United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Atlanta, GA, Employer
__________________________________________

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

Docket No. 17-0952
Issued: September 1, 2017

Case Submitted on the Record

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

JURISDICTION
On March 29, 2017 appellant filed a timely appeal from a February 23, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit
decision was a November 16, 2016 decision of the Board which became final after 30 days of
issuance.1 OWCP has not issued a merit decision since the Board’s November 16, 2016 merit
decision. As the March 29, 2017 OWCP decision is the only decision issued within 180 days 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 claim.
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

20 C.F.R. § 501.6(d).

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.3 The facts of the case as presented in the
prior decision are incorporated herein by reference. The relevant facts are set forth below.
On January 11, 2016 appellant, then a 71-year-old retired distribution clerk, filed a
traumatic injury claim (Form CA-1) alleging that on June 23, 1996 she was injured when her
supervisor asked her to lift a 70-pound sack of mail, which she alleged was outside of her work
restrictions. A supervisor noted on the claim form that appellant had retired 15 years ago and
that the alleged injury occurred 20 years ago.
By decision dated February 24, 2016, OWCP denied appellant’s claim. It found that the
claim was untimely filed, as the alleged date of injury was June 23, 1996, but the claim was not
filed until January 20, 2016, which was beyond the three-year time limit. OWCP also found that
appellant had not submitted evidence that her supervisor had actual knowledge within 30 days of
the alleged injury.
On March 11, 2016 appellant requested reconsideration of OWCP’s February 24, 2016
decision.
By decision dated March 23, 2016, OWCP denied appellant’s request for
reconsideration.
On May 6, 2016 appellant filed a timely appeal to the Board from the February 24, 2016
merit decision and the March 23, 2016 nonmerit decision of OWCP. By decision dated
November 16, 2016, the Board found that appellant had not submitted sufficient evidence to
establish that her claim was timely filed.4 The Board noted that the only evidence provided in
support of finding that appellant had provided notice of injury to a supervisor within 30 days was
a partly illegible and incomplete memorandum dated March 19, 1997 discussing a separate claim
and noting that appellant had previously claimed a recurrence of temporary total disability on or
after June 22, 1996. The Board found that whether appellant’s claim for recurrence was
mistaken or not, the memorandum did not constitute probative evidence that appellant had
notified her immediate superior of a new employment injury on June 22 or 23, 1996, such that
her immediate supervisor would have had actual knowledge of the new injury within 30 days.
Furthermore, the Board found there was no evidence that written notice of injury was given
within 30 days. The Board also found that OWCP properly denied appellant’s March 11, 2016
request for reconsideration as the legal argument she had submitted was repetitious and the
evidence was irrelevant to the timelines issue.
On February 17, 2017 OWCP received appellant’s February 14, 2017 request for
reconsideration. With her request, appellant submitted a letter dated February 10, 2017 in which
she alleged that she had notified her supervisor of the claimed incident of “June 22, 1996.” She
stated that her supervisor had filled out the wrong form intentionally. Appellant alleged that, in a
telephonic conversation with an OWCP representative, the representative had told her that her

3

Docket No. 16-1131 (issued November 16, 2016).

4

Id.

2

claim file had been deleted, and alleged that OWCP engaged in fraudulent conduct.5 She further
noted that her treating physician had found that she reached maximum medical improvement on
October 16, 2006, and diagnosed her with additional psychiatric illnesses related to the original
injury.6
By decision dated February 23, 2017, OWCP denied appellant’s request for
reconsideration. It found that appellant had not submitted any evidence or legal arguments not
previously considered, or any new and relevant pertinent evidence in support of her request for
reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.7 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a 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).
The underlying issue is whether appellant has submitted sufficient evidence to establish
that she filed her June 23, 1996 claim in a timely manner, or that she provided a written notice of
a new injury to her supervisor within 30 days, or that her supervisor had actual knowledge of the
new injury.
With her February 17, 2017 request for reconsideration, appellant submitted a narrative
statement containing a series of allegations. She stated that her supervisor had filled out the
wrong form intentionally. However, this statement is irrelevant as it does not address whether
her supervisor had actual knowledge of an employment-related injury within 30 days of its
occurrence.9 Appellant alleged that, in a telephonic conversation with OWCP, she had been told
5

There is no record of a telephonic conversation with an OWCP hearing representative in which the
representative told appellant that her claim file had been deleted. The Board notes that the claim file for OWCP File
No. xxxxxx822 has not been deleted.
6

This alleged report was not submitted to the case record.

7

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

8

20 C.F.R. § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

9

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 case. M.N., Docket No. 16-1410 (issued June 28, 2017);
Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

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that her claim file had been deleted. She alleged that the OWCP claims examiner engaged in
fraudulent conduct. The Board notes that there is no record of a telephonic conversation with
OWCP in which appellant was told that her claim file had been deleted. The Board further notes
that OWCP’s File No. xxxxxx822 has not been deleted, as this is the file on appeal. Appellant
further noted that her treating physician had found that she reached maximum medical
improvement on October 16, 2006, and diagnosed her with additional psychiatric illnesses
related to the original injury. However, this report was not submitted to the case record.
Appellant’s allegations in her reconsideration request neither showed that OWCP erroneously
applied or interpreted a specific point of law, nor advanced a relevant legal argument not
previously considered by OWCP. Her allegations did not address the underlying issue in this
case,10 and therefore she has not met her burden under the first or second requirements of
5 U.S.C. § 8128(a).
A claimant may also be entitled to a merit review by submitting pertinent new and
relevant evidence, but appellant did not submit any pertinent new and relevant evidence in this
claim.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or constitute relevant and pertinent new evidence not previously considered. Pursuant to
20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

10

See G.G., Docket No. 16-0907 (issued March 20, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 16, 2016 is affirmed.
Issued: September 1, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Palm Beach, FL, Employer
__________________________________________

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

Docket No. 17-0814
Issued: October 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 28, 2017 appellant, filed a timely appeal from a September 8, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated February 19, 2015, 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 to review the merits of the claim.2
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On November 7, 2013 appellant, then a 51-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that she developed cumulative trauma syndrome as a result of
performing her work duties. She first became aware of her condition and realized it was causally
related to her federal employment on November 23, 2010. Appellant was separated from
employment on March 18, 2010 because she was unable to perform the duties of her job.3
By letter dated February 24, 2014, OWCP requested that appellant submit additional
information to include a comprehensive medical report with a reasoned explanation as to how the
specific employment factors contributed to her claimed injury.
The employing establishment submitted a statement dated February 18, 2004 noting that
in the 23 years appellant worked for the employing establishment she was absent due to nonjobrelated medical conditions for over four years. It explained that the duties appellant described on
the current Form CA-2 were the same as those listed on a prior claim, OWCP File No.
xxxxxx771, which had been accepted for bilateral tenosynovitis of the forearm. The employing
establishment noted that appellant’s last day of work was May 11, 2009.
The employing establishment submitted a March 25, 2014 statement from Rufus Graham,
manager of the processing and distribution center, who noted that appellant was hired as a clerk
on a multi-position letter sorting machine. Mr. Graham noted appellant’s job duties and advised
that, for most of her career, she had been accommodated with light-duty work for a variety of
nonwork-related medical reasons and she rarely worked more than eight hours per day or 40
hours per week. He indicated that appellant was separated from the employing establishment
when she could not perform the duties of her position, effective March 18, 2010.
In a decision dated April 1, 2014, OWCP denied appellant’s claim because the evidence
was insufficient to establish that the events occurred as described.
On April 29, 2014 appellant requested a telephonic oral hearing, which was held on
December 5, 2014. She submitted a report from Dr. Bridgette S. Harrington, a Board-certified
internist, dated July 19, 2013. Dr. Harrington noted that appellant’s current clinical findings
continued to show decreased range of motion of the right shoulder, decreased range of motion of
the upper and lower extremities, and pain with movement of neck in all ranges of motion. She
noted a recent cervical spine magnetic resonance imaging (MRI) scan which revealed canal
narrowing, bulging disc and osteophytes, disc desiccation, and degenerative disc disease.
Dr. Harrington diagnosed progressive chronic degenerative disease and opined that appellant was
unable to perform, repetitive, continuous activity.
In a February 19, 2015 decision, an OWCP hearing representative affirmed the
April 1, 2014 decision, as modified. He found that appellant had established that she performed
duties that required physical activities. However, the claim remained denied because the medical

3

On August 28, 2007 appellant previously filed an occupational disease claim alleging that she developed
cervicalgia as a result of performing her work duties, OWCP File No. xxxxxx771. OWCP accepted appellant’s
claim for bilateral hand and wrist tenosynovitis. This claim is not presently before the Board.

2

evidence of record was insufficient to establish appellant’s diagnosed conditions were causally
related to factors of her employment.
In a February 19, 2016 letter, received by OWCP on February 26, 2016, appellant
requested reconsideration. She asserted that on February 19, 2016 she requested reconsideration
via priority mail with the U.S. Postal Service, and that it was delivered on February 25, 2016 and
signed by an OWCP representative in London, KY. Appellant indicated that she submitted 280
pages of mostly new evidence for reconsideration. She disputed Mr. Graham’s contentions
regarding her job duties and accommodations. Appellant indicated that her termination from the
employing establishment was upheld because she had been denied access to the evidence and
documents that were used against her. She asserted that the union had not adequately
represented her.
With her requests, appellant submitted the following documents: an April 2, 1998
OWCP acceptance letter for a thoracic strain, OWCP File No. xxxxxxx211; a step 2 grievance
appeal form dated April 5, 2000 and August 31, 2009; an Equal Employment Opportunity (EEO)
complaint dated May 16, 2006; a May 29, 2008 employing establishment letter addressed to all
managers and supervisors; e-mail messages dated June 13, 2008; pay, leave, or other hours
adjustment requests; requests for temporary job offer/light-duty assignments dated June 23,
August 16 and September 21, 2006; a report of hazard, unsafe conditions or practices form dated
June 27, 2006; reasonable accommodation meeting notes dated November 28, 2006; assigned
residual job offers dated January 14, 16, and 26, 2009; a May 24, 2009 notice of removal; an
April 12, 2010 OWCP acceptance letter for tenosynovitis of the bilateral hand and wrist, OWCP
File No. xxxxxx771; her an October 31, 2012 request for her file xxxxxx771; an e-mail to a
senator dated March 13, 2014, the senator’s response to her inquiry dated March 17, 2014; a step
2 grievance settlement dated April 20, 2014; her February 4, 2015 letter to an arbitrator asserting
that her rights had been violated; an August 15, 2015 bargaining unit qualification standard for a
mail processing clerk; a 19-page handwritten letter from her; a picture of rest bars; a request for
information and documents relative to processing a grievance; a position description; joint
contract interpretation manual review form; a Labor Arbitrator Award Summary; newspaper
articles; an article on An Introduction to the Ergonomic Risk Reduction Process; and a tentative
collective bargaining agreement.
Appellant submitted a duty status report (Form CA-17) dated January 18, 1994 from
Dr. Craig Lichtblau, a Board-certified physiatrist, in which he diagnosed bilateral forearm
tendinitis and advised that appellant could return to work full time with restrictions. In a form
dated June 22, 1994, Dr. Lichtblau diagnosed tendinitis of the bilateral arms and noted that
appellant could return to light duty on that date. On April 11, 1995 he noted that appellant had
been under his care since October 28, 1992 and he had diagnosed tendinitis, over-use syndrome
of the bilateral forearms, and lumbar myofascial pain syndrome. Dr. Lichtblau noted that
appellant could return to light-duty work on April 11, 1995. In an attending physician’s report
dated July 27, 1998, he diagnosed myofascial pain syndrome and extensor tendinitis of the
bilateral forearms. Dr. Lichtblau noted by checking a box marked “yes” that appellant’s
condition was caused or aggravated by repetitive motion and the use of rest bars. He noted that
appellant could return to work on January 27, 1998 with restrictions. In a duty status report
dated January 30, 1998, Dr. Lichtblau noted that appellant could return to work with restrictions
and a required high straight back chair. An MRI scan of the lumbar spine dated September 9,

3

1999 revealed an L5-S1 foraminal disc bulge consistent with an annular tear. Appellant also
submitted copies of documents previously of record.
Appellant submitted a certification, dated January 19, 1994, from Dr. Monica Walker, a
Board-certified internist, who noted appellant had a long-term chronic metabolic and
musculoskeletal disorder from January 5, 2000 until January 15, 2000. Dr. Walker noted that
appellant could return to work on January 15, 2000 with restrictions. In a certification dated
June 17, 2005, she noted having treated appellant for chronic exacerbation of a musculoskeletal
and neuropathic disorder, which began on June 13, 2005 and lasted one week. Dr. Walker noted
that appellant was incapacitated and would return to light-duty work on June 24, 2005. In a
certification dated November 21, 2005, she noted that appellant had been incapacitated
secondary to musculoskeletal disability from November 14 to 22, 2005. Dr. Walker noted that
appellant could return to work with use of a high back ergonomic chair. In a December 7, 2006
certification, she found appellant totally disabled due to mechanical low back syndrome.
Dr. Walker noted that appellant would be able to work with restrictions. In a certification dated
February 12, 2007, she found appellant unable to function due to cervical spine, right shoulder
and arm, and lumbar spine conditions, which lasted from January 22, 2007 until
February 17, 2007.
By decision dated September 8, 2016, OWCP denied appellant’s request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.4 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be received within one year of the date of
OWCP’s decision for which review is sought.5 The Board has found that imposition of this oneyear filing limitation does not constitute an abuse of discretion.6
OWCP may not deny a reconsideration request solely because it was untimely filed.
When a claimant’s application for review is untimely filed, it must nevertheless undertake a
limited review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP must reopen the case for merit review.7

4

5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

5

20 C.F.R. § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration
must be received by OWCP within one year of OWCP’s decision for which neither 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; see Chapter 2.1602.4b.
6

E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

7

M.L., Docket No. 09-0956 (issued April 15, 2010). See also supra note 5 at § 10.607(b); Federal (FECA)
Procedure Manual, supra note 5 at Chapter 2.1602.3(c) (February 2016) (the term clear evidence of error is intended
to represent a difficult standard).

4

To demonstrate clear evidence of error, a claimant must submit evidence that is relevant
to the issue that was decided by OWCP,8 is positive, precise, and explicit, and manifests on its
face that OWCP committed an error.9 The evidence must not only be of sufficient probative
value to create a conflict in medical opinion or demonstrate a clear procedural error, but must
also shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to demonstrate clear evidence of error. It is not enough
merely to show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has demonstrated clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.10
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. As noted, an application for reconsideration must be received within one
year of the date of OWCP’s decision for which review is sought.11 As appellant’s request for
reconsideration was not received by OWCP until February 26, 2016, more than one year after
issuance of OWCP’s February 19, 2015 decision, it was untimely filed. Appellant has asserted
that her February 19, 2016 reconsideration request was delivered to OWCP on
February 25, 2016. However, as explained above, a reconsideration request must be received by
OWCP within one year.12 The evidence submitted does not show timely receipt. Consequently,
appellant must demonstrate clear evidence of error.
The Board finds that appellant has failed to demonstrate clear evidence of error. In her
reconsideration request, appellant disagreed with OWCP’s decision denying her claim. She
disputed Mr. Graham’s statements regarding her job duties and accommodations provided by the
employing establishment. Appellant indicated that her separation from the employing
establishment was upheld because she had been denied access to evidence. She asserted that she
was improperly terminated from her job. However, the underlying issue is whether appellant
submitted sufficient medical evidence to establish her occupational disease claim. Evidence that
is not germane to the issue on which the claim was denied is insufficient to demonstrate clear
evidence of error.13 The Board notes that, while appellant addressed her disagreement with
OWCP’s decision denying her claim for an occupational disease, her disagreement does not
demonstrate clear evidence of error as it does not raise a substantial question as to the correctness
of OWCP’s most recent merit decision.

8

Dean D. Beets, 43 ECAB 1153 (1992).

9

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

10

J.S., Docket No. 10-0385 (issued September 15, 2010); B.W., Docket No. 10-0323 (issued September 2, 2010).

11

Supra note 6.

12

Supra note 5.

13

F.R., Docket No. 09-0575 (issued January 4, 2010).

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Appellant submitted February 18, 2014 and a March 25, 2014 correspondence. However,
OWCP had previously considered this evidence and appellant, in submitting these documents,
did not explain how this evidence was positive, precise, and explicit in manifesting on its face
that OWCP had committed an error in denying her claim for compensation.14 This evidence is
insufficient to raise a substantial question as to the correctness of OWCP’s decision and thus, is
insufficient to discharge appellant’s burden of proof.
Appellant, as noted, also submitted voluminous factual evidence regarding employing
establishment personnel matters and matters pertaining to prior OWCP claims, much of which
predates the present claim. This evidence is also irrelevant to the issue which was decided by
OWCP and is not a basis for demonstrating clear evidence of error.15
Appellant submitted medical records from Dr. Lichtblau dated from January 18, 1994 to
January 30, 1998 which reflected treatment of myofascial pain syndrome and extensor tendinitis
of the bilateral forearms. Also submitted were medical records from Dr. Walker dated
January 19, 1994 to February 12, 2007 reflecting treatment of appellant for cervical spine, right
shoulder and arm, and musculoskeletal lumbar spine conditions. However, this evidence is
insufficient to raise a substantial question as to the correctness of OWCP’s decision because it
does not address the underlying issue in this case, whether appellant’s cumulative trauma
syndrome was causally related to her employment as a clerk. Rather, this evidence appears to
relate to a prior compensation claim filed by appellant. This evidence is not so positive, precise,
and explicit that it manifests on its face that OWCP committed an error. The Board notes that
clear evidence of error is intended to represent a difficult standard. The submission of a detailed
well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is not clear evidence of
error.16 Thus, appellant has not established clear evidence of error by OWCP in its September 8,
2016 decision.
On appeal appellant asserts that she timely submitted the request for reconsideration of
the February 19, 2015 decision. As noted above, a request for reconsideration must be received
within one year of the date of OWCP’s decision for which review is sought.17 The
reconsideration request was received by OWCP on February 26, 2016, more than one year after
the February 19, 2015 OWCP decision. Appellant has failed to present evidence or argument
that raises a substantial question as to the correctness of OWCP’s decision for which review is
sought.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and failed
to demonstrate clear evidence of error.

14

See A.M., Docket No. 10-0526 (issued November 8, 2010).

15

E.R., Docket No. 09-0599 (issued June 3, 2009).

16

D.G., 59 ECAB 455 (2008).

17

Supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the September 8, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 20, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, San Diego, CA, Employer
__________________________________________

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

Docket No. 15-33
Issued: March 2, 2015

Case Submitted on the Record

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

JURISDICTION
On October 6, 2014 appellant filed a timely appeal from an August 5, 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 has more than a 15 percent left upper extremity permanent
impairment.
FACTUAL HISTORY
This matter has previously been before the Board.

1

5 U.S.C. § 8101 et seq.

On June 29, 2009 appellant, then 53-year-old special agent, filed a traumatic injury claim
alleging that he sustained injuries in the performance of duty on June 12, 2009 when a ladder he
was climbing collapsed. OWCP initially accepted a closed left radial neck fracture of the elbow
on August 6, 2009. In addition, it subsequently accepted cervical strain, left shoulder
impingement, and left carpal tunnel syndrome. Appellant underwent a left carpal tunnel release
on January 21, 2010 and left shoulder arthroscopic surgery with excision of the distal clavicle on
September 13, 2010.
In a report dated March 30, 2011, Dr. Tiffany Shay Alexander, Board-certified in
occupational medicine, provided results upon examination. She opined that appellant had a 20
percent left upper extremity impairment under the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). In a report
dated October 24, 2011, Dr. Arthur Harris, an OWCP medical adviser, reviewed Dr. Alexander’s
findings and opined that, under the sixth edition of the A.M.A., Guides, appellant had a 10
percent left upper extremity permanent impairment. He indicated that the impairment was based
on impairments to the shoulder, elbow, and wrist.
By decision dated September 26, 2012, OWCP issued a schedule award for a 10 percent
permanent impairment to the left upper extremity. The period of the award was 31.2 weeks from
March 30, 2011.
On November 26, 2012 appellant requested reconsideration and submitted an October 9,
2012 report from Dr. Jacob Tauber, a Board-certified orthopedic surgeon, who provided results
on examination, indicating that appellant had some intermittent left hand and wrist pain, and the
pain was associated with numbness and tingling. Dr. Tauber also noted occasional left elbow
pain. He opined that appellant had a 21 percent left upper extremity impairment under the
A.M.A., Guides (sixth edition). Dr. Tauber opined that appellant had a 10 percent impairment
under Table 15-5 for the distal clavicle resection. In addition, he found an additional three
percent impairment under Table 15-5 for left shoulder impingement syndrome. As to the elbow,
Dr. Tauber stated that there was a three percent impairment under Table 15-4 for the radial neck
fracture.
In a report dated April 1, 2013, Dr. Harris reviewed the report from Dr. Tauber. He
opined that appellant had a 15 percent left arm permanent impairment. Dr. Harris stated that,
under Table 15-5, appellant would have an 11 percent impairment for distal clavicle resection,
adjusting for a grade modifier for clinical studies. He found no additional impairment under
Table 15-5 was warranted, as the A.M.A., Guides indicated only one diagnosis should be used
for the diagnosis-based regional grids. In addition, Dr. Harris found Dr. Tauber’s findings were
not consistent with a five percent impairment under Table 15-23, noting examination results and
the absence of abnormalities on diagnostic studies. He opined that a two percent impairment was
appropriate under Table 15-23. The date of maximum medical improvement was reported as the
date of Dr. Tauber’s report.2

2

The date of the report was October 9, 2012, although Dr. Harris reported the date as October 19, 2012.

2

By decision dated April 25, 2013, OWCP denied appellant’s request for reconsideration.
The Board reviewed this decision, and issued an order remanding case.3 The Board noted that
appellant had submitted new medical evidence and OWCP should issue an appropriate decision
on a claim for an increased schedule award.
In a decision dated January 22, 2014, OWCP issued a schedule award for an additional 5
percent for a total of 15 percent permanent impairment to the left upper extremity. The period of
the award was 15.60 weeks commencing October 19, 2012.
Appellant requested a review of the written record by an OWCP hearing representative.
In a decision dated August 5, 2014, the hearing representative found that appellant had not
established more than a 15 percent left upper extremity impairment.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.4 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants, OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.5 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.6
With respect to a shoulder impairment, the A.M.A., Guides provide a regional grid at
Table 15-4. The Class of Diagnosis (CDX) is determined based on specific diagnosis, and then
the default value for the identified CDX is determined. The default value (grade C) may be
adjusted by using grade modifiers for Functional History (GMFH, Table 15-7), Physical
Examination (GMPE, Table 15-8), and Clinical Studies (GMCS, Table 15-9). The adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in
Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant
text.8 In Table 15-23, grade modifiers levels (ranging from zero to four) are described for the
categories test findings, history, and physical findings. The grade modifier levels are averaged to
arrive at the appropriate overall grade modifier level and to identify a default rating value. The
3

Docket No. 13-1781 (issued February 4, 2014).

4

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
5

A. George Lampo, 45 ECAB 441 (1994).

6

FECA Bulletin No. 09-03 (March 15, 2009).

7

The net adjustment is up to +2 (grade E) or -2 (grade A).

8

A.M.A., Guides 448-50.

3

default rating value may be modified up or down by one percent based on functional scale, an
assessment of impact on daily living activities.9
ANALYSIS
In the present case, OWCP has issued schedule awards for permanent impairment to the
left arm resulting from a June 12, 2009 employment incident. It issued a schedule award for a 10
percent left upper extremity impairment on September 26, 2012 and an additional five percent
impairment was awarded by decision dated January 22, 2014.
Appellant submitted a March 30, 2011 report from Dr. Alexander, with an opinion as to
the impairment under the fifth edition of the A.M.A., Guides. As noted above, schedule awards
after May 1, 2009 must be based on the sixth edition. The report from Dr. Alexander is therefore
of little probative value in determining the percentage of permanent impairment. In an
October 9, 2012 report, Dr. Tauber opined that appellant had a 21 percent left upper extremity
impairment under the sixth edition. OWCP received an April 1, 2013 report from Dr. Harris
opining that appellant had a 15 percent left arm impairment. In reviewing these reports, the
Board finds that the weight of the evidence rests with Dr. Harris.
As to an impairment to the left shoulder, both Dr. Tauber and Dr. Harris identified
Table 15-5. For status post distal clavicle resection, the default (grade C) impairment for Class
of Diagnosis 1 is 10 percent.10 Dr. Tauber opined that appellant had a 10 percent impairment. In
this case, Dr. Harris adjusted the impairment to a grade D impairment of 11 percent, using a
grade modifier 2 for clinical studies.11 As noted above, the default impairment may be adjusted
based on grade modifiers and application of the formula noted.
Dr. Tauber found an additional impairment of three percent under Table 15-5 for left
shoulder impingement syndrome. As noted by Dr. Harris, this is contrary to specific instructions
in the A.M.A., Guides regarding diagnosis-based impairments. When there are two diagnoses
evaluated under the same table, “the examiner should use the diagnosis with the highest causally
related impairment rating for the impairment calculation.”12 Therefore, Dr. Harris properly used
only the diagnosis for the distal clavicle resection under Table 15-5.
As to the left elbow, both Dr. Tauber and Dr. Harris found a three percent impairment
based on Table 15-4. This table is also a diagnosis-based regional grid. For an elbow fracture
with residual symptoms, the grade C impairment is three percent.13 Neither Dr. Tauber or
Dr. Harris indicated that an adjustment to the default value was warranted.
9

Id.

10

Id. at 403, Table 15-5.

11

Id. at 410, Table 15-9. A grade modifier 2 is for a moderate problem with clinical studies confirming the
diagnosis.
12

Id. at 387; see also C.P., Docket No. 11-117 (issued August 10, 2011).

13

Id. at 399, Table 15-4.

4

For the impairment due to carpal tunnel, the Board again finds that it is Dr. Harris who
represents the weight of the evidence. Dr. Tauber reported a five percent impairment under
Table 15-23, without further explanation. A five percent impairment represents a grade modifier
2 under this table, but such a finding requires test findings and “significant intermittent
symptoms.”14 Dr. Tauber provided only brief findings as to the left wrist without discussing
significant symptoms or test findings. In addition, a grade modifier 2 is proper for decreased
sensation. Although he briefly refers to numbness, the A.M.A., Guides state that decreased
sensation “means decreased two-point discrimination (greater than six millimeter) for
compression involving the median or ulnar nerve….”15 Dr. Tauber did not provide detailed
findings that would establish decreased sensation. Dr. Harris explained that grade modifier 1
was appropriate based on the lack of test findings and the examination of Dr. Tauber. A grade
modifier 1 results in a default impairment of two percent under Table 15-23.
The Board accordingly finds that Dr. Harris properly applied the A.M.A., Guides in this
case and his opinion represents the weight of the evidence. The number of weeks of
compensation for a schedule award is determined by the compensation schedule at 5 U.S.C.
§ 8107(c). For complete loss of use of the arm, the maximum number of weeks of compensation is
312 weeks. Since appellant’s impairment was 15 percent, he was entitled to 15 percent of 312
weeks, or 46.80 weeks of compensation. He properly received a combined 46.80 weeks of
compensation from the September 26, 2012 and January 22, 2014 schedule award decisions. The
period covered by a schedule award commences on the date that the employee reaches maximum
medical improvement from residuals of the employment injury.16
On appeal, appellant states that OWCP misinterpreted Dr. Tauber’s report. For the
reasons discussed above, the Board finds that Dr. Tauber’s report did not establish more than a
15 percent permanent impairment of the left upper extremity. Appellant may request at any time
an increased schedule award based on new medical evidence showing progression of an
employment-related condition resulting in an increased impairment.
CONCLUSION
The Board finds that the evidence does not establish more than a 15 percent left upper
extremity permanent impairment.

14

Id. at 449, Table 15-23.

15

Id. at 446.

16

Albert Valverde, 36 ECAB 233, 237 (1984).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 5, 2014 is affirmed.
Issued: March 2, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 17-0169
Issued: May 1, 2017

Case Submitted on the Record

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

JURISDICTION
On November 3, 2016 appellant, through counsel, filed a timely appeal from a
September 29, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed since the last merit decision dated November 5, 2014
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.

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 OWCP properly found that appellant’s request for reconsideration
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
prior appeal are incorporated herein by reference. The relevant facts are as follows.
On December 19, 2013 appellant, then a 54-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that on November 20, 2013 he sustained a low back strain
while picking up a tray of mail which had fallen to the floor.
A December 20, 2013 progress report by Dr. Matthew Skinner, a primary care resident,
which was cosigned by Dr. Terrence M. Shaneyfelt, a Board-certified internist, diagnosed low
back pain and probable lumbar disc herniation. The report noted that appellant sustained a
twisting injury at work. A December 28, 2013 magnetic resonance imaging (MRI) scan revealed
left-sided L4-5 intraforaminal disc herniation. In a February 3, 2014 attending physician’s report
(Form CA-20), Dr. Shannon Williams, a treating physician, and Dr. Teresa Bryan, a treating
Board-certified internist, diagnosed left L4 radiculopathy, L4-5 intervertebral disc herniation,
and disc bulge.
By decision dated February 11, 2014, OWCP denied appellant’s claim as it found the
evidence insufficient to establish a causal relationship between the diagnosed lumbar conditions
and the November 20, 2013 employment incident.
On March 4, 2014 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on September 22, 2014.
In a March 10, 2014 form report, Drs. Bryan and Williams diagnosed left-sided L4-5
intraforaminal disc herniation with nerve root compression and radicular pain, which they
attributed to a November “23,” 2013 employment incident.
In an April 10, 2014 report, Dr. Martin P. Jones, a treating Board-certified orthopedic
surgeon, provided physical examination findings and employment injury history and reviewed
objective tests. He diagnosed L4-5 extruded lateral disc herniation with L4 nerve root
compression and recommended surgery.
In a May 9, 2014 report, Drs. Bryan and Williams diagnosed lumbar radiculopathy which
they attributed to appellant bending over at work to pick up a tray. They related that appellant
had sharp shooting pain radiating into his left leg and constant left-sided back pain since the
November 2013 bending and lifting incident. They opined that appellant met all of the criteria to
establish that his diagnosed lumbar condition had been caused by this employment incident.
3

Docket No. 16-0336 (issued June 24, 2016).

2

By decision dated November 5, 2014, OWCP’s hearing representative affirmed the denial
of the claim finding that appellant had not met his burden of proof to establish that his lumbar
condition was causally related to the accepted November 20, 2013 employment incident.
On October 16, 2015 OWCP received appellant’s request for reconsideration. Appellant
resubmitted the May 9, 2014 medical report from Drs. Bryan and Williams.
OWCP denied appellant’s request for reconsideration, without merit review, on
November 3, 2015.
On December 15, 2015 appellant filed an appeal with the Board. By decision dated
June 24, 2016 the Board affirmed OWCP’s November 3, 2015 decision denying appellant’s
request for reconsideration of the merits of his claim. The Board found appellant was not
entitled to a merit review as he did not meet any of the requirements of 20 C.F.R. § 10.606(b)(3).
On July 22, 2016 OWCP received appellant’s request for reconsideration. In support of
this request, appellant submitted a December 11, 2015 report, from Dr. William Purdy, Jr., a
treating Board-certified internist.
In the December 11, 2015 report, Dr. Purdy noted that appellant was first seen on
December 3, 2015. He provided a history of the November 26, 2013 employment incident, and
reviewed the medical evidence provided by appellant. A physical examination revealed
diminished sensation in both lower extremities, painful lumbar range of motion, and positive left
leg straight leg raise. Dr. Purdy diagnosed sciatica issues and chronic back pain which he
attributed to a herniated disc caused by the November 25, 2013 work incident.
By decision dated September 29, 2016, OWCP determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
OWCP, through regulation, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.4 It will not review a decision denying or terminating a
benefit unless the application for review is filed within one year of the date of that decision.5
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application demonstrate clear evidence that its final merit decision was in error.6 Its
procedures state that it will reopen a claimant’s case for merit review, notwithstanding the oneyear filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review
4

5 U.S.C. § 8101 et seq. The Board has found that the imposition of the one-year limitation does not constitute
an abuse of the discretionary authority granted OWCP under section 8128(a) of FECA. See J.S., Docket No. 10-385
(issued September 15, 2010); Andrew Fullman, 57 ECAB 574 (2006); Adell Allen (Melvin L. Allen), 55 ECAB
390 (2004).
5

20 C.F.R. § 10.607; see also E.R., Docket No. 09-1655 (issued March 18, 2010); Debra McDavid, 57 ECAB
149 (2005); Alan G. Williams, 52 ECAB 180 (2000).
6

B.W., Docket No. 10-323 (issued September 2, 2010); M.E., 58 ECAB 309 (2007) Leon J. Modrowski, 55
ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).

3

demonstrates “clear evidence of error” on the part of OWCP.7 In this regard, OWCP will limit
its focus to a review of how the newly submitted evidence bears on the prior evidence of record.8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.9 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.11 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.12 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.13 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.14 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that it abused its discretion in denying merit review in the
face of such evidence.15
ANALYSIS
The Board finds that OWCP properly declined to reopen appellant’s claim for
reconsideration of the merits as the request for reconsideration was untimely filed and failed to
demonstrate clear evidence of error.
The only decision over which the Board has jurisdiction is the September 29, 2016
nonmerit decision wherein OWCP denied reconsideration as appellant’s request was untimely
filed and failed to demonstrate clear evidence of error. As more than one year elapsed between
7

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “OWCP will consider an untimely
application for reconsideration only if the application demonstrates clear evidence of error on the part of [it] in its
most recent merit decision. The application must establish, on its face, that such decision was erroneous.”
20 C.F.R. § 10.607(b).
8

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

9

See Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

10

See Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

11

See Leon J. Modrowski, supra note 6; Jesus D. Sanchez supra note 6.

12

See Leona N. Travis, supra note 10.

13

See supra note 8.

14

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

15

See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon.
denied, 41 ECAB 458 (1990).

4

the last merit decision issued in this case on November 5, 2014 and appellant’s July 22, 2016
request for reconsideration, the Board finds that OWCP properly found that appellant’s request
for reconsideration was untimely filed.16
The Board finds that appellant has failed to demonstrate clear evidence of error on the
part of OWCP. In a reconsideration request dated and received on July 22, 2016, counsel
requested review of the November 3, 2015 OWCP decision and submitted a December 11, 2015
report by Dr. Purdy, which had not previously been considered. Dr. Purdy provided a history of
injury, reviewed medical evidence, and provided physical examination findings. He diagnosed
sciatica issues and chronic back pain due to herniated disc which he opined had been caused by
the November 25, 2013 work incident. While Dr. Purdy’s report provides some support for
causal relationship, the standard is whether the evidence is sufficient to show clearly that OWCP
erred in finding that diagnosed conditions had not been caused or aggravated by the
November 25, 2013 work incident. Evidence such as a detailed, well-rationalized report, which
if submitted prior to OWCP’s denial, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error.17 Dr. Purdy’s report is insufficient to shift
the weight of the evidence in favor of appellant and thus does not raise a substantial question as
to the correctness of OWCP’s decision.
For these reasons, appellant has not demonstrated clear evidence of error by OWCP in its
September 29, 2016 decision.
On appeal counsel argues that the report by Dr. Purdy is sufficient to warrant a merit
review by OWCP. As found above, Dr. Purdy’s report, while new and relevant to the issue of
causal relationship, was insufficient to demonstrate clear evidence of error as it did not raise a
substantial question regarding the correctness of OWCP’s decision. Counsel also argues that the
case should be reopened because of an error of law made in the February 11 and November 5,
2014 OWCP decisions. Specifically, he contends that the discrepancy in date of injury and how
the injury occurred noted by the treating physicians was trivial and warrants the case be reopened
for a merit review. Contrary to counsel’s contentions, the injury was described just as appellant
described on his Form CA-1. As well, the date listed as the date of injury, November 20, 2013,
is enumerated in both the February 11 and November 5, 2014 decisions. As such, not only are
these arguments without merit, they are factually inaccurate. OWCP properly evaluated the
medical evidence when it found it insufficient to establish causal relationship due to inconsistent
injury dates and lack of rationalized opinion explaining the causal relationship between the
diagnosed conditions and the accepted employment incident.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
16

20 C.F.R. § 10.607(a).

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a)
(February 2016). See also B.W., Docket No. 15-0892 (issued August 26, 2015); D.G., 59 ECAB 455 (2008);
Joseph R. Santos, 57 ECAB 554 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 29, 2016 is affirmed.
Issued: May 1, 2017
Washington, DC

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

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

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

6


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

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

Docket No. 18-0448
Issued: January 2, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 29, 2017 appellant, through counsel, filed a timely appeal from an October 5,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established a condition causally related to factors of his
federal employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On April 10, 2014 appellant, then a 45-year-old supervisory federal air marshal, filed an
occupational disease claim (Form CA-2) alleging right shoulder pain that radiated to his right arm
while participating in squad training on April 7 and 8, 2014. He did not immediately stop work;
however, he was later off work intermittently and then stopped work completely on June 1, 2014.
By decision dated July 8, 2014, OWCP denied the claim finding that the evidence of record
was insufficient to establish that the events occurred as alleged and, therefore, the requirements
had not been met to establish an injury as defined by FECA.
On July 22, 2014 appellant requested a hearing before an OWCP hearing representative,
held on February 12, 2015. He testified that he was required to participate in squad training for 40
hours per quarter, and during squad training on April 7, 2014, he experienced shoulder pain after
striking a heavy bag. Appellant further testified that, while performing pull-ups on April 8, 2014,
he felt a “pop” and significant pain in his shoulder and then experienced pain which radiated from
his shoulder to his hand. He noted that his physicians found that his complaints could be related
to a cervical condition, and after diagnostic testing, he underwent a C5-6 cervical fusion surgery
in December 2014. Subsequent to the hearing, appellant submitted a number of medical reports
to the record.
By decision dated April 14, 2015, OWCP’s hearing representative found that the
employment events occurred as alleged, but denied the claim finding that the medical evidence of
record was insufficient to establish that the accepted events caused appellant’s right shoulder or
cervical conditions.
On May 12, 2015 appellant, through counsel, appealed to the Board. By decision dated
October 1, 2015, the Board found that he had not met his burden of proof to establish that his right
shoulder and cervical conditions were causally related to the accepted factors of his federal
employment.4
On September 1, 2016 requested reconsideration and submitted new evidence.

3

Docket No. 15-1233 (issued October 1, 2015).

4

Id.

2

In a January 18, 2016 report, Dr. Ali Moshirfar, a Board-certified orthopedic surgeon,
noted that appellant had been under his care for his cervical condition since 2014. He advised that
appellant was referred to him by his orthopedic shoulder specialist, Dr. Michael Kavanagh, a
Board-certified orthopedic surgeon. Dr. Moshirfar explained that appellant had participated in a
work training activity on April 7, 2014 and that after two to three days of consecutive training,
appellant began experiencing right shoulder pain as well as radicular pain to the right shoulder
scapular area, right arm, and forearm. He indicated that appellant also saw Dr. Kavanagh, who
obtained magnetic resonance imaging (MRI) scans of the shoulder and cervical spine on
April 22, 2014. Dr. Moshirfar indicated that the neck MRI scan reflected spondylosis with disc
osteophytic complexes causing foraminal narrowing from C3-7. Furthermore, he indicated that,
at C5-6, a severe right-sided herniation and stenosis was noted consistent with appellant’s radicular
pain pattern of pain into the right shoulder and arm which presented after his work training in
April 2014. Dr. Moshirfar explained that the additional stress of doing pull-ups and further
training may have exacerbated his underlying degenerative condition in addition to the herniation
at C5-6. He also indicated that a cervical fusion was performed on appellant on December 1, 2014.
Dr. Moshirfar noted that, while appellant improved, he continued to have persistent neck pain and
radiculopathy. He related that he had a chance to read appellant’s description of events and opined:
“It is my opinion to a reasonable degree of medical certainty as a Board-certiﬁed spine surgeon
that the events of April 2014 relating to [appellant’s] work training and striking a heavy bag during
training with subsequent pull-ups lead to the contribution of the C5 disc herniation with persistent
right arm radiculopathy as well as exacerbation of his underlying degenerative disease. This, I
believe to be the proximate cause of his worsening condition which lead to the surgery, the cervical
fusion.” Dr. Moshirfar also indicated that appellant remained unable to perform his prescribed
work duties.
By decision dated November 21, 2016, OWCP denied modification of its April 14, 2015
decision.
On August 28, 2017 counsel requested reconsideration and submitted new evidence.
In an August 2, 2017 report, Dr. Kavanagh noted that he first treated appellant on
April 22, 2014. He explained that he ordered an MRI scan of appellant’s right shoulder and of his
cervical spine. Dr. Kavanagh explained that, regarding the right shoulder, appellant had “a SLAP
[superior labral tear from anterior to posterior] tear of the superior labrum and tendinitis,” and
degenerative changes as revealed in the May 23, 2014 MRI scan. He indicated that the
degenerative changes most likely made appellant more susceptible to the injury, which caused the
diagnosed condition. Dr. Kavanagh indicated that appellant’s complaints correlated with the
clinical ﬁndings. He related that appellant indicated that, on April 7, 2014, while striking a heavy
bag, he felt an uncomfortable pain in the back of his right shoulder blade. Dr. Kavanagh opined
that it was more than likely the beginning of the diagnosed tear as the tendinitis or inflammation.
Furthermore, he explained that, on the following day, while doing pull-ups, additional stress would
have been placed on the right shoulder as well as the neck further causing damage to the tear and
tendinitis that began from events from the previous day. Dr. Kavanagh also provided an opinion
regarding appellant’s description of the increased pain upon doing pull-ups and the sensation of
electricity from the back of his right shoulder (the site of the tear) running through his right hand.
He indicated that performing the pull-ups would cause additional strain on the shoulder which was
already damaged to a lesser extent from the previous day, thus causing greater damage.

3

Dr. Kavanagh further explained that appellant’s right shoulder was damaged and unable to absorb
the stress of the pull-ups and additional stress would have been placed on the cervical spine. He
also noted that an MRI scan of the cervical spine from July 29, 2014, revealed bulging and stenosis
at multiple levels. Dr. Kavanagh indicated that he referred appellant to Dr. Moshirfar for
evaluation and treatment of the cervical spine. He also noted that provided restrictions in regards
to the right shoulder since he first began seeing appellant on April 22, 2014.
By decision dated October 5, 2017, OWCP denied modification of its November 21, 2016
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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 timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
In an occupational disease claim, appellant’s burden of proof requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.9
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.10 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

5

Supra note 2.

6
T.H., Docket No. 18-1585 (issued March 22, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
7

T.H., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden,
Sr., 40 ECAB 312 (1988).
8

T.H., id.; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7,
2014); Delores C. Ellyett, 41 ECAB 992 (1990).
9

A.H., Docket No. 19-0270 (issued June 25, 2019); R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB
623 (2000).
10

A.H., id.; I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

4

relationship between the diagnosed condition and the specific employment factors identified by
the employee.11
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
submitted prior to the issuance of OWCP’s April 14, 2015 decision. The Board considered that
evidence in its October 1, 2015 decision and found that it was insufficient to establish his claim.
Findings made in prior the Board decisions are res judicata absent any further review by OWCP
under section 8128 of FECA.12
In an August 2, 2017 report, Dr. Kavanagh explained that, regarding the right shoulder,
appellant had a SLAP tear of the superior labrum and tendinitis and degenerative changes as
revealed in the May 23, 2014 MRI scan. He further explained that appellant had degenerative
changes which most likely made appellant more susceptible to the injury, which caused the
diagnosed condition. Dr. Kavanagh related that appellant advised him that, on April 7, 2014 while
striking a heavy bag, he felt an uncomfortable pain in the back of his right shoulder blade. He
opined that it was more than likely the beginning of the diagnosed tear. Furthermore,
Dr. Kavanagh explained that, on the following day, April 8, 2014, while doing pull-ups, additional
stress would have been placed on the right shoulder as well as the neck further causing damage to
the tear and tendinitis that began from events from the previous day. He explained that performing
the required pull-ups would have caused additional strain on the shoulder which was already
damaged to a lesser extent from the previous day, and then would have caused greater damage, as
the shoulder was unable to absorb the stress of the pull-ups, and additional stress would have been
placed on the cervical spine.
The Board finds that although Dr. Kavanagh’s opinion is insufficiently rationalized to meet
appellant’s burden of proof to establish causal relationship, it is of sufficient probative value to
warrant additional development.13 Dr. Kavanagh provided discussion of the pathophysiologic
mechanism whereby appellant’s specific employment events on April 7 and 8, 2014 would have
caused the claimed conditions. He opined that the striking of a heavy bag on April 7, 2014 was
more than likely the beginning of the diagnosed tear as the tendinitis or inflammation.
Dr. Kavanagh explained that, while doing pull-ups on April 8, 2014, additional stress would have
been placed on the right shoulder as well as the neck further causing damage to the tear and
tendinitis that began from events from the previous day. He indicated that performing the pullups would cause additional strain on the shoulder which was already damaged to a lesser extent
from the previous day, thus causing greater damage. Dr. Kavanagh further explained that

11

K.H., Docket No. 19-0580 (issued August 23, 2019); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
345 (1989).
12

M.L., Docket No. 19-0813 (issued November 26, 2019); see B.R., Docket No. 17-0294 (issued May 11, 2018).

13
J.J., Docket No. 19-0789 (issued November 22, 2019); see also John J. Carlone, 41 ECAB 354 (1989); Horace
Langhorne, 29 ECAB 280 (1978).

5

appellant’s right shoulder was damaged and unable to absorb the stress of the pull-ups and
additional stress would have been placed on the cervical spine.
Proceedings under FECA are not adversarial in nature nor is OWCP a disinterested arbiter.
While the appellant has the burden of proof to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence. It has the obligation to see that justice is
done.14
The case will therefore be remanded to OWCP for further development of the medical
evidence on the issue of causal relationship, including the preparation of a statement of accepted
facts which shall set forth all of appellant’s accepted employment duties and then make a referral
to an appropriate medical specialist for consideration of the entire medical record. After this and
other such further development as deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 5, 2017 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: January 2, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
14

J.J., id.; M.B., Docket No. 17-1999 (issued November 13, 2018).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.O., Appellant
and
DEPARTMENT OF JUSTICE, LA TUNA
FEDERAL CORRECTIONAL INSTITUTION,
El Paso, TX, Employer
__________________________________________

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

Docket No. 17-0894
Issued: January 26, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 16, 2017 appellant filed a timely appeal from a September 23, 2016 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 to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of
$4,837.77 for the period July 28 through September 19, 2015 as she continued to receive wageloss compensation after she returned to full-duty work; and (2) whether appellant was at fault in
the creation of this overpayment such that it was not subject to waiver.
On appeal appellant contends that she notified OWCP of her return to work and that she
was not at fault in the creation of the overpayment.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 29, 2012 appellant, then a 48-year-old unit secretary, filed a traumatic
injury claim (Form CA-1) alleging that she injured her right elbow on November 29, 2012
opening the central file safe drawer. She continued to work without restrictions. On February 7,
2013 OWCP accepted appellant’s claim for sprain of the right elbow, forearm, and radial
collateral ligament. Appellant completed a direct deposit sign-up form on January 29, 2014. She
underwent a magnetic resonance imaging (MRI) scan on February 3, 2014 which demonstrated
cubital tunnel syndrome. Appellant underwent lateral epicondylar debridement and ulnar nerve
decompression at the right elbow on October 3, 2014. She stopped work on October 3, 2014 and
OWCP placed her on the periodic rolls on January 26, 2015 retroactive to October 3, 2014.
On July 21, 2015 appellant’s physician Dr. Barry Cromer, a Board-certified orthopedic
surgeon, opined that she was capable of performing her date-of-injury position.
Appellant filed a claim for compensation (Form CA-7) on September 9, 2015 requesting
compensation for four hours leave without pay on September 8, 2015. She filed an additional
Form CA-7 on September 10, 2015 requesting compensation for four hours of leave without pay
on that date.
On September 17, 2015 appellant telephoned OWCP and stated that she had returned to
full-time work on July 28, 2015 with no restrictions.
On November 5, 2015 OWCP issued a preliminary determination that appellant was
overpaid in the amount of $8,365.06 for the period October 3, 2014 through July 27, 2015 as she
was paid at the augmented rate, but had no dependent;2 and for the period July 28 through
September 19, 2015 as she had returned to work on July 28, 2015 and continued to receive wageloss compensation for total disability. It found that appellant was at fault in the creation of the
overpayment. OWCP requested that appellant provide financial information including an
overpayment recovery questionnaire (Form OWCP-20). It also provided appellant with her
appeal rights and afforded her 30 days to respond.
OWCP noted that appellant received compensation for the period July 26 through
September 19, 2015 in the amount of $5,154.42 by direct deposit, as she received two deposits of
$2,577.21 each. Appellant returned to work on July 28, 2015 and received payment via direct
deposit in the amount of $2,577.21 on August 22, 2015 for the period July 26 to August 22, 2015
and in the amount of $2,577.21 on September 19, 2015 for the period August 23 through
September 19, 2015. OWCP noted that appellant received payment for wage-loss compensation
for 56 days, but was only entitled to wage-loss compensation for two days. It divided $2,577.21
by 28 days and determined that appellant was entitled to compensation for $92.04 for each of the
two days or $184.08. Subtracting $184.08 from the total payment of $5,154.42, OWCP found
that this resulted in an overpayment of $4,970.34. It also found that appellant was entitled to an

2
The issue of the appropriate rate of compensation prior to July 28, 2015 is in an interlocutory status and not
before the Board in this appeal. See 20 C.F.R. § 501.2(c)(2)

2

additional eight hours of compensation for four hours of wage-loss each on September 8 and 10,
2015 or $132.573 and used this sum to further reduce the overpayment to $4,837.77.
On November 10, 2015 appellant informed OWCP of her change of address.
In a letter postmarked December 5, 2015, but received by OWCP on December 10, 2015,
appellant submitted financial information and requested a prerecoupment hearing with OWCP’s
Branch of Hearings and Review on the issues of fault and waiver of the overpayment. She
disagreed with fact and amount of the overpayment, and requested waiver of the overpayment.
Appellant provided a completed overpayment recovery questionnaire (Form OWCP-20). She
provided a benefits statement noting that she had already received a payment of $2,577.21, from
July 26 through August 22, 2015. Appellant received a similar benefit statement regarding
issuance of $2,577.21 on September 19, 2015. She provided her wage-loss compensation
payment history which indicated that she received wage-loss compensation for the period July 26
through August 22, 2015 via direct deposit on August 22, 2015. Appellant received wage-loss
compensation from August 23 through September 19, 2015 through direct deposit on
September 19, 2015. She received bank statements on July 31, 2015 and August 31, 2015.
Appellant submitted a copy of her most recent tax return.
On January 11, 2016 OWCP accepted the additional condition of lateral epicondylitis.
Appellant and her union representative appeared at the prerecoupment hearing on
July 26, 2016. OWCP’s hearing representative explained how the overpayment in the amount of
$4,837.77 was calculated for the period July 26 through August 22, 2015 including the offset of
wage-loss compensation owed on September 8 and 10, 2015 due to doctors’ visits. Appellant
testified that she received a check on July 25, 2015 which covered the period before she returned
to work. She then received a deposit at the end of August and attempted to contact OWCP.
Following the prerecoupment hearing, appellant’s representative disagreed with the way
the hearing was conducted. Appellant also provided additional financial information including
her bank statement from July 12 through August 11, 2016. Appellant listed her monthly
expenses in the amount of $3,429.31 and opined that her future rent would be $695.00.
By decision dated September 23, 2016, OWCP’s hearing representative found that
appellant received an overpayment when she had returned to full-duty work on July 28, 2015,
but continued to receive wage-loss compensation. She also found that appellant was at fault in
creating the overpayment because she returned to work and continued to receive wage-loss
compensation. OWCP’s hearing representative explained that appellant was aware of the
August 22, 2015 overpayment as soon as she received her OWCP benefit statements and
therefore was at fault such that the overpayment was not subject to waiver. The hearing
representative determined, based on the financial information that appellant had provided, that
repayment of $75.00 per month was reasonable.

3
OWCP based the amount due on four hours each day on September 8 and 10, 2015. It was also based on
appellant’s gross, rather than net, compensation.

3

OWCP’s hearing representative remanded the case to OWCP for further development of
the augmented compensation payment as it had not addressed whether or not appellant was at
fault in the creation of this overpayment.4
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA5 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.6
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except
for limited circumstances.7 OWCP regulations provide that compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.8 An
employee is not entitled to compensation for total disability after returning to full-time work.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has received an overpayment of compensation as she was
paid total disability compensation for the period July 28 to September 19, 2015 after her return to
work at the employing establishment effective July 28, 2015.10 However, the Board further finds
that OWCP has not properly determined the amount of the overpayment.
OWCP determined that appellant received an overpayment of compensation in the
amount of $4,970.34 for the period July 28 through September 29, 2015. However, it offset this
amount with compensation that appellant was due for four hours of wage-loss compensation on
September 8 and 10, 2015 in the amount which OWCP calculated as $132.5711 which reduced
4
As the overpayment issues based on augmented rate compensation are currently interlocutory in nature, the
Board lacks jurisdiction to review this matter. See 20 C.F.R. § 501.2(c)(2) (providing that there will be no appeal
with respect to any interlocutory matter decided (or not decided) during the pendency of a case). OWCP issued a
preliminary determination on this issue on December 22, 2016, but there is no final decision in the record at the time
of the March 16, 2017 appeal to the Board.
5

5 U.S.C. §§ 8101-8193, 8102.

6

Id.

7

5 U.S.C. § 8116(a)

8

20 C.F.R. § 10.500.

9

B.T., Docket No. 13-1619 (issued February 24, 2014).

10

5 U.S.C. § 8116(a); 20 C.F.R. § 10.500.

11
OWCP based the amount due on for four hours each on September 8 and 10, 2015 on appellant’s gross rather
than net compensation.

4

the asserted overpayment amount to $4,837.77.
Although such an offset appears
administratively straightforward, the Board has held that it may circumvent established legal
procedures and protections if the claimant is entitled to consideration of waiver.12 Such offsets
are not allowed, as they permit an unrestricted recovery of the offset portion of the overpayment
without regard to the relevant factors set forth in 20 C.F.R. § 10.441(a),13 which denies
administrative due process with respect to the amounts offset.14
The case will, therefore, be remanded for OWCP to properly calculate the entire amount
of the overpayment of compensation and to consider waiver of the entire amount of the
overpayment. After conducting such further development as is deemed necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that appellant received an overpayment of compensation from July 28 to
September 19, 2015 as she received compensation for total disability after she returned to work.
However, the Board finds that the case is not in posture for determining the amount of
overpayment.15

12

Michael A. Grossman, 51 ECAB 673, 678 (2000); T.W., Docket No. 09-2039 (issued April 6, 2010).

13

This section states that in collecting an overpayment of compensation OWCP shall decrease later payment of
compensation by taking into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize any hardship.
14
Diana L. Booth, 52 ECAB 370, 373 (2001) (finding that OWCP’s offset practice denied administrative due
process rights with respect to the amount offset); Michael A. Grossman, supra note 12; B.T., Docket No. 13-1619
(issued February 24, 2014).
15
As OWCP has not established the amount of overpayment, it is not necessary for the Board to address the
issues of fault and waiver.

5

ORDER
IT IS HEREBY ORDERED THAT the September 23, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed as to the fact of the overpayment. The decision is
set aside as to the amount of the overpayment and remanded for further action consistent with
this decision of the Board.16
Issued: January 26, 2018
Washington, DC

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

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

16
Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Virginia Beach, VA,
Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 08-838
Issued: January 12, 2009

Oral Argument November 12, 2008

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

JURISDICTION
On January 28, 2008 appellant filed a timely appeal from July 30 and December 11, 2007
merit decisions of the Office of Workers’ Compensation Programs denying his request for an
increased pay rate. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether the Office properly determined appellant’s pay rate for
compensation purposes.
FACTUAL HISTORY
On November 6, 2002 appellant, then a 60-year-old able seaman, filed a traumatic injury
claim alleging that he sustained an injury to his lower back on November 5, 2002 when he
slipped while walking down a ladder. The Office accepted his claim for an aggravation of
lumbar degenerative disc disease.

Appellant voluntarily retired on December 31, 2003. He elected workers’ compensation
benefits effective March 10, 2004. The Office paid him compensation beginning that date. On
August 19, 2004 and May 13, 2005 appellant submitted claims for compensation (Forms CA-7)
contending that he was entitled to premium pay for working on the weekends and holidays. He
explained that an August 14, 2000 Memorandum of Understanding established that he was
entitled to premium pay on weekends and holidays.1
By letter dated January 17, 2006, the employing establishment indicated that appellant
received his standard rate of pay and an allowance for subsistence and quarters. His basic rate of
pay included other elements such as premium pay.
In a decision dated July 30, 2007, the Office denied appellant’s claim for premium pay.
Appellant requested reconsideration on September 3, 2007. He submitted copies of pay
stubs containing the Code OON, which he asserted designated premium pay for weekends.2
Appellant also resubmitted a copy of the August 14, 2000 Memorandum of Understanding. The
Memorandum of Understanding provided that employees covered under the agreement would
receive pay for eight hours of regular work Monday through Friday, including holidays. Work
assigned in addition to the eight hours of regularly scheduled work on Monday through Friday
and work performed on weekends and holidays would be paid at the applicable premium pay
rate. Appellant maintained that the employing establishment paid him premium pay for weekend
work at the time of his November 5, 2002 injury. He also asserted that he was entitled to night
differential.
On October 11, 2007 the Office requested that the employing establishment explain the
abbreviations on appellant’s pay stubs, including Codes GAB, OON, OTN and Code 43. By
letter dated October 31, 2007, the employing establishment responded that GAB and Code
43 showed a retention allowance and any code beginning with O designated overtime. The
employing establishment asserted that civilian mariners were not paid Sunday premium pay,
holiday pay or night differential.
By decision dated December 11, 2007, the Office modified the July 30, 2007 decision to
include retention pay in appellant’s pay rate for compensation purposes. It denied his claim for
holiday pay, night differential and Sunday premium pay.3

1

The Memorandum of Understanding submitted by appellant with his Forms CA-7 is not legible.

2

Appellant asserted that he spoke with an individual in payroll who informed him that OON and PTN represented
premium pay on weekends, GAB was a bonus pay for civilian workers and OTN designated overtime.
3

The Office noted that appellant submitted August 2000 Memorandums of Understanding that were either
illegible or unsigned.

2

LEGAL PRECEDENT
Section 8105(a) of the Federal Employees’ Compensation Act4 provides: “If the
disability is total, the United States shall pay the employee during the disability monthly
monetary compensation equal to 66 2/3 percent of his monthly pay, which is known as his basic
compensation for total disability.”5 Section 8110(b) of the Act provides that total disability
compensation will equal three fourths of an employee’s monthly pay when the employee has one
or more dependents.6 Pay rate for compensation purposes is defined in section 8101(4) as the
monthly pay at the time of injury, the time disability begins or the time disability recurs, if the
recurrence is more than six months after returning to full-time work, whichever is greater.7
Section 8114(e) of the Act provides that, in addition to annual base pay, certain items will
be included in the computation of pay, such as the value of subsistence and quarters, premium
pay and any form of remuneration in kind for services.8 Section 8114(e) specifically provides
that overtime pay is excluded in computing an employee’s monthly pay for compensation
purposes.9
When the job held at the time of injury includes elements of pay such as night or shift
differential, extra compensation for work on Sundays and holidays or pay for administratively
uncontrollable overtime, the Office must include the additional pay in the base pay.10
Although it is appellant’s burden to establish his claim, the Office is not a disinterested
arbiter but, rather, shares responsibility in the development of the evidence, particularly when
such evidence is of the character normally obtained from the employing establishment or other
government source.11 The Office shares responsibility to see that justice is done.12
ANALYSIS
The Office accepted that appellant sustained an aggravation of lumbar degenerative disc
disease due to a November 5, 2002 work injury. He retired on December 31, 2003 and the
4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8105(a).

6

5 U.S.C. § 8110(b).

7

5 U.S.C. §§ 8101(4); 8114; see also 20 C.F.R. § 10.5(s).

8

5 U.S.C. § 8114(e).

9

Id.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.8(b)
(December 1995).
11

See R.E. 59 ECAB ___ (Docket No. 07-1604, issued January 17, 2008); Claudia A. Dixon, 47 ECAB
168 (1995).
12

Id.

3

Office paid him compensation effective March 10, 2004. Appellant contended that he was
entitled to premium pay for working on the weekends and holidays. Section 8114(e) of the Act
provides that, in addition to annual base pay, certain items will be included in the computation of
pay, such as the value of subsistence and quarters, premium pay and any form of remuneration in
kind for services.13 Consequently, when the job held at the time of injury includes elements of
pay such as night or shift differential, extra compensation for work on Sundays and holidays or
pay for administratively uncontrollable overtime, the Office must include the additional pay in
the base pay.14
Appellant submitted an August 2000 Memorandum of Understanding which indicated
that employees covered under the agreement received premium pay for “[a]ll work assigned and
performed in excess of the first [eight] hours of regularly scheduled work Monday thru Friday
and work performed on Saturdays, Sundays and [h]olidays….” He also submitted pay stubs
containing codes defining pay. By letter dated October 11, 2007, the Office requested that the
employing establishment explain the codes on his pay stubs, including Codes GAB, OON, OTN
and Code 43. The Office did not ask that the employing establishment explain the provisions of
the August 2000 Memorandum of Understanding. The employing establishment, on October 31,
2007, responded that Code GAB and Code 43 showed appellant’s retention allowance and that
any code beginning with O designated overtime pay. The employing establishment asserted that
civilian mariners did not receive Sunday premium, holiday pay or night differential.
Although it is appellant’s burden to establish his claim, the Office is not a disinterested
arbiter but, rather, shares responsibility in the development of the evidence, particularly when
such evidence is of the character normally obtained from the employing establishment or other
government source.15 The Office should, on remand, further develop the factual evidence of
record by requesting that the employing establishment explain whether the August 2000
Memorandum of Understanding entitled appellant to premium pay for weekend and holiday
work. After further development of the evidence, the Office should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

13

See supra note 8.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.8(b)
(December 1995).
15

See R.E., supra note 11.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 11 and July 30, 2007 are set aside and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: January 12, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5