United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO, FIREARMS &
EXPLOSIVES, Walnut Creek, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-1062
Issued: January 4, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 30, 2020 appellant filed a timely appeal from a February 6, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an overpayment
of compensation in the amount of $22,845.76, for which he was not at fault, because he
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the February 6, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

concurrently received FECA wage-loss compensation benefits and Social Security Administration
(SSA) age-related retirement benefits for the period July 1, 2017 through September 14, 2019
without an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$225.79 every 28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
On November 1, 1995 appellant, then a 44-year-old explosives enforcement officer, filed
an occupational disease claim (Form CA-2) alleging that he developed post-traumatic stress due
to factors of his federal employment. OWCP accepted the claim for post-traumatic stress disorder,
adjustment reaction with physical symptoms, and major depression, recurrent episode, severe. It
paid appellant wage-loss compensation on the periodic rolls, effective February 2, 1997.
In an EN1032 form dated July 26, 2016, appellant indicated that he received SSA agerelated retirement benefits in the amount of $846.00 monthly. On EN1032 forms dated
September 20, 2017 through July 25, 2019, he indicated that he did not receive SSA age-related
retirement benefits.
On August 8, 2019 OWCP provided SSA with a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form.
On August 15, 2019 an SSA representative provided OWCP with a FERS/SSA dual benefit
calculation worksheet. The SSA representative provided corresponding monthly SSA benefit rates
beginning July 2017 with and without appellant’s FERS contributions. The form indicated that
beginning July 1, 2017, the SSA rate with FERS was $1,912.30 and without FERS was $1,074.70.
Beginning December 1, 2017, the SSA rate with FERS was $1,950.50 and without FERS was
$1,096.10. Beginning December 1, 2018, the SSA rate with FERS was $2,005.10 and without
FERS was $1,126.70.
On September 18, 2019 OWCP prepared a FERS offset calculation worksheet. It noted
the calculation of appellant’s SSA offset overpayment from July 1, 2017 through
September 14, 2019. The total overpayment was determined to be $22,845.76. OWCP found that
appellant received an overpayment of compensation in the amount of $4,224.82 for the period
July 1 through November 30, 2017, an overpayment in the amount of $10,280.97 for the period
December 1, 2017 through November 30, 2018, and an overpayment in the amount of $8,339.97
for the period December 1, 2018 through September 14, 2019.
In a letter dated October 7, 2019, OWCP notified appellant that, based on information
provided by SSA regarding the amount of his age-related retirement benefits, which were
attributable to federal service, his FECA wage-loss compensation had been adjusted.
On December 31, 2019 OWCP issued a preliminary determination finding that an
overpayment of compensation in the amount of $22,845.76 had been created because appellant
received SSA age-related retirement benefits based upon his federal service, without appropriate
offset at the same time he received FECA benefits for the period July 1, 2017 through
September 14, 2019. It explained that the overpayment occurred because he relied on
misinformation given in writing by OWCP as to the interpretation of FECA or its regulations, there
2

was documentation to substantiate that the misinformation was communicated to him, and there
was no evidence in the case file to demonstrate that he knew or should have known the proper
course of action to be followed. OWCP found appellant not at fault in the creation of the
overpayment and forwarded an overpayment action request form and an overpayment recovery
questionnaire (Form OWCP-20). It requested that he provide supporting financial documentation
including income tax returns, bank account statements, bills and cancelled checks, pay slips, and
any other records to support his reported income and expenses. OWCP afforded appellant 30 days
to respond. No response was received.
By decision dated February 6, 2020, OWCP finalized its preliminary determination that
appellant had received an overpayment of compensation in the amount of $22,845.76, for the
period July 1, 2017 through September 14, 2019, because it had failed to offset his compensation
payments by the portion of his SSA age-related retirement benefits that were attributable to federal
service. It further found that he was without fault in the creation of the overpayment, but denied
waiver of recovery of the overpayment because the evidence of record was insufficient to establish
that recovery of an overpayment would defeat the purpose of FECA or would be against equity
and good conscience. OWCP required recovery of the overpayment by deducting $225.79 every
28 days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.5 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA age-related retirement 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.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $22,845.76, for which he was without fault, because he

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see J.R., Docket No. 17-0181 (issued August 12, 2020); L.W., Docket No. 19-0787 (issued
October 23, 2019).
6

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

3

concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
the period July 1, 2017 through September 14, 2019 without an appropriate offset.
The record indicates that, while appellant was receiving FECA wage-loss compensation
benefits, he was also receiving SSA age-related retirement benefits attributable to federal service.
As noted, a claimant cannot receive both compensation for wage loss and SSA age-related
retirement benefits attributable to federal service for the same period.7 Consequently, the fact of
the overpayment has been established.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. SSA provided the SSA rate with FERS and without FERS for specific periods
commencing July 1, 2017 through September 14, 2019. OWCP provided its overpayment
calculations for each relevant period based on the SSA worksheet. No contrary evidence was
provided.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period July 1, 2017 through September 14, 2019, and finds that an overpayment of compensation
in the amount of $22,845.76 was created.8
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides: “Adjustment or recovery [of an overpayment] by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.”9
Recovery of an overpayment will defeat the purpose of FECA when 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.10 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses

7

See I.U., Docket No. 20-0129 (issued July 31, 2020).

8

Id.

9

5 U.S.C. § 8129(b).

10

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).

4

if monthly income does not exceed monthly expenses by more than $50.00.11 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.12 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.13
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.14
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.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant not at fault in the creation of the overpayment, waiver of
recovery of the overpayment 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.16 However, appellant had the responsibility to provide financial information to
OWCP,17 but failed to do so.
In its preliminary determination, dated December 31, 2019, OWCP requested that appellant
provide a completed Form OWCP-20 and supporting financial documentation, including copies of
income tax returns, bank account statements, bills and cancelled checks, pay slips, and any other
records to support income and expenses. It advised him that it would deny waiver of recovery if
he failed to furnish the requested financial information within 30 days. Appellant did not provide
the requested Form OWCP-20 or submit any financial information necessary for OWCP to
11

Id. at Chapter 6.400.4(a)(3); C.B., Docket No. 20-0031 (issued July 27, 2020); N.J., Docket No. 19-1170 (issued
January 10, 2020).
12

See supra note 10 at Chapter 6.400.4(a)(2) (September 2018).

13

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

14

Id. at § 10.437(a)(b).

15

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

16

Id. at § 10.436.

17

Id. at § 10.438; S.P., Docket No. 19-1318 (issued July 31, 2020).

5

determine if recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience.
Accordingly, as appellant did not submit the information required under 20 C.F.R. § 10.438
of OWCP’s regulations to determine his eligibility for waiver, OWCP properly denied waiver of
recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.18
Section 10.441 of OWCP’s regulations19 provides that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as the error is discovered or his or her attention is called to the
same. If no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.20
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$225.79 every 28 days from appellant’s continuing compensation payments.
OWCP provided appellant a Form OWCP-20 with its December 31, 2019 preliminary
determination. It afforded him the opportunity to provide appropriate financial information and
documentation to OWCP. Appellant however, did not complete the Form OWCP-20 or otherwise
provide the necessary financial information to support his income and expenses prior to the final
February 6, 2020 overpayment decision. The overpaid individual is responsible for providing
information about income, expenses, and assets as specified by OWCP.21 When an individual fails
to provide requested financial information, OWCP should follow minimum collection guidelines
designed to collect the debt promptly and in full.22 As appellant did not submit financial as
requested, the Board finds that OWCP properly required recovery of the $22,845.76 overpayment
at the rate of $225.79 every 28 days from appellant’s continuing compensation payments.23

18

Id. at § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

19

Id. at § 10.441(a).

20

Id.; see L.G., Docket No. 19-1274 (issued July 10, 2020).

21

20 C.F.R. § 10.438(a).

22

See J.A., Docket No. 19-1946 (issued July 13, 2020); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.2 (September 2018).
23
See J.A., id.; E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued
March 2, 2017).

6

CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $22,845.76, for which he was without fault, because he
concurrently received FECA wage-loss compensation benefits and SSA age-related retirement
benefits for the period July 1, 2017 through September 14, 2019 without an appropriate offset.
The Board further finds that OWCP properly denied waiver of recovery of the overpayment and
properly required recovery of the overpayment by deducting $225.79 every 28 days from his
continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the February 6, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 4, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2220
Issued: September 25, 2009

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 August 7, 2008 appellant filed a timely appeal of the June 26, 2008 decision of the
Office of Workers’ Compensation Programs, which denied modification of its July 17, 2006
decision, which denied appellant’s request for disability compensation. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over this claim.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he was
disabled from November 7, 2005 and continuing due to his June 10, 2005 employment injuries.
FACTUAL HISTORY
On June 10, 2005 appellant, then a 44-year-old letter carrier, injured his right shoulder
and neck when he was involved in a motor vehicle accident at work. He did not stop work and
was placed on limited duty. In a June 10, 2005 treatment note, Dr. Pamela Sanchez, a Boardcertified family practitioner, diagnosed right rotator cuff strain and cervical strain. In a July 12,
2005 statement, appellant noted that he previously had right rotator cuff surgery for an accepted

injury under claim File No. xxxxxx608.1 He also indicated that he injured his neck and shoulder
while closing a pool cover at home. The Office accepted the claim for right rotator cuff strain
and cervical strain.
A September 24, 2005 magnetic resonance imaging (MRI) scan of the cervical spine read
by Dr. Alain Perlow, a Board-certified diagnostic radiologist, revealed multilevel foraminal
stenosis, left foramen at C3-4, bilaterally at C4-5, the left at C5-6 and the left at C5-7. A
September 30, 2005 treatment note from Dr. Mark E. Meyer, a Board-certified neurosurgeon and
treating physician, diagnosed foraminal stenosis with disc protrusions at multiple levels. In an
October 21, 2005 report, Dr. Jonathan Hopkins, a Board-certified neurosurgeon, diagnosed
cervical spondylosis, without cord compression, C5 radiculopathy, shoulder disease,
hypertension and gout by history. He noted that appellant should have surgery. In an
October 26, 2005 report, Dr. Daniel R. Marsh, a Board-certified physiatrist noted that appellant’s
electromyogram showed C5 radiculopathy and moderate to severe right median
mononeuropathy. A November 10, 2005 left shoulder MRI scan, read by Dr. Elizabeth Gaary, a
Board-certified diagnostic radiologist, noted bony spurring at the acromioclavicular (AC) joint,
tendinosis of the supraspinatus and infraspinatus tendons and degenerative subchondral cyst of
the glenoid.
In a November 7, 2005 disability certificate, Dr. Meyer advised that appellant was
disabled until November 29, 2005. In a duty status report also dated November 7, 2005, he
diagnosed spondylolisthesis and foraminal stenosis and opined that appellant could not return to
work. In a November 7, 2005 treatment note, Dr. Meyer recommended right sided
foraminotomies at C4-5 and C5-6. In a November 29, 2005 disability slip, he placed appellant
off work until “after surgery and healed.” In a November 29, 2005 progress report, Dr. Meyer
indicated that the right shoulder MRI scan showed extensive inflammation in the AC joint and
tendinitis. He stated that appellant had bilateral carpal tunnel syndrome, bilateral shoulder
pathology and cervical stenosis. Dr. Meyer opined that appellant should proceed with a cervical
laminectomy, C4 through C6, with bilateral foraminotomies. In a December 1, 2005 duty status
report, he diagnosed spondylolisthesis and stenosis. In response to a question regarding
appellant’s ability to work, Dr. Meyer indicated that appellant was awaiting authorization for
surgery.
On December 1, 2005 appellant submitted Form CA-7’s requesting wage-loss
compensation for total disability for the period November 7 to 26, 2005. The Office continued
receiving CA-7 forms for subsequent periods.
On December 6, 2005 the Office advised appellant that it had received his November 29,
2005 disability slip that placed him off work until “after surgery and healed.” It explained that
1

Appellant also has several prior claims. A December 15, 2000 injury was accepted for left elbow contusion and
lumbosacral strain. The Office accepted a December 2001 claim for aggravation of preexisting right great toe
deformity and authorized toe surgery on September 5, 2003. It accepted right foot metatarsalgia 2nd, 3rd and 4th
toes. On June 2002 the Office accepted appellant’s claim for right rotator cuff strain. It accepted a March 2004
claim for bilateral carpal tunnel syndrome. Restrictions based on these claims included no pushing over 40 pounds,
no pulling over 38 pounds, no lifting over 50 pounds, limited squatting, kneeling and climbing three to four hours
per day due to the right foot condition.

2

spondylolisthesis and foraminal stenosis were typically preexisting degenerative conditions and
were not accepted. The Office requested that appellant provide a reasoned opinion from his
physician addressing whether his disability from November 7, 2005 was related to right rotator
cuff strain and cervical strain.
On December 20, 2005 the Office referred appellant to Dr. Bruce D. Abrams, a Boardcertified orthopedic surgeon, for a second opinion. In his January 13, 2006 report, Dr. Abrams
described appellant’s history of injury and treatment and diagnosed preexisting degenerative
arthritis and cervical spondylosis, which were temporarily aggravated by the June 10, 2005 work
injury. Dr. Abrams explained that the temporary aggravation caused C5 radiculopathy on the
right. He opined that appellant could return to work activity within the previous restrictions,
which were related to his right foot injury. Dr. Abrams noted the restrictions included three
hours walking, one hour standing, lifting 20 pounds regularly and 30 pounds maximum. He
advised that the current back conditions were not employment related. Dr. Abrams explained
that there were no objective findings to support continuing residuals of any work-related back or
shoulder condition of the cervical spine. He indicated that appellant was unable to work until his
preexisting nonwork-related condition of the cervical spine was corrected by surgery.
Dr. Abrams opined that appellant could return to the work he was doing prior to his June 10,
2005 employment injury.
In a January 16, 2006, attending physician’s report, Dr. Meyer diagnosed cervical
spondylostenosis and foraminal stenosis. He advised that appellant did not previously have a
history of a preexisting injury and checked a box “yes” in response to whether he believed that
appellant’s condition was caused or aggravated by an employment activity. Dr. Meyer opined
that appellant was currently awaiting authorization for surgery in response to whether appellant
could return to work.
On February 13, 2006 the Office requested that Dr. Meyer review Dr. Abrams’ report and
provide his opinion about appellant’s condition. In a February 16, 2006 report, Dr. Meyer
opined that appellant’s cervical spondylostenosis was caused or aggravated by repetitive bending
or twisting of the neck and opined that he felt that “it may be rendered symptomatic by an action
such as he describes.” He advised that appellant should have surgery, as appellant had not
responded to conservative treatment and could not tolerate work.
By letter dated February 22, 2006, the Office requested that Dr. Abrams clarify whether
appellant had returned to his baseline in relation to his June 10, 2005 and December 15, 2000
work injuries. It also requested that he clarify whether the aggravation of appellant’s preexisting
spondylosis, which caused the C5 radiculopathy on the right had ceased or if it was related to
preexisting degenerative arthritic condition. The Office also requested that Dr. Abrams provide
an opinion regarding the requested surgery and an opinion regarding appellant’s ability to return
to work and its relation to his accepted injuries.
In a March 8, 2006 report, Dr. Meyer noted that appellant had pain in the neck going
down into the right arm and shoulders for slightly more than six months. He opined that “this
appears to be aggravated after a motor vehicle collision.” Dr. Meyer diagnosed C4-6 cervical
spondylosis, stenosis, bilateral upper extremity radiculopathy, hypertension, gastroesophageal

3

reflux disease and allergic rhinitis. He recommended decompressive laminectomy C4-6 with
bilateral foraminotomies.
In a March 14, 2006 supplemental report, Dr. Abrams opined that appellant’s cervical
spine problems were due to his preexisting degenerative arthritis or cervical spondylosis, which
was demonstrated on the x-rays. He recommended discectomy, fusion and foraminotomy.
Regarding the work injury, the physician explained that it was a temporary aggravation and
should have cleared within a period of six weeks. Dr. Abrams indicated that the underlying
pathology and problems with the cervical spine were ongoing and should be corrected; however,
they were not directly related to the motor vehicle accident or work-related injury. Regarding
appellant’s December 2000 lumbosacral strain, Dr. Abrams noted that emergency room
documentation and imaging showing lumbar spondylosis was also present. Dr. Abrams advised
that his examination of the lumbar spine was normal such that there were no residuals from the
prior injury. He opined that he could not state with medical certainty that appellant’s pain had
reached baseline regarding the temporary aggravation to the cervical spine with the motor
vehicle accident. Dr. Abrams opined that appellant’s continued discomfort, was related to his
underlying and continuing pathology of degenerative arthritis of the cervical spine and his
inability to work was due to the cervical spondylosis.
On March 21, 2006 the Office provided Dr. Meyer with Dr. Abrams’ supplemental report
and requested his opinion. In an April 13, 2006 return to work slip, Dr. Meyer advised that
appellant could work with restrictions on lifting more than 20 pounds and bending or twisting
from the waist. The Office also received several physical therapy notes.
In a July 17, 2006 decision, the Office denied the claim for compensation as the medical
evidence did not show that appellant was disabled for work beginning November 7, 2005 as a
result of the accepted work injury of June 10, 2005 or a change in his limited duties. The Office
also denied the request for authorization for surgery, which was performed on March 8, 2006.
In July 10 and 31, 2007 letters, appellant requested reconsideration. He submitted a
May 23, 2006 report in which Dr. Meyer noted that appellant was postdecompressive cervical
laminectomy and foraminotomy for cervical spondylostenosis. Dr. Meyer stated that this caused
appellant’s neck and bilateral arm symptoms, which had resolved. He opined that appellant’s
symptoms were “due to the cervical spondylostenosis.” On November 27, 2006 Dr. Meyer
advised that appellant could return to full duty without restrictions.
By decision dated August 9, 2007, the Office denied appellant’s request for
reconsideration on the grounds that the request was untimely filed. On October 29, 2007,
appellant appealed to the Board. In a May 20, 2008 decision, the Board found that appellant
submitted a timely reconsideration request and remanded the case for the Office to issue an
appropriate decision.2
On May 22, 2008 appellant asked that the Office compensate him for lost wages. He
enclosed additional evidence and included copies of previously submitted documentation. The

2

Docket No. 08-240 (issued May 20, 2008).

4

additional evidence included a medical article from the Mayo Foundation on spinal stenosis.
The Office also received a January 11, 2006 nurse’s letter.
In a June 26, 2008 decision, the Office denied modification of its July 17, 2006 decision.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act3 (“Act”)
has the burden of proof to establish the essential elements of her claim by the weight of the
evidence,4 including that she sustained an injury in the performance of duty and that any specific
condition or disability for work for which she claims compensation is causally related to that
employment injury.5
As used in the Act, the term “disability” means incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of injury.6 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in her employment, she is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.7
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.8 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.9 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.10

3

5 U.S.C. §§ 8101-8193.

4

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

5

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37 ECAB 528 (1986); Elden H. Tietze, 2 ECAB 38
(1948); 20 C.F.R. § 10.5(f).
7

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

8

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

9

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); see Huie Lee Goal, 1 ECAB 180, 182 (1948).

10

G.T., supra note 9; Fereidoon Kharabi, supra note 8.

5

ANALYSIS
The Office accepted appellant’s claim for right rotator cuff strain and cervical strain. On
December 1, 2005 appellant filed Form CA-7’s for wage-loss compensation for disability for the
period beginning November 7, 2005. The Office advised appellant of the evidence needed to
establish his claim. Appellant, however, did not submit reasoned medical evidence to establish
that his present condition was causally related to his accepted injury. He did not submit a
medical report in which his treating physician explained why his continuing condition or
disability would be related to the accepted injury. The Board also notes that there is no evidence
showing a change in the nature and extent of the light-duty job requirements.11
In support of his claim for disability beginning November 7, 2005, appellant submitted
several reports from his treating physician, Dr. Meyer. The relevant reports include Dr. Meyer’s
January 16, 2006, attending physician’s report, in which he repeated his diagnoses of
spondylolisthesis and stenosis and advised that appellant did not previously have a history of a
preexisting injury. He checked the box “yes” in response to whether he believed appellant’s
condition was caused or aggravated by an employment activity. The Board has held that when a
physician’s opinion on causal relationship consists only of checking “yes” to a form question,
without explanation or rationale, that opinion is of diminished probative value and is insufficient
to establish a claim.12 Dr. Meyer did not offer a rationalized medical opinion as to how
appellant’s employment caused or aggravated his condition. In his February 16, 2006 report, he
attempted to explain that appellant’s condition of cervical spondylostenosis was caused or
aggravated by repetitive bending or twisting of the neck and opined that he felt that “it may be
rendered symptomatic by an action such as he describes.” Dr. Meyer recommended surgery as
appellant was unable to work. The record reflects, though, that appellant was involved in a
motor vehicle accident on June 10, 2005, not a history of repetitive bending or twisting of the
neck. Furthermore, appellant indicated that he injured his neck and shoulder while lifting a pool
cover at home. Dr. Meyer does not explain how he arrived at his conclusion that appellant is
unable to perform any type of work related to a work injury.
To establish causal relationship, a claimant must submit a physician’s report in which the
physician reviews the employment factors identified by the claimant as causing the claimed
condition and, taking these factors into consideration as well as findings upon examination, state
whether these employment factors caused or aggravated the diagnosed conditions and present
medical rationale in support of his or her opinion.13 Likewise, in the March 8, 2006 report,
Dr. Meyer diagnosed C4-6 cervical spondylosis and stenosis as well as other nonaccepted
conditions such as bilateral upper extremity radiculopathy, hypertension, gastroesophageal reflux
disease and allergic rhinitis. He opined that appellant’s condition appeared to be aggravated
after a motor vehicle collision.” The Board has held that medical reports that are speculative or
11

See Terry R. Hedman, 38 ECAB 222 (1986); see also 20 C.F.R. § 10.5(x) for the definition of a recurrence of
disability. The Board finds that there is no credible evidence which substantiates that appellant experienced a
change in the nature and extent of the light-duty requirements or was required to perform duties which exceeded his
medical restrictions.
12

Sedi L. Graham, 57 ECAB 494 (2006).

13

D.D., 57 ECAB 734 (2006).

6

equivocal in character have little probative value.14 Furthermore, Dr. Meyer did not provide any
opinion that appellant was disabled and unable to work as a result of his accepted conditions. In
a May 23, 2006 report, Dr. Meyer opined that appellant’s symptoms were “due to the cervical
spondylostenosis.” The Board again notes that this was not an accepted condition and there is no
discussion relating this condition to factors of his employment. Furthermore, he did not provide
any opinion that appellant was disabled and unable to work during the aforementioned period.
Other medical reports contained in the record did not address the period or disability or
offer a specific opinion on causal relationship. Medical reports not containing rationale on
causal relation are entitled to little probative value and are generally insufficient to meet an
employee’s burden of proof.15
Appellant also submitted an internet article from the Mayo Clinic on spinal stenosis. The
Board has held that newspaper clippings, medical texts and excepts from publications are of no
evidentiary value in establishing a causal relationship between a claimed condition and an
employee’s federal employment as such materials are of general application and are not
determinative of whether the specific condition claimed is related to the particular employment
factors alleged by the employee.16 The Office also received several physical therapy and nurses
reports. Lay individuals such as physician’s assistants, nurses and physical therapists are not
competent to render a medical opinion under the Act.17 These reports are of no probative value.
The Board also notes that Dr. Abrams, the second opinion physician, in a report dated
January 13, 2006, determined that appellant’s work stoppage was not work related. Dr. Abrams
found that appellant had several preexisting conditions which included cervical spondylosis and
preexisting degenerative arthritis throughout the spine. While he noted that these conditions
were temporarily aggravated by the June 10, 2005 employment injury, he explained that there
were no objective findings to support continuing residuals of any work-related back or shoulder
condition of the cervical spine. Dr. Abrams recommended surgery but he explained that it was
due to the preexisting nonwork-related degenerative arthritis. He indicated that appellant was
unable to work until his preexisting and nonwork-related condition of the cervical spine was
corrected. Regarding appellant’s work-related back and right shoulder condition, the physician
noted that appellant was able to return to the work he was doing prior to the June 10, 2005 work
injury. In his March 14, 2006 supplemental report, Dr. Abrams opined that appellant’s problems
in the cervical spine were due to his preexisting degenerative arthritis or cervical spondylosis.
He also explained that the work injury caused a temporary aggravation that should have cleared
within six weeks. Dr. Abrams indicated that the underlying pathology and problems with the
cervical spine were ongoing and should be corrected; however, they were not work related. He
also explained that appellant’s continued discomfort, was related to his underlying and
continuing pathology of degenerative arthritis of the cervical spine and his inability to work was
due to the cervical spondylosis.
14

See Vaheh Mokhtarians, 51 ECAB 190 (1999).

15

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

16

William C. Bush, 40 ECAB 1064, 1075 (1989).

17

David P. Sawchuk, 57 ECAB 316 (2006).

7

In the instant case, none of the medical reports submitted by appellant contained a
rationalized opinion stating appellant could no longer perform the duties of his light-duty
position and why any such disability or continuing condition beginning November 7, 2005 would
be due to the accepted conditions. The Board finds that appellant has failed to submit
rationalized medical evidence establishing that his disability from November 7, 2005 to March 3,
2006 and continuing was causally related to his accepted employment injury and thus, he has not
met his burden of proof.18
On appeal appellant submitted additional evidence19 and asserted that the Office
manipulated Dr. Abrams’ report and ignored the favorable information related to his need for
surgery and disability. As noted, Dr. Abrams explained that the June 10, 2005 employment
incident temporarily aggravated his preexisting spondylosis which caused C5 radiculopathy on
the right. But he found that the aggravation had ceased and there was no correlation with regard
to the work injury and his work stoppage on November 7, 2005. Appellant also argued that
Dr. Abrams report referred to x-rays and explained that there were “no x-rays of the cervical
spine in the material that Dr. Abrams reviewed.” However, the Board notes that the record
contains a September 24, 2005 MRI scan of the cervical spine, read by Dr. Perlow, which
revealed the preexisting spondylosis to which Dr. Abrams was referring. To the extent that he
referred to the report as an x-ray as opposed to an MRI scan, the Board notes that this is harmless
error, as the preexisting conditions were revealed in the diagnostic testing and the record
indicates that Dr. Abrams reviewed reports of both x-ray and MRI scan studies for different areas
of appellant’s spine.
CONCLUSION
The Board finds that appellant failed to establish that he was disabled from November 7,
2005 and continuing due to his June 10, 2005 employment injuries.

18

The Board also notes that the requested surgery would not authorized as it pertains to conditions which were
not accepted by the Office. See R.C., 58 ECAB ___ (Docket No. 06-1676, issued December 26, 2006) (for surgery
to be authorized, a claimant must submit evidence to show that the requested procedure is for a condition causally
related to the employment injury and that it is medically warranted).
19

The Board has no jurisdiction to review this new evidence for the first time on appeal. 20 C.F.R. § 501.2(c);
James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

8

ORDER
IT IS HEREBY ORDERED THAT the June 26, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2009
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, RINGGOLD MILL
STATION, Clarksville, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1273
Issued: January 7, 2020

Case Submitted on the Record

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

JURISDICTION
On May 20, 2019 appellant filed a timely appeal from an April 9, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated October 4, 2018, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

2
The Board notes that following the April 9, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On July 27, 2018 appellant, then a 59-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that on July 21, 2018 he first realized that his right shoulder pain was
caused by factors of his federal employment including lifting and carrying mail and parcels. He
stopped work on July 21, 2018.
In support of his claim, appellant submitted a work restriction form dated July 27, 2018
with an illegible signature. The form diagnosed right shoulder strain and provided work
restrictions.
In a development letter dated August 9, 2018, OWCP informed appellant that the factual
and medical evidence of record was insufficient to establish his claim. It provided a factual
questionnaire for his completion and requested additional medical evidence in support of his claim.
OWCP afforded appellant 30 days to submit the necessary evidence.
In response to OWCP’s request, appellant submitted a July 27, 2018 duty status report
(Form CA-17) and another work restriction form dated August 1, 2018 diagnosing right shoulder
strain and providing work restrictions. The signatures on both forms were illegible.
By decision dated October 4, 2018, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish his occupational disease claim. It explained that
he had not responded to its August 9, 2018 questionnaire requesting him to identify employment
factors he believed caused or aggravated his right shoulder condition. OWCP concluded,
therefore, that appellant had not established that an injury occurred as alleged.
On March 15, 2019 appellant requested reconsideration and submitted evidence in support
of his claim.
An undated letter by Catrecha Anderson, a physician assistant, summarized appellant’s
right shoulder diagnostic test results.
A March 8, 2019 medical note from Dr. William F. Beauchamp, an osteopath specializing
in orthopedic surgery, noted that over the past year appellant had shoulder pain which developed
in a gradual, persistent pattern with no specific causative incident. Physical examination findings
were detailed with diagnoses of right shoulder impingement syndrome, complete rotator cuff tear,
and slap lesion, Type II. Dr. Beauchamp further indicated appellant’s shoulder pain was
aggravated by lifting and overhead activity.
By decision dated April 9, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim.

2

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.5
A timely request for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
On reconsideration, appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, nor did he advance a relevant legal argument not previously considered by
OWCP. Consequently, he is not entitled to a review of the merits of his claim based on the first
and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).8
In support of his reconsideration request, appellant resubmitted an undated letter signed by
Ms. Anderson, a physician assistant, and a March 8, 2019 medical note from Dr. Beauchamp. This
evidence, while new, is not relevant to the underlying factual issues in this case of whether
appellant established factors of employment which allegedly caused his condition. Evidence
which does not address the particular issue under consideration does not constitute a basis for

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

4

20 C.F.R. § 10.607.

5

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

Id. at § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8
S.C., Docket No. 19-0479 (issued August 8, 2019); T.B., Docket No. 18-1214 (issued January 29, 2019); C.B.,
Docket No. 08-1583 (issued December 9, 2008).

3

reopening a case.9 Thus, appellant is also not entitled to a review of the merits of his claim based
on the third above-noted requirement under section 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 9, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 7, 2020
Washington, DC

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

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

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

9
H.H., Docket No. 18-1660 (issued March 14, 2019); F.B., Docket No. 18-1039 (issued December 6, 2018);
Eugene F. Butler, 36 ECAB 393, 398 (1984).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
U.S. COAST GUARD, Curtis Bay, MD, Employer )
__________________________________________ )
D.A., Appellant

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

Docket No. 12-480
Issued: October 15, 2012

Case Submitted on the Record

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

JURISDICTION
On January 3, 2012 appellant filed a timely appeal from a December 8, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) terminating his
compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
effective December 18, 2011 on the grounds that he had no further disability causally related to
his April 20, 1983 employment injury; and (2) whether it properly terminated his authorization
for medical benefits.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 21, 1983 appellant, then a 48-year-old chipper, filed a traumatic injury claim
alleging that on April 20, 1983 he injured his lower back in the performance of duty. OWCP
accepted the claim for an aggravation of low back strain and a herniated nucleus pulposus at
L4-5. On October 5, 1983 appellant underwent a laminectomy at L4-5, a hemilaminotomy at S1,
a right discectomy at L4-5 and foraminotomies at L4-S1 on the right. He stopped work on
April 22, 1983 and received compensation for total disability.
On July 17, 1987 appellant returned to work in private employment as a security guard.
OWCP paid him compensation for partial disability based on his loss of wage-earning capacity.
Appellant stopped work in 2010.
By letter dated March 8, 2011, OWCP requested that appellant submit an updated
medical report from his attending physician.2 On April 1, 2011 appellant informed OWCP that
his physician would not provide a report and requested that it schedule a medical examination.
By letter dated September 1, 2011, OWCP referred appellant to Dr. Stuart J. Gordon, a Boardcertified orthopedic surgeon, for a second opinion examination. It provided Dr. Gordon with a
statement of accepted facts indicating that it had accepted low back strain by aggravation and a
herniated disc at L4-5 due to the April 20, 1983 work injury.
In a report dated September 13, 2011, Dr. Gordon reviewed the medical evidence of
record and discussed appellant’s history of back pain since a 1962 nonemployment-related injury
with multiple back surgeries beginning in the 1960s. On examination he found flattening of the
lumbar lordosis with full range of motion, a negative straight leg raise test and a negative
Patrick’s test. Dr. Gordon found intact motor strength and sensation. He diagnosed extensive
preexisting lumbar problems dating from 1962, a history of a 1965 lumbar decompression and
fusion and preexisting lumbar degenerative disease. Dr. Gordon further diagnosed lumbar strain
and an aggravation of lumbar degenerative disease with a lumbar decompression due to the
April 20, 1983 work injury, which he opined had resolved. He found no objective evidence of
residuals of the work injury. Dr. Gordon stated, “Based on the evaluation, it appears that the
aggravation is, from the subjective standpoint, permanent. However, based on the lack of
objective findings, one would consider it temporary.” He had no “recommendations for
treatment, at this point.” Dr. Gordon found that appellant had work restrictions due to his
preexisting condition.
On October 24, 2011 OWCP advised appellant that it proposed to terminate his
compensation and authorization for medical benefits. It provided him 30 days to submit
additional medical evidence or argument. On November 3, 2011 appellant challenged the
proposed termination. He indicated that he informed Dr. Gordon of his pain radiating into his
left leg but the physician did not want to discuss his problem.

2

The last medical report of record was dated August 8, 2008 from Dr. Ashok Krishnaswamy, a Board-certified
orthopedic surgeon, who diagnosed lumbar disc disease with spinal stenosis and found that appellant should
“continue on present disability at this time.”

2

By decision dated December 8, 2011, OWCP terminated appellant’s compensation and
authorization for medical benefits effective December 18, 2011. It found that Dr. Gordon’s
opinion constituted the weight of the evidence and established that he had no residuals of his
accepted work injury.
LEGAL PRECEDENT -- ISSUES 1 & 2
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.6
ANALYSIS -- ISSUES 1 & 2
OWCP accepted that appellant sustained an aggravation of low back strain and a
herniated nucleus pulposus at L4-5. It paid him compensation for total disability from 1983 to
1987 and for partial disability from 1982 onward. After failing to receive updated medical
evidence, OWCP referred appellant to Dr. Gordon on September 1, 2011 for a second opinion
examination.
On September 13, 2011 Dr. Gordon noted that appellant had a history of back problems
and surgeries beginning in 1962 and diagnosed preexisting lumbar degenerative disc disease. He
further diagnosed resolved lumbar strain and a resolved aggravation of lumbar degenerative disc
disease with a lumbar decompression as a result of the April 20, 1983 employment injury. On
physical examination, Dr. Gordon found flattening of the lumbar lordosis, full range of motion, a
negative straight leg and Patrick’s test and intact sensation and motor strength. He concluded
that appellant had no objective evidence of the work injury and listed work restrictions which he
attributed to his preexisting lumbar condition. Dr. Gordon, however, did not address whether
appellant had any residuals of his herniated disc at L4-5. As OWCP accepted a herniated
nucleus pulposus at L4-5, it has the burden to establish that disability from this condition ceased
prior to terminating benefits.7 Its burden of proof includes the necessity of furnishing

3

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

4

Gewin C. Hawkins, 52 ECAB 242 (2001).

5

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

6

Id.

7

See David W. Pickett, 54 ECAB 272 (2002).

3

rationalized medical evidence based on a proper factual and medical background.8 Dr. Gordon
did not discuss the accepted condition of a herniated disc at L4-5 and thus his report is
insufficient to show that appellant had no further disability or residuals resulting from this
condition. Additionally, while he determined that any physical limitations resulted from a
preexisting lumbar condition, he failed to offer sufficient medical reasoning in support of his
conclusion.9 The Board thus finds that OWCP did not meet its burden of proof to terminate
appellant’s compensation and medical benefits due to the accepted April 20, 1983 employment
injury.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation and
authorization for medical benefits effective December 18, 2011 on the grounds that he had no
further disability causally related to his April 20, 1983 employment injury
ORDER
IT IS HEREBY ORDERED THAT the December 8, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 15, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8

See Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

9

See Elaine Sneed, supra note 3.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Boston, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Karl L. Stammen, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-512
Issued: January 13, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 14, 2009 appellant filed a timely appeal from an August 28, 2009 decision
of the Office of Workers’ Compensation Programs regarding an overpayment of compensation.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUES
The issues are: (1) whether the Office properly found that appellant received an
overpayment of compensation in the amount of $75,692.81 for the period September 4, 2005 to
September 27, 2008; (2) whether the Office abused its discretion by denying waiver of the
overpayment; (3) whether the Office properly required recovery of the overpayment from
continuing compensation at the rate of $461.54 every 28 days.

1

Counsel did not appeal an August 31, 2009 decision suspending appellant’s compensation as she failed to
submit an affidavit of earnings and employment (Form CA-1032).

On appeal, counsel did not contest the fact or amount of the overpayment. He contends
that the Office wrongly denied waiver of the overpayment based on financial hardship or
detrimental reliance.
FACTUAL HISTORY
The Office accepted that on August 23, 1995 appellant, then a 48-year-old full-time
registered nurse and clinical trainer, sustained a left arm contusion when she slipped and fell on a
wet hallway floor. She underwent left elbow arthroscopy, partial synovectomy and removal of
loose bodies, authorized by the Office. On April 18, 2001 the Office accepted right lateral
epicondylitis due to repetitive motion.
On November 1, 2001 appellant underwent a right lateral fasciotomy with partial
ostectomy, authorized by the Office. She returned to part-time limited duty on January 7, 2002.
Appellant underwent additional surgery on March 30, 2004 due to the accepted injuries. She
returned to work on March 14, 2005 in a modified-duty position, working six hours a day. The
Office paid appellant wage-loss compensation for the remaining two hours a day.
On September 26, 2008 the Office advised appellant that it had mistakenly paid wageloss compensation based on a loss of six hours a day instead of two hours a day. It noted that she
returned to work six hours a day and claimed two hours of wage loss a day, but was compensated
for six hours instead of two. The Office reduced appellant’s compensation effective
September 28, 2008. Based on compensation payment logs, it calculated that, from September 4,
2005 to September 27, 2008, she received $105,664.86 in compensation, but was only entitled to
$29,972.05, a difference of $75,692.81.
By notice dated December 22, 2008, the Office advised appellant of its preliminary
determination that she was overpaid $75,692.81 in compensation from September 4, 2005 to
September 27, 2008. It found her with fault in creating the overpayment.
Appellant requested a prerecoupment hearing that was held on May 29, 2009. At the
hearing, counsel contended that appellant was not at fault in creating the overpayment as she did
not know how her benefits were calculated. He asserted that she was entitled to waiver based on
detrimental reliance as she needed nearly all of the compensation paid as she neared retirement.
Appellant testified that she lived with her husband, a self-employed contractor, and had no
additional income. She submitted an overpayment recovery questionnaire (Form OWCP-20) and
supporting documentation listing $4,972.16 in monthly expenses and $334,500.00 in assets.2
After the hearing, appellant submitted documentation of an additional $1,848.38 in monthly debt
repayment and other necessary living expenses and tax returns showing $7,998.59 in monthly
household income.

2

Appellant listed the following monthly expenses: $2,031.16 mortgage; $800.00 food; $250.00 clothing;
$979.00 utilities; $912.00 in car payments and insurance; $1,000.00 in credit card payments. She listed the
following assets: $200,000.00 in market value for a second home with no mortgage; $125,000.00 in thrift savings
and stocks; $9,000.00 in bank accounts; $500.00 cash.

2

By decision dated and finalized August 28, 2009, an Office hearing representative found
that appellant received an overpayment in the amount of $75,692.81 for the period September 4,
2005 to September 27, 2008, as she received compensation for six hours a day instead of the two
to which she was entitled. He further found that she was not at fault in creation of the
overpayment, as she did not receive notice of how her benefits were calculated. The hearing
representative denied waiver as appellant had $334,500.00 in assets, exceeding the allowable
asset base of $8,000.00. Also, appellant’s monthly household income of $7,998.59 exceeded her
allowable monthly expenses of $6,820.54 by $1,178.05. The hearing representative found that
she did not establish detrimental reliance as she did not demonstrate that she gave up a valuable
right or changed her position for the worse. He directed recovery of the overpayment by
deducting $500.00 a month or $461.54 every four weeks from continuing compensation
payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act3 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.4 Section 8129(a) of the Act provides in
pertinent part, that when “an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which an individual is entitled.”5
The basic rate of compensation paid under the Act is 66 2/3 percent of the injured
employee’s monthly pay. Where the employee has one or more dependents as defined in the
Act, the employee is entitled to have his or her basic compensation augmented at the rate of 8 1/3
percent, or a total of 75 percent of monthly pay.6
ANALYSIS -- ISSUE 1
The record supports that, from September 4, 2005 to September 27, 2008, appellant
worked six hours a day and claimed wage-loss compensation for the remaining two hours a day;
but the Office inadvertently compensated her at six hours a day. While she received $105,664.86
in wage-loss compensation, she was entitled to only $29,972.05. The difference of $75,692.81
constitutes an overpayment of compensation.
The Board finds the Office’s calculations were accurate and properly explained in the
payment rework. Appellant did not contest the fact or amount of the overpayment. The Office
properly determined that she received an overpayment in the amount of $75,692.81.

3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8102(a).

5

5 U.S.C. § 8129(a).

6

Id. at § 8110(b).

3

LEGAL PRECEDENT -- ISSUE 2
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment.7 Section 10.433(b) of the Office
regulations provide, in relevant part, that the determination of fault “depends on the
circumstances surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he or she is being
overpaid.”8
If the Office finds that the recipient of an overpayment was not at fault, repayment will
still be required unless: (1) adjustment or recovery of the overpayment would defeat the purpose
of the Act; or (2) adjustment or recovery of the overpayment would be against equity and good
conscience.9 This information will also be used to determine the repayment schedule, if
necessary.10
Whether to waive recovery of an overpayment of compensation is a matter that rests
within the Office’s discretion pursuant to statutory guidelines.11 Recovery of an overpayment
will defeat the purpose of the Act if such recovery would cause hardship to a currently or
formerly entitled beneficiary because: (a) the beneficiary from whom the Office seeks recovery
needs substantially all of his or her current income (including compensation benefits) to meet
current ordinary and necessary living expenses; and (b) the individual’s assets do not exceed the
resource base of $4,800.00 for an individual or $8,000.00 for an individual with a spouse or one
dependent, plus $960.00 for each additional dependent. Both conditions in (a) and (b) must be
met to defeat the purpose of the Act.12
An individual is deemed to need substantially all of his or her current income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. In other words, the amount of monthly funds available for debt
repayment is the difference between current income and adjusted living expenses (i.e., ordinary
and necessary living expenses plus $50.00).13 When an individual exceeds the limits for either
disposable current income or assets, on the face of it this provides a basis for establishing a
reasonable repayment schedule over a reasonable, specified period of time.14
7

20 C.F.R. § 10.433(a).

8

Id. at § 10.433(b).

9

Id. at § 10.434.

10

Id. at § 10.438(a).

11

James M. Albers, Jr., 36 ECAB 340, 344 (1984) and cases cited therein.

12

20 C.F.R. § 10.436; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Actions, Chapter 6.200.6.a(1)(b) (June 2009).
13

Federal (FECA) Procedure Manual, supra note 12.

14

Id. at Chapter 6.200.6.a(1).

4

Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.15 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.16
The individual who received the overpayment is responsible for providing the
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.17
ANALYSIS -- ISSUE 2
The Office determined that appellant was without fault in creating the overpayment as
she was not advised how her compensation was calculated. It found, however, that the
overpayment was not eligible for waiver. Appellant’s financial information showed $7,998.59 in
monthly income and $6,820.54 in allowable monthly expenses, a difference of $1,178.05. As
appellant’s monthly income exceeded her expenses by more than $50.00, she did not need
substantially all her income to meet ordinary and necessary living expenses.18 Also, appellant’s
$334,500.00 asset base exceeded the $8,000.00 asset limit for an individual and one dependent.
Therefore, the Office properly determined that recovery of the overpayment would not defeat the
purpose of the Act.19
The Board further finds that the Office properly found that recovery of the overpayment
would not be against equity and good conscience. The evidence does not establish that
appellant, in reliance overpayment, gave up a valuable right or changed her position for the
worse.20 Appellant asserted that she needed all compensation paid as she was nearing retirement.
Although she did not specify how she disposed of the overpaid funds, the Board notes that
converting the payments into goods from which appellant derived benefit is not considered a
loss.21
On appeal, counsel contends that the Office wrongly denied waiver of the overpayment
based on financial hardship or detrimental reliance. As noted, appellant did not demonstrate
detrimental reliance or that recovery would cause financial hardship. The Office properly found
15

20 C.F.R. § 10.437(b).

16

Federal (FECA) Procedure Manual, supra note 12 at Chapter 6.200.6.b(3) (June 2009).

17

20 C.F.R. § 10.438(a).

18

Federal (FECA) Procedure Manual, supra note 12 at Chapter 6.200.6.a(1)(b) (June 2009).

19

20 C.F.R. § 10.436; Federal (FECA) Procedure Manual, supra note 12 at Chapter 6.200.6.a(1)(b) (June 2009).

20

Id. at § 10.437(b).

21

Federal (FECA) Procedure Manual, supra note 12 at Chapter 6.200.6.b(3) (June 2009).

5

that recovery of the overpayment would not defeat the purpose of the Act or be against equity
and good conscience. Therefore, the Board will affirm the hearing representative’s August 28,
2009 decision to deny waiver.
LEGAL PRECEDENT -- ISSUE 3
Office regulations provide that, when an overpayment has been made to an individual
who is entitled to further payments, the individual shall refund to the Office the amount of the
overpayment, as soon as the error is discovered or her attention is called to same. If no refund is
made, it shall decrease later payments of compensation taking into account the probable extent of
future payments, the rate of compensation, the financial circumstances of the individual and any
other relevant factors, so as to minimize any hardship.22
ANALYSIS -- ISSUE 3
The Board finds that the Office did not abuse its discretion by ordering the deduction of
$461.54 every four weeks from appellant’s continuing compensation payments.
Section 10.441(a) of the Office’s regulations direct it to take certain matters into
consideration in establishing the repayment schedule, including the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.23 In this case, appellant submitted detailed
financial information with supporting documentation. The Office carefully considered this
information as well as the factors set forth in section 10.411. It was found appellant had total
assets of $334,500.00, monthly compensation of $853.67 and joint monthly income of $7,144.92
or a total of $7,998.59 as of 2008. After deducting total monthly expenses of $6,820.54, there
was $1,178.05 remaining from which recovery of the overpayment would be made by deducting
$461.54 every 28 days from appellant’s continuing compensation. The hearing representative
did not abuse his discontent in setting the rate of recovery.
CONCLUSION
The Board finds that the Office properly found that appellant received an overpayment of
compensation in the amount of $75,692.81. The Board further finds that the Office did not abuse
its discretion by denying waiver of the overpayment. The Board further finds that the Office
properly required recovery of the overpayment by deducting $461.54 every 28 days from
continuing compensation payments.

22

20 C.F.R. § 10.441(a).

23

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 28, 2009 is affirmed.
Issued: January 13, 2011
Washington, DC

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

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 08-339
Issued: June 10, 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 November 9, 2007 appellant filed a timely appeal from the September 21, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied modification of an
earlier decision terminating compensation. 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 on the
grounds that she refused suitable work.
FACTUAL HISTORY
On June 12, 2001 appellant, then a 41-year-old rural letter carrier, filed a claim alleging
that her back condition was a result of her federal employment. The Office accepted her claim
for herniated lumbar discs and authorized surgery. Appellant received compensation for
temporary total disability on the periodic rolls.

On June 25, 2004 Dr. E. Richard Dorsey, a psychiatrist and Office referral physician,
diagnosed depressive disorder not otherwise specified. He explained that this condition was a
result of appellant’s work-related lumbar condition. But Dr. Dorsey reported that appellant was
off work due to her physical and not her mental condition. Appellant’s residual mental
impairment secondary to her occupational back pain was slight, and she was mentally able to
resume her usual and customary occupation or engage in any other occupation for which she was
physically suited, subject to the preclusion of a high level of stress in the form of an unusually
high pace, volume or pressure of work. The Office accepted appellant’s claim for depressive
disorder.
On January 20, 2005 Dr. Don R. DeFeo, appellant’s neurosurgeon, reported that
appellant was permanent and stationary. He stated that she could return to light duty with a
maximum lifting, pulling or pushing restriction of 15 pounds frequently and 20 pounds
occasionally. Dr. DeFeo stated that appellant should alternate her sitting, standing and walking
as tolerated, parenthetically adding “every 20 minutes.”
On March 4, 2005 the employer offered appellant a modified carrier position that limited
lifting, pulling and pushing to no more than 15 pounds. The employer added: “You will be
allowed to alternate your sitting, standing, and walking as per your doctor’s medically defined
work restrictions.”
On March 16, 2005 appellant rejected the offer. She indicated she still had pain and that
part of the job required bending, stooping and uncomfortable chairs. Appellant stated that both
her feet were affected and that she could not wear closed-toe shoes for long periods. She also
noted that she had depression due to the ridiculing and sexual harassment she experienced from
her job performance. On April 12, 2005 appellant explained that she suffered depression, she
was sexually violated by a 204b supervisor and the employer did nothing about it, she suffered
harassment even after filing an Equal Employment Opportunity complaint, and she was subject
to ridicule and mocked just because she could not perform her job. She added that she still had
issues with her feet due to her back injury and that she could hardly wear closed-toe shoes, “so
this is my explanation that this workplace is not safe for me physically and mentally.”
On April 1, 2005 Dr. DeFeo approved the job offer with the following notation:
“Neurosurgically [appellant] should be able to perform this job. However, I feel there are other
areas that should be addressed prior to starting this position, such as her severe depression and
the issue of not being able to wear closed-toe shoes due to possible dysesthesia in the left legfoot.”
On April 25, 2006 the Office notified appellant that the offered position was suitable and
within the medical restrictions her physician reported on January 20, 2005. It confirmed that the
position remained available and allowed appellant 30 days to accept the offer and report for duty
or to explain her reasons for refusing the offer. The Office notified appellant that her right to
compensation would be terminated if she failed to report without justification. On May 5, 2006
she responded that her mental and physical condition was no better and that she could not
perform the job offered.

2

On June 23, 2006 the Office notified appellant that it had considered her reasons for
refusing the offered position and found those reasons to be invalid. It noted that she submitted
no medical evidence to support her claim that she was unable to perform the job. The Office
allowed appellant another 15 days to accept and arrange for a report-to-work date and advised
that it would terminate her compensation if she did not do so.
The Office received a disability slip from Dr. Norman J. Rosen, appellant’s family
physician, dated July 5, 2006, which indicated that appellant could return to work on October 5,
2006 with restrictions. Appellant requested and received authorization to see a psychiatrist,
Dr. Ted R. Greenzang.
In a decision dated July 11, 2006, the Office terminated appellant’s compensation under
5 U.S.C. § 8106(c)(2). The Office found that she failed to accept suitable employment without
justification.
On July 13, 2006 Dr. Greenzang diagnosed appellant with depressive disorder not
otherwise specified, together with depression and anxiety impacting upon her recurrent
headaches. He reported that appellant became partially temporarily disabled psychiatrically
beginning approximately June 2001. Dr. Greenzang stated that she was now permanent and
stationary and remained partially temporarily disabled psychiatrically in regard to her ability to
compete in the open labor market. He reported that appellant was unable from a psychiatric
standpoint to return to her usual and customary employment due to ongoing dysphoric symptoms
and the emotional handicap precipitated by physical symptoms referable to her lower back and
lower extremity. Dr. Greenzang described her disability as slight to slight-to-moderate.
Appellant requested reconsideration.
In a decision dated September 21, 2007, 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

1

5 U.S.C. § 8106(c)(2).

2

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

3

burden of showing that the work offered to and refused or neglected by the employee was
suitable.3
ANALYSIS
On January 20, 2005 Dr. DeFeo, the attending neurosurgeon, reported that appellant
could return to work with restrictions. Shortly thereafter, the employer offered her a modified
carrier position strictly tailored to those restrictions. Appellant rejected the offer, but Dr. DeFeo
reviewed the position and approved it. “Neurologically,” he stated, “[appellant] should be able
to perform this job.”
Appellant’s complaints to the contrary carry little weight. Her capacity to perform the
job is a medical question that must be determined by the medical evidence. Dr. DeFeo was
appellant’s attending neurosurgeon for years and he provided persuasive evidence that the
offered position was suitable from a neurological standpoint. The disability slip from Dr. Rosen,
appellant’s family practitioner, also carries little weight. The slip offers no medical rationale and
does not indicate whether Dr. Rosen ever reviewed appellant’s job offer. The Board therefore
finds that the medical evidence does not support appellant’s contention that she was physically
unable to perform the offered position.
Dr. Dorsey, a psychiatrist and Office referral physician, reported on June 25, 2004 that
appellant was off work due to her physical and not her mental condition. He explained that the
residual mental impairment secondary to her occupational back pain was slight. Just after the
Office terminated compensation, Dr. Greenzang, a psychiatrist, reported that appellant’s
disability was slight to slight-to-moderate. He stated that she remained partially temporarily
disabled psychiatrically in her ability to compete in the open labor market and was unable to
return to her usual and customary employment. But the issue is not whether appellant could
return to her date-of-injury position as a rural letter carrier. The issue is whether she could
perform the offered position of a modified carrier. Like Dr. Rosen, Dr. Greenzang gave no
indication that he ever reviewed the job offer. He never directly addressed whether appellant
was mentally capable of performing the job. The Board therefore finds that the medical evidence
does not support appellant’s contention that she was mentally unable to perform the offered
position.
The Office has met its burden of proof. The evidence establishes that appellant was no
longer totally disabled for all work. She was partially disabled and could return to work within
certain restrictions. The employer offered appellant a modified position within those restrictions
and with the approval of her neurosurgeon. Although she argues that she was mentally unable to
perform this job, the psychiatric evidence does not back her up. The Office followed proper
procedure and provided appellant due process. Because she, a partially disabled employee,
refused suitable work after suitable work was offered to her, she is not entitled to compensation
as a matter of law. The Board will affirm the Office’s September 21, 2007 decision terminating
appellant’s compensation under 5 U.S.C. § 8106(c)(2).

3

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

4

CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation on the
grounds that she refused suitable work.
ORDER
IT IS HEREBY ORDERED THAT the September 21, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 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

5