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

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Appearances:
John L. Whitehouse, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0777
Issued: January 3, 2017

Case Submitted on the Record

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

JURISDICTION
On March 8, 2016 appellant, through counsel, filed a timely appeal of a February 4, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish a concussion causally
related to an accepted March 17, 2015 employment incident.
FACTUAL HISTORY
On March 18, 2015 appellant, then a 47-year-old investigator, filed a traumatic injury
claim (Form CA-1) alleging that on March 17, 2015 he sustained a severe concussion, dizziness,
confusion, and injuries to his neck, back, and left eye as a result of boxes falling on his head and
neck at work. He indicated that two boxes fell from a bookcase onto his head and neck and
caused him to fall forward onto his face. Appellant stopped work on March 17, 2015.
Appellant’s coworker provided a witness statement dated March 17, 2015. He stated that
he was in appellant’s office that day at approximately 8:00 a.m., looking at wall jacks for
computer connections when two boxes fell from the top of a bookcase and landed on appellant’s
head and shoulder area forcing appellant to fall to the floor. The coworker noted that appellant
declined assistance, but he informed appellant that he would report the incident to appellant’s
supervisor.
Appellant was treated at urgent care by Dr. Stephan Gaehde, a Board-certified internist.
In a March 17, 2015 note, Dr. Gaehde related that appellant was at work that day when he bent
over and hit his head on the bottom of a shelf, causing files and books to fall on the back of his
head. Appellant complained of left-sided head pain, feeling nauseated, and confusion. Upon
examination, Dr. Gaehde observed a pink oval, around a 15-millimeter size contusion above
appellant’s left eyebrow and swelling over his left forehead. He opined that appellant sustained a
head trauma with fall and elevated blood pressure.
Dr. Glenn Nuttall, a Board-certified internist, also treated appellant and, in a March 17,
2015 note, described that appellant was at work that day when a bookshelf fell on his head.
Upon examination, he observed erythema and swelling over the left forehead and supple, full
range of motion of the neck. Neurologic examination demonstrated clear speech and intact
sensation of the upper and lower extremities. Dr. Nuttall indicated that appellant sustained a
concussion. He recommended a computerized tomography (CT) scan.
A March 17, 2015 CT scan report of the brain by Dr. Joan Cheng, a Board-certified
diagnostic radiologist, revealed no acute intracranial abnormality and mild soft tissue swelling
overlying the left supraorbital region without evidence of underlying fracture.
In a March 17, 2015 work status note, a physician with an illegible signature noted that
appellant was examined in urgent care on that day and would be out of work until
March 23, 2015.
Appellant underwent a CT head scan from Dr. Wesley Rosario-Medina, a Board-certified
diagnostic radiologist, who indicated, in a March 18, 2015 report, that he saw no abnormal brain
attenuation and no evidence of bleeding, mass effect, or fluid collection. Dr. Rosario-Medina
concluded that there was no acute abnormality.

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Dr. Glenn A. Tucker, a Board-certified internist, began to treat appellant and reported on
March 19, 2015 that appellant would not be released to return to work until his examination on
March 23, 2015.
In a March 23, 2015 report, Dr. Tucker related that on March 17, 2015 appellant was at
work when boxes fell on his head and back. He related that appellant experienced vomiting and
was treated at occupational health. Appellant went home for a day, but went to urgent care when
he started vomiting again. Dr. Tucker reviewed appellant’s history and conducted an
examination. He opined that appellant had a cerebral laceration and contusion, without mention
of open intracranial wound, with concussion. Dr. Tucker reported that appellant’s continued
fatigue and poor short-term memory were concerning. He recommended a magnetic resonance
imaging (MRI) scan.
Dr. Tucker provided a March 23, 2015 letter, which mentioned that he examined
appellant that day and observed that appellant had fatigue and short-term memory loss from the
prior week’s accident. He reported that appellant was not able to return to work until further
evaluation.
In a March 24, 2015 MRI scan report, Dr. Rosario-Medina noted a history of concussion,
trouble remembering, headache, and blurry left eye. He reported a normal examination study.
Appellant continued to be treated by Dr. Tucker. In records dated April 7 and 14, 2015,
Dr. Tucker indicated that appellant was seen for follow up after a head injury at work. He
related appellant’s current complaints of daily headaches, poor memory, delayed processing of
information, and difficulty completing tasks. Dr. Tucker discussed appellant’s history and
provided examination findings. He diagnosed other and unspecified cerebral laceration and
contusion, without mention of open intracranial wound, with concussion. Dr. Tucker explained
that he agreed with the diagnosis of concussion, even though the CT and MRI scan did not show
it. He indicated that appellant had continued symptoms relating to the head injury sustained at
work. Dr. Tucker also noted that given appellant’s ongoing mental status change, he should have
a neuropsychological evaluation. He advised that appellant was not able to return to work.
By letter dated April 14, 2016, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that he submit additional evidence to substantiate
that the March 17, 2015 incident occurred as alleged and to establish that he sustained a
diagnosed condition as a result of the alleged incident. Appellant was afforded 30 days to submit
the additional evidence. A similar letter was also sent to the employing establishment requesting
witness statements from anyone with knowledge of the March 17, 2015 work event.
Appellant filed a claim for wage-loss compensation (Form CA-7) for the period May 12
to 15, 2015.
In an April 23, 2015 outpatient neuropsychological consultation report, Dr. Paul F.
Malloy, a clinical neuropsychologist, examined appellant for cognitive problems subsequent to a
head injury at work. He described the March 17, 2015 employment incident and discussed the
medical treatment appellant received. Dr. Malloy related that appellant’s wife reported a clear
decline in cognitive functioning, increased depression, and apathy following the accident. He

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indicated that appellant complained of occasional headaches, easy fatigue, and persistent
cognitive difficulties. Dr. Malloy reviewed appellant’s medical history and provided his findings
on examination of cognitive and behavioral functioning. He opined that, given the results of his
examination and description of appellant’s symptoms, appellant had some mild cognitive decline
experienced from the injury. Dr. Malloy reported that appellant’s prognosis for a complete
recovery was good.
Dr. Tucker continued to treat appellant and, in an April 27, 2015 letter, he described the
March 17, 2015 employment incident. He related that appellant was seen in the emergency room
and that his examination was consistent with a severe concussion. Dr. Tucker discussed the
medical treatment that appellant received and noted that head CT and MRI scans did not show
injury. He reported that appellant continued to have impaired cognition and may not return to
work before June 27, 2015. Dr. Tucker opined that appellant had continued memory and
cognitive impairment after sustaining a severe concussion at work.
On May 1, 2015 OWCP received appellant’s response to OWCP’s development letter.
Appellant stated that he suffered a severe concussion on March 17, 2015 and suffered various
issues with his recollection of details, memory, and severe head pressure. He indicated that the
coworker had provided a witness statement to his supervisor. Appellant reiterated that he had
very little recollection regarding the fine details of the injury and did not remember much from
that day. He reported that he remembered that his coworker was in his office helping to move
computers and telephone systems to their new offices down the hall. Appellant was attempting
to get wall jack information off of the wall box located under his desk and when he bent down he
hit a large, black bookcase located behind him. He indicated that this was when things got fuzzy,
but he remembered being on the floor and going to occupational health. Appellant noted that he
had not suffered any similar disabilities or symptoms before the injury and that he had not
sustained any previous head injuries.
A workers’ compensation program specialist at the employing establishment indicated in
a May 12, 2015 letter that the employing establishment was questioning appellant’s entitlement
to workers’ compensation benefits. She asserted that there was nothing in the medical evidence
which offered positive objective diagnostic evidence or findings to support any other diagnosis
associated with the incident that occurred on March 17, 2015 at work.
In a decision dated May 15, 2015, OWCP denied appellant’s claim. It accepted that the
March 17, 2015 incident occurred as alleged. However, OWCP denied appellant’s claim finding
that the medical evidence of record was insufficient to establish that his diagnosed conditions
were causally related to the March 17, 2015 employment incident.
On June 10, 2015 OWCP received appellant’s request for a hearing before an OWCP
hearing representative.
OWCP received hospital emergency records dated March 18, 2015 by Dr. Elyssa A.
Pellish, Board-certified in emergency medicine. Dr. Pellish described the March 17, 2015
incident and related that MRI and CT scans were normal. She reviewed appellant’s history and
provided physical examination findings. Appellant resubmitted Dr. Malloy’s April 23, 2015
report.

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Appellant submitted reports by Dr. Tucker dated May 12 and June 23, 2015. Dr. Tucker
noted that appellant showed slow improvement, but still had difficulty with completing tasks.
He mentioned that appellant wanted to return to work, but he was unsure if appellant would be
able to perform the tasks. Dr. Tucker reviewed appellant’s history and conducted an
examination. He diagnosed other and unspecified cerebral laceration and contusion, without
mention of open intracranial wound, with concussion unchanged from previous appointment.
Dr. Tucker opined that appellant may need to work with a regular schedule for his remaining
symptoms to improvement. He believed that appellant would not be physically able to return to
the field work of surveillance.
A hearing was held on November 20, 2015. Counsel was present. He described the
March 17, 2015 employment incident and discussed the medical treatment appellant received.
Counsel noted that appellant was initially examined in urgent care for confusion and nausea and
was diagnosed with concussion by Dr. Natal. Dr. Nuttall related that appellant was examined in
the emergency room twice before he was treated by Dr. Tucker. Counsel indicated that
Dr. Tucker diagnosed cerebral laceration and contusion with concussion. He noted that appellant
was examined and diagnosed on three separate occasions with a concussion resulting from the
trauma that was reported to the doctors. Counsel further noted that appellant experienced
symptoms such as nausea, dizziness, neck pain, and vomiting, which were common symptoms
for someone who sustained a concussion. He also asserted that a concussion would not
necessarily show up on a diagnostic examination, which was why appellant’s diagnostic
examinations were normal. Counsel noted that there was only one cause for a concussion, which
was a blow to the head very similar to what happened to appellant on March 17, 2015. He
asserted that the facts and circumstances strongly supported a finding that that there was a direct
connection between the diagnosed concussion and the trauma appellant sustained.
In a December 14, 2015 letter, counsel requested that OWCP consider a December 4,
2015 report by Dr. Tucker that he had enclosed. He described the March 17, 2015 employment
incident and the medical treatment that appellant received. Counsel indicated that OWCP’s
claims examiner demonstrated a lack of understanding of concussions when he denied
appellant’s traumatic injury claim by noting that appellant’s CT and MRI scans examinations
were normal. He asserted that all of the symptoms that appellant exhibited were the result of
head trauma and were recognized as being consistent with a concussion as recognized by the
three physicians that examined appellant. Counsel requested that OWCP refer appellant’s case
to a district medical adviser or second opinion physician in order to determine whether
appellant’s diagnosed conditions were causally related to the accepted head trauma on
March 17, 2015.
Dr. Tucker treated appellant and, in a December 4, 2015 letter, he described that on
March 17, 2015 appellant was struck on the head and upper back when boxes fell on him at
work. He related that appellant was examined by occupational health and taken to urgent care
where he was diagnosed with a concussion. Dr. Tucker noted that he initially examined
appellant on March 23, 2015 for complaints of fatigue and short-term memory loss. He
diagnosed cerebral laceration and contusion with concussion. Dr. Tucker related that he
examined appellant again on April 7, 2015 for complaints of daily headaches, poor memory,
delayed processing of information, difficulty completing tasks, and depression. He again noted
diagnoses of cerebral laceration and contusion with concussion and advised that appellant

5

remained disabled from work. Dr. Tucker opined, to a reasonable degree of medical certainty,
that appellant’s concussion was directly related to the trauma on March 17, 2015. He related that
appellant had no history of a head trauma until he was struck on the head by falling boxes on
March 17, 2015. Dr. Tucker noted that since then appellant suffered multiple symptoms,
including head and neck pain, nausea, dizziness, swelling, vomiting, confusion, fatigue, shortterm memory loss, and depression, which were all symptoms of a concussion. He further noted
that appellant was diagnosed with a concussion within hours of the March 17, 2015 incident and
that there was no other reported incident or event which would account for appellant’s diagnosis.
By letter dated December 22, 2015, an employing establishment official commented on
the hearing transcript and asserted that the May 15, 2015 denial decision should be affirmed.
She alleged that there was insufficient evidence to support that appellant sustained any diagnosed
condition causally related to the March 17, 2015 incident. The employing establishment official
also noted that appellant provided various accounts regarding what exactly had occurred on
March 17, 2015 and that he had initially refused medical treatment at urgent care. The
employing establishment submitted various e-mails between appellant and his supervisor
regarding his claim for workers’ compensation and screenshots of postings and comments from
appellant’s social media page.
By decision dated February 4, 2016, an OWCP hearing representative affirmed the
May 15, 2015 decision in part and modified it in part. She determined that the evidence was
sufficient to establish a causal relationship between appellant’s diagnosed forehead contusion
and the March 17, 2015 employment incident and remanded the case for OWCP to accept the
claim for contusion of the left forehead. The hearing representative also found that the evidence
failed to establish that appellant’s concussion was causally related to the March 17, 2015
employment incident.3
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.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
3

The record reveals that on March 9, 2016 OWCP issued a decision accepting appellant’s claim for left forehead
contusion.
4
5

Supra note 2.
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

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There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.8 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.9 An employee may establish that the
employment incident occurred as alleged, but fail to show that his or her disability or condition
relates to the employment incident.10
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.11 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.12 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.13
While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence and to see that justice is done.14
ANALYSIS
Appellant alleged that on March 17, 2015 he sustained a concussion and injuries to his
neck, back, and left eye in the performance of duty. OWCP accepted that the employment
incident occurred as alleged and that appellant sustained a contusion of the forehead. It denied
appellant’s claim finding the medical evidence of record insufficient to establish that his
concussion was causally related to the March 17, 2015 employment incident
The Board finds that this case is not in posture for decision.
Appellant submitted various reports and letters by Dr. Tucker dated March 19 to
December 4, 2015. In a March 23, 2015 report, Dr. Tucker related that on March 17, 2015
appellant experienced vomiting at work when boxes fell onto his head and back. He provided
physical examination findings and diagnosed cerebral laceration and contusion, without open
8

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

9

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

10

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

11

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

12

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

13

James Mack, 43 ECAB 321 (1991).

14

Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell,
34 ECAB 1233, 1237 (1983).

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intracranial wound, with concussion. Dr. Tucker reported again, in an April 27, 2015 letter, that
appellant had continued memory and cognitive impairment after sustaining a severe concussion
at work. He advised that appellant remain off work. In a December 4, 2015 letter, Dr. Tucker
opined that appellant’s concussion was directly related to the March 17, 2015 trauma. He
explained that appellant had no history of head trauma and that, since the March 1, 2015 work
accident, appellant suffered from multiple symptoms, including head and neck pain, nausea,
dizziness, swelling, vomiting, confusion, fatigue, short-term memory loss, and depression, which
were all symptoms of a concussion. The Board notes that, although these reports do not provide
medical rationale explaining how the accepted employment incident caused or contributed to his
head contusion and concussion, they strongly suggest and support a relationship between the
accepted March 17, 2015 employment incident and appellant’s head injury.15
The Board finds that, while the reports from Dr. Tucker are not completely rationalized,
they are consistent in indicating that appellant sustained a cerebral laceration and contusion with
concussion on March 17, 2015 and are not contradicted by any substantial medical or factual
evidence of record.16 Dr. Tucker’s opinion is also supported by the March 17, 2015 note of
Dr. Gaehde, who described the March 17, 2015 incident and opined that appellant sustained a
head trauma with fall and elevated blood pressure. Although these reports are insufficient to
meet appellant’s burden of proof to establish a claim, they raise an uncontroverted inference
between appellant’s diagnosed head injury and the accepted March 17, 2015 employment
incident, and thus, they are sufficient to require OWCP to further develop the medical
evidence.17
It is well established that proceedings under FECA are not adversarial in nature and
OWCP is not a disinterested arbiter.18 While the claimant has the burden of proof to establish
entitlement to compensation, OWCP shares responsibility in the development of the evidence
and to see that justice is done.19 Thus, the Board will remand the case to OWCP for further
development to obtain a rationalized medical opinion as to whether appellant’s head condition is
causally related to the employment incident and thereafter to issue a de novo decision on whether
he sustained an injury causally related to the March 17, 2015 employment incident, as alleged.
CONCLUSION
The Board finds that this case is not in posture for decision.

15

See L.F., Docket No. 14-1906 (issued August 13, 2015) (the Board determined that reports by a claimant’s
treating physician strongly supported a relationship between the employment incident and diagnosed condition and
remanded the case for OWCP to further develop the medical evidence).
16

See E.J., Docket No. 09-1481 (issued February 19, 2010).

17

Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone, supra note 9.

18

See Vanessa Young, 56 ECAB 575 (2004).

19

Supra note 14.

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ORDER
IT IS HEREBY ORDERED THAT the February 4, 2016 merit decision of the Office
of Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
action consistent with this decision of the Board.
Issued: January 3, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATON MEDICAL
CENTER, Shreveport, LA, Employer
__________________________________________

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

Docket No. 09-965
Issued: December 3, 2009

Case Submitted on the Record

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

JURISDICTION
On March 3, 2009 appellant filed a timely appeal of the December 3, 2008 decision of the
Office of Workers’ Compensation Programs, which found that he received an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$1,196.76 overpayment of compensation for the period August 29 to September 27, 2008; and
(2) whether the Office properly determined that appellant was at fault in creating the
overpayment of compensation, thereby precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
On March 17, 2008 appellant, then a 60-year-old housekeeping aid supervisor, was
injured while lifting boxes off of a pallet. The Office accepted that he sustained a sprain of the

lumbar back region and contusion of the back. Appellant stopped work on March 19, 2008 and
was placed on the periodic rolls.
By a letter dated April 30, 2008, the Office advised appellant of his diagnosed conditions
and his eligibility for benefits. In an attached Form CA-1008, it advised him of certain
information concerning the circumstances under which he could receive compensation. The
Office advised:
“Once you return to work or obtain new employment, notify this office
immediately. Full compensation is payable only while you are unable to perform
the duties of your regular job because of your accepted employment-related
condition. If you receive a compensation check which includes payment for a
period you have worked, return it to us immediately to prevent an overpayment of
compensation.”
In a letter dated August 21, 2008, the Office outlined appellant’s entitlement to
compensation benefits and his responsibility to return to work in connection with the injury
accepted by the Office. In an attached EN1049 the Office provided:
“OVERPAYMENTS. To minimize the possibility of an overpayment of
compensation NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU GO
BACK TO WORK. Each payment shows the period for which payment is made.
If you have worked for any portion of this period, return the payment to this
office, even if you have already advised the [Office] that you are working.
“CERTIFICATION. I have read the information contained in the EN1049 and
understand the conditions under which I may receive compensation and the items
I must report to the Department of Labor, Office of Workers’ Compensation
Programs, in connection with my claim. I agree to be bound by these conditions.
I understand that willful failure on my part to comply with these conditions can
result in termination or forfeiture of benefits and liability for the resulting
overpayments.”
The employing establishment offered appellant a job as a temporary, part-time
supervisory housekeeping aid for four hours a day. On August 29, 2008 appellant accepted the
position and returned to work the same day.
In a compensation termination report dated October 6, 2008, the Office noted that
appellant returned to work, four hours per day, on August 29, 2008. It noted that prior to that
time he was on the periodic rolls receiving compensation for his work-related injury. The Office
noted that appellant’s case history revealed that he continued to receive compensation through
September 27, 2008 and that an overpayment of benefits was created.
In an October 22, 2008 fiscal payment worksheet, the Office calculated that appellant
was overpaid net benefits of $1,196.76 for the period August 29, to September 27, 2008. It noted
that he returned to work four hours per day on August 29, 2008 but that total disability
compensation benefits continued to be paid through September 27, 2008, for a total of 30 days.
The Office calculated the overpayment to be $1,196.76. It noted that, for the period August 29
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to September 27, 2008, a 30-day period, appellant was paid gross benefits of $2,138.84. The
Office further noted that, for the period including August 29, September 1 to 5, September 8 to
12, September 15 to 19 and September 22 to 26, 2008, he worked 4 hours per day for a total of
84 hours and was entitled to $942.08.
In an October 22, 2008 letter, the Office informed appellant that it made a preliminary
determination that he had received a $1,196.76 overpayment of compensation from August 29 to
September 27, 2008 because he continued to receive compensation benefits for temporary total
disability from August 29 to September 27, 2008 after he had returned to work part time, four
hours per day, on August 29, 2008. It found that he was at fault in creating the overpayment
because he accepted payment that he knew or reasonably should have known to be incorrect. It
also informed him that he had the right to submit evidence or argument if he disagreed with the
Office’s finding. The Office also informed appellant that he had a right to a prerecoupment
hearing before an Office hearing representative. The Office instructed appellant to complete an
enclosed overpayment recovery form and submit supporting documentation.
In a decision dated December 3, 2008, the Office found that appellant received a
$1,196.76 overpayment of compensation from August 29 to September 27, 2008, for which he
was at fault in creating. It advised that the overpayment occurred because he returned to work
part time, four hours per day, on August 29, 2008 and continued to receive compensation for
total disability until September 27, 2008. The Office found that appellant was at fault in creating
the overpayment because he reasonably should have been aware that he was not entitled to
compensation benefits for total disability while working part time. It stated that he should
forward a check for the entire amount of the overpayment and if he was unable to refund the
amount he was instructed to contact the Office and make arrangements for recovery of the
overpayment.
LEGAL PRECEDENT -- ISSUE 1
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period. Office procedures provide that an overpayment in compensation is created when a
claimant returns to work but continues to receive wage-loss compensation.1
ANALYSIS -- ISSUE 1
The record indicates that appellant returned to part-time work, four hours per day at the
employing establishment on August 29, 2008. He continued to receive wage-loss compensation
for total disability through September 27, 2008. As noted above, appellant is not entitled to
receive compensation for total disability after he has returned to work. Thus, an overpayment
occurred in the amount of $1,196.76. Appellant did not dispute the calculation of the
overpayment.
Since the evidence indicated that appellant returned to part-time work for four hours daily
on August 29, 2008, he would not be entitled to any compensation for wage loss after that date.
1

Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (May 2004).

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The record shows that the Office calculated that, from August 29 to September 27, 2008,
appellant received $2,138.84 in total disability compensation but should have received only
$942.08 for partial disability. It subtracted $942.08 from $2,138.84 and found that the difference
between the amount of compensation appellant received and the amount he should have received
was $1,196.76 and therefore this is the amount of the overpayment. The Office explained how
the overpayment occurred and provided this to him with the preliminary notice of overpayment.
The Board finds that the Office properly determined that appellant received an overpayment of
compensation in the amount of $1,196.76 for the period August 29 to September 27, 2008.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Federal Employees’ Compensation Act provides as follows:
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.”2
No waiver of an overpayment is possible if the claimant is at fault in creating the
overpayment.3
On the issue of fault, 20 C.F.R. § 10.433(a) provides in pertinent part:
“An individual is with fault in the creation of an overpayment who: (1) made an
incorrect statement as to a material fact which the individual knew or should have
known to be incorrect; or (2) failed to furnish information which the individual
knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have
been expected to know was incorrect.”4
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provides in relevant part:
“(b) Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”5

2

5 U.S.C. § 8129(b).

3

Gregg B. Manston, 45 ECAB 344 (1994).

4

Kenneth E. Rush, 51 ECAB 116 (1999).

5

20 C.F.R. § 10.433(b).

4

Section 10.430(a) of the Office’s regulations advises that the Office includes on each
periodic check a clear indication of the period for which payment is being made. A form is sent
to the recipient with each supplemental check which states the period for which payment is being
made. Section 10.430(b) notes that, by these means, the Office puts the recipient on notice that a
payment was made and the amount of the payment.6
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. For it to establish that appellant was with fault in creating the overpayment of
compensation, the Office must establish that, at the time appellant accepted the compensation
checks in question, he knew or should have known the payments were incorrect.7
The Board notes that the Office erroneously issued wage-loss compensation for total
disability while appellant was only entitled to wage-loss compensation for four hours a day.
However, even if the overpayment resulted from negligence on the part of the Office, this does
not excuse the employee from accepting payment to which he knew or should have known that
he was not entitled.8 On April 30, 2008 the Office advised appellant in a CA-1008 form of dual
benefits and provided: “Once you return to work or obtain new employment, notify this office
immediately. Full compensation is payable only while you are unable to perform the duties of
your regular job because of your accepted employment-related condition. If you receive a
compensation check which includes payment for a period you have worked, return it to us
immediately to prevent an overpayment of compensation.” Likewise, in a letter dated
August 21, 2008, the Office outlined appellant’s entitlement to compensation benefits and his
responsibility to return to work in connection with the injury accepted by the Office. In an
attached EN1049 the Office provided:
“OVERPAYMENTS. To minimize the possibility of an overpayment of
compensation NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU GO
BACK TO WORK. Each payment shows the period for which payment is made.
If you have worked for any portion of this period, return the payment to this
office, even if you have already advised the OWCP that you are working.”
Furthermore, the Office includes on each periodic check a clear indication of the period for
which payment is being made. By doing this, it puts the recipient on notice that a payment was
made and the amount of the payment.9 This is evidence that appellant should have been aware
that, when he accepted the compensation for the period in question, he was not entitled to receive
wage-loss compensation for total disability for a period when he worked.

6

J.R., 60 ECAB ___ (Docket No. 08-1107, issued June 15, 2009). 20 C.F.R. § 10.430.

7

See Claude T. Green, 42 ECAB 174, 278 (1990).

8

See Russell E. Wageneck, 46 ECAB 653 (1995).

9

See J.R., supra note 6.

5

For these reasons, the Board finds that, under the circumstances of this case, the Office
properly found that appellant accepted wage-loss compensation from August 29 to
September 27, 2008, which he knew or should have known was incorrect. As appellant was at
fault under the third standard outlined above, recovery of the overpayment of compensation in
the amount of $1,197.76 may not be waived.10
On appeal, appellant asserts that he was not at fault in creating the overpayment and
noted the difficulty he had in getting his claim accepted and in obtaining compensation.
However, as noted above, the evidence supports that he knew or should have known that he
could not accept compensation for total disability during a period in which he worked four hours
daily.
CONCLSION
The Board finds that appellant received an overpayment of compensation from August 29
to September 27, 2008 and that he was at fault in creating the overpayment.

10

As the Office did not direct recovery of the overpayment from continuing compensation payments, the Board
does not have jurisdiction over the recovery of the overpayment. See Desiderio Martinez, 55 ECAB 245 (2004)
(with respect to the recovery of overpayments, the Board’s jurisdiction is limited to reviewing those cases where the
Office seeks recovery from continuing compensation benefits under the Act).

6

ORDER
IT IS HEREBY ORDERED THAT the December 3, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 3, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 17-1101
Issued: August 3, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 25, 2017 appellant filed a timely appeal from a March 30, 2017 nonmerit
decision of the Office of Workers’ Compensation Program (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated August 2, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP after the March 30, 2017 decision was
issued. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On May 22, 2012 appellant, then a 46-year-old mail handler, filed an occupational
disease claim (Form CA-2), alleging that she developed tendinosis of the supraspinatus tendon
due to her federal duties. She indicated that she first became aware of her condition and
attributed it to her federal employment on June 11, 2011. OWCP initially accepted the claim for
left shoulder disorder of bursae and tendons, and authorized left shoulder arthroscopic
subacromial decompression performed by Dr. Daniel P. Mass, a Board-certified orthopedic
surgeon, on August 3, 2012. It also accepted acromioclavicular (AC) arthropathy of the left
shoulder and recurrences of disability beginning October 25, 2011 and October 26, 2013, and
expanded the claim to include left shoulder AC arthropathy. Appellant returned to part-time,
limited-duty work on November 27, 2013. On March 3, 2014 she underwent a left shoulder
arthroscopic capsular release and arthroscopic subacromial decompression, which was also
performed by Dr. Mass. On December 20, 2014 appellant returned to work in a full-time,
limited-duty capacity.
Appellant stopped work on February 11, 2015, and later filed several claims for
compensation (Form CA-7) for temporary total disability beginning February 11, 2015. She
submitted February 12 and 26, 2015 work excuses, and a March 4, 2015 report from Dr. Mass
who diagnosed left shoulder adhesive capsulitis and advised that she was disabled for work
because her right shoulder was aggravated by nonuse of the left shoulder after surgery.
By decision dated April 8, 2015, OWCP denied appellant’s claimed recurrence of
disability beginning February 11, 2015 because the medical evidence of record failed to establish
that her accepted condition(s) materially changed/worsened to the point that she was unable to
work at all.
OWCP subsequently paid appellant wage-loss compensation beginning April 18, 2015
because the employing establishment was unable to accommodate her work restrictions. It
placed her on the periodic compensation rolls effective May 31, 2015.
On January 27, 2016 appellant requested reconsideration of the April 8, 2015 decision
and argued that the medical evidence of record and her request for surgery established her
disability for the period claimed. i.e., commencing February 11, 2015. She further indicated that
she had not been back to work since February 11, 2015 and her condition remained the same.
By decision dated August 2, 2016, OWCP denied modification of its April 8, 2015
decision denying appellant’s claim for disability compensation for the period February 11 to
April 17, 2015. It found that the medical evidence of record failed to establish that she was
totally disabled for the period claimed.
On October 20, 2016 appellant requested reconsideration for a second time. She
submitted reports dated September 7 and December 7, 2016, and March 9, 2017 from

2

Dr. Salman A. Chaudri, an orthopedic surgeon, who indicated that she was injured on June 11,
2011 and continued to be totally disabled for work due to her pain.3
Appellant also submitted an October 13, 2016 report from Dr. Mass who indicated that
appellant was seen for work-related pain in both shoulders during the time period February 11 to
March 4, 2015. Dr. Mass reported that she had been examined during this period and he found
that her level of pain, as well as her range of motion, might require surgery, which she did not
want and OWCP wanted more specific reasoning as to why she was unable to work at that time.
He opined that appellant was unable to work during the period claimed because of her secondary
pain and decreased range of motion, which precluded work.
By decision dated March 30, 2017, OWCP denied appellant’s request for reconsideration
without a merit review because she failed to advance a relevant legal argument or submit any
relevant and pertinent new evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.6 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (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.7 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.8

3

In April 2015, OWCP recognized Dr. Chaudri as appellant’s current treating physician. Dr. Chaudri first
examined appellant on April 20, 2015.
4

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

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

20 C.F.R. § 10.606(b)(3).

8

Id. § 10.608(a), (b).

3

ANALYSIS
In support of her October 20, 2016 reconsideration request, appellant submitted a new
medical report dated October 13, 2016 from Dr. Mass who indicated that appellant was seen for
work-related pain in both shoulders from February 11 to March 4, 2015. Dr. Mass reported that
appellant had been examined during this period and he found that her level of pain, as well as her
range of motion, might require surgery. He opined that she was unable to work during the period
claimed because of her secondary pain and decreased range of motion. Dr. Mass’ opinion
directly addressed the basis upon which OWCP denied appellant’s claim as it addressed the issue
of causal relationship between her condition and her claim for disability compensation for the
period February 11 to April 17, 2015. For these reasons, the Board finds that his October 13,
2016 report constituted relevant and pertinent new evidence not previously considered by
OWCP. As it meets one of the standards for obtaining a merit review of appellant’s case, the
Board finds that OWCP improperly denied appellant’s request. Appellant is entitled to a merit
review.
The Board has held that, in support of a request for reconsideration, a claimant is not
required to submit all evidence which may be necessary to discharge his or her burden of proof.
He or she need only submit relevant and pertinent evidence not previously considered by
OWCP.9 Therefore, the Board will reverse OWCP’s March 30, 2017 decision denying
appellant’s request for reconsideration and will remand the case for a merit review. After such
further development of the evidence as might be necessary, OWCP shall issue an appropriate
decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

9

See Helen E. Tschantz, 39 ECAB 1382 (1988).

4

ORDER
IT IS HEREBY ORDERED THAT the March 30, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded to OWCP for further
action consistent with this decision.
Issued: August 3, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, El Toro, CA, Employer
__________________________________________

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

Docket No. 12-906
Issued: February 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 14, 2012 appellant filed a timely appeal from the November 16, 2011 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 met his burden of proof to establish that he sustained heart
attacks in 2003 and 2007 due to his accepted work conditions.
FACTUAL HISTORY
In July 1991, OWCP accepted that appellant, then a 37-year-old environmental
protections specialist, sustained an anxiety disorder and an episode of Xanax dependency,
resolved. He claimed that he sustained stress due to the duties of his job, including dealing with
1

5 U.S.C. §§ 8101-8193.

the management of hazardous waste. Appellant stopped work on July 2, 1990 and later returned
to light-duty work.
Appellant subsequently claimed that his angina was aggravated by his accepted anxiety
disorder. On June 23, 1996 OWCP accepted the consequential condition of aggravation of
angina decubitus. In mid-2003, appellant had a heart attack and in August 2003 he underwent
triple bypass surgery. In late 2007, he sustained a second heart attack and in November 2007
and January 2008 he underwent additional procedures, including a left heart catheterization and
stent of the saphenous vein graft. Appellant claimed that his 2003 and 2007 heart attacks were
related to his accepted work conditions.2
In a February 6, 2009 decision, OWCP denied appellant’s claim on the grounds that he
did not submit sufficient medical evidence to establish that his heart attacks in 2003 and 2007
were due to his accepted conditions. In a June 4, 2009 decision, it affirmed its February 6, 2009
decision.
In a decision dated May 7, 2010,3 the Board affirmed OWCP’s February 6 and June 4,
2009 decisions, finding that a March 10, 2008 report of Dr. David H.S. Iansmith, an attending
Board-certified cardiologist, and a March 31, 2009 report of Dr. Frank A. McGrew, III, an
attending Board-certified cardiologist, did not establish that appellant’s heart attacks in 2003 and
2007 were due to his accepted conditions. Moreover, the Board noted that Dr. Matthew Smolin,
a Board-certified cardiologist serving as an OWCP referral physician, determined in August 12
and December 3, 2008 reports that appellant’s accepted work conditions did not contribute to his
heart attacks.
In a March 21, 2011 letter, appellant’s counsel at the time requested reconsideration on
his behalf and indicated that he was submitting a February 2, 2011 report of Dr. McGrew, which
he asserted established appellant’s claim for work-related heart attacks in 2003 and 2007.4
In his February 2, 2011 report, Dr. McGrew indicated that appellant had been under his
care since February 2009 and briefly described his 2003 and 2007 heart attacks. He stated:
“Based on the affidavit included in [appellant’s] chart describing his job description with the
[employing establishment] at the time of the above mentioned cardiac events it is certainly
possible that the responsibilities described were stress inducing in [his] case and a contributing
factor to his health.” Dr. McGrew noted that appellant currently complained of constant chest
pressure and had dyspnea on exertion after walking approximately 50 yards with complaints of
shortness of breath and confusion during the night. In addition to his current cardiac diagnosis of
hypertension, hyperlipidemia and coronary artery disease, appellant also was under psychiatric
care for a long history of anxiety disorder which frequently increased his episodes of angina.
Dr. McGrew stated: “After reviewing [his] previous medical reports as well as my own
observations since he has been in my care, it is my opinion that [appellant’s] angina pectoris and

2

Appellant was not working for the employing establishment at the time of his 2003 and 2007 heart attacks.

3

Docket No. 09-1864 (issued May 7, 2010).

4

Appellant’s counsel also asserted that the reports of Dr. Smolin supported his claim.

2

anxiety disorder are related and were contributing factors to the patient’s 2003 and 2007
myocardial infarctions. His worsening anxiety continues to be a risk for future cardiac events.”
In a January 28, 2011 report, Dr. Robert Buchalter, an attending Board-certified
psychiatrist, stated that appellant had generalized anxiety disorder with panic episodes and
obsessive-compulsive traits. He noted that appellant’s injury-related condition was still
medically present and disabling. Dr. Buchalter indicated that appellant had not returned to the
preinjury status and noted that his work injury was permanent. Appellant was disabled for all
work and his current treatment plan was medication management. In a January 28, 2011 letter,
Dr. Buchalter stated: “In my opinion, [appellant’s] anxiety disorder contributed to his heart
attack.”
Appellant also resubmitted a number of previously considered reports, including a
March 20, 1996 report in which Dr. Iansmith diagnosed hypertension, reactive tachycardia,
anxiety neurosis, stress reaction disorder, hyperlipidemia, chronic obstructive pulmonary disease
and angina.
In a May 23, 2011 decision, OWCP denied appellant’s claim on the grounds that he did
not submit sufficient medical evidence to establish that he sustained heart attacks in 2003 and
2007 due to his accepted work conditions. It found that the medical evidence submitted by
appellant did not contain a rationalized medical opinion showing that his 2003 and 2007 heart
attacks were work related.
In an August 11, 2011 letter, appellant’s counsel at the time requested reconsideration on
his behalf and indicated that he was submitting a June 21, 2011 report of Dr. McGrew which
established his claim.
In a June 21, 2011 report, Dr. McGrew indicated that he had treated appellant since 2009.
He stated that appellant had myocardial infarctions in 2003 and 2007 and noted that he had a
stress anxiety disorder which aggravated and increased his episodes of angina. Dr. McGrew
indicated that appellant attempted to return to work for a short time in 2002 and 2003 in the
private car sales industry and noted that, despite coronary high risk, this employment increased
his high blood pressure. He stated: “In June 2003, [appellant’s] house burned down. This
would certainly aggravate angina and induce a heart attack and it did so in his case of 2003.”
Dr. McGrew noted that, at that time, appellant’s accepted conditions were stress reaction
disorder, drug dependency and aggravation of angina. He indicated that appellant wanted to
return to work, but that these conditions prevented him from doing so. Dr. McGrew referenced
his February 2, 2011 report and stated that “based on the affidavit of [appellant’s] job description
with the [employing establishment] that aspect of his job responsibilities described, were stress
inducing in [his] case are still contributing factors to his health.” He indicated that he felt that
the opinions contained in Dr. Smolin’s August 12 and December 3, 2008 reports were
speculative. Dr. McGrew stated, “[Appellant] will suffer from this at work or no work[-]related
factors or stressors” and noted that he currently had hypertension, hyperlipidemia, stress reaction
disorder and angina pectoris.
In a decision dated November 16, 2011, OWCP affirmed its May 23, 2011 decision
noting that appellant did not submit rationalized medical evidence supporting his claim. It found

3

that the June 21, 2011 report did not establish that the heart attacks in 2003 and 2007 were work
related.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his claim including the fact that the individual is an employee of the United States
within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any specific condition for which compensation is claimed is causally related to the
employment injury.5 The medical evidence required to establish a causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence which includes a physician’s rationalized opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.6 The Board has found that
medical reports that are equivocal or speculative are of limited probative value on the issue of
causal relationship.7
ANALYSIS
OWCP accepted that appellant sustained several work-related conditions, including
anxiety disorder, episode of Xanax dependency (resolved) and aggravation of angina due to the
accepted anxiety disorder. Appellant sustained heart attacks in 2003 and 2007 and later claimed
that the heart attacks were related to his accepted work conditions.
In a decision dated May 7, 2010, the Board affirmed OWCP’s denial of appellant’s claim
that his 2003 and 2007 heart attacks were work related. The Board found that a March 10, 2008
report of Dr. Iansmith, an attending Board-certified cardiologist, and a March 31, 2009 report of
Dr. McGrew, an attending Board-certified cardiologist, did not establish appellant’s claim.
Moreover, the Board noted that Dr. Smolin, a Board-certified cardiologist serving as an OWCP
referral physician, determined in August 12 and December 3, 2008 reports that appellant’s
accepted work conditions did not contribute to his heart attacks.8
After the Board’s May 7, 2010 decision, appellant submitted additional medical evidence.
However, the Board finds that he did not submit sufficient medical to establish that he sustained
heart attacks in 2003 and 2007 due to his accepted work conditions.
5

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

6

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

7

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956).

8

On appeal, appellant asserted that OWCP “suppressed” Dr. Smolin’s December 3, 2008 report and suggested
that this report showed that his 2003 and 2007 heart attacks were work related. The Board has already determined
that Dr. Smolin’s reports do not support appellant’s claim in this regard.

4

In a February 2, 2011 report, Dr. McGrew indicated that appellant had been under his
care since February 2009 and briefly described his 2003 and 2007 heart attacks. He stated:
“Based on the affidavit included in [appellant’s] chart describing his job description with the
[employing establishment] at the time of the above mentioned cardiac events it is certainly
possible that the responsibilities described were stress inducing in [his] case and a contributing
factor to his health.” Dr. McGrew described appellant’s current cardiac and psychiatric
complaints9 and noted: “After reviewing [appellant’s] previous medical reports as well as my
own observations since he has been in my care, it is my opinion that [appellant’s] angina pectoris
and anxiety disorder are related and were contributing factors to [his] 2003 and 2007 myocardial
infarctions.”
The Board finds that Dr. McGrew’s February 2, 2011 report is of limited probative value
because he did not provide medical rationale in support of his opinion that work factors
contributed to appellant’s 2003 and 2007 heart attacks. Dr. McGrew did not describe appellant’s
accepted work conditions in any detail or explain how they could have contributed to the
occurrence of his 2003 and 2007 heart attacks. He noted that his review of the medical records
led him to this conclusion, but he did not provide any description of the medical records or
explain how they supported his conclusion. Dr. McGrew did not explain why appellant’s notable
nonwork risk factors were not the sole cause of his 2003 and 2007 heart attacks. His report is of
limited probative value for the further reason that is equivocal and speculative in nature.
Dr. McGrew noted that it was “certainly possible” that work factors contributed to appellant’s
health.10
In a June 21, 2011 report, Dr. McGrew indicated that appellant had myocardial
infarctions in 2003 and 2007 as well as a stress anxiety disorder which aggravated and increased
his episodes of angina. In this report, however, he did not provide a clear opinion that
appellant’s heart attacks in 2003 and 2007 were related to his accepted work conditions. In fact,
Dr. McGrew suggested that appellant’s heart attack in 2003 was due to nonwork factors. He
indicated that appellant attempted to return to work in for a short time in 2002 and 2003 in the
private car sales industry and noted that, despite coronary high risk, this employment increased
his high blood pressure. Dr. McGrew also stated, “In June 2003, [appellant’s] house burned
down. This would certainly aggravate angina and induce a heart attack and it did so in his case
of 2003.” Dr. McGrew discussed appellant’s current condition but did not provide any further
discussion on the cause of his 2003 and 2007 hearts attacks.11
In a January 28, 2011 report, Dr. Buchalter, an attending Board-certified psychiatrist,
stated that appellant was suffering from generalized anxiety disorder with panic episodes and
9

Dr. McGrew stated that appellant had anxiety disorder which frequently increased his episodes of angina.

10

See supra note 7.

11

Dr. McGrew also stated: “[Appellant] will suffer from this at work or no work[-]related factors or stressors”
but did not clearly indicate what he meant by the word “this” in the comment. However, it appears that he was
stating that appellant’s health condition would have deteriorated regardless of the existence of work factors. On
appeal, appellant alleged that OWCP ignored Dr. McGrew’s June 21, 2011 report, but OWCP fully considered this
report in its November 16, 2011 decision denying appellant’s claim. He also claimed that reports from the 1990s of
Dr. Iansmith supported his claim. However, reports dated prior to appellant’s 2003 and 2007 heart attacks would
not be directly relevant to the question of whether these heart attacks were work related.

5

obsessive-compulsive traits. He noted that appellant’s injury-related condition was still
medically present and disabling. In a January 28, 2011 letter, Dr. Buchalter stated, “In my
opinion, [appellant’s] anxiety disorder contributed to his heart attack.” However, his opinion on
causal relationship is of little probative value because he did not identify which heart attack he
felt was related to the accepted anxiety disorder, nor did Dr. McGrew provide any explanation of
why he felt that appellant’s anxiety disorder contributed to his cardiac condition.
For these reasons, appellant did not show that he sustained heart attacks in 2003 and 2007
due to his accepted work conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained heart attacks in 2003 and 2007 due to his accepted work conditions.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 15, 2013
Washington, DC

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

Patricia Howard Fitzgerald, 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
__________________________________________
J.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, PORT ISABEL DETENTION
CENTER, Los Fresnos, TX, Employer
__________________________________________

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

Docket No. 19-1111
Issued: November 20, 2019

Case Submitted on the Record

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

JURISDICTION
On April 19, 2019 appellant filed a timely appeal from a December 17, 2018 merit decision
and a January 30, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of to establish a recurrence of the
need for medical treatment causally related to his accepted June 29, 2007 employment injury; and
(2) whether OWCP properly denied appellant’s request for an oral hearing before an OWCP
hearing representative as untimely filed under 5 U.S.C. § 8124(b).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 3, 2007 appellant, then a 29-year-old immigration enforcement agent, filed a
traumatic injury claim (Form CA-1) alleging that on June 29, 2007 he injured his left knee when
he struck it on a wall attempting to complete a track obstacle course while in the performance of
duty. On September 6, 2007 OWCP accepted his claim for tear of the left medial meniscus and
sprain of the left cruciate ligament. On September 10, 2007 it entered appellant on the periodic
rolls for wage-loss compensation. On November 7, 2007 appellant returned to full-duty work with
a knee brace for jogging.
On April 22, 2013 appellant filed a notice of recurrence (Form CA-2a) for medical
treatment, alleging that on April 16, 2013 he sustained a recurrence of his June 29, 2007
employment injury. He alleged an onset of pain in his left knee on April 16, 2013 with no
precipitating event. Appellant asserted that his condition was causally related to his June 29, 2007
employment injury. On May 9, 2013 OWCP accepted that he had sustained a recurrence of his
June 29, 2007 medical conditions as well as expanded the acceptance of his claim to include the
additional conditions of chondromalacia left patella and left patellar tendinitis. It authorized wageloss compensation from June 24 through August 5, 2013. Appellant underwent a functional
capacity evaluation on November 5, 2013 and was found capable of returning to his date-of-injury
position performing heavy physical demands. His attending physician released him to full duty
on November 8, 2013.
On July 25, 2018 appellant again filed a notice of recurrence (Form CA-2a) for medical
treatment, alleging that on July 2, 2018 he sustained a recurrence causally related to his accepted
June 29, 2007 employment injury. He indicated that he was claiming medical treatment only
noting that, after returning to work, he experienced strength and stability issues and was required
to wear a knee brace, which hindered his reaction time, flexibility, and mobility. Appellant alleged
that during the month of June 2018 he had increased pain in his left knee limiting the time he could
stand, walk, or be active. He denied any new left knee injury and attributed his condition to his
June 29, 2007 employment injury. On the reverse side of the claim form, appellant’s supervisor
indicated that he had not returned to work and was in a leave without pay (LWOP) status.
In a note dated July 2, 2018, Dr. Francisco Garcia, a Board-certified orthopedic surgeon,
examined appellant and noted a current tear of medial cartilage or meniscal tear and sprain of the
cruciate ligament with an onset of August 27, 2007. He indicated that on physical examination
appellant exhibited persistent atrophy, degenerative changes, and limited range of motion in the
left knee. Dr. Garcia reported moderate atrophy of the quadriceps with limited painful range of
motion along with patellofemoral crepitus and moderate medial joint tenderness and effusion. He
reviewed appellant’s left knee x-rays and diagnosed sprain of the cruciate ligament of the left2
knee and posterior cruciate ligament injury with post-traumatic osteoarthritis.3 Dr. Garcia noted
2
Dr. Garcia mentions a right knee sprain of the cruciate ligament, but as the remainder of the report focuses on
appellant’s left knee conditions and examinations, the Board considers this to be a typographical error.

Dr. Garcia indicated that appellant’s knee condition was “the least of his problems.” He found appellant was also
disabled due to the additional conditions of retinal detachment, diabetic retinopathy as well as neuropathy. Dr. Garcia
noted that appellant was interested in retiring from government service.
3

2

that appellant requested a cortisone shot in his left knee, but questioned whether this was
appropriate given appellant’s medical conditions.
In an October 17, 2018 development letter, OWCP advised appellant of the deficiencies of
his recurrence claim. It requested additional factual and medical evidence from him, and provided
a questionnaire for his completion. OWCP requested bridging information for the period
November 8, 2013 through the present including a history of intervening injuries, diagnostic test
results, and treatment reports from appellant’s physician. It afforded him 30 days to respond.
On October 24, 2018 appellant completed OWCP’s questionnaire and reported that
symptoms of pain in his left knee began in March 2018 without any additional incident or injury.
He experienced difficulty standing and walking. Appellant noted that following the 2013
recurrence he had resumed working and training without any problems and had not sustained any
new injury. He reported in 2013 that he received a cortisone shot and a knee brace which allowed
him to maintain mobility and function until March 2018 when he sought additional medical
treatment. Appellant reported that the July 2, 2018 recurrence occurred while he was in nonpay
status, but still an employee of the employing establishment and that he had not returned to work.
By decision dated December 17, 2018, OWCP denied appellant’s claimed recurrence of
medical treatment on July 2, 2018 as causally related to his June 29, 2007 employment injuries of
tear of the medial meniscus of the left knee, sprain of the left cruciate ligament, chondromalacia
on the left patella, and patellar tendinitis of the left knee. It noted that he had returned to full duty
following his June 29, 2007 employment injury, and the medical evidence did not establish causal
relationship between his current diagnosed condition and his accepted employment injury.
In a request for an oral hearing postmarked January 17, 2019, appellant requested an oral
hearing with a representative of OWCP’s Branch of Hearings and Review to review the
December 17, 2018 OWCP decision.
By decision dated January 30, 2019, OWCP’s Branch of Hearings and Review denied
appellant’s request for an oral hearing finding that his request for review was postmarked on
January 17, 2019, more than 30 days after the December 17, 2018 decision. It further exercised
its discretion and determined that the issue in the case could equally well be addressed by
requesting reconsideration and submitting evidence not previously considered which established
that he sustained a recurrence of the need for medical treatment due to the June 29, 2007
employment injury.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage.4 An employee has the burden of proof to establish that he or she

4

20 C.F.R. § 10.5(y).

3

sustained a recurrence of a medical condition that is causally related to his or her accepted
employment injury without intervening cause.5
If a claim for recurrence of medical condition is made more than 90 days after release from
medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet his
or her burden of proof.6
To meet this burden the claimant must submit medical evidence from a physician who, on
the basis of a complete and accurate factual and medical history, supports that the condition is
causally related and supports his or her conclusion with sound medical rationale.7 Where no such
rationale is present, medical evidence is of diminished probative value.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment causally related to his accepted June 29, 2007 employment injury.
OWCP accepted appellant’s original claim for tear of the left medial meniscus and sprain
of the left cruciate ligament as a result of the June 29, 2007 employment injury. Appellant stopped
work on April 16, 2013 and OWCP accepted that he had sustained a recurrence of his June 29,
2007 employment injury and also expanded the acceptance of his claim to include the additional
conditions of chondromalacia left patella and left patellar tendinitis. He returned to full duty on
November 8, 2013. On July 25, 2018 appellant claimed a recurrence of medical treatment only
commencing on July 2, 2018 due to the accepted June 29, 2007 employment injury.
Appellant submitted a report dated July 2, 2018 from Dr. Garcia who noted appellant’s
previously accepted conditions and reported that appellant had moderate atrophy of the quadriceps,
painful limited range of motion in the left knee, patellofemoral crepitus, and moderate medial joint
tenderness and effusion on physical examination. Dr. Garcia diagnosed a sprain of the cruciate
ligament of the left knee and left posterior cruciate ligament injury with post-traumatic
osteoarthritis. He noted that appellant had requested a cortisone shot in his left knee, but
questioned whether this treatment was appropriate.
Dr. Garcia did not causally relate appellant’s current conditions of sprain of the cruciate
ligament of the left knee and left posterior cruciate ligament injury with post-traumatic

5
M.P., Docket No. 19-0161 (issued August 16, 2019); E.G., Docket No. 18-1383 (issued March 8, 2019); T.B.,
Docket No. 18-0762 (issued November 2, 2018); E.R., Docket No. 18-0202 (issued June 5, 2018).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013); see also
J.M., Docket No. 09-2041 (issued May 6, 2010).
7

A.C., Docket No. 17-0521 (issued April 24, 2018); O.H., Docket No. 15-0778 (issued June 25, 2015).

8

O.H., id.; Michael Stockert, 39 ECAB 1186 (1988); see Ronald C. Hand, 49 ECAB 113 (1997).

4

osteoarthritis to the accepted June 29, 2007 employment injury.9 As OWCP has not accepted posttraumatic osteoarthritis as causally related to the June 29, 2007 employment injury, supportive
medical evidence is required to meet appellant’s burden of proof.10 While he mentioned the prior
injuries in his July 2, 2018 report, Dr. Garcia did not provide a definite opinion on causal
relationship between appellant’s various diagnosed conditions and his accepted employment
conditions as required to establish appellant’s recurrence claim.11 Furthermore, he did not offer
any medical explanation of how the accepted conditions for which appellant last received treatment
in 2013, resulted in further diagnoses and need for additional treatment five years later.12 Finally,
Dr. Garcia failed to explain that appellant’s current need for further medical care was due to his
accepted June 29, 2007 employment conditions.13 As appellant filed the recurrence of the need
for medical treatment more than 90 days following his last medical treatment for his accepted
employment conditions, he was required to submit a rationalized medical opinion establishing
causal relationship between his current condition and the original employment injury.14 A
physician must provide an opinion that the employment injury caused or contributed to the
claimant’s diagnosed medical condition, supported by medical reasoning sufficient to demonstrate
that the conclusion reached is sound, logical, and rational.15 The Board finds that Dr. Garcia
provided a conclusory opinion which did not include a rationalized medical opinion establishing
that appellant required further medical care after November 8, 2013 causally related to his accepted
June 29, 2007 employment injury. Therefore, the Board finds that Dr. Garcia’s report is
insufficient to establish appellant’s recurrence claim.16
As appellant has not submitted medical evidence sufficient to establish a recurrence of the
need for medical treatment causally related to his accepted June 29, 2007 employment injury, the
Board finds that he has not met his burden of proof.17
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

9

C.B., Docket No. 19-0121 (issued July 2, 2019); E.G., supra note 5; Docket No. 18-1383 (issued March 8, 2019).

10

E.G., id.

11
See H.A., Docket No. 18-1466 (issued August 23, 2019) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal relationship).
12

See id.; (medical evidence must also include rationale explaining how the physician reached the conclusion he or
she is supporting).
13

T.M., Docket No. 18-1418 (issued February 7, 2019).

14

Supra note 6.

15

A.C., supra note 7; John W. Montoya, 54 ECAB 306 (2003).

16

A.C., id.; G.G., Docket No. 18-1788 (issued March 26, 2019).

17

A.C., id.; K.G., Docket No. 15-0669 (issued April 8, 2016).

5

LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP hearing representative, provides that a claimant is entitled to a hearing before an OWCP
representative when a request is made 30 days after the date of the issuance of an OWCP final
decision.18
A hearing is a review of an adverse decision by an OWCP hearing representative. Initially,
the claimant can choose between either an oral hearing or a review of the written record. In
addition to the evidence of record, the claimant may submit new evidence to the hearing
representative.19 A request for either an oral hearing or a review of the written record must be
sent, in writing, within 30 days of the date of the decision for which the hearing is sought.20 A
claimant is not entitled to a hearing or a review of the written record if the request is not made
within 30 days of the date of the decision.21
OWCP has discretion to grant or deny a request that is made after the 30-day period for
requesting an oral hearing or review of the written record and must properly exercise such
discretion.22
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s January 17, 2019 request for an
oral hearing before an OWCP hearing representative as untimely filed pursuant to 5 U.S.C.
§ 8124(b).
OWCP’s regulations provide that the hearing request must be sent within 30 days of the
date of the decision for which a hearing is sought.23 As his request was postmarked24 January 17,

18

5 U.S.C. § 8124(b)(1).

19

20 C.F.R. § 10.615.

20

Id. at § 10.616(a); B.H., Docket No. 18-0874 (issued October 10, 2018); James Smith, 53 ECAB 188 (2001).

21

B.H., id.

22

20 C.F.R. § 10.616(b); Id.

23

See supra note 8.

24

Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis
of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4a (October 2011).

6

2019, more than 30 days after OWCP’s December 17, 2018 decision, it was untimely filed and he
was not entitled to an oral hearing as a matter of right.25
The Board further finds that OWCP properly exercised its discretion in denying appellant’s
request for an oral hearing by determining that the issue in the case could be addressed equally
well through a request for reconsideration and the submission of new evidence relevant to the issue
of causal relationship between the accepted employment injury on June 29, 2007 and the claimed
July 25, 2018 recurrence of the need for medical treatment.26 The Board has held that the only
limitation on OWCP’s discretionary authority is reasonableness. An abuse of discretion is
generally shown through proof of manifest error, a clearly unreasonable exercise of judgment, or
actions taken which are contrary to logic and probable deduction from established facts.27 In this
case, the evidence of record does not establish that OWCP abused its discretion in denying
appellant’s request for an oral hearing. Accordingly, the Board finds that OWCP properly denied
his January 17, 2019 request for an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124(b).28
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment causally related to his accepted June 29, 2007 employment injury.
The Board further finds that OWCP properly denied appellant’s January 17, 2019 request for an
oral hearing before an OWCP hearing representative as untimely filed pursuant to 5 U.S.C.
§ 8124(b).

25

See B.W., Docket No. 16-1860 (issued May 4, 2017) (in computing a time period, the date of the event from
which the designated period of time begins to run shall not be included while the last day of the period shall be
included). In this case, appellant’s request for an oral hearing was postmarked on January 17, 2019, the 31st day after
the issuance of the December 17, 2018 OWCP decision.
26

Id.

27

Id.; Teresa M. Valle, 57 ECAB 542 (2006).

28

See supra note 19.

7

ORDER
IT IS HEREBY ORDERED THAT the January 30, 2019 and December 17, 2018
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 20, 2019
Washington, DC

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

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

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

8