United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, Vallejo, CA,
Employer
__________________________________________

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

Docket No. 13-2160
Issued: February 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 23, 2013 appellant filed a timely appeal from an August 13, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that OWCP’s November 4, 2010 loss of wageearning capacity (LWEC) determination should be modified.
FACTUAL HISTORY
This is appellant’s second appeal to the Board. In an October 25, 2012 order remanding
case, the Board determined that the December 28, 2011 nonmerit decision of OWCP denying
1

5 U.S.C. § 8101 et seq.

appellant’s request for reconsideration was not in posture for review as the underlying issue was
modification of a wage-earning capacity determination. The Board set aside the December 28,
2011 decision and remanded the case to OWCP for further proceedings consistent with its order.2
On June 20, 1990 appellant, then a 42-year-old ship fitter apprentice, sustained injury to
his low back and hip. OWCP accepted the claim for a lumbar strain and herniated nucleus
pulposus at L3-4 and L4-5. It authorized a percutaneous nuclectomy at L4 and L4-5 in
March 1991, a repeat exploration and nuclectomy at L4 on November 22, 1991 and an
intradiscal thermoplasty procedure at L4-5 on June 5, 2001. Appellant had intermittent periods
of disability until he stopped work on November 21, 1991. He was placed on the periodic rolls.
In an October 6, 2008 report, Dr. Joseph W. McCoy, a Board-certified orthopedic
surgeon and second opinion examiner, stated that appellant had residuals of his work injury, but
was not totally disabled. He listed permanent work restrictions of: sitting, walking and standing
two to four hours; reaching and reaching above shoulder up to one hour; operate a motor vehicle
up to three hours; pushing and pulling up to 30 pounds up to one hour; lifting up to 20 pounds up
to two hours; and no climbing. In a January 26, 2009 supplemental report, Dr. McCoy found
appellant capable of performing sedentary duty as defined by the Department of Labor’s
Dictionary of Occupational Titles.
Appellant underwent a vocational rehabilitation program, which included training and job
placement services, with the targeted vocation of classification control clerk or account clerk.
However, his job placement was unsuccessful.
By decision dated November 4, 2010, OWCP found that appellant’s wage-earning
capacity was represented by the position of classification control clerk. Dr. McCoy’s physical
limitations were found to represent appellant’s work restrictions and that the selected job
conformed with the limitations outlined by Dr. McCoy. Appellant’s treating physician, Dr. J.C.
Pickett, a Board-certified orthopedic surgeon, concurred with Dr. McCoy’s opinion that
appellant could perform at sedentary occupations.
By decision dated May 16, 2011, OWCP’s hearing representative affirmed the
November 4, 2010 wage-earning capacity decision. She found that appellant did not submit
reasoned medical evidence to establish that he was unable to perform sedentary work. There was
also no evidence to support appellant’s contention that Dr. McCoy was biased or harbored
resentment towards him.
Appellant requested reconsideration on October 5, 2011. He resubmitted reports from
Dr. Pickett dated August 3, 2010 to May 2, 2011. Dr. Pickett indicated a permanent off work
status and findings of degenerative disc disease and degenerative joint disease of the low back,
with subjective findings of back pain and stiffness. Appellant noted that after Dr. Talcott retired
in 2011, Dr. Pickett treated him. However, Dr. Pickett dropped him as a patient and he had a
difficult time finding a qualified physician to take over his care.

2

Docket No. 12-883 (issued October 25, 2012).

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By decision dated December 28, 2011, OWCP denied appellant’s reconsideration
request. Pursuant to the Board’s October 25, 2012 order, it proceeded to adjudicate his request
for modification of the wage-earning capacity determination.
In a December 3, 2012 letter, OWCP advised appellant of the criteria necessary for
modifying a wage-earning capacity decision. It noted that he alleged he was not medically able
to work due to his injury and requested that he provide, medical evidence to establish a material
change in the nature and extent of his injury-related condition. Appellant requested an extension.
On January 28, 2013 OWCP granted him an additional 30 days to provide evidence.
On February 7, 2013 appellant submitted a February 4, 2013 letter requesting that lenders
discharge his student loans and medical evidence from Kaiser Permanente.3
In a September 27, 2011 report, Dr. Gordon Sinclair, a podiatrist, stated that appellant
was seen for foot problems. He noted appellant’s belief that his back injury has caused a short
right leg. In a November 8, 2012 report, Dr. Michele Wilson, a Board-certified internist, noted
that appellant was seen for a foot and ear problem. A November 15, 2012 report from Dr. Lance
Van Woy, a podiatrist, noted foot pain and that appellant had diabetes mellitus. The reports also
contain a history of appellant’s immunization record and medical conditions.
Appellant also submitted financial records acknowledging his request to be discharged
from loan obligations because of permanent medical disability.
By decision dated February 13, 2013, OWCP denied modification of the November 4,
2010 wage-earning capacity decision. It found that the evidence did not establish error in the
original wage-earning capacity determination or a material change in appellant’s accepted back
condition.
On March 12, 2013 appellant requested an oral hearing, which was held on
June 19, 2013. He argued that the wage-earning capacity determination was not appropriate
because he expected to be trained for a different position and his training was inadequate.
Appellant argued that his medical condition had changed as he lost an inch in height and had to
wear special shoes with a heel lift on one side to adjust his height. He stated that he has not had
a treating physician since Dr. Talcott retired in 2011. Appellant submitted medical evidence
previously of record.4

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The letter lists documents from lenders ACS dated June 3 and July 6, 2011 and NelNet dated September 27,
2011 and January 8, 2013 which are not of record.
4

This included a January 6, 2011 magnetic resonance imaging (MRI) scan of the lumbosacral spine; Dr. Pickett’s
reports of August 3 and November 2, 2010, and February 8 and May 2, 2011 placing appellant in permanent full
disability status due to degenerative disc disease and degenerative joint disease of lumbosacral spine; Dr. Sinclair’s
September 27, 2011 report regarding foot and ear problem; Dr. Woy’s November 15, 2012 report regarding
appellant’s foot pain; a Dr. Linda May Choe’s April 1, 2013 report regarding low back pain; and February 9, 2011
and January 8, 2013 discharge application total and permanent disability forms for loan discharge signed off by
Dr. Wilson.

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By decision dated August 13, 2013, OWCP’s hearing representative affirmed the
February 13, 2013 decision. He found that the evidence submitted did not establish a material
change in the nature or extent of appellant’s accepted back condition.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.5 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6
It is well established that either a claimant or OWCP may seek to modify a formal LWEC
determination. Once the wage-earning capacity of an injured employee is determined, a
modification of such determination is not warranted unless there is a material change in the
nature and extent of the injury-related condition, the employee has been retrained or otherwise
vocationally rehabilitated or the original determination was, in fact, erroneous.7 The burden of
proof is on the party attempting to show a modification of the wage-earning capacity
determination.8 There is no time limit for appellant to submit a request for modification of a
wage-earning capacity determination.9
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationalize explaining the opinion.10
ANALYSIS
OWCP accepted that appellant sustained an employment-related lumbar strain and
herniated nucleus polposus at L3-4 and L4-5. It authorized surgery for a percutaneous
nuclectomy at L4 and L4-5 in March 1991, a repeat exploration and nuclectomy at L4 on
November 22, 1991 and an intradiscal thermoplasty procedure at L4-5 on June 5, 2001.
Appellant had intermittent periods of disability until he stopped work on November 21, 1991.
By decision dated November 4, 2010, OWCP determined that he had the wage-earning capacity
5

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

6

Sharon C. Clement, 55 ECAB 552 (2004); Loni J. Cleveland, 52 ECAB 171 (2000).

7

Harley Sims, Jr., 56 ECAB 320 (2006); Sharon C. Clement, id.

8

T.M ., Docket No. 08-975 (issued February 6, 2009); Tamra McCauley, 51 ECAB 375, 377 (2000).

9

W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003). See also
Daryl Peoples, Docket No. 05-462 (issued July 19, 2005); Emmit Taylor, Docket No. 03-1780 (issued
July 21, 2004). In Peoples and Taylor, the Board determined that the claimant’s request for reconsideration of a
wage-earning capacity determination constituted a request for modification of the decision. The Board set aside
OWCP’s decision denying the claimant’s reconsideration request as untimely and remanded both cases for OWCP
to adjudicate the issue of modification of an LWEC determination.
10

Tamra McCauley, supra note 8.

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as a classification control clerk, which resulted in a reduction of his monetary compensation
benefits effective November 21, 2010. Appellant requested modification of the November 4,
2010 wage-earning capacity decision, contending that his accepted employment-related medical
condition had materially changed.
Appellant did not submit any evidence to
capacity decision was erroneous or that he had
rehabilitated. Rather he argued a material change
issue is whether the medical evidence establishes a
his injury-related back condition.

show that OWCP’s original wage-earning
otherwise been retrained or vocationally
in his employment-related condition. The
material change in the nature and extent of

Appellant did not provide any reasoned medical evidence addressing why he would be
unable to perform the selected sedentary job as a classification control clerk on which the
original LWEC determination was based. In May 2010, Dr. Pickett advised OWCP that he
believed appellant was capable of sedentary employment. Although he subsequently provided
form reports noting a permanent off-duty status, he did not submit a narrative report supported
by objective findings, to explain his change of opinion. Dr. Pickett did not explain how
appellant’s accepted lumbar condition had materially changed such that he was totally disabled.
Appellant’s requests to lenders for discharge of his student loans have no relevance to the
medical issue in this case. The reports of his physicians to the lenders for discharge of the loans
due to his back condition fail to explain why he was unable to perform the sedentary job on
which the original LWEC determination was based. Dr. Wilson signed off on the discharge
application total and permanent disability forms dated February 7, 2011 to January 8, 2013 in
which appellant described his medical conditions and physical limitations. Dr. Wilson provided
no objective findings based on a contemporary examination to support a worsening of
appellant’s accepted lumbar condition or no opinion as to whether he was unable to perform the
duties of the constructed classification control clerk position on which the original LWEC
determination was based.
The other medical reports discuss conditions other than appellant’s accepted lumbar
condition and are not relevant to the issue on appeal. In a September 27, 2011 report,
Dr. Sinclair noted appellant’s belief that his back injury caused a short right leg. However,
appellant did not submit any medical opinion evidence to support that there was a worsening in
his accepted condition which caused or contributed to the shortening of his right leg.
The diagnostic testing of record is not relevant as it offers no opinion as to whether
appellant is unable to perform the duties of the constructed position or whether there is a
worsening in his accepted condition.
Appellant contends that his medical condition changed as he lost an inch in height and
had to wear shoes with a heel lift on one side to adjust his height. As noted the medical evidence
of record does not support a worsening in his accepted back condition or that he is unable to
perform the selected position on which the original LWEC determination was based.
The Board finds that appellant has not met any of the requirements for modification of
OWCP’s November 4, 2010 wage-earning capacity determination. Appellant did not establish

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that he was retrained or otherwise vocationally rehabilitated or that the original wage-earning
capacity determination was erroneous. Furthermore, the evidence does not establish a material
change in his employment-related condition.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that the
November 4, 2010 wage-earning capacity determination should be modified.
ORDER
IT IS HEREBY ORDERED THAT the August 13, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 20, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF DEFENSE, FORT RILEY
COMMISSARY, Fort Riley, KS, Employer
__________________________________________

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Appearances:
Peter Charles Rombold, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1357
Issued: December 18, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 23, 2007 appellant, through her attorney, filed a timely appeal from an April 10,
2007 merit decision of the Office of Workers’ Compensation Programs finding that she received
an overpayment of compensation and denying waiver. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the overpayment decision.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,400.79 for the period July 11 to December 7, 2006 because she received
compensation at an inaccurate pay rate; and (2) whether the Office properly denied waiver of the
overpayment.
FACTUAL HISTORY
On July 8, 2004 appellant, then a 44-year-old sales store checker, filed a claim for a
traumatic injury to her head, right arm and leg occurring on July 3, 2004 when she slipped and
fell. At the time of injury, she worked from 9:00 to 2:00 five days per week.

The Office accepted the claim for an aggravation of right tibial tendon dysfunction and
contusions of the head, right elbow and right lower leg. The Office also accepted that she
sustained a recurrence of disability on January 6, 2005. Appellant resumed her regular
employment duties on March 30, 2005. She sustained another recurrence of disability on
October 20, 2005. On March 6, 2006 appellant underwent a right medial displacement calcael
osteotomy. At the time of her March 6, 2006 recurrence of disability, she worked 32 hours per
week. Appellant returned to part-time limited-duty employment on July 11, 2006. The Office
paid her compensation for a loss of wage-earning capacity by applying the Shadrick1 formula to
her actual earnings. The Office found that the current earnings for appellant’s date-of-injury
position were $506.34, the same amount as her current pay rate for compensation purposes, and
used this figure to determine the compensation owed for each period.2
On January 16, 2007 the employing establishment informed the Office that appellant
worked 24 hours per week as a GS-3, Step 6 sales store checker earning $11.88 per hour. On
August 8, 2004 she began working 32 hours per week as a meatcutting worker earning $13.10
per week. Appellant presently earned $16.40 per hour working 32 hours per week as a WG 5,
Step 3. The current hourly rate for her date-of-injury position was $12.85 per hour. The
employing establishment further indicated that the updated pay rate for appellant’s date-of-injury
position from July 11, 2006 to January 7, 2007 was $12.62 per hour.
The Office recalculated the amount of compensation owed to appellant for the period
July 11 to December 7, 2006 using the Shadrick formula. The Office determined that the current
weekly earnings in her date-of-injury position were $302.88 by multiplying the updated hourly
wage of $12.62 by 24 hours. The Office found that appellant actually earned $4,364.95 from
July 11 to December 7, 2006 and had a weekly pay rate of $203.70. The Office divided her
actual weekly-earning capacity of $203.70 by her current date-of-injury pay rate of $302.88 and
found that she had a 67 percent loss of wage-earning capacity. The Office multiplied the 67
percent wage-earning capacity by appellant’s March 6, 2006 recurrent pay rate of $506.34 to find
a wage-earning capacity of $339.25. The Office subtracted $339.25 from $506.34 to find a loss
of wage-earning capacity of $167.09. The Office multiplied her loss of wage-earning capacity
by the three-fourth rate for an appellant with a dependent and found that she was entitled to
weekly compensation of $125.32. The Office concluded that appellant was entitled to $2,685.38
in compensation from July 11 to December 7, 2006 but actually received $4,086.17, which
created an overpayment of $1,400.79.
On January 17, 2007 the Office notified appellant of its preliminary determination that
she received an overpayment of $1,400.79 because it paid her at an inaccurate pay rate from
July 11 to December 7, 2006. The Office indicated that it had calculated her pay rate based on a
finding that she worked 32 rather than 24 hours per week on the date of injury. The Office
advised appellant of its preliminary determination that she was not at fault in the creation of the
overpayment. The Office informed her that she should complete the enclosed overpayment
1

See Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403(c).

2

By letter dated September 5, 2006, the Office explained its calculation of appellant’s pay rate based on the
employing establishment’s information that she earned $15.77 per hour and worked 32 hours per week at the time
her disability recurred on March 6, 2006.

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recovery questionnaire and submit financial documents to support waiver of the overpayment.
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.
By letter dated February 15, 2007, appellant’s attorney argued that she was properly paid
because she worked 32 hours per week on the date of her recurrence of disability. He further
enclosed appellant’s request for a telephone conference. Appellant disagreed with fact and
amount of the overpayment and requested waiver.
On March 9, 2007 the Office informed appellant that she must submit the overpayment
recovery questionnaire before it could schedule a telephone conference and provided her two
weeks within which to submit the requested information. The Office notified her that it would
issue a final decision if it did not receive the questionnaire. The Office further noted that, while
appellant worked 32 hours per week at the time of her recurrence of disability, she worked only
24 hours per week at the time of her employment injury. The Office explained that it must
compare her current earnings with her date-of-injury earnings in order to properly calculate her
compensation. On March 22, 2007 the Office informed appellant’s attorney that a telephone
conference could be scheduled upon the return of the overpayment recovery questionnaire. The
Office referenced its March 9, 2007 letter.
By decision dated April 10, 2007, the Office finalized its finding that appellant received
an overpayment of $1,400.79 for the period July 11 through December 7, 2006 because she was
paid at an inaccurate rate. The Office found that she was without fault in the creation of the
overpayment. As she did not submit financial documentation, the Office determined that she had
not established that she was entitled to wavier of the overpayment. The Office requested that
appellant submit the entire amount in a lump sum to repay the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act3 provides that the United
States shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty. Section
8106(a) provides in pertinent part as follows:
“If the disability is partial, the United States shall pay the employee during the
disability monthly monetary compensation equal to 66 2/3 percent of the
difference between [her] monthly pay and [her] monthly wage-earning capacity
after the beginning of the partial disability, which is known as [her] basic
compensation for partial disability.”4
The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the case of Shadrick, has been codified at section 104.3 of the Office’s regulations.5
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8106(a).

5

See supra note 1.

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Under the Shadrick formula, the Office first calculates an employee’s wage-earning capacity in
terms of percentage by dividing the employee’s actual earnings by the current, or updated, pay
rate for the position held at the time of injury. The employee’s wage-earning capacity in dollars
is computed by first multiplying the pay rate for compensation purposes, defined in 20 C.F.R.
§ 10.5(a) as the pay rate at the time of injury, the time disability begins, or the time disability
recurs, whichever is greater, by the percentage of wage-earning capacity. The resulting dollar
amount is then subtracted from the pay rate for compensation purposes to obtain loss of wageearning capacity.6
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained an aggravation of right tibial tendon
dysfunction and head, right elbow and right lower leg contusions due to a July 3, 2004
employment injury. At the time of injury, she worked 24 hours per week as a sales store
checker. Appellant sustained a recurrence of disability on January 6, 2005 and returned to her
regular employment duties on March 30, 2004. She experienced subsequent recurrences of
disability on October 20, 2005 and March 6, 2006. At the time of her March 6, 2006 recurrence
of disability, she worked 32 hours per week. Appellant returned to part-time employment on
July 11, 2006.
The Office paid appellant compensation for a loss of wage-earning capacity beginning
July 11, 2006 using the Shadrick formula. The Office found that the current earnings for her
date-of-injury position was $506.34 based on its finding that she worked 32 hours per week at
the time of her employment injury. According to the employing establishment, however,
appellant worked only 24 hours at the time of her injury. In order to properly apply the Shadrick
formula, the Office must obtain accurate figures for the current rate of pay for the job held when
injured and the employee’s current actual earnings. If any of the initial figures are inaccurate,
any calculation under the Shadrick formula will be inaccurate even if the formula is properly
applied.7 As the Office inaccurately paid appellant compensation based on its finding that she
worked 32 rather than 24 hours at the time of her employment injury, she received an
overpayment of compensation.
The Office recalculated the amount of compensation owed to appellant from July 11 to
December 7, 2006 using the correct information. The Office determined the current weekly
earnings in her date-of-injury position were $302.88 by multiplying the updated hourly wage of
$12.62 by 24 hours. The Office found that appellant actually earned $4,364.95 from July 11 to
December 7, 2006 and had a weekly pay rate of $203.70. The Office divided her actual weekly
earning capacity of $203.70 by her current date-of-injury pay rate of $302.88, which yielded a
wage-earning capacity of 67 percent. The Office multiplied the 67 percent wage-earning
capacity percentage by $506.34, her recurrent pay rate, to find a wage-earning capacity of
$339.25. The Office subtracted $339.25 from $506.34 to find a loss of wage-earning capacity of
$167.09. The Office multiplied appellant’s loss of wage-earning capacity by the three-fourth
dependent rate and found that she was entitled to weekly compensation of $125.32. The Office
6

Albert C. Shadrick, supra note 1; 20 C.F.R. § 10.403(e).

7

See Paul M. Colosi, 56 ECAB ___ (Docket No. 04-1042, issued February 3, 2005).

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subtracted the amount of compensation it should have paid appellant from July 11 to
December 7, 2006, $2,685.38, from the amount she actually received, $4,086.17, to find an
overpayment of $1,400.79.
On appeal, appellant’s attorney contends that appellant worked 32 rather than 24 hours on
the date of her March 6, 2006 recurrence of disability. When a claimant has earnings, however,
the Office reduces compensation in accordance with the Shadrick formula. As discussed, under
Shadrick, a claimant’s wage-earning capacity is expressed as a percentage by dividing actual
earnings by the current earnings for the date-of-injury position. The wage-earning capacity
percentage is then multiplied by the pay rate for compensation purposes. The Office found that
appellant’s pay rate for compensation purposes was her March 6, 2006 recurrent pay rate and
utilized this in its Shadrick calculations.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act5 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”
(Emphasis added.) Thus, a finding that appellant was without fault does not automatically result
in waiver of the overpayment. The Office must then exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of the Act or would be against equity and
good conscience. 6
Section 10.436 of the implementing federal regulations7 provides that recovery of an
overpayment will defeat the purpose of the Act if recovery would cause undue hardship by
depriving a presently or formerly entitled beneficiary of income and resources needed for
ordinary and necessary living expenses and outlines the specific financial circumstances under
which recovery may be considered to “defeat the purpose of the Act.”
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.8
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. 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.9

8

20 C.F.R. § 10.436.

9

20 C.F.R. § 10.438; Linda Hilton, 52 ECAB 476 (2001).

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ANALYSIS -- ISSUE 2
The Office, in its preliminary notification to appellant of the existence of the
overpayment, informed her that she needed to explain her reasons for seeking a waiver, complete
the recovery questionnaire form and submit financial documents to support her claimed income
and expenses. Appellant requested a telephone conference. The Office notified appellant that it
would schedule a telephone conference upon receipt of the Form OWCP-20 overpayment
recovery questionnaire. The overpayment recovery questionnaire is designed to obtain the
financial information to determine whether adjustment or recovery would defeat the purpose of
the Act. Appellant did not return the overpayment recovery questionnaire provided by the Office
and did not otherwise submit financial evidence or supporting documentation to establish that
recovery of the overpayment would defeat the purpose of the Act. Neither did she submit
evidence to establish that recovery of the overpayment would be against equity and good
conscience because, in reliance on the overpaid compensation, she relinquished a valuable right
or changed her position for the worse. Although appellant is without fault in the creation of the
overpayment, she nevertheless bears responsibility for providing the financial information
necessary to support her request to waive recovery of the overpayment. Section 10.438 of the
regulations states that a claimant who received an overpayment is responsible for providing
information about income, expenses and assets to the Office so that it may determine whether
recovery of the overpayment would defeat the purpose of the Act or be against equity and good
conscience.10 Failure to submit the information, which will also be used to determine a
repayment schedule if necessary, without 30 days of a request from the Office, will result in a
denial of a waiver of recovery of the overpayment and no further requests for waiver will be
considered until the information is submitted.11
Appellant submitted no evidence in this case to establish that recovery of the
overpayment would defeat the purpose of the Act or be against equity and good conscience. The
Board finds that the Office did not abuse its discretion in refusing to waive recovery of the
overpayment.
On appeal, appellant’s attorney argued that he believed from the Office’s March 22, 2007
letter that no action would be taken prior to the return of the overpayment recovery
questionnaire. The Office, however, specifically told appellant to submit the overpayment
recovery questionnaire within two weeks of its March 9, 2007 letter or it would issue a final
decision.12
The Board notes that it does not have jurisdiction to review the Office’s finding that the
overpayment would be recovered in a lump sum. The Board’s jurisdiction is limited to

10

20 C.F.R. § 10.438(a).

11

20 C.F.R. § 10.438(b); Robert B. Hutchins, 52 ECAB 344 (2001).

12

Appellant submitted new evidence subsequent to the Office’s April 10, 2007 decision. The Board, however,
has no jurisdiction to review new evidence on appeal; see 20 C.F.R. § 501.2(c).

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reviewing those cases where the Office seeks recovery from continuing compensation under the
Act.13
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $1,400.79 for the period July 11 to December 7, 2006 because she received compensation at
an inaccurate rate. The Board further finds that the Office properly denied waiver of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 10, 2007 is affirmed.
Issued: December 18, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

13

Judith A. Cariddo, 55 ECAB 348 (2004).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B. Appellant
and
U.S. POSTAL SERVICE, NATIONAL CAPITAL
STATION, Washington, DC, Employer
__________________________________________

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

Docket No. 10-2130
Issued: June 7, 2011

Case Submitted on the Record

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

JURISDICTION
On August 19, 2010 appellant filed a timely appeal from a May 19, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs that denied her request for
reconsideration. Because more than 180 days elapsed between the most recent merit decision
dated November 18, 2009 and the filing of this appeal, pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review
the merits of the case but has jurisdiction over the nonmerit decision.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without further merit review of the claim under 5 U.S.C. § 8128(a).
On appeal, appellant contends that, although her claim was accepted for an injury, she
was denied compensation for that injury. She contends that she submitted sufficient medical

1

5 U.S.C. § 8101 et seq.

evidence for the Office to approve her claim for compensation. Appellant alleges that the
Office’s denial of her compensation claim has caused her a great deal of hardship.
FACTUAL HISTORY
On October 28, 2008 appellant, then a 48-year-old, filed a traumatic injury claim alleging
that on October 27, 2008, while bending over to remove a printer, she sustained injuries to her
back and numbness in her legs. She noted that it was painful to walk, sit, stand and lay down.
On January 30, 2009 the Office accepted appellant’s claim for sprain of the back and lumbar
region. Appellant requested compensation from December 12 through 20, 2008 and later filed
claims for subsequent periods of compensation. The evidence submitted in support of her
compensation claims included April 22, 2008 and April 22, 2009 attending physician’s reports
by Dr. Sita Krishnamoorthy, appellant’s treating Board-certified internist, a May 4, 2009 duty
status report, a May 18, 2009 verification of treatment form and physical therapy notes dated
April 13 and 15, 2009.
By decision dated June 11, 2009, the Office denied appellant’s claim for compensation
for the period December 20, 2008 through March 27, 2009. It found that she has not submitted a
comprehensive medical report in support of her disability claim.
By letter dated July 14, 2009, appellant requested reconsideration. Additional evidence
submitted in support thereof included a May 4, 2009 duty status report and a May 18, 2009
verification of treatment form by Dr. Krishnamoorthy. On November 18, 2009 the Office
reviewed appellant’s claim on the merits, but denied modification of the prior decision. It
determined that, although appellant submitted pertinent new and relevant evidence on
reconsideration that was not previously considered by the Office, the evidence did not address
the disability elements discussed in the prior decision.
By letter dated April 25, 2010, appellant again requested reconsideration. She reiterated
her prior concern that she did not understand how she could have been approved for the injury
but denied compensation payments. In support of her claim, appellant submitted some illegible
documents which appear to be time and attendance records. In additions she again submitted the
April 22, 2008 report by Dr. Krishnamoorthy, with a duty status report dated May 4, 2009; and
the May 18, 2009 verification of treatment form. Appellant also resubmitted physical therapy
notes dated April 13 and 15, 2009.
By decision dated May 19, 2010, the Office denied appellant’s request for
reconsideration without further merit review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,2
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
2

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).

2

relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.3 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.5
ANALYSIS
On appeal, appellant made various arguments concerning the merits of her claim.
However, as noted, because more than 180 days elapsed between the most recent merit decision
of November 18, 2009 and the filing of this appeal on August 19, 2010, the Board lacks
jurisdiction to review the merits of her case.6 The only issue before the Board is whether the
Office properly denied appellant’s reconsideration request.
Appellant did not make any new argument that the Office erroneously applied or
interpreted a specific point of law, nor did she advance a relevant legal argument not previously
considered by the Office. Furthermore, she did not submit any pertinent new and relevant
evidence with her request for reconsideration. The Board notes that Dr. Krishnamoorthy’s
April 22, 2008 report, the duty status report of May 4, 2009, the verification of treatment form
dated May 18, 2009 and the physical therapy notes dated April 13 and 15, 2009 were all
previously in the record and were previously reviewed by the Office. The submission of
evidence which repeats or duplicates that already of record does not constitute a basis for
reopening a case for merit review.7 The time sheets, in addition to being illegible, do not address
the issue for which appellant’s claim was denied, i.e., that the medical evidence was insufficient
to establish disability between December 20, 2008 and March 27, 2009. The Board has held that
evidence that does not address the particular issue involved in the case does not constitute a basis
or reopening a case.8 As appellant has not met any of the requirements for reopening her case
for merit review under section 8128(a) of the Act, the Office properly denied reconsideration of
her case on the merits.9

3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

Id. at §§ 501.2(c) and 501.3(d)(2).

7

See John Polito, 50 ECAB 347 (1999); David J. McDonald, 50 ECAB 185 (1998).

8

D.I., 59 ECAB 158 (2007); Kevin M. Fatzer, 51 ECAB 407 (2000).

9

Appellant may submit new evidence or argument with a written request for reconsideration to the Office within
one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

3

CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
without further merit review of the claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 19, 2010 is affirmed.
Issued: June 7, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
Reston, VA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1783
Issued: February 27, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On July 9, 2014 appellant, through counsel, timely appealed the February 7, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on May 4, 2013
causally related to his December 16, 2002 employment injury.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, a 59-year-old former supervisory civil aviation security specialist, injured his
right knee in the performance of duty on December 16, 2002.2 OWCP initially accepted the
claim for right knee avulsion fracture. On March 21, 2003 appellant underwent its authorized
right knee arthroscopic debridement.3 He subsequently returned to work.
In October 2008, appellant filed a claim for recurrence of disability beginning
October 3, 2008. He was exercising on a recumbent bicycle when he felt a burning sensation in
his knee. The next morning, appellant experienced extreme pain and was unable to bend his leg.
He explained that, after returning to work following his original injury, he was unable to
participate in physical training for approximately three months. This included defensive
measures, quarterly fitness assessments (QFA), and firearm-related duties. Appellant further
indicated that since the original injury he experienced gout pain primarily after performing
gym-related training in preparation for the QFA or when shooting from the kneeling position
during the required practical pistol course. He also noted that sitting was painful. Appellant
claimed a total of 41 hours of intermittent wage loss between October 6 and November 14, 2008.
In support of his recurrence claim, appellant submitted an October 6, 2008 employing
establishment form, “practical exercise performance requirements” (PEPR) which identified
various physical activities related to law enforcement tasks. The examining physician was asked
to evaluate whether the employee was capable of performing certain activities, including
defensive tactics, aircraft tactical training, firearm training, and overall physical conditioning.
Appellant’s physician, whose signature is illegible, indicated that appellant was unable to satisfy
any of the performance requirements with respect to physical conditioning, defensive tactics, and
aircraft tactical training. As to firearm training, appellant was able to satisfy most of the
requirements except those involving kneeling on one or both knees.
OWCP did not formally adjudicate appellant’s October 2008 recurrence claim.
The record includes a September 11, 2009 limited-duty job offer that was retroactive to
January 21, 2009. The position title was assistant supervisory air marshal in charge (ASAC). It
was a full-time position performing office work “to include using a telephone and a computer,
and attending meetings.” Also, there was no prolonged standing and no physical training
required.
On November 24, 2010 appellant filed a claim (Form CA-7) for a schedule award. In
July 2011, OWCP granted an award for 20 percent impairment of the right lower extremity due

2

Appellant caught his right foot on a chair/table leg and twisted and hyperextended his knee.

3

Dr. Vaughn A. Frigon, a Board-certified orthopedic surgeon, performed the March 21, 2003 arthroscopy. The
postoperative diagnosis was chondromalacia of the right patella.

2

to medial knee joint arthritis.4 Appellant’s schedule award covered a period 57.6 weeks from
March 18, 2011 through April 24, 2012.
Dr. Elizabeth H. Gannon, a Board-certified family practitioner with a subspecialty in
sports medicine, examined appellant on November 28, 2011, and submitted an attending
physician’s report (Form CA-20). She identified December 16, 2002 as the date of injury and
diagnosed chondromalacia, osteoarthritis, and knee pain/arthralgia. Dr. Gannon indicated that
appellant was partially disabled as of November 28, 2011. She stated that “[t]he only extent of
physical limitations involves the right knee -- unable to kneel on right knee, running.”
On March 7, 2012 OWCP received an undated report from Dr. Allen, who previously
rated appellant’s right lower extremity impairment. Dr. Allen indicated that appellant had been
unable to perform the essential elements of his job as an ASAC since March 2011. He explained
that appellant suffered from “bilateral knee arthritis” (sic), which manifested itself as severe and
debilitating pain, instability, diffuse tightness, and lack of normal flexion of the “knees.”5
Dr. Allen further explained that, although appellant’s current job was primarily sedentary,
holding a law enforcement position required him to requalify with his issued firearm utilizing
specific stances and positions that appellant could no longer tolerate due to arthritis-related pain.
He identified other physically demanding aspects of a law enforcement position, including
subduing, apprehending and arresting individuals, employing defensive measures, and
maintaining control of a firearm, all of which appellant was unable to do because of his knee
arthritis, pain and loss of motion. Dr. Allen further noted that appellant was unable to participate
in QFA’s due to his arthritic knees. Appellant’s condition was expected to worsen and require
total knee replacement in the near future. In conclusion, Dr. Allen reiterated that appellant was
no longer able to perform all the essential elements of his job as an ASAC.
In a March 7, 2012 report (Form CA-20), Dr. Gannon diagnosed osteoarthritis of the
knee. She noted that appellant sustained a work-related right knee injury on December 16, 2002,
which required surgery. Dr. Gannon indicated that he had been totally disabled since
March 2011, but could currently return to work with modifications. She noted that appellant
needed frequent breaks to walk. Dr. Gannon also indicated that he was unable to stand, sit and
kneel for prolonged periods of time.
In addition to the Form CA-20, Dr. Gannon submitted a March 7, 2013 PEPR report and
a March 8, 2013 work capacity evaluation (OWCP-5c). With respect to PEPR training, appellant
was unable to satisfy any of the performance requirements with respect to physical condition and
defensive tactics, and could meet only one of seven requirements for aircraft tactical training.
Regarding firearm training, Dr. Gannon indicated that he was unable to stand for a period of one

4

OWCP did not issue a formal decision with respect to appellant’s entitlement to a schedule award. The 20
percent right lower extremity award appears to have been based on the March 18, 2011 examination findings of
Dr. Harold H. Allen Jr., which the district medical advisor reviewed on April 19, 2011.
5

Dr. Allen indicated that he operated on appellant’s knee on three occasions over a three-year period. However,
he did not specify which knee or when the surgeries were performed.

3

hour. Also, appellant was unable to participate in handgun maneuvers that involved kneeling on
one or both knees.6
The March 8, 2012 OWCP-5c indicated that appellant was unable to perform his usual
job, but could work an eight-hour day with restrictions. Dr. Gannon noted that he reached
maximum medical improvement and she characterized the identified restrictions as permanent.
Appellant was limited to 30 minutes sitting, and 15 minutes each for walking and standing.
There was to be no squatting, kneeling, climbing, or twisting, and he was limited with respect to
bending/stooping. Appellant was also limited to 30 minutes of operating a motor vehicle at work
and to/from work. Additionally, Dr. Gannon imposed a 5- to 10-pound lifting restriction.
Lastly, appellant required periodic breaks after every 30 minutes of sitting and standing/walking.
On April 26, 2013 appellant filed a claim (Form CA-7) for wage-loss compensation
beginning May 4, 2013. In the remarks section (No. 14), the employing establishment indicated
that he was being removed from duty due to inability to perform work responsibilities.
Appellant submitted a copy of his résumé, which indicated he currently worked as a
supervisory federal air marshal in charge (SAC); a position he held since 2010.7 The résumé
also identified various other positions he held subsequent to his December 2002 employment
injury.
On May 2, 2013 the employing establishment submitted a report of work (OWCP 3)
indicating appellant would be removed from service effective May 4, 2013 due to permanent
disability.
More than a year prior, the employing establishment informed appellant that the
then-current medical evidence showed he was unable to perform the essential duties of his
position as SAC. The April 13, 2012 memorandum further explained that appellant did not meet
medical standards for his position based on restrictions imposed by his treating physician arising
from “bilateral knee arthritis.”8 The memorandum also noted that he reached maximum medical
improvement and his restrictions were deemed permanent. The employing establishment
indicated that based on appellant’s diagnosis and treatment, he was no longer medically qualified
to perform the essential functions of his SAC position. Although appellant already filed an
application for disability retirement, it advised him of the option of requesting reasonable
accommodation(s).9 The April 13, 2012 memorandum included instructions on how to apply for
reasonable accommodation(s), and the time frame (15 days) within which to submit the request.
The employing establishment further advised that if an accommodation request was not received
6

Appellant was able to perform at least five of the nine firearm training requirements without modification.

7

OWCP also received a February 8, 2013 notification of personnel action Standard Form 50 (SF-50) indicating
appellant successfully completed his probationary period as SAC.
8

The subject line on the memorandum read: “Inability to Perform Essential Duties of Your Position/Inability to
Meet Federal Air Marshal Service Medical Standards.”
9

An undated letter from the Office of Personnel Management (OPM) advised that appellant was found disabled
due to arthritis and nonunion of patella fracture. OPM determined that the condition disabled him from his position
as SAC.

4

in the allotted time, appropriate nondisciplinary administrative action may be initiated in the
form of a notice of proposed removal.10
On May 2, 2013 OWCP wrote to both appellant and his employing establishment
regarding the upcoming removal action and anticipated wage-loss beginning May 4, 2013. It
asked the employing establishment to provide additional information regarding the
circumstances of appellant’s prospective removal, and specifically requested a copy of any
limited-duty assignment appellant performed on or about May 4, 2013. OWCP also inquired
about the basis for withdrawing a limited- or light-duty assignment.
On May 6, 2013 appellant filed a notice of recurrence (Form CA-2a) for wage-loss
beginning May 4, 2013. He noted he was working restricted duty until his doctor indicated it
was permanent. Since returning to work following his original injury, appellant reported
experiencing knee instability and debilitating pain. He stated that the recurrence was a result of
employing establishment removing him from service. Appellant explained that the employing
establishment notified him that he was no longer qualified to perform his duties as a result of
work-related injury. The employing establishment noted that he had been working restricted
duty until “March 2011” when his doctor indicated that his restrictions were permanent.
In a separate statement also dated May 6, 2013, appellant indicated that following receipt
of the April 13, 2012 memorandum, the employing establishment allowed him to work in a
limited-duty capacity in accordance with Dr. Gannon’s March 2012 OWCP-5c. This included
teleworking from his residence for three hours a day. However, appellant was still unable to
perform the required elements of his position, such as QFA’s, firearm qualification, and
defensive tactics as previously identified by Dr. Allen. Consequently, the employing
establishment notified him that he would be removed effective May 4, 2013.
In its May 14, 2013 response to OWCP, the employing establishment noted that appellant
was declared disabled as of May 4, 2013, and was removed due to his inability to perform the
duties of his job. It further explained that medical documentation indicated his restrictions were
permanent, and the employing establishment was unable to accommodate his permanent
restrictions. Additionally, the employing establishment noted that the April 26, 2013 Form CA-7
was submitted in advance of appellant’s May 4th removal to ensure that he would be set up
properly in OWCP’s system by the end of his first official pay cycle out of work.
In a July 18, 2013 decision, OWCP denied appellant’s claimed recurrence of disability
beginning May 4, 2013. It noted that Dr. Allen found appellant disabled due to bilateral knee
arthritis. However, appellant’s claim was accepted for “‘avulsion fracture of right knee,’” not a
bilateral knee condition. OWCP found the medical evidence did not establish a spontaneous
change or worsening of his accepted right knee condition. Dr. Allen did not explain how the
disability was related to appellant’s December 16, 2002 work injury.
Appellant requested a hearing, which was held on December 9, 2013. He testified
regarding his current right knee problems and the various positions he held since his
December 2002 injury. Appellant also testified that he previously tore his left meniscus, anterior
10

Appellant signed the above-noted memorandum acknowledging receipt of the document on April 13, 2012.

5

cruciate ligament, and quadriceps muscle. Dr. Allen operated on his left knee on three occasions
between 1994 and 1996, and since then appellant’s knee was “perfectly fine.” He stated that
currently there were “no issues with [appellant’s] left knee, none.”
In a December 2, 2013 attending physician’s report (Form CA-20), Dr. Gannon
diagnosed right knee osteoarthritis. She noted that appellant originally injured his knee in 2002.
This condition was subsequently aggravated by his employment due to frequent kneeling.
Dr. Gannon indicated that appellant was currently totally disabled, which dated back to
May 4, 2013.
In a December 20, 2013 narrative report, Dr. Gannon indicated that she had been
appellant’s primary care physician since February 2009, and he had been a patient in her office
practice since 2006. She referenced her December 2, 2013 Form CA-20, and noted that his right
knee osteoarthritis was related to his December 16, 2002 injury. Dr. Gannon further noted that
appellant tried several prescription medications and physical therapy, but continued to have pain
in his right knee, which required further treatment. She also noted having submitted a March 8,
2012 OWCP-5c describing his medical condition and limitations, which she consider to be
permanent. With respect to purported left knee arthritis, Dr. Gannon indicated that she had
thoroughly reviewed appellant’s previous medical records, and based on past and present
examinations, he did not currently suffer from left knee osteoarthritis. In fact, appellant had not
even complained about his left knee. It was only his right knee that had been documented as
having arthritis due to the December 2002 injury. Dr. Gannon explained that the right knee
diagnosis was based on multiple orthopedic examinations and x-rays, including her own
examination. She reiterated that appellant had no clinical indications of left knee arthritis and he
had not complained of any restrictions or pain relating to his left knee. Dr. Gannon stated that
his right knee osteoarthritis was directly related to the December 16, 2002 incident and his
restrictions were permanent. She further stated that appellant had no known restrictions relating
to his left knee.
By decision dated February 7, 2014, the Branch of Hearings and Review affirmed the
denial of appellant’s recurrence claim. However, the hearing representative recommended that
OWCP expand the claim to include right knee osteoarthritis as an accepted condition.
On June 17, 2014 OWCP expanded appellant’s claim to include right knee osteoarthritis.
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 resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.11 Recurrence of disability also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
11

20 C.F.R. § 10.5(x).

6

limitations.12 Generally, a withdrawal of a light-duty assignment would constitute a recurrence
of disability where the evidence established continuing injury-related disability for regular
duty.13 A recurrence of disability does not apply when a light-duty assignment is withdrawn for
reasons of misconduct, nonperformance of job duties or other downsizing or where a loss of
wage-earning capacity determination is in place.14
Absent a change or withdrawal of a light-duty assignment, a recurrence of disability
following a return to light-duty may be established by showing a change in the nature and extent
of the injury-related condition such that the employee could no longer perform the light-duty
assignment.15
Where an employee claims a recurrence of disability due to an accepted
employment-related injury, he has the burden of establishing that the recurrence is causally
related to the original injury.16 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes that the condition is causally related to the employment
injury.17 The physician’s opinion must be based on a complete and accurate factual and medical
history and supported by sound medical reasoning.18
ANALYSIS
Appellant claimed he was removed from his latest position as SAC because of his injuryrelated right knee condition. The employing establishment submitted a May 2, 2013 report of
work status (OWCP 3) indicating that he would be removed from service effective May 4, 2013
due to permanent disability. On appellant’s May 6, 2013 Form CA-2a, it indicated that appellant
had been working restricted duty until “March 2011” when his doctor indicated his restrictions
were permanent. Also, in a May 14, 2013 letter to OWCP, the employing establishment
indicated that he was removed effective May 4, 2013 due to an inability to perform the duties of
his job. It further indicated it was unable to accommodate appellant’s permanent restrictions.
OWCP expanded the claim to include right knee osteoarthritis as an accepted condition.
Both Dr. Allen and Dr. Gannon indicated that appellant’s arthritis limited his ability to satisfy
certain requirements of his law enforcement position. Although there was some initial confusion
regarding whether appellant had arthritis in the left knee, Dr. Gannon clarified that there were no
12

Id.

13

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013).

14

Id. at §§ 10.5(x), 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences,
Chapter 2.1500.2b (June 2013).
15

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

16

20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5
and 2.1500.6. (June 2013).
17

See S.S., 59 ECAB 315, 318-19 (2008).

18

Id. at 319.

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clinical indications of left knee arthritis and appellant had not complained of any restrictions or
pain relating to his left knee.19 At the December 9, 2013 hearing, appellant represented that
Dr. Allen last operated on his left knee in 1996, and currently there were no issues with that
particular knee. Dr. Allen described his left knee as perfectly fine.
On his May 6, 2013 Form CA-2a, appellant claimed to have been working restricted duty
until his doctor indicated that his restrictions were permanent. Based on the April 13, 2012
memorandum, he appears to have been removed as SAC based on the March 2012 report(s) of
Dr. Allen and/or Dr. Gannon. Generally, a withdrawal of a light-duty assignment would
constitute a recurrence of disability where the evidence established continuing injury-related
disability for regular duty.20 However, the Board finds that the case is not in posture for
decision.
The current record includes scant information regarding the position appellant held
immediately prior to his May 4, 2013 removal. Also, it is not entirely clear what transpired over
the year-long period between the April 13, 2012 memorandum and his removal on
May 4, 2013.21 A February 8, 2013 SF-50 identified appellant’s position as supervisory federal
air marshal, but the specific job duties are not apparent from the record. Also, it is unclear what,
if any, accommodations were in place at the time. The only limited-duty assignment of record
was from 2009, which predated appellant’s latest assignment as SAC.
The employing establishment’s May 14, 2013 correspondence was not entirely
responsive to OWCP’s May 2, 2013 development letter. It neglected to provide a copy of
appellant’s latest job assignment, including physical requirements and any recognized
limitations. Also, the employing establishment failed to provide copies of all documentation
regarding the removal action, including a current SF-50. As noted, the April 13, 2012
memorandum was merely a precursor to the removal action, which occurred more than a year
later. Appellant represented that, after receiving the April 13, 2012 memorandum, the
employing establishment allowed him to work in a limited-duty capacity in accordance with
Dr. Gannon’s March 2012 OWCP-5c. The accommodation reportedly included teleworking
from his residence for three hours a day. Again, this information has not been confirmed by the
employing establishment or otherwise substantiated in the record.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden to establish entitlement to compensation; however, OWCP
shares responsibility in the development of the evidence to see that justice is done.22 Accurate
information regarding appellant’s employment duties is essential to determine whether he
19

Dr. Allen’s March 18, 2011 report did not include any findings with respect to appellant’s left lower extremity.
His undated report received on March 7, 2012 similarly fails to reference any recent examination findings with
respect to either the left or right lower extremity.
20

S.S., 59 ECAB at 319; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4)
(June 2013).
21

The hearing representative incorrectly identified the date of the memorandum as “April 13, 2013.”

22

William J. Cantrell, 34 ECAB 1223 (1983).

8

suffered a recurrence of disability beginning May 4, 2013. The Board acknowledges OWCP’s
previous attempt to develop the record regarding appellant’s specific employment duties prior to
his May 4, 2013 removal. The employing establishment was not entirely responsive, and
OWCP’s efforts to obtain information from the employing establishment should not have ceased
at that point. It is responsible for submitting to OWCP all relevant and probative factual and
medical evidence in its possession, or which it may acquire through investigation or other
means.23 The employing establishment cannot withhold information to its employee’s
detriment.24
Because the record lacks sufficient evidence for the Board to render an informed
decision, the case shall be remanded to OWCP for further development. On remand, OWCP
shall apprise the employing establishment of its responsibility for submitting all relevant and
probative factual and medical evidence in its possession. After OWCP has developed the record
consistent with the above-noted directive, it shall issue a de novo decision regarding appellant’s
claimed recurrence of disability beginning May 4, 2013.
CONCLUSION
The Board finds that this case is not in posture for decision.

23

20 C.F.R. § 10.118.

24

As evidence appearing in the employing establishment’s files is not generally available to claimants, the
employing establishment must assemble and submit such evidence. Federal (FECA) Procedure Manual, Part 2 -Claims, Initial Development of Claims, Chapter 2.800.4(b) (June 2011).

9

ORDER
IT IS HEREBY ORDERED THAT the February 7, 2014 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: February 27, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Indianapolis, IN,
Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0456
Issued: September 1, 2020

Case Submitted on the Record

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

JURISDICTION
On December 28, 2019 appellant, through counsel, filed a timely appeal from a July 2,
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 April 3, 2018, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 2, 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 2, 2000 appellant, then a 51-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on June 1, 2000 she sustained a buttock injury when she fell while in the
performance of duty. OWCP assigned the claim OWCP File No. xxxxxx097 and accepted it for a
contusion of the left buttock and low back sprain.
On February 8, 2018 appellant, then a 69-year-old mail processing clerk, filed a notice of
recurrence (Form CA-2a) alleging disability due to her employment-related conditions. She
alleged an increase of shingles episodes, left hip pain, and left shoulder pain due to factors of her
federal employment, including repetitive motions. Appellant noted that the recurrence of disability
was a gradual and slow process starting around February 1, 2018.
In a February 7, 2018 work status report, Dr. Victor N. Egwu, an orthopedic specialist, held
appellant off work until February 19, 2018.
In a development letter dated February 22, 2018, OWCP converted appellant’s recurrence
claim to one for a new occupational disease claim, and assigned OWCP File No. xxxxxx687 and
informed her that the evidence of record was insufficient to establish her claim. It advised her of
the type of factual and medical evidence needed and attached a factual questionnaire for her
completion, requesting that she provide a detailed description of the employment-related factors
she believed contributed to her conditions, including a description of her required duties, relevant
dates, and how often she performed those duties. OWCP afforded appellant 30 days to respond.
In a February 23, 2018 medical note, Dr. Egwu noted that appellant was scheduled for
surgical procedure on her left shoulder on March 6, 2018. In a work status report of even date, he
recommended that she remain off work until April 4, 2018. In a March 21, 2018 work status
report, Dr. Egwu indicated that on March 6, 2018 appellant underwent left shoulder arthroscopy
and could not perform her job duties.
By decision dated April 3, 2018, OWCP denied appellant’s occupational disease claim,
noting that she had not responded to its February 22, 2018 development letter requesting specific
factual information regarding the employment-related factors that she believed contributed to her
conditions. It concluded, therefore, that the requirements had not been met to establish an injury
as defined by FECA.
OWCP subsequently received an April 9, 2018 work status report, wherein Dr. Egwu held
appellant off work until May 2, 2018. In a May 2, 2018 work status report, Dr. Egwu
recommended postponing her return to work for at least four weeks. He also indicated that
appellant was undergoing physical therapy.
In an undated medical report, Dr. Marcus Hinkle, a physical therapist, noted that appellant
underwent a left shoulder surgery and recommended limited-duty work.
On April 3, 2019 appellant, through counsel, requested reconsideration.
2

By decision dated July 2, 2019, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant has not shown that OWCP erroneously applied or interpreted a specific point of
law. Moreover, she has not advanced a relevant legal argument not previously considered. As
such, appellant is not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under 20 C.F.R. § 10.606(b)(3).9
In support of her request for reconsideration, appellant submitted April 9 and May 2, 2018
work status reports from Dr. Egwu and an undated medical report from Dr. Hinkle. While these
4

5 U.S.C. § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued
February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
5

20 C.F.R. § 10.606(b)(3); see also E.W., Docket No. 19-1393 (issued January 29, 2020); L.D., id.; B.W., Docket
No. 18-1259 (issued January 25, 2019).
6
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
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.
7
Id. at § 10.608(a); see also Y.H., Docket No. 18-1618 (issued January 21, 2020); R.W., Docket No. 18-1324 (issued
January 21, 2020); M.S., 59 ECAB 231 (2007).
8

Id. at § 10.608(b); D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., Docket No. 19-0291 (issued
June 21, 2019).
9

E.W., supra note 5; T.V., Docket No. 19-1504 (issued January 23, 2020).

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reports were new to the record, they were not relevant to the issue for which OWCP denied her
claim, the failure to establish the factual component of her claim because the evidence did not
support that the injury or events occurred as alleged.10 The Board has held that the submission of
evidence or argument which does not address the particular issue involved does not constitute a
basis for reopening a claim.11 Thus, appellant is not entitled to a review of the merits of her claim
based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).12
The Board accordingly finds that, as appellant has not satisfied any of the three
requirements under 20 C.F.R. § 10.606(b)(3) to warrant further merit review of her claim, OWCP
properly denied her request for reconsideration.13
On appeal counsel argues that OWCP improperly denied review when appellant presented
evidence of causal relationship. As previously noted, however, the Board does not have
jurisdiction over the April 3, 2018 merit decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 1, 2020
Washington, DC

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

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

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

10

See R.W., supra note 7; Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984).

11

E.J., Docket No. 19-1509 (issued January 9, 2020); S.W., Docket No. 19-1498 (issued January 9, 2020).

12

A.G., Docket No. 20-0290 (issued June 24, 2020).

13

C.A., Docket No. 19-0160 (issued January 16, 2020); L.E., Docket No. 19-0470 (issued August 12, 2019).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Toledo, OH, Employer
__________________________________________

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

Docket No. 07-1126
Issued: September 5, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 19, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 20, 2007 nonmerit decision denying her request for merit
review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over this
nonmerit decision. The Office’s most recent merit decision of record was a July 15, 1999
decision denying her recurrence of disability claim. Because more than one year has elapsed
between the last merit decision and the filing of this appeal, the Board lacks jurisdiction to
review the merits of this claim.1
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
This is the seventh appeal in the present case. In the first appeal,2 the Board affirmed the
Office’s finding that appellant had not sustained a recurrence of disability on or after June 3,
1993 due to her April 7, 1993 employment injury.3 In the second appeal,4 the Board again
affirmed the Office’s denial of appellant’s claim for a recurrence of disability on or after June 3,
1993 due to her April 7, 1993 employment injury. In these decisions, the Board found that the
medical reports of record, including the reports of Dr. Ted Barber, an attending Board-certified
neurologist, were not sufficient to establish her claim. In the third appeal,5 the Board affirmed
the Office’s refusal to reopen appellant’s case for further review of the merits pursuant to
5 U.S.C. § 8128(a).
In the fourth appeal,6 the Board issued a decision on January 26, 2004 affirming the
Office’s refusal to reopen appellant’s case for further merit review as her application was not
timely filed and failed to present clear evidence of error.7 On September 19, 2004 appellant
requested reconsideration of her claim and submitted an August 20, 2004 report of Dr. Barber.8
By decision dated November 16, 2004, the Office denied appellant’s request for further review
of the merits of her claim.

2

Docket No. 97-631 (issued October 2, 1998).

3

On April 7, 1993 appellant, then a 51-year-old letter carrier, sustained an employment-related acute lumbosacral
strain and a right knee strain. She stopped her limited-duty work and was terminated from the employing
establishment effective June 3, 1993. Appellant alleged that she sustained a recurrence of disability on June 3, 1993
due to her April 7, 1993 employment injury.
4

Docket No. 99-2541 (issued January 2, 2001).

5

Docket No. 01-2130 (issued May 23, 2002).

6

Docket No. 03-2088 (issued January 26, 2004).

7

The Board found that the reports of Dr. Barber submitted on reconsideration did not show clear evidence of
error in the Office’s prior decisions. In a February 19, 2003 report, Dr. Barber stated that appellant’s back pain was
proximately related to the April 7, 1993 employment injury. He noted that she reported no pain prior to April 7,
1993 and consistently complained of the same pain after that date and related it to the April 7, 1993 injury. In a
report dated March 19, 2003, Dr. Barber stated that appellant had sciatica, with aggravation by movement,
confirmed by a September 11, 2002 computerized tomography (CT) scan, which caused pain in her back and lower
extremities. He noted that appellant did not have such pain prior to April 7, 1993, but had it after that date.
Dr. Barber indicated that the April 7, 1993 injury was the direct cause of the sciatica.
8

In the August 20, 2004 report, Dr. Barber discussed appellant’s April 7, 1993 injury and stated, “After all those
treatments and further treatments [appellant] continued to have complaint of pain in the sciatic distribution on the
right. She did not have this pain prior to her fall and has only complained of the pain ever since her fall. Given
[appellant’s] report of injury and her physical findings of pain at the sciatic notch along with a prolonged H [r]eflex
on her EMG [electromyogram], it is my opinion and I think it is reasonable to conclude, that her pain and sciatica
are the direct and proximal result of the injury of April 7, 1993. That type of injury would result in those kinds of
objective findings of physical examination and EMG. In that the pain has gone on for over 10 years, it is my
opinion that the pain is now permanent. The objective evidence to cite to make the diagnosis lies in her EMG and
CT scanning which shows multilevel [facet] arthrosis affecting L1-2, L4-5 and L5-S1.”

2

In the fifth appeal,9 the Board issued an order setting aside the Office’s November 16,
2004 decision and remanded the case to the Office for proper assemblage of the case record. The
Board found that the record was missing certain documents including medical records before
mid 1993 and various Office and Board decisions. On remand the Office reassembled the case
record to include the relevant documents as requested by the Board. By decision dated
August 31, 2005, the Office reissued its November 16, 2004 decision, finding that appellant’s
September 2004 reconsideration request did not warrant further merit review of her case. In the
sixth appeal,10 the Board issued a decision on July 3, 2006 affirming the Office’s refusal to
reopen appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a). The facts
and circumstances of the case up to this point are set forth in the Board’s prior decisions and are
incorporated herein by reference.
In an October 6, 2006 letter, appellant, through her attorney, again requested
reconsideration of her claim. Appellant submitted a September 20, 2006 report in which
Dr. Barber indicated that he saw her on that date at which time she provided a description of the
April 7, 1993 employment injury and reported that she had been in constant pain since that time.
Dr. Barber stated:
“[Appellant] stated that she was unable to carry mail and return to work and was
given a job returning undeliverable mail. The job required her to do quite a bit of
twisting from side to side, which further irritated her pain. [Appellant] stated that
it is an irritating pain in the region of the sciatic nerves, and states that the return
to work caused recurrence of her original injury of 1993. She has tried treatment
since that time with no improvement. Given that [appellant] has identified this
injury as the causative injury for her pain and no other, I would conclude that is
the most likely explanation for her pain. The twisting and turning cause[d]
irritation of the injury.11
In a February 20, 2007 decision, the Office refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,12 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
9

Docket No. 05-620 (issued August 4, 2005).

10

Docket No. 05-1966 (issued July 3, 2006).

11

Appellant also submitted copies of Dr. Barber’s August 20, 2004 report and an undated factual statement that
she previously submitted to the Office.
12

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).

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considered by the Office.13 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.14 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.15 The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.16
ANALYSIS
The Office accepted that appellant sustained an employment-related acute lumbosacral
strain and a right knee strain on April 7, 1993. She alleged a recurrence of disability on June 3,
1993 due to her April 7, 1993 employment injury. The Office denied appellant’s claim because
she did not submit sufficient medical evidence. By decision dated February 20, 2007, the Office
determined that her October 2006 reconsideration request did not entitle her to further merit
review of her case.
In support of her October 2006 reconsideration request, appellant submitted a
September 20, 2006 report of Dr. Barber who noted that appellant reported being in constant
pain since her April 7, 1993 employment injury and indicated that she attributed her claimed
recurrence of disability to her job duties, including twisting from side to side. Dr. Barber stated,
“Given that she has identified this injury as the causative injury for her pain and no other, I
would conclude that is the most likely explanation for her pain. The twisting and turning
cause[d] irritation of the injury.” The Board notes, however, that the submission of Dr. Barber’s
September 20, 2006 report would not require reopening of appellant’s claim because this report
is similar to previously submitted reports of Dr. Barber. In his September 20, 2006 report, as
well as his prior reports,17 Dr. Barber appeared to have based his opinion on the cause of
appellant’s continuing medical problems on her long-term pain complaints and her own assertion
that her claimed recurrence of disability was employment related.18
Appellant has not established that the Office improperly denied her request for further
review of the merits of its July 15, 1999 decision under section 8128(a) of the Act, because the
evidence and argument she submitted did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
13

20 C.F.R. § 10.606(b)(2).

14

20 C.F.R. § 10.607(a).

15

20 C.F.R. § 10.608(b).

16

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

17

Dr. Barber’s September 20, 2006 report is similar to his February 19, March 19, 2003 and August 20, 2004
reports which were previously considered by the Office. The Board notes that Dr. Barber’s September 20, 2006
report contains even less medical rationale regarding the cause of appellant’s continuing medical problems than his
prior reports.
18

Appellant also submitted copies of Dr. Barber’s August 20, 2004 report and an undated factual statement, but
these documents had previously been submitted and considered by the Office.

4

by the Office, or constitute relevant and pertinent new evidence not previously considered by the
Office.19
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
February 20, 2007 decision is affirmed.
Issued: September 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

19

See supra note 16 and accompanying text.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Henderson, NV, Employer
__________________________________________

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

Docket No. 20-0173
Issued: May 21, 2020

Case Submitted on the Record

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

JURISDICTION
On October 29, 2019 appellant filed a timely appeal from an October 16, 2019 merit
decision of the Office of Workers’ Compensation Programs.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted August 19, 2019 employment incident.

1
Appellant also filed a timely request for oral argument pursuant to section 501.5(b) of the Board’s Rules of
Procedure. 20 C.F.R. § 501.5(b). By order issued on May 14, 2020, the Board exercised its discretion and denied the
request as the matter could be adequately addressed based on a review of the case record. Order Denying Request for
Oral Argument, Docket No. 20-0173 (issued May 14, 2020).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 27, 2019 appellant, then a 29-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on August 19, 2019 he suffered heat exhaustion when
delivering mail in his postal truck while in the performance of duty. He noted that his body began
to cramp up, resulting in injuries to his back and legs. Appellant stopped work and first received
medical treatment on the date of injury. On the reverse side of the claim form, appellant’s
supervisor reported that appellant declined to go to the emergency room for treatment.
In a development letter dated September 13, 2019, OWCP notified appellant that his claim
was initially administratively handled to allow medical payments, as it appeared to involve a minor
injury resulting in minimal or no lost time from work. However, appellant’s claim had been
reopened for consideration of the merits because he had not returned to work in a full-time
capacity. OWCP informed him of the deficiencies of claim, advised him of the type of medical
and factual evidence needed to establish his claim, and provided a questionnaire for his
completion. It afforded appellant 30 days to submit the necessary evidence.
In a September 30, 2019 response to OWCP’s development questionnaire, appellant
described the circumstances surrounding the alleged August 19, 2019 employment incident. He
reported that, on that date, he was on his mail route delivering mail in a truck without an air
conditioner, and the high temperature that day exceeded 100 degrees. Appellant reported that
around 2:30 p.m. he began to experience heat exhaustion and cramping, causing injury to his back.
He continued working until approximately 2:50 p.m. when his supervisor finally pulled him off
his route and called the paramedics. Appellant reported that the incident caused cramping/muscle
spasms, dehydration, and a back injury. He was seen by the ambulance paramedics on that date
and was cleared to go home. However, appellant’s back condition did not improve, causing him
to seek further medical treatment. Appellant reported that he did not return to work until
September 2, 2019 because the employing establishment would not allow him to return to work
until his attending physician cleared him for duty.
An August 26, 2019 medical report from Dr. Brock E. Cardon, Board-certified in family
medicine, discussed the incident when appellant experienced heat exhaustion. Dr. Cardon noted
that appellant had ongoing back pain with shooting pain down his legs for approximately one
week. He provided findings on physical examination and diagnosed low back pain. Dr. Cardon
suspected a musculoskeletal etiology with some spasm and mild radicular symptoms. He further
suspected strain secondary to recent muscle cramping with an episode of heat exhaustion. In an
accompanying work excuse note, Dr. Cardon reported that appellant could return to work on
September 2, 2019.
In a September 11, 2019 follow-up evaluation, Captain Alexis J. Scott, a family medicine
resident physician, noted appellant’s complaints of continued back pain since his visit with
Dr. Cardon. She diagnosed low back pain, acute versus chronic, which was not worsening.
Dr. Scott noted that it was likely a muscle spasm and there was no firm evidence of disc or nerve
root compression, infection, fracture, or spinal stenosis at any level. Appellant was advised to
continue conservative therapy and home exercises. In an accompanying work excuse note,
Dr. Scott reported that appellant could return to regular-duty work on September 18, 2019.

2

By decision dated October 16, 2019, OWCP accepted that the August 19, 2019
employment incident occurred as alleged, but denied appellant’s traumatic injury claim finding
that the evidence of record did not include medical evidence containing a diagnosis in connection
with the accepted employment incident. As such, it found that he had not established the medical
component of fact of injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA,4 that an injury was sustained while in the performance of duty as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.7 Fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.8 The second component is whether the employment incident caused a personal
injury.9
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence. The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment incident.10
ANALYSIS
The Board finds that the case is not in posture for decision.

3

Supra note 1.

4

S.C., Docket No. 18-1242 (issued March 13, 2019); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

T.H., Docket No. 18-1736 (issued March 13, 2019); R.C., 59 ECAB 427 (2008).

6

T.E., Docket No. 18-1595 (issued March 13, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).

7

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388 (2008).

8

E.M., Docket No. 18-1599 (issued March 7, 2019); Bonnie A. Contreras, 57 ECAB 364 (2006).

9

Id.

10

See S.S., supra note 7; H.B., Docket No. 18-0781 (issued September 5, 2018).

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OWCP has accepted that appellant was delivering mail in a vehicle without air conditioning
in 100-degree heat on August 19, 2019. In support of his claim, appellant submitted a medical
report from Dr. Cardon dated August 26, 2019 in which he found that appellant had experienced
an episode of heat exhaustion, with associated cramping of his back. Heat exhaustion has been
determined by the Board to be a firm diagnosis.11 The Board therefore finds that the evidence of
record establishes the diagnosis of heat exhaustion.
OWCP has not reviewed the medical evidence of record on the issue of whether the
established diagnosis of heat exhaustion is causally related to the accepted employment incident.
Therefore, the case will be remanded to OWCP for consideration of the medical evidence on the
issue of causal relationship. Following such further development as deemed necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this decision of the Board.
Issued: May 21, 2020
Washington, DC

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

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

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

11

See A.A., Docket No. 18-0031 (issued April 5, 2018); E.E., Docket No. 16-1857 (issued September 26, 2017).

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