth the specific job requirements of the position.2 In other words, to justify termination
of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, the Office has the
burden of showing that the work offered to and refused or neglected by appellant was suitable.3
Regulations implementing the Act provide that, if possible, the employer should offer
suitable reemployment in the location where the employee currently resides. If this is not
practical, the employer may offer suitable reemployment at the employee’s former duty station
or other location.4

1

5 U.S.C. § 8106(c)(2).

2

Frank J. Sell, Jr., 34 ECAB 547 (1983).

3

Glen L. Sinclair, 36 ECAB 664 (1985).

4

20 C.F.R. § 10.508 (1999).

2

In the case of Sharon L. Dean,5 the record contained no evidence that the U.S. Postal
Service in New York had made any effort to determine whether it was possible to offer the
claimant reemployment in Florida, where she currently resided. The Board held that it was
reversible error for the Office to terminate the claimant’s compensation without positive
evidence showing that reemployment in the claimant’s current location was not possible or
practical.
ANALYSIS
Appellant’s representative advances a number of arguments. As relevant to the
disposition of this appeal counsel contended that under Sharon L. Dean, it was reversible error
for the Office not to develop the issue of whether work was available to appellant in Florida.
Appellant raised the issue on September 15, 2006, when he advised the Office that he did not
want to leave that part of Florida for reemployment.
On the possibility of suitable reemployment in Florida, the only evidence is the following
sentence from the employer’s September 6, 2006 offer: “Although you currently live in
Homosassa, Florida, there are no suitable positions available for which I have the knowledge of
or authority to place you.” The employer did not state, as the Office asserted in its March 28,
2007 decision, that there were no suitable positions available. The sentence reads as though the
Chief of Workforce Effectiveness simply had no first-hand knowledge of available positions in
Florida or did not hold the authority to place appellant in any such position if they existed. This
is hardly the “positive evidence” the Board referred to in Sharon L. Dean; positive evidence
showing that suitable reemployment in Florida was not possible or practical.
It remains unclear from the record whether the employer ever looked into the availability
of suitable reemployment in Florida. The Board does not know what locations the employer
might have searched, who the employer might have contacted, what response the employer
might have received. In Sharon L. Dean, there was no evidence that the employer made any
effort to determine whether suitable reemployment was possible in Florida.
The Board finds that, under the circumstances, where appellant would have to move
across the country to accept the offer, the Office should have further developed the evidence on
whether suitable reemployment in Florida was possible. Section 8106(c)(2) is a penalty
provision, one that places a heavy burden on the Office. The penalty is more than a suspension
of benefits. It is a denial of any further compensation for wage loss and any compensation for
permanent physical impairment caused by the accepted employment injury. Prior to making any
finding that an offer of work at the claimant’s former duty station or other location is suitable,
the Office must ensure that the record contains convincing documentation that suitable
reemployment where the claimant currently resides is not possible or practical.
Because the record does not establish that suitable reemployment in Florida was not
possible or practical, the Board finds that the Office did not meet its burden to show that the
work offered to and refused by appellant was suitable. The Board will therefore reverse the
Office’s June 23, 2008 decision terminating appellant’s compensation.
5

56 ECAB 175 (2004).

3

CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation under 5 U.S.C. § 8106(c) and the implementing regulations.
ORDER
IT IS HEREBY ORDERED THAT the June 23, 2008 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 10, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Castle, PA, Employer
__________________________________________

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

Docket No. 07-2054
Issued: January 22, 2008

Case Submitted on the Record

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

JURISDICTION
On August 1, 2007 appellant filed a timely appeal from the July 6, 2007 merit decision of
the Office of Workers’ Compensation Programs, which found an overpayment. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of her case.
ISSUE
The issue is whether the Office properly denied waiver of a $1,180.17 overpayment.
FACTUAL HISTORY
On February 6, 2006 appellant, then a 56-year-old clerk, sustained an injury in the
performance of duty, which she attributed to heavy lifting and stretching. She felt a sharp,
stabbing pain in her left low back. The Office accepted appellant’s claim for lumbar sprain.
Appellant returned to work for four hours a day and received compensation for partial disability.
The Office mistakenly paid appellant compensation for total disability from March 6 to
30, 2007. On May 17, 2007 the Office made a preliminary determination that appellant received
an overpayment of $1,180.17 because she received compensation for total disability but was

entitled to compensation for only four hours per day. The Office found that she was without
fault in creating this overpayment. The Office asked appellant to submit a check for the full
amount if she agreed she was overpaid this amount but, if she was currently unable to pay the
full amount, the Office asked her to complete and submit an enclosed overpayment recovery
questionnaire so that it could determine a fair repayment method. The Office informed
appellant:
“In order for [the Office] to consider the question of waiver or to determine a
reasonable method for collection, you must complete and submit the enclosed
Form OWCP-20. Attach supporting documents to Form OWCP-20, including
copies of income tax returns, bank account statements, bills and canceled checks,
pay slips, and any other records which support the income and expenses listed.
Under 20 C.F.R. § 10.438, failure to submit the requested information within 30
days will result in the denial of waiver, and no further request for waiver shall be
considered until the requested information is furnished.”
In a decision dated July 6, 2007, the Office finalized its preliminary determination. The
Office noted that it had received no response from appellant since the preliminary determination:
“Therefore, there is no information in the file to establish whether recovery of the debt would
defeat the purpose of the [Federal Employees’ Compensation Act] or be against equity and good
conscience.” The Office instructed appellant to forward a check in the amount of $1,180.17.
Appellant appeals her having to pay back the $1,180.17 overpayment. She stated that
when she read that she was not at fault, she assumed that she did not have to fill out any of the
forms. Appellant asks the Board to reconsider “and find it was not my fault.”
LEGAL PRECEDENT
The Act places limitations on the right to receive compensation. While an employee is
receiving compensation, she may not receive salary, pay or remuneration of any type from the
United States, with certain exceptions.1 It is therefore well established that an employee is not
entitled to compensation for temporary total disability after returning to work.2 “Temporary total
disability” is defined as the inability to return to the position held at the time of injury or earn
equivalent wages or perform other gainful employment.3
When an overpayment has been made to an individual because of an error of fact or law,
the Office may consider waiving the overpayment only if the individual to whom it was made
was not at fault in accepting or creating the overpayment.4 If the Office finds that the recipient
1

5 U.S.C. § 8116(a).

2

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

20 C.F.R. § 10.400(b) (1999).

4

Id. at § 10.433(a).

2

of an overpayment was not at fault, repayment will still be required unless adjustment of benefits
or recovery of the overpayment would (1) defeat the purpose of the Act or (2) be against equity
and good conscience.5
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of the Act or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.6
Failure to submit the requested information within 30 days of the request shall result in
denial of waiver, and no further request for waiver shall be considered until the requested
information is furnished.7
ANALYSIS
Appellant does not contest the fact or amount of the overpayment. The record shows that
from March 6 to 30, 2007 the Office paid her compensation for total disability, or for eight hours
of wage loss per day, when in fact she was entitled to compensation for partial disability, or for
four hours of wage loss per day. The Office paid her $2,373.43 for this period when she was
entitled to only $1,193.26. An overpayment of $1,180.17 was thus created.
Appellant asks the Board to find that she was not at fault. The Office has already made that
finding. She was not at fault but the fact that appellant was not at fault in creating this
overpayment does not mean she automatically gets to keep money the government mistakenly paid
to her. That money does not belong to her, and by law, the Office must recover the overpayment
unless recovery would defeat the purpose of the Act or be against equity and good conscience.
The overpayment recovery questionnaire that the Office enclosed in its preliminary
determination, and that the Office asked appellant to complete and submit, is designed to obtain
the information necessary to determine whether appellant is entitled to waiver of the
overpayment on one of these two grounds. Because appellant did not complete and submit this
form, the Office had no choice but to deny waiver. Regulations are clear: Failure to submit the
requested information within 30 days of the request “shall result in denial of waiver” and the
Office may not consider any further request for waiver until appellant completes and submits the
overpayment recovery questionnaire and attaches the supporting financial documentation. The
Board will affirm the Office’s July 6, 2007 decision.
CONCLUSION
The Board finds that the Office properly denied waiver of a $1,180.17 overpayment.

5

Id. at § 10.434.

6

Id. at § 10.438(a).

7

Id. at § 10.438(b).

3

ORDER
IT IS HEREBY ORDERED THAT the July 6, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 22, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Baton Rouge, LA, Employer
__________________________________________

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

Docket No. 09-1914
Issued: March 15, 2010

Case Submitted on the Record

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

JURISDICTION
On July 21, 2009 appellant filed a timely appeal from a June 17, 2009 decision of the
Office of Workers’ Compensation Programs denying her traumatic injury claim. 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 appellant’s fall at work on March 30, 2009 was sustained in the
performance of duty.
FACTUAL HISTORY
On April 7, 2009 appellant, then a 23-year-old field inspector, filed a traumatic injury
claim alleging that on March 30, 2009 she fainted and fell on her left ankle, causing severe pain.
In a personal statement, she indicated that, when she went to stand up, she suddenly fainted and
fell on her left ankle. As appellant was too weak to get up, she was picked up by coworkers,
placed in a wheelchair and taken to the hospital.

Appellant submitted March 30, 2009 hospital discharge instructions reflecting that she
had been treated for a fainting episode and a sprained ankle. She also submitted disability slips
dated March 31 and April 7, 2009 from Dr. Thad S. Broussard, a Board-certified orthopedic
surgeon, who diagnosed acute left ankle sprain and stated that she was unable to work.
The employing establishment controverted appellant’s claim, contending that the medical
evidence did not establish a causal relationship between her employment and her fainting spell.
By letter dated April 29, 2009, the Office informed appellant that the evidence submitted
was insufficient to establish her claim. It requested additional information and evidence,
including: details surrounding the events of March 30, 2009; information regarding preexisting
conditions which may have caused or contributed to the incident; witness statements; and a
narrative report from her physician with a diagnosis and an opinion as to the relationship
between the diagnosed condition and the alleged incident.
In a March 30, 2009 report, Dr. Broussard stated that appellant had injured her left ankle
when she lost her footing and fell at work. He noted that she felt dehydrated. On examination,
there was tenderness on palpation about the left ankle, with swelling more laterally than
medially. Dr. Broussard diagnosed acute ankle sprain. In an April 2, 2009 attending physician’s
report, he stated that appellant fell and twisted her left ankle on March 30, 2009 when she fainted
at work. Dr. Broussard noted soft tissue swelling and diagnosed acute left ankle sprain. He
indicated by placing a checkmark in the “yes” box that the diagnosed condition was caused or
aggravated by her employment. The record contains follow-up notes dated April 7 and 22 and a
May 13, 2009 disability slip from Dr. Broussard.
Appellant submitted statements from coworkers who witnessed the March 30, 2009
incident. Crissina Finister stated that she saw appellant on the floor on March 30, 2009. David
Jones and Felix Fields saw her fall at her duty station, on the date in question, after which she
experienced immediate swelling and redness in her left ankle.
By decision dated June 17, 2009, the Office denied appellant’s claim for compensation
on the grounds that the evidence did not establish that she sustained an injury in the performance
of duty. It found that appellant’s collapse and fall on March 30, 2009 was idiopathic, noting that
the fall was due to a micturition syncope, and that the evidence did not establish that she had
struck an intervening object prior to landing on the floor.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden to establish the essential elements of her claim including the fact that the individual is an
employee of the United States within the meaning of the Act, that the claim was timely filed, that
an injury was sustained in the performance of duty as alleged, and that any disability or medical
condition for which compensation is claimed is causally related to the employment injury.2
1

5 U.S.C. §§ 8101-8193.

2

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

2

It is a well-settled principle of workers’ compensation law, and the Board has so held,
that an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology
causes an employee to collapse and to suffer injury upon striking the immediate supporting
surface, and there is no intervention or contribution by any hazard or special condition of
employment -- is not within coverage of the Act.3 Such an injury does not arise out of a risk
connected with the employment and is, therefore, not compensable. However, as the Board has
made equally clear, the fact that the cause of a particular fall cannot be ascertained or that the
reason it occurred cannot be explained, does not establish that it was due to an idiopathic
condition.
This follows from the general rule that an injury occurring on the industrial premises
during working hours is compensable unless the injury is established to be within an exception to
such general rule.4 If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained fall, one which is
distinguishable from a fall in which it is definitely proved that a physical condition preexisted
and caused the fall.5
ANALYSIS
The Board finds that appellant met her burden of proof to establish that she fell in the
performance of duty on March 30, 2009.
As stated, an injury resulting from an idiopathic fall is not compensable.6 However, the
fact that the cause of a particular fall cannot be ascertained, or that the reason it occurred cannot
be explained, does not establish that it was due to an idiopathic condition. If the record does not
establish that the particular fall was due to an idiopathic condition, it must be considered as
merely an unexplained fall, one which is distinguishable from a fall in which it is definitely
proved that a physical condition preexisted the fall and caused the fall.7
In the present case, the factual evidence of record is insufficient to establish that appellant’s
fall was idiopathic. Appellant stated that as she stood up, she suddenly fainted and fell on her
left ankle. Statements from coworkers who either saw appellant fall, or saw her on the floor
immediately after the fall, were speculative as to the cause of the fall. Thus, the Board is unable
to make a determination as to the cause of the fall based on the scant factual evidence at hand.
Likewise, the medical evidence does not establish that appellant’s fall on March 30, 2009
was due to a personal, nonoccupational pathology. Dr. Broussard opined that appellant’s
sprained ankle was due to the March 30, 2009 fall. He did not, however, provide an opinion as
3

See Carol A. Lyles, 57 ECAB 265 (2005).

4

Dora J. Ward, 43 ECAB 767, 769 (1992); Fay Leiter, 35 ECAB 176, 182 (1983).

5

John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).

6

Carol A. Lyles, supra note 3.

7

Steven S. Saleh, supra note 2; Judy Bryant, supra note 5; Martha G. List, supra note 5.

3

to the cause of the fall. In addition, appellant’s medical history did not include previous
syncopal episodes. There is no probative medical evidence of record, which establishes that the
fall was idiopathic. The Board, thus, finds that the syncopal episode remains an unexplained fall
while appellant was engaged in activities related to her employment duties and is, therefore,
compensable.
Appellant has submitted medical evidence indicating that she sustained a left ankle
condition as a result of this fall. As this evidence has not been evaluated to determine whether
appellant sustained an injury, and if so whether the injury caused disability, this case will be
remanded to the Office for further development.
CONCLUSION
The Board finds that appellant’s March 30, 2009 fall at work occurred in the performance
of duty within the meaning of the Act.
ORDER
IT IS HEREBY ORDERED THAT the June 17, 2009 decision of the Office of
Workers’ Compensation Programs is reversed, and the case is remanded to the Office for a
determination of the nature and extent of any injury and disability causally related to the
March 30, 2009 fall.
Issued: March 15, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 08-1028
Issued: November 18, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 22, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated July 16, 2007 and January 23, 2008, denying her
claim for a recurrence of total disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant has established that she sustained a recurrence of total
disability commencing on May 17, 1994 causally related to her accepted employment-related
injury.
FACTUAL HISTORY
On January 21, 1986 appellant, then a 43-year-old clerk, filed an occupational disease
claim alleging that on January 17, 1986 she first became aware of her carpal tunnel syndrome
and realized that her condition was caused by her federal employment. A physician diagnosed
her condition based on an electromyogram (EMG) and stated that it was caused by working

constantly on a machine using mostly her index finger. Appellant stated that she was last
exposed to the identified work factor on December 24 1985. On November 21, 1988 the Office
accepted the claim for aggravation of bilateral carpal tunnel syndrome and authorized bilateral
release.
On April 12, 2002 the Office accepted that appellant sustained a recurrence of total
disability in January 1998 causally related to her accepted employment-related injury and
authorized physical therapy.
On February 3, 2005 appellant filed a claim for compensation (Form CA-7) for the period
commencing April 1994. She submitted a June 28, 2004 medical report of Dr. Jacob E. Tauber,
an attending Board-certified orthopedic surgeon, which stated that appellant’s recurrent carpal
tunnel syndrome resulted in a 30 percent impairment of each hand based on the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th
ed. 2001). Dr. Tauber further determined that her spinal stenosis at C5-6 resulted in an
additional eight percent impairment based on the A.M.A., Guides. In a February 8, 2005 report,
he recommended that appellant undergo EMG/nerve conduction and velocity (NCV) studies.
On appellant’s claim form, the employing establishment stated that she retired effective
June 7, 1996.1
By letters dated February 23, 2005, the Office addressed the additional factual and
medical evidence appellant and the employing establishment needed to submit regarding her
work stoppage on April 1, 1994.
In several reports covering the period March 15 through June 21, 2005, Dr. Tauber
addressed, among other things, appellant’s continuing symptoms related to her accepted
employment injury and her disability. In a March 15, 2005 report, he stated that her workrelated carpal tunnel syndrome had worsened over time and her grip strength had decreased. In
reports dated March 22, April 19 and 29, 2005, Dr. Tauber opined that appellant was totally
disabled. He stated that she sustained carpometacarpal arthritis of the hands based on x-rays. In
a May 31, 2005 report, Dr. Tauber stated that appellant had been disabled since April 1, 1994.
He related that, when carpal tunnel surgery is performed, it can only be determined whether a
patient has sustained a recurrence of disability by reporting the patient’s symptomalogy.
Dr. Tauber stated that appellant experienced increased numbness, tingling and pain. He further
stated that, even when no specific activity occurred that is responsible for the recurring carpal
tunnel syndrome, the condition can and frequently does recur on its own. Dr. Tauber
recommended EMG/NCV studies based on his clinical findings of positive Tinel’s and Phalen’s
signs, carpal compression testing and weakness. He opined that these findings were significant
as they correlated to a finding of recurrent carpal tunnel syndrome.
By letter dated June 22, 2005, appellant stated that she was forced to leave her
employment and file for disability retirement because she was unable to perform her clerk work
duties. The employing establishment constantly threatened to fire her. Appellant was unaware
1

In a letter dated June 7, 1996, the Office of Personnel Management approved appellant’s application for
disability retirement.

2

that she could file a workers’ compensation claim and she did not know what was causing her
pain. She believed that her work-related carpal tunnel syndrome was dormant. Appellant stated
that her pain became intolerable and was due to her repetitive employment duties. She received
physical therapy and medical treatment. Appellant stated that a work-related eye injury for
which she underwent surgery made it impossible for her to continue working on a machine.
In reports dated July 5, August 2 and 30, and October 7, 2005, Dr. Tauber stated that
appellant suffered from worsening grip strength, and increasing pain, tingling and numbness. He
reiterated his prior opinion that she remained totally disabled. In reports dated November 2 and
December 7, 2004, Dr. Tauber stated that appellant sustained spondylolithesis at L4-5 as
demonstrated by x-ray.
By decision dated October 31, 2005, the Office denied appellant’s recurrence of disability
claim. The evidence of record was insufficient to establish that she sustained a recurrence of
disability commencing on May 17, 1994 due to her accepted employment-related bilateral carpal
tunnel syndrome.2 In a letter dated November 9, 2005, appellant, through counsel, requested an
oral hearing before an Office hearing representative.
In reports covering the period November 17, 2005 through June 13, 2006, Dr. Tauber
stated that EMG/NCV studies revealed carpal tunnel syndrome despite appellant’s prior
decompressive surgery.3 Appellant also sustained minor first carpometacarpal (CMC)
degeneration of the left hand based on an x-ray. Dr. Tauber opined that appellant was totally
disabled since she stopped work on May 17, 1994 due to her accepted employment-related
condition. In the November 17, 2005 report, he stated that, when carpal tunnel syndrome was
recurrent, particularly in light of prior surgery, the condition was effectively worse than it was
initially. Dr. Tauber recommended additional EMG/NCV studies due to appellant’s continuing
symptoms.
On June 15, 2006 Dr. Aaron Coppelson, a Board-certified physiatrist, performed
EMG/NCV studies which demonstrated moderate right carpal tunnel syndrome and no evidence
of cervical radiculopathy in the bilateral upper extremities.
In a July 11, 2006 report, Dr. Tauber recommended that appellant undergo surgery based
on his finding that she had positive Tinel’s signs of the left wrist and elbow.
At the August 22, 2006 hearing, appellant submitted numerous medical records. Medical
reports covering the period March 10 through July 23, 1993 of Dr. Alan M. Singer, a Boardcertified podiatrist, stated that appellant sustained capsulitis and tendinitis of the left foot. A
May 4, 1988 chest x-ray report of Dr. Joseph Juliano, a Board-certified radiologist, stated that
she had mild cardiomegaly. An August 17, 1988 report of Dr. James B. Miller, a Board-certified
ophthalmologist, addressed appellant’s eye condition. Dr. Miller stated that she had presumed
2

The Office found that, although appellant alleged in her CA-7 form that she sustained a recurrence of disability
in April 1994, it determined that she meant to allege a recurrence of disability on the actual date she stopped work,
which was on May 17, 1994.
3

On September 6, 2005 the Office authorized EMG/NCV studies.

3

histophlasmic chorioretinitic syndrome with a presumed subretinal neurovascular not secondary
to the inflammatory nature of this organism. The July 28 through August 19, 1989 reports of
Dr. Thomas A. Hanscom, a Board-certified ophthalmologist, stated that appellant sustained
macular degeneration with active subretinal neurovascularization of the right eye.
Disability certificates of Dr. Reuben M. Perloff, a general practitioner, stated that
appellant was disabled during intermittent periods from August 12, 1988 through June 4, 1990
due to work-related stress and uncontrollable hypertension. In a March 27, 1989 report,
Dr. Tauber stated that appellant was disabled from May 19, 1986 through January 6, 1987 due to
her employment-related bilateral carpal tunnel syndrome. He stated that she also sustained
bilateral de Quervain’s syndrome. In a July 31, 2005 report, Dr. Tauber stated that appellant
sustained cervical radiculitis, recurrent carpal tunnel syndrome, cubital tunnel syndrome and left
shoulder impingement syndrome.
A July 24, 1990 report of Dr. G.Y. Hadjian, a general surgeon, stated that appellant
experienced anxiety at work which aggravated her blood pressure. Dr. Hadjian stated that she
had recovered and could resume her regular work duties on August 6, 1990 if she worked in a
less stressful environment. A January 3, 1992 report of Dr. Robert A. Gross, a Board-certified
internist, stated that appellant’s rectal bleeding remained undefined although hemorrhoids and/or
a perineal tear were the probable cause. On November 22, 1994 Dr. Gross reported possible
gallstones, a small sliding hiatus hernia, internal hemorrhoids, diverticulosis and possible
irritable bowel syndrome on physical examination. Treatment notes and a report covering the
period March 8, 1993 through October 23, 1995 of appellant’s physical therapist addressed the
treatment of her left foot tendinitis. A May 20, 1994 mammogram report of Dr. Laura A.
Thompson, a Board-certified radiologist, stated that there was no interval change or radiographic
evidence of malignancy in appellant’s breasts. A May 23, 1994 report of Dr. Ronald P.
Karlsberg, a Board-certified internist, stated that appellant had premature ventricular
contractions, hyperlipidemia and hypertension. Dr. Karlsberg also stated that she was obese and
anemic. In reports dated August 16, 1988 and October 18, 1994, Dr. Andrew I. Caster, a Boardcertified ophthalmologist, stated that appellant had macular degeneration and that she was legally
blind in the left eye.
Following the August 22, 2006 hearing, appellant submitted Dr. Tauber’s reports
covering the period July 31, 1995 through July 11, 2006 which noted appellant’s ongoing
symptoms. Dr. Tauber reiterated his prior opinion that she sustained recurrent bilateral carpal
tunnel syndrome and that she was totally disabled. In an October 29, 2004 disability certificate,
he stated that appellant was totally disabled from January 1, 2003 through November 23, 2004.
In a May 31, 2005 disability certificate, Dr. Tauber stated that she was disabled from that date
through July 5, 2005.
In a January 30, 2002 report, Dr. Marshall L. Grode, a Board-certified neurosurgeon,
stated that appellant sustained possible entrapment of the ulnar and median nerves at the wrist.
A February 27, 2002 report of Dr. Jay Jurkowitz, a Board-certified neurologist, opined that
appellant sustained mild to moderate bilateral carpal tunnel syndrome, an abnormality on the left
side and possible mild compression of both ulnar nerves at the elbow. The May 31, 2002 and
October 17, 2005 EMG/NCV studies performed by Dr. A. Kevin Aminian, a Board-certified
neurologist, demonstrated bilateral carpal tunnel syndrome that was electrically moderate on the

4

right side and mild to moderate on the left side. A November 24, 2003 magnetic resonance
imaging (MRI) scan of Dr. Siamak Dardashti, a Board-certified radiologist, demonstrated mild
spinal stenosis and bilateral neural foraminal narrowing due to degenerative changes and
congenital short pedicles at C3-4. A one to two millimeter disc protrusion was found along with
congenital short pedicles and degenerative changes with mild spinal stenosis and mild left neural
foraminal narrowing at C4-5. A two to three millimeter right paracentral disc protrusion was
found along with congenital short pedicles at C5-6 that caused moderate spinal stenosis and
moderate right and mild left neural foraminal narrowing.
By decision dated October 16, 2006, an Office hearing representative affirmed the
October 31, 2005 decision. The evidence of record was insufficient to establish that
commencing on May 17, 1994 appellant sustained a recurrence of disability causally related to
her accepted employment-related injury.
The Office received Dr. Tauber’s reports covering the period October 31, 2006 through
May 1, 2007. Dr. Tauber reiterated his prior opinion that appellant was totally disabled. An
ultrasound of appellant’s wrists was performed on March 20, 2007 by Dr. T. Eric Yokoo, a
Board-certified physiatrist, who found scar tissue/edema in the bilateral carpal tunnel region,
bilateral flexor/extensor tenosynovitis and left radiocarpal degenerative joint disease. Also on
March 20, 2007 Dr. Yokoo reported a normal ultrasound of appellant’s elbows.
In a June 5, 2007 letter, appellant requested reconsideration of the October 16, 2006
decision. She submitted Dr. Tauber’s June 5, 2007 report which stated that his findings on
physical examination remained the same regarding appellant’s hand condition. Dr. Tauber
recommended a second opinion medical examination by a hand specialist.
By decision dated July 16, 2007, the Office denied modification of the October 16, 2006
decision. The evidence of record was insufficient to establish that appellant sustained an
employment-related recurrence of disability commencing on May 17, 1994.
The Office received Dr. Tauber’s August 7, 2007 report in which he opined that appellant
was permanently totally disabled due to her continuing pain, numbness and tingling, positive
electrical studies, recurrence of the employment-related carpal tunnel syndrome and loss of grip
strength. Dr. Tauber also stated that appellant had reached maximum medical improvement. In
a September 18, 2007 report, he reiterated that his findings on physical examination remained
unchanged.
On October 16, 2007 appellant requested reconsideration of the July 16, 2007 decision.
She submitted reports dated August 2 and December 10, 2007 of Dr. D. Levi Harrison, a Boardcertified surgeon specializing in hand surgery, which stated that appellant sustained bilateral
recurrent carpal tunnel syndrome, de Quervain’s stenosing tenosynovitis which was more severe
on the right than the left and ulnar nerve compression at the elbow and cubital tunnel syndrome
which was more severe on the left than the right.

5

By decision dated January 23, 2008, the Office denied modification of the July 16, 2007
decision.4
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.5
A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which she claims
compensation is causally related to the accepted employment injury.6 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between her recurrence of disability and her employment injury.7 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.8 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.9
ANALYSIS
The Office accepted that appellant sustained aggravation of bilateral carpal tunnel
syndrome causally related to her federal employment. On February 3, 2005 appellant sought
compensation for her right and left hand conditions. The Board finds that she has failed to
submit sufficiently rationalized medical evidence establishing that her claimed recurrent hand
condition was caused or aggravated by her accepted employment-related aggravation of bilateral
carpal tunnel syndrome.
The medical reports dated prior to the alleged recurrence of disability are not relevant to
the issue of whether appellant’s disability after May 17, 1994 is causally related to her accepted
employment-related injury.

4

Following the issuance of the Office’s January 23, 2008 decision, the Office received additional evidence. The
Board may not consider evidence for the first time on appeal which was not before the Office at the time it issued
the final decision in the case. 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and request
reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
5

20 C.F.R. § 10.5(x).

6

Kenneth R. Love, 50 ECAB 193, 199 (1998).

7

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

8

Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

9

Alfredo Rodriquez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

6

Appellant submitted numerous reports of Dr. Tauber, an attending physician. In a
June 28, 2004 report, Dr. Tauber stated that appellant’s recurrent carpal tunnel syndrome resulted
in a 30 percent impairment of each hand and that her spinal stenosis at C5-6 resulted in an
additional 8 percent impairment based on the A.M.A., Guides. He did not explain how or why
appellant’s continuing residuals and impairment were caused by her accepted employmentrelated aggravation of bilateral carpal tunnel syndrome and the Board notes that appellant’s
claim has not been accepted for a cervical condition. Causal relationship must be substantiated
by reasoned medical opinion evidence.10
Dr. Tauber’s reports covering the period November 2, 2004 through September 18, 2007
stated that appellant sustained bilateral carpometacarpal arthritis, work-related cervical spinal
stenosis, spondylolithesis at L4-5, cervical radiculitis, cubital tunnel syndrome and left shoulder
impingement syndrome. He opined that she was totally disabled. Dr. Tauber failed to explain
how or why appellant’s disability was caused by her accepted employment-related injury.11 In
the May 31, 2005 report, he stated that appellant had been disabled since April 1, 1994.
Dr. Tauber related that, when carpal tunnel surgery is performed, it can only be determined
whether a patient has sustained a recurrence of disability by reporting the patient’s
symptomalogy. He noted that appellant experienced increased numbness, tingling and pain.
Dr. Tauber stated that, even when no specific activity occurred that is responsible for the
recurring carpal tunnel syndrome, the condition can and frequently does recur on its own. In the
November 17, 2005 report, he stated that, when carpal tunnel syndrome was recurrent,
particularly in light of prior surgery, the condition was effectively worse than it was initially.
While finding that appellant sustained a recurrence of disability commencing on April 1, 1994,
Dr. Tauber did not provide adequate medical rationale explaining how or why her current
disability was caused by the accepted employment injury.12 Such rationale is important given
the 19 years between the accepted injury and the physician’s statements on causal relation.
Further, Dr. Tauber failed to address how the diagnosed conditions, bilateral carpometacarpal
arthritis, work-related cervical spinal stenosis, spondylolithesis at L4-5, cervical radiculitis,
cubital tunnel syndrome and left shoulder impingement syndrome were caused by the accepted
employment injury. As these conditions have not been accepted as employment related,
appellant has not established a recurrence.
In an October 29, 2004 disability certificate, Dr. Tauber stated that appellant was totally
disabled from January 1, 2003 through November 23, 2004. Dr. Tauber’s May 31, 2005
disability certificate stated that appellant was disabled from that date through July 5, 2005. In
none of these reports did Dr. Tauber provide a diagnosis or an explanation as to how appellant’s
condition and disability were causally related to her employment-related injury.
Dr. Thompson’s May 20, 1994 mammogram report found no interval change or
radiographic evidence of malignancy in appellant’s breasts. Dr. Karlsberg’s May 23, 1994 report
stated that appellant had premature ventricular contractions, hyperlipidemia and hypertension
10

Roy L. Humphrey, 57 ECAB 238 (2005).

11

Id.

12

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

7

and that she was obese and anemic. Dr. Gross’ October 18 and November 22, 1994 reports
stated that appellant had macular degeneration, possible gallstones and irritable bowel syndrome,
a small sliding hiatus hernia, internal hemorrhoids and diverticulosis. Dr. Marshall’s January 30,
2002 report stated that appellant sustained possible entrapment of the ulnar and median nerves at
the wrist. Dr. Jurkowitz’s February 27, 2002 report found that she sustained mild to moderate
bilateral carpal tunnel syndrome, an abnormality on the left side and possible mild compression
of both ulnar nerves at the elbow. Dr. Harrison’s August 2 and December 10, 2007 reports stated
that appellant sustained bilateral recurrent carpal tunnel syndrome, de Quervain’s stenosing
tenosynovitis which was more severe on the right than the left, ulnar nerve compression at the
elbow and cubital tunnel syndrome which was more severe on the left than the right.
Dr. Thompson, Dr. Karlsberg, Dr. Gross, Dr. Marshall, Dr. Jurkowitz and Dr. Harrison failed to
provide an opinion that appellant was totally disabled commencing on May 17, 1994 due to her
accepted employment injury. Further, the conditions gallstones, irritable bowel syndrome, a
small sliding hiatus hernia, internal hemorrhoids, diverticulosis, premature ventricular
contractions, hyperlipidemia, hypertension, obesity, anemia, de Quervain’s stenosing
tenosynovitis and cubital tunnel syndrome have not been accepted by the Office. Thus, appellant
has not established disability caused or contributed to by the accepted injury to her wrists.
The diagnostic reports of Dr. Aminian, Dr. Dardashti, Dr. Coppelson and Dr. Yokoo
regarding appellant’s wrist and cervical conditions do not specifically address whether her
claimed recurrence of disability commencing on May 17, 1994 is causally related to her accepted
employment-related condition.
The treatment notes and report of appellant’s physical therapist do not constitute
probative medical evidence. A physical therapist is not a physician as defined under the Federal
Employees’ Compensation Act.13
Appellant failed to submit rationalized medical evidence establishing that her disability
commencing on May 17, 1994 resulted from the effects of her employment-related aggravation
of bilateral carpal tunnel syndrome. The Board finds that she has not met her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a recurrence of
total disability commencing on May 17, 1994 causally related to her accepted employmentrelated injury.

13

5 U.S.C. §§ 8101-8193; 8101(2); Vickey C. Randall, 51 ECAB 357, 360 (2000) (a physical therapist is not a
physician under the Act).

8

ORDER
IT IS HEREBY ORDERED THAT the January 23, 2008 and July 16, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 18, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
INDIANAPOLIS VETERANS HOSPITAL,
Indianapolis, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1226
Issued: October 9, 2008

Case Submitted on the Record

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

JURISDICTION
On March 20, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ nonmerit decisions dated March 4, 2008, which denied his request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error, and May 17, 2007, denying an oral hearing from the Branch of Hearings and Review.
Because more than one year has elapsed from the last merit decision dated December 27, 2006 to
the filing of this appeal on March 20, 2008, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUES
The issues are: (1) whether the Branch of Hearings and Review properly denied
appellant’s request for an oral hearing as untimely; and (2) whether the Office properly refused
to reopen appellant’s claim for reconsideration of the merits of his claim on the grounds that it
was untimely filed and failed to show clear evidence of error.

FACTUAL HISTORY
On October 2, 2006 appellant, then a laundry worker, filed an occupational disease claim
alleging that he injured his left shoulder pulling heavy laundry chutes in the performance of duty.
In a letter dated October 11, 2006, the Office requested additional information from him. The
Office allowed 30 days for a response.
In support of his claim, appellant submitted a series of medical notes from Dr. Dale S.
Snead, a Board-certified orthopedic surgeon, dated December 13, 2005 through August 18, 2006.
On January 25, 2006 Dr. Snead noted appellant’s work duty of pulling linen over his head and
his complaints of left shoulder pain. He diagnosed left rotator cuff tendinitis and left acrominal
joint arthralgia. Dr. Snead recommended surgery. Appellant underwent left shoulder
arthroscopy with acromioplasty and distal clavical excision on March 2, 2006. Dr. Snead
examined appellant on March 7, 2006 following his surgery. On March 21, 2006 he stated that
appellant reported tripping on a sweeper cord and falling on his left shoulder. Dr. Snead noted
that appellant’s recovery was progressing ahead of schedule. In a note dated April 4, 2006, he
reported appellant’s symptoms of muscle tightness and soreness as well as numbness and
tingling in his fingers. Dr. Snead diagnosed mild brachial plexopathy or cervical abnormality
related to his fall. On May 2, 2006 appellant indicated to Dr. Snead that he was happy with his
progress. Likewise on June 2, 2006, he had no complaints or problems according to Dr. Snead.
In a note dated July 14, 2006, appellant reported increasing shoulder pain after returning to work.
Dr. Snead stated, “His job requires a lot of heavy lifting, particularly overhead.” He
recommended that appellant change jobs to reduce his symptoms. On August 18, 2006
Dr. Snead stated that appellant might experience intermittent pain with his shoulder, but
indicated that formal work restrictions were not necessary.
By decision dated December 27, 2006, the Office denied appellant’s claim finding that he
failed to submit the necessary medical opinion evidence on the causal relationship between his
diagnosed condition of left rotator cuff tendinitis and his employment duties to establish an
occupational disease. Appellant requested an oral hearing on March 27, 2007. By decision
dated May 17, 2007, the Branch of Hearings and Review denied his request for an oral hearing
on the grounds that his request was not made within 30 days of the Office’s December 27, 2006
decision. The Branch of Hearings and Review determined that appellant’s claim could be
equally well addressed through the reconsideration process.
Appellant requested reconsideration on February 1, 2008 and submitted several copies of
each of Dr. Snead’s January 25, March 7 and 21, April 4, May 2, June 2, July 14 and August 18,
2006 treatment notes. He also submitted a note dated November 6, 2006 from Dr. Snead’s office
noting his request for documentation of injury. Appellant submitted a note dated August 27,
2007 from Dr. Snead which stated that, as appellant’s injury was caused by pulling dirty linens,
he should consider different work.
By decision dated March 4, 2008, the Office declined to reopen appellant’s claim for
consideration of the merits on the grounds that his request for reconsideration was not timely and
did not establish clear evidence of error on the part of the Office.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides in pertinent
part as follows:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary … is entitled, on request made
within 30 days after the date of issuance of the decision, to a hearing on his claim
before a representative of the Secretary.”1
The claimant can choose between two formats: an oral hearing or a review of the written
record.2 The requirements are the same for either choice.3 The Board has held that section
8124(b)(1) is “unequivocal” in setting forth the time limitation for requesting hearings or reviews
of the written record. A claimant is entitled to a hearing or review of the written record as a
matter of right only if the request is filed within the requisite 30 days as determined by postmark
or other carrier’s date marking4 and before the claimant has requested reconsideration.5
However, when the request is not timely filed or when reconsideration has previously been
requested, the Office may within its discretion, grant a hearing or review of the written record,
and must exercise this discretion.6
ANALYSIS -- ISSUE 1
The Office issued a merit decision in appellant’s claim on December 27, 2006. Appellant
requested an oral hearing on March 27, 2007. This request was more than 30 days after the
December 27, 2007 Office decision. Therefore appellant was not entitled to an oral hearing as a
matter of right. The Branch of Hearings and Review then proceeded to exercise its discretion in
granting or denying an oral hearing by determining that his claim could be addressed through the
reconsideration process. The Board finds that the Branch of Hearings and Review properly
denied appellant’s request for an oral hearing on the grounds that it was not timely filed and that
he could pursue his claim through the reconsideration process.

1

5 U.S.C. §§ 8101-8193, § 8124(b)(1).

2

20 C.F.R. § 10.615.

3

Claudio Vazquez, 52 ECAB 496, 499 (2001).

4

20 C.F.R. § 10.616(a). Tammy J. Kenow, 44 ECAB 619 (1993).

5

Martha A. McConnell, 50 ECAB 129, 130 (1998).

6

Id.

3

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act7 does not entitle a claimant to a review of an Office decision
as a matter of right.8 This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.9 The Office, through regulations
has imposed limitations on the exercise of its discretionary authority. One such limitation is that
the Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.10 If submitted by mail, the
application will be deemed timely if postmarked by the U.S. Postal Service within the time
period allowed. If there is no such postmark, or it is not legible, other evidence such as (but not
limited to) certified mail receipts, certificate of service, and affidavits, may be used to establish
the mailing date.11 In the absence of this evidence, the Office procedures state that the date of
the reconsideration request letter should be used to determine timeliness.12 The Board has found
that the imposition of this one-year time limitation does not constitute an abuse of the
discretionary authority granted the Office under 5 U.S.C. § 8128(a).13
The Office’s regulations require that an application for reconsideration must be submitted
in writing14 and define an application for reconsideration as the request for reconsideration
“along with supporting statements and evidence.”15 The regulations provide:
“[The Office] will consider an untimely application for reconsideration only if the
application demonstrates clear evidence of error on the part of [the Office] in its
most recent decision. The application must establish, on its face that such
decision was erroneous.”16
In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its regulation.17
7

5 U.S.C. § 8128(a).

8

Thankamma Mathews, 44 ECAB 765, 768 (1993).

9

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

10

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
11

20 C.F.R. §§ 10.607; 10.608(b).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004).

13

5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 8 at 769; Jesus D. Sanchez, supra note 9 at 967.

14

20 C.F.R. § 10.606.

15

20 C.F.R. § 10.605.

16

20 C.F.R. § 10.607(b).

17

Thankamma Mathews, supra note 8 at 770.

4

To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.18 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.19 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.20 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.21 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.22 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.23 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.24
ANALYSIS -- ISSUE 2
The Office issued a merit decision in appellant’s claim on December 27, 2006. Appellant
requested reconsideration on February 1, 2008, more than one year after the December 27, 2006
decision. Therefore this request was untimely in accordance with the Office’s regulations. The
appropriate standard of review is whether appellant’s February 1, 2008 request for
reconsideration established clear evidence of error in the Office’s December 27, 2006 decision.
The Office denied appellant’s occupational disease claim on the grounds that he failed to
submit medical opinion evidence establishing a causal relationship between his diagnosed left
shoulder tendinitis with resulting surgery and the duties of his federal position as a laundry
worker. Appellant submitted a series of notes from Dr. Snead, a Board-certified orthopedic
surgeon, in support of his claim. Dr. Snead discussed the relationship of appellant’s employment
to his shoulder condition only in the August 18, 2006 note which appellant submitted in support
of his reconsideration request. This note merely stated that as appellant’s injury was caused by
pulling dirty linens, he should consider different work. This note is not sufficient to establish
clear evidence of error on the part of the Office. While Dr. Snead’s August 18, 2006 note is
relevant to the central issue as it briefly mentions a causal connection between appellant’s
employment duties and his shoulder condition, the note does not provide a detailed discussion of
18

Id.

19

Leona N. Travis, 43 ECAB 227, 241 (1991).

20

Jesus D. Sanchez, supra note 9 at 968.

21

Leona N. Travis, supra note 19.

22

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

23

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

24

Gregory Griffin, supra note 10.

5

appellant’s employment duties and does not provide medical reasoning in support of Dr. Snead’s
opinion. Therefore the August 18, 2006 note is not of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of the Office’s decision.
CONCLUSION
The Board finds that the Branch of Hearings and Review properly denied appellant’s
request for an oral hearing as untimely. The Board further finds that appellant’s untimely request
for reconsideration did not establish clear evidence of error on the part of the Office.
ORDER
IT IS HEREBY ORDERED THAT the March 4, 2008 and May 17, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 9, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6