United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Beaver, WV, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jill Carver, for the appellant
Office of Solicitor, for the Director

Docket No. 11-51
Issued: August 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 7, 2010 appellant filed a timely appeal from an August 19, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 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 OWCP properly reduced appellant’s compensation on the grounds
that the selected position of computer assistant/scheduler represented his wage-earning capacity.
FACTUAL HISTORY
On May 31, 2005 appellant, then a 45-year-old welder supervisor, filed a traumatic injury
claim (Form CA-1) alleging that on May 11, 2005 he sustained a back injury while performing

1

5 U.S.C. § 8101 et seq.

the Heimlich maneuver on a coworker. OWCP accepted the claim for lumbar sprain/strain and
postlaminectomy syndrome.2 Appellant stopped work and received wage-loss compensation.
Appellant received treatment from attending orthopedic surgeon Dr. Robert Kropac. In a
work capacity evaluation (OWCP5-c) dated April 16, 2008, Dr. Kropac provided work
restrictions of two hours a day for sitting, standing and walking and 20 pounds lifting. OWCP
referred appellant for a second opinion examination by Dr. Charles Lefebure, an orthopedic
surgeon. In a report dated October 8, 2008, Dr. Lefebure provided a history and results on
examination.3 He indicated that appellant had a “lumbar disc removed” in October 2003
following a work injury for an L5-S1 herniated disc. Dr. Lefebure further stated, “The diagnosis
is chronic lumbar disc disease as evidenced by his previous history of herniated disc and surgical
treatment of the same with aggravation by his work-related injury of May 2005 and chronic
ongoing symptoms of back and right lower extremity pain consistent with that diagnosis.” He
advised that appellant continued to have lifting restriction of 20 pounds. Dr. Lefebure stated that
appellant could function in a sedentary, light-duty position with limited lifting, bending, twisting
and no climbing or vigorous activity. He completed a work capacity evaluation (OWCP-5c)
which included limitations of three hours sitting, two hours standing and reaching and one hour
walking and reaching above shoulder.
In a report dated December 14, 2009, Dr. Kropac noted appellant’s chronic back
condition was exacerbated by bending, stooping prolonged sitting and standing. He provided
results on examination and stated that appellant’s return to work in a modified-duty capacity
would include restrictions regarding a chronic left shoulder condition and bilateral epicondylitis.
Vocational rehabilitation services were provided to appellant while receiving
compensation. On December 16, 2009 a rehabilitation specialist completed a job classification
form (OWCP-65) for the position of Computer Assistant/Scheduler (Department of Labor’s
Dictionary of Occupational Titles No. 221.362-030). The job description stated that the position
involved scheduling work for computer processing and monitoring execution of schedules using
a computer. The form stated that the position was sedentary (occasional lifting up to 10 pounds),
with occasional reaching and handling and frequent fingering.4 The rehabilitation specialist
found that appellant had the specific vocational preparation of one to two years for the position,
noting that he had worked as a welding supervisor and performed many of the same tasks as a
scheduler. The position was found to be reasonably available in appellant’s area, based on
contact with the state employment service. Wages were reported as $38,117.00 to $41,553.00 a
year.
By letter dated June 30, 2010, OWCP advised appellant of a proposed reduction in
compensation on the grounds he had the capacity to earn wages of $733.02 a week as a computer

2

A November 30, 2005 Statement of Accepted Facts reported that appellant “had a prior job[-]related back injury
claim under which he was working limited duty.”
3

Dr. Kropac stated the “allowed” condition was degenerative disc disease.

4

The form explains that occasional means up to one third of the time is spent on the activity.

2

assistant/scheduler.
Dr. Lefebure.

It stated that the weight of the medical evidence was represented by

On August 2, 2010 appellant submitted a report dated June 30, 2009, from Dr. Bruce
Guberman, an internist, who reviewed a history of injury and results on examination.
Dr. Guberman diagnosed acute and chronic lumbosacral strain, post-traumatic, generalized
degenerative joint disease and history of nephrolithiasis. He opined that appellant had severe
interference of his ability to perform work activities, including sitting, standing, walking, lifting,
carrying, pushing and pulling. Dr. Guberman opined that appellant was totally disabled.
By decision dated August 3, 2010, OWCP reduced appellant’s compensation based on a
capacity to earn wages of $733.02 a week. By letter dated August 18, 2010, it stated that it was
vacating the August 3, 2010 decision and would review evidence submitted on August 2, 2010.
By decision dated August 19, 2010, OWCP reduced appellant’s compensation on the
grounds he had the capacity to earn wages of $733.02 weekly as a computer assistant/scheduler.
It listed the evidence received on August 2, 2010 and found that appellant was capable of
performing the duties of the selected position.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction in such benefits.5
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his wage-earning capacity.
If the actual earnings do not fairly and reasonably represent wage-earning capacity or if the
employee has no actual earnings, his wage-earning capacity is determined with due regard to the
nature of his injury, his degree of physical impairment, his usual employment, his age, his
qualifications for other employment, the availability of suitable employment and other factors and
circumstances which may affect his wage-earning capacity in his disabled condition.6
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service.7 Finally, application of the

5

Carla Letcher, 46 ECAB 452 (1995).

6

See Wilson L. Clow, Jr., 44 ECAB 157 (1992); see also 5 U.S.C. § 8115(a).

7

See Dennis D. Owen, 44 ECAB 475 (1993).

3

principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.8
OWCP’s procedures state that unless the medical evidence is “clear and unequivocal”
that the selected position is medically suitable, OWCP should send a job description to an
appropriate physician for an opinion as to whether the claimant can perform the position.9
ANALYSIS
OWCP selected the position of computer assistant/scheduler and found this represented
appellant’s wage-earning capacity pursuant to 5 U.S.C. § 8115. As noted, the position selected
must be both vocationally and medically suitable. With respect to vocational suitability,
appellant has asserted on appeal that he was not vocationally qualified for the position. He stated
that he does not have typing or computer skills or a proper vocational preparation. The Board
notes the rehabilitation counselor who completed OWCP-65 form is a specialist in the vocational
field and explained his findings. The job description of welder supervisor does require computer
skills and supervisory duties such as monitoring and training and it was reasonable for the
rehabilitation specialist to conclude that appellant’s present job did involve similar tasks and
would provide a vocational preparation for the selected position.
The selected position must, however, also be medically suitable based on the claimant’s
specific medical condition. OWCP relied on the October 8, 2008 report from Dr. Lefebure,
which the Board notes was nearly two years old at the time of the August 19, 2010 decision.10 It
is not clear that the selected position was within work restrictions provided by Dr. Lefebure. For
example, the October 8, 2008 OWCP-5c limited appellant to two hours reaching and three hours
sitting. The job classification forms state that the selected job had occasional reaching of up to
one third of the time or approximately 2.66 hours a day. It is also not clear how many hours of
sitting a day the selected position required or that it meets the limitations of Dr. Lefebure.
In addition, appellant submitted a more recent report from Dr. Guberman dated June 30,
2009, finding that he was totally disabled for work. OWCP did not discuss this report, other than
to list it as being received. As the Board notes above, OWCP’s procedures stated that unless the
medical evidence is “clear and unequivocal,” OWCP should send a detailed job description of
the selected position to a physician for a proper review. The Board finds that the medical
evidence is not clear and unequivocal in this case. Therefore, OWCP did not meet its burden in
this case.

8

5 ECAB 376 (1953); see also 20 C.F.R. § 10.303.

9

J.V., Docket No. 10-886 (issued November 17, 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.8(d) (December 1995).
10

See Keith Hanselman, 42 ECAB 680 (1991) (the Board noted that a medical report was almost two years old
when OWCP issued its decision and could not form a valid basis for a wage-earning capacity determination).

4

CONCLUSION
The Board finds that OWCP did not meet its burden of proof to reduce appellant’s
compensation on the grounds he had the capacity to earn wages in the selected position of
computer assistant/scheduler.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 19, 2010 is reversed.
Issued: August 8, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
DEPARTMENT OF THE ARMY, MATERIEL
COMMAND, Corpus Christi, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-656
Issued: October 19, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 13, 2010 appellant filed a timely appeal from a December 14, 2009 merit
decision of the Office of Workers’ Compensation Program. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On March 13, 2009 appellant, then a 55-year-old sheet metal worker, filed an
occupational disease claim alleging that he sustained neck, shoulder and back soreness while
climbing out of a CH-47 helicopter. He attributed his neck condition to repetitive, all-day
shooting and bucking of rivets with his neck positioned at a 90-degree angle. Appellant first
became aware of his condition on September 1, 2008 and realized its relationship to his work on
January 10, 2009. He did not file a claim “because after a hard day’s work, everybody’s sore,

you go home, take a good hot shower, put on some Ben Gay and rest.” Appellant did not
immediately stop work. For six weeks, starting March 9, 2009, the employing establishment
placed him on temporary limitations that included no pushing, no pulling, no carrying and no
twisting while standing with more than five pounds of force.
In a letter dated March 27, 2009, the Office informed appellant that the evidence
submitted was insufficient to establish his claim and advised him of the type evidence needed to
establish his claim. It requested that he provide a comprehensive medical report from the
treating physician describing symptoms, test results, diagnosis, effect of treatment provided and
the physician’s medically-reasoned opinion on the cause of his condition.
In an April 14, 2009 letter, appellant authorized his attorney to represent him.
additional evidence accompanied the letter.

No

In an April 27, 2009 letter, the employing establishment controverted the claim. It
asserted that appellant implicated a traumatic injury instead of an occupational disease. The
employing establishment also noted that appellant had worked since January 2, 2006 and had
cervical surgery on January 16, 2009.
In a decision dated May 21, 2009, the Office denied appellant’s claim for compensation
benefits. It found that, while the work activity did occur, appellant did not provide sufficient
medical evidence to establish that his cervical condition was caused by the work activity.
On May 27, 2009 appellant requested a telephonic hearing, which was held on
September 9, 2009. At the hearing, he testified that he gradually began to feel soreness a couple
months before September 1, 2008, but sought medical treatment only on that date because the
pain had become unbearable. Appellant advised that there was no single incident that caused his
condition. He stated that he did not have any neck or back problems prior to working for the
employing establishment. Appellant was referred to a neurosurgeon who diagnosed a severe
crushed spinal cord. He did not stop work until January 16, 2009, when he underwent an
operation. Appellant was out of work for six weeks and returned on restricted duty. He
reiterated his belief that his cervical condition was a result of his three-and-a-half-year federal
employment as a sheet metal worker. Appellant estimated that approximately 75 to 80 percent of
riveting work involved lifting at or above shoulder height, with 30 percent of his work comprised
of shooting rivets and the other 70 percent comprised of holding a heavy bucking opposite steel
rivets to flatten them after they are shot from the riveting gun. He described bucking between
100 and 500 rivets for 10 to 16 hours daily. The hearing representative informed appellant that
the record contained no medical evidence and requested that he submit medical records from his
initial treating physician and his surgeon. The hearing representative held the record open for 30
days to allow the submission of medical evidence.
In October 2, 2009 comments, the employing establishment noted that appellant worked a
maximum 10-hour day if he worked overtime; less than 20 percent of riveting work required
overhead lifting; and the average sheet metal worker shot and bucked rivets 15 to 20 percent of
the time. It also described how a person’s body was positioned while working.

2

In a decision dated December 14, 2009, the Office hearing representative affirmed the
May 21, 2009 decision. She found that appellant failed to provide medical evidence
demonstrating that his cervical condition was caused by the accepted work-related activities of
riveting.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing 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 the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disabilities and/or specific conditions for
which compensation is claimed are causally related to the employment injury.2 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.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.4 To establish fact of injury in an
occupational disease claim, an employee must submit: (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.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence, which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6

1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

See S.P., 59 ECAB 184 (2007).

5

See R.R., 60 ECAB ___ (Docket No. 08-2010, issued April 3, 2009) at n.12; Roy L. Humphrey, 57 ECAB 238,
241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).
6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 3.

3

ANALYSIS
The evidence supports that appellant performs shooting and bucking of rivets on a daily
basis as part of his job. However, appellant has not submitted any medical evidence to establish
both the existence of his neck, shoulder or back condition or that any condition is causally
related to the shooting and bucking of rivets at work.
The Office first advised appellant of the medical evidence needed to establish his claim in
a March 27, 2009 letter. Appellant did not furnish any medical evidence and the Office denied
his claim on May 21, 2009. At the September 9, 2009 telephonic hearing, the hearing
representative requested that appellant submit medical documentation and allowed 30 days for
submission. The record establishes that appellant did not submit any medical evidence before
the hearing representative’s December 14, 2009 decision. The Board notes that the employing
establishment stated that appellant underwent cervical surgery several months prior to the
submission of his claim. Appellant did not submit any medical records pertaining to treatment of
his condition or a narrative report from a physician addressing how his federal employment
caused or contributed to the need for surgery. In this regard, he has failed to establish a prima
facie claim for compensation.7 Appellant has not submitted any medical evidence diagnosing a
medical condition and explaining how employment factors caused or aggravated a diagnosed
condition. Consequently, he has not met his burden of proof to establish an occupational disease
related to his federal employment as a sheet metal worker.
Although counsel, on appeal, asserts that the Office’s decision is contrary to fact and law,
the Board finds that the Office properly found that appellant did not meet his burden of proof.
CONCLUSION
The Board finds that appellant has not established that he sustained an occupational
disease in the performance of duty.

7

See Donald W. Wenzel, 56 ECAB 156 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the December 14, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 19, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1602
Issued: October 28, 2015

Case Submitted on the Record

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

JURISDICTION
On July 20, 2015 appellant filed a timely appeal of an April 17, 2015 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.
ISSUES
The issues are: (1) whether appellant is entitled to more than six percent permanent
impairment to the right upper extremity, for which she received a schedule award; and
(2) whether OWCP properly identified the date of maximum medical improvement (MMI).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 16, 2008 appellant, a 50-year-old secretary, injured her right shoulder and
right arm when she tripped on a hole while walking on grass. She filed a traumatic injury claim
(Form CA-1) for benefits on September 17, 2008, which OWCP accepted for right shoulder sprain,
right upper arm sprain, right elbow sprain, and right forearm sprain.
On December 17, 2008 appellant underwent a magnetic resonance imaging (MRI) scan and
arthrogram of her right shoulder. The results of this test showed that she had a right rotator cuff
tear, with a tear of both the supraspinatus and infraspinatus tendons and apparent superior labral
tear from anterior to posterior (SLAP) lesion.
On March 27, 2009 appellant underwent authorized surgery to ameliorate the conditions of
severe right shoulder impingement and right rotator cuff tear. The procedure was performed by
Dr. Bruce Greene, Board-certified in orthopedic surgery.
On March 10, 2010 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her right upper extremity.
On April 8, 2010 appellant underwent an MRI scan of her right shoulder. The results of
this test showed a full thickness tear involving the supraspinatus tendon.
On September 16, 2010 appellant underwent authorized right shoulder surgery, an
arthroscopy, open acromioplasty, excision of clavicle, and rotator cuff repair of the right shoulder.
The procedure was performed by Dr. Thomas Smallman, a specialist in orthopedic surgery.
In a report dated May 23, 2012, appellant’s treating physician, Dr. George Mina, Boardcertified in orthopedic surgery, found that appellant had six percent permanent right upper
extremity impairment under the American Medical Association, Guides to the Evaluation of
Permanent Impairment (sixth edition) (the A.M.A., Guides), based on a class 1 impairment for
right rotator cuff tear. He noted that appellant had some pain and atrophy in the right shoulder
but that her right shoulder was stable and that she had returned to work without restrictions.
Using the diagnosis-based method of impairment calculation, Dr. Mina utilized Table 15-5, page
403 of the A.M.A., Guides, the shoulder regional grid and applied the net adjustment formula at
section 15.3, pages 406, 410 and 411 of the A.M.A., Guides.2 He found that the grade modifier
at Table 15-7, page 406 for functional history was 2, for a moderate problem, pain with normal
and strenuous activities. With regard to physical examination, Dr. Mina assigned a grade
modifier of one for muscle atrophy at Table 15-8, page 408 of the A.M.A., Guides.3 Lastly, he
found that the grade modifier for clinical studies at Table 15-9, page 407-10 of the A.M.A.,
Guides,4 was not applicable, given the fact that he used a rotator cuff tear two as the basis for
diagnostic criteria and imaging studies, preoperative.
2

A.M.A., Guides 406, 410-11.

3

Id. at 408.

4

Id. at 407-10.

2

Pursuant to the net adjustment formula set forth at Table 15-21, pages 409-411 of the
A.M.A., Guides,5 Dr. Mina determined that appellant had an adjusted, default grade D
impairment, which equated to six percent permanent impairment of the right upper extremity at
Table 15-5, page 403.6 He also asserted that she reached MMI “probably one year postoperative,
September 2011.”
In a March 25, 2015 report, Dr. Henry J. Magliato, a specialist in occupational medicine
and an OWCP medical adviser, concurred with Dr. Mina’s finding that appellant had six percent
permanent impairment from her accepted right rotator cuff condition. He stated, however, that
appellant reached MMI as of May 23, 2012, the date of Dr. Mina’s examination.
By decision dated April 17, 2015, OWCP granted appellant a schedule award for six
percent permanent impairment of the right upper extremity for the period May 23 to October 1,
2012, for a total of 18.72 weeks of compensation, pursuant to the A.M.A., Guides (sixth edition).
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses, and the Board has concurred in such
adoption.9 The method used in making such determination is a matter which rests in the sound
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all
claimants.
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition Class of Diagnosis (CDX), which is then adjusted by grade modifiers based
5

Id. at 409-11.

6

Id. at 403.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009). See Federal
(FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a
(February 2013) and see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
9

Id. See Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

10

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.

3

on grade modifier Functional History (GMFH), grade modifier Physical Examination (GMPE),
and grade modifier Clinical Studies (GMCS).11 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX). Evaluators are directed to provide reasons for their
impairment rating choices, including the choices of diagnoses from regional grids and
calculations of modifier scores.12
ANALYSIS -- ISSUE 1
OWCP accepted the conditions of right shoulder sprain and right shoulder impingement
syndrome; it also authorized surgery to ameliorate the condition of right rotator cuff tear, right
shoulder impingement, and excision of the clavicle. Dr. Mina, appellant’s treating physician, rated
her permanent impairment based on the diagnosis of right rotator cuff repair and the shoulder
regional grid at Table 15-5, pages 403 and 40513 and applied the net adjustment formula at
section 15.3, pages 406, 410 and 411 of the A.M.A., Guides14 to find that she had six percent
right upper extremity impairment. Dr. Magliato, OWCP’s medical adviser, reviewed Dr. Mina’s
May 23, 2012 report and concurred in his findings. The Board finds that Drs. Mina and Magliato
properly applied the standards of the A.M.A., Guides, that their ratings were rendered in
conformance with the applicable protocols and tables of the A.M.A., Guides and represented the
weight of the medical evidence in this case. Accordingly, as the record contains no other
probative, rationalized medical opinion which indicates that appellant is entitled to a greater
schedule award based on her accepted right shoulder conditions, OWCP properly granted her a
schedule award for six percent permanent right upper extremity impairment in its April 17, 2015
decision.
LEGAL PRECEDENT -- ISSUE 2
Permanent impairment is be rated according to the A.M.A., Guides, and only after the
status of MMI is determined. Impairment should not be considered permanent until a reasonable
time has passed for the healing or recovery to occur. This will depend on the nature of
underlying pathology, as the optimal duration for recovery may vary considerably from days to
months. The clinical findings must indicate that the medical condition is static and well
stabilized for the person to have reached MMI.15
The period covered by a schedule award commences on the date that the employee
reaches MMI from the residuals of the injury. The question of when MMI has been reached is a
factual one that depends upon the medical findings in the record. The determination of such date
11

Id. at 494-531.

12

See R.V., Docket No. 10-1827 (issued April 1, 2011).

13

A.M.A., Guides 405.

14

Id. at 406, 410-411.

15

Id. at 24 (6th ed. 2009); see Orlando Vivens, 42 ECAB 303 (1991) (a schedule award is not payable until
MMI -- meaning that the physical condition of the injured member of the body has stabilized and will not improve
further -- has been reached).

4

is to be made in each case upon the basis of the medical evidence in that case.16 The date of
MMI is usually considered to be the date of the medical examination that determined the extent
of the impairment.17
If the claimant sustains increased impairment at a later date which is due to work-related
factors, an additional award will be payable if supported by the medical evidence. In such a
case, the original award is undisturbed and the new award has its own date of MMI, percent and
period.18
ANALYSIS -- ISSUE 2
On appeal, appellant contests the date the schedule award began, contending that the
period of her award should have begun as of the date of her injury and continue up through the
present time. The Board will therefore review whether OWCP properly determined the date of
MMI.
As the Board noted, the date of MMI is usually considered to be the date of the medical
examination that determined the extent of the impairment.19 That date was May 23, 2012, the
date that Dr. Mina, appellant’s treating physician, issued his report finding that appellant had a
six percent right upper extremity impairment. He noted that appellant had some pain and
atrophy in the right shoulder but found that her right shoulder was stable. Dr. Mina further noted
that she had returned to work without restrictions. On March 25, 2015 OWCP’s medical adviser,
Dr. Magliato, found that the date of Dr. Mina’s examination, May 23, 2012, was the date of
MMI for appellant’s schedule award. This finding was appropriate, as that was the date upon
which the physical examination and findings were taken and calculated in order to obtain
appellant’s impairment rating.
The Board has noted a reluctance to find a date of MMI that is retroactive to the award,
as retroactive awards often result in payment of less compensation benefits. The Board requires
persuasive proof of the selection of the retroactive date of MMI.20 The record contains no
persuasive evidence that another date should have been accepted.
For these reasons, the Board finds that OWCP properly identified the date of MMI as
May 23, 2012. The Board will thus affirm the April 17, 2015 decision.

16

Marie J. Born, 27 ECAB 623 (1976).

17

E.g., Richard Larry Enders, 48 ECAB 184 at n.12 (1996) (date of the audiologic examination).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.7.b(2) (January 2010).
19

Id.

20

See J.C., 58 ECAB 258 (2007).

5

CONCLUSION
The Board finds that appellant is not entitled to more than six percent permanent
impairment of the right upper extremity, for which she received a schedule award. The Board
further finds that OWCP properly identified the date of MMI.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 17, 2015 decision is affirmed.
Issued: October 28, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy 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
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Oak Creek, WI, Employer
)
___________________________________________ )
J.G., Appellant

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

Docket No. 08-2106
Issued: May 5, 2009

Case Submitted on the Record

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

JURISDICTION
On July 25, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated June 19, 2008, which denied his request for a hearing
and a February 20, 2008 decision, which found that he did not sustain an injury, as alleged.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over these issues .
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
sustained an injury in the performance of duty on October 25, 2007; and (2) whether the Office
properly denied appellant’s request for a hearing.
FACTUAL HISTORY
On November 14, 2007 appellant, then a 52-year-old letter carrier, filed a traumatic
injury alleging that, on October 25, 2007, the rear door of his mail truck became stuck. He
sustained an injury to his left shoulder, arm and neck after he pulled on the door. Appellant
stopped work on November 9, 2007.

By letter dated December 4, 2007, the Office informed appellant of the evidence needed
to support his claim. It requested that he submit additional evidence within 30 days.
The Office received reports dated November 21 and 28, 2007, from Dr. Dan Heffez, a
Board-certified neurosurgeon, who noted that appellant related the onset of severe neck pain due
to lifting or closing a truck door while at work. Dr. Heffez diagnosed cervical myelopathy that
was likely caused by cervical spinal cord compression. He noted ventral disc compression and
bone spur and recommended an anterior discectomy and fusion. The Office also received a
physical therapy report dated April 5, 2007.
By decision dated January 15, 2008, the Office denied appellant’s claim on the grounds
that he did not establish an injury as alleged. It found that the medical evidence was insufficient
to support that the accepted employment incident caused a diagnosed condition. On
February 20, 2008 the Office reissued the decision as an incorrect address had been placed on the
original decision.
On May 5, 2008 appellant requested a hearing. The accompanying envelope was a
postmarked on May 5, 2008.
By decision dated June 19, 2008, the Office found that appellant was not entitled to a
hearing as his request was not made within 30 days of the February 20, 2008 decision. It
determined that it would not grant a discretionary hearing as the issue in the case could equally
well be addressed by requesting reconsideration and submitting new evidence not previously
considered.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing 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 the Act, that the claim
was timely filed within the applicable time limitation period of the Act2 and that an injury was
sustained in the performance of duty.3 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.5 Second, the
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyet, 41 ECAB 992 (1990).

5

John J. Carlone, 41 ECAB 354 (1989).

2

employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained an injury to his left shoulder, arm and neck on
October 25, 2007 after he pulled on the door of his mail truck. There is no dispute that he pulled
on the door of his mail truck while in the performance of duty on October 25, 2007. Therefore,
appellant has established that the employment incident occurred as alleged.
However, the medical evidence is insufficient to establish that the October 25, 2007
incident caused an injury.
In reports dated November 21 and 28, 2007, Dr. Heffez noted that appellant related that
he had an onset of severe neck pain due to lifting or closing a truck door while at work. He
diagnosed cervical myelopathy for which he recommended a cervical discretionary and fusion.
However, Dr. Heffez did not provide adequate medical opinion explaining how appellant’s
cervical condition was due to pulling the door of his mail truck on October 25, 2007. He did not
provide a comprehensive medical report addressing appellant’s history, noting that appellant was
doing well despite some past illnesses. Dr. Heffez also noted that appellant took a trip to Florida,
during which he experienced increased neck pain. Although diagnostic testing revealed
degenerative changes at the cervical spine, most severe at L5-6, he did not explain how pulling a
truck door would cause or contribute to cervical degenerative disease or the need for surgery.
Dr. Heffez merely noted that appellant’s symptoms began in relation to his work. The Board has
held that an opinion that a condition is causally related because the employee was asymptomatic
is insufficient, without greater rationale, to establish causal relation.7 Consequently, the Board
finds that this evidence is insufficient to establish appellant’s claim.
Appellant also submitted a physical therapy report dated April 5, 2007. However,
physical therapists are not physicians as defined under the Act. Their opinions on causal
relationship do not constitute medical evidence and have no probative value.8
The medical reports submitted by appellant do not adequately address how the
October 25, 2007 incident caused or aggravated his cervical conditions, they are insufficient to
establish that the October 25, 2007 employment incident caused or aggravated his cervical
degenerative disease or the need for surgery.
LEGAL PRECEDENT -- ISSUE 2
Under the Act and its implementing regulations, a claimant who has received a final
adverse decision by the Office is entitled to a hearing by writing to the address specified in the
decision within 30 days (as determined by postmark or other carrier’s date marking) of the date
6

Id.

7

See Michael S. Mina, 57 ECAB 379 (2006).

8

Jane A. White, 34 ECAB 515, 518 (1983).

3

of the decision for which a hearing is sought.9 If the request is not made within 30 days or if it is
made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.10
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.11 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of Board precedent.12
ANALYSIS -- ISSUE 2
Appellant requested a hearing on May 5, 2008. The postmark reveals that is was mailed
on May 5, 2008. The Board notes that the request for a hearing was more than 30 days after the
Office issued its February 20, 2008 decision. Appellant was not entitled to a hearing as a matter
of right.
The Office properly exercised its discretion in denying a hearing upon appellant’s
untimely requests by determining that the issues could be equally well addressed by requesting
reconsideration and submitting new evidence. The only limitation on the Office’s authority is
reasonableness. Abuse of discretion is generally shown through proof of manifest error, a clearly
unreasonable exercise of judgment or actions taken which are contrary to logic and deductions
from known facts.13 There is no evidence of record that the Office abused its discretion in
denying appellant’s requests for a hearing under these circumstances.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty on October 25, 2007. The Board also finds that
the Office properly denied appellant’s request for a hearing.14
9

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

10

Teresa Valle, 57 ECAB 542 (2006).

11

Bettye Richardson, 59 ECAB ___ (Docket No. 08-693, issued August 19, 2008); Marilyn Wilson, 52 ECAB
347 (2001) (the Office has discretion to grant or deny a request made after the 30-day period, and the Office will
determine whether a discretionary hearing should be granted).
12

P.B., 59 ECAB ___ (Docket No. 08-839, issued October 15, 2008); Teresa Valle, supra note 10.

13

The only limitation on the Office’s authority is reasonableness. Abuse of discretion is generally shown through
proof of manifest error, a clearly unreasonable exercise of judgment or actions taken which are contrary to logic and
deductions from known facts. See Daniel J. Perea, 42 ECAB 214 (1990). There is no evidence of record that the
Office abused its discretion in denying appellant’s request for a hearing under these circumstances.
14

The Board notes that subsequent to the Office’s June 19, 2008 decision, appellant submitted additional
evidence. The Board has no jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c);
James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

4

ORDER
IT IS HEREBY ORDERED THAT the June 19, 2008 decision Office of Workers’
Compensation Programs’ hearing representative and the February 20, 2008 decision are
affirmed.
Issued: May 5, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Cleveland, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1534
Issued: February 25, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 8, 2018 appellant, through counsel, filed a timely appeal from a July 30, 2018
nonmerit decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal
Employee’s Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction to review the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that counsel did not appeal from the July 20, 2018 merit decision which denied modification of
the prior decisions denying appellant’s occupational disease claim. Therefore, the Board has not exercised jurisdiction
over that decision. See 20 C.F.R. § 501.3(c)(4).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 15, 2017 appellant, then a 60-year-old part-time pharmacy volunteer/intern,
filed an occupational disease claim (Form CA-2) alleging that while working in the chemical
hazards room and morgue he sustained stomach cancer, vision problems, skin conditions, and
cognitive issues while in the performance of duty on or before June 10, 2014. He alleged that his
exposures to various materials continued until January 1, 2016.
In an undated letter, received by OWCP on February 27, 2017,4 Dr. Mitchell R. Smith, an
attending Board-certified oncologist and internist, noted that he had treated appellant for
aggressive B-cell lymphoma in the setting of a long-standing, but previously stable human
immunodeficiency virus (HIV) infection. He opined that as “[c]hemicals have clearly been related
to the development of lymphoma,” it was “highly likely that the chemical exposure either lead
directly to the development of lymphoma, or indirectly through immunosuppression.”
Appellant also submitted Equal Employment Opportunity (EEO) documents dated from
February 2014 to August 2015 alleging harassment and a hostile work environment, and a May 19,
2015 employment discrimination complaint.
By development letter dated March 29, 2017, OWCP notified appellant of the type of
additional evidence needed to establish his occupational disease claim, including factual evidence
documenting hazardous exposures at work, and a statement from his attending physician
explaining the causal relationship between those exposures and the claimed conditions. It afforded
him 30 days to submit the requested evidence.
In response, appellant submitted time sheets dated March 20, 2014 to March 12, 2015,
academic records, an employing establishment job posting, personnel records, and EEO
documents.
In an e-mail dated April 27, 2017, K.C., an employing establishment volunteer program
officer, noted that appellant had been placed initially in the pharmacy service, but was
subsequently assigned to another area. It was further noted that appellant “became very disruptive
as a volunteer and was terminated” for that reason.
In an e-mail dated April 27, 2017, S.E., appellant’s supervisor, indicated that appellant had
been assigned to sort, file, or dispose of “slides and blocks of formalin-fixed, paraffin embedded
tissue samples, which are not considered by OSHA [Occupational Safety and Health
Administration] to be hazardous.” Records retention regulations required that some materials be
kept for 25 years, but these items were “not considered hazardous or infectious by OSHA.” The
laboratory and morgue area where appellant worked had not experienced hazardous materials

4

A second copy of Dr. Mitchell’s letter received by OWCP on November 6, 2017 is dated November 18, 2016.

2

incidents during his tenure. All body parts were stored in closed containers and disposed of
according to applicable safety regulations and procedures.
By letter dated April 28, 2017, the employing establishment noted that appellant
“volunteered a total of 193 hours from March 20, 2014 to March 12, 2015” and was terminated
from his volunteer position on April 9, 2015.
By decision dated June 8, 2017, OWCP denied appellant’s claim, finding that he had not
established that the identified workplace exposures occurred as alleged.
On June 16, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. The hearing was held on November 1, 2017. During the hearing,
appellant alleged that his employment duties exposed him to formaldehyde, chemicals stored in a
hazardous materials room, and improperly stored body parts.
Following the hearing, appellant submitted additional evidence. In a report dated
November 12, 2015, Dr. Leonard H. Calabrese, an attending osteopathic physician Board-certified
in immunology, held appellant off work through November 15, 2015 due to mobility issues. In a
report dated February 28, 2017, he noted treating appellant for several serious conditions, and that
burst pipes in appellant’s home had caused significant stress. In a report dated July 25, 2017,
Dr. Calabrese opined that appellant was “medical[ly] unable to handle undue stress” and needed
closure regarding his compensation claim.
Appellant also provided a log of patient biopsy slides that he had destroyed from April 10
to May 8, 2014.
By decision dated December 19, 2017, an OWCP hearing representative affirmed the prior
decision finding that appellant had not established hazardous workplace exposures as alleged.
On January 19, 2018 appellant, through counsel, requested reconsideration and submitted
a duplicate copy of Dr. Smith’s letter previously of record.
By decision dated March 14, 2018, OWCP denied modification of its prior decision.
On April 24, 2018 appellant, through counsel, requested reconsideration of the March 14,
2018 decision. He submitted a letter dated March 8, 2018 from Dr. Robert M. Dean, an attending
Board-certified hematologist and oncologist, who opined that “[f]ormaldehyde exposure has been
associated with higher risks of multiple forms of cancer, and this may explain why [appellant]
developed lymphoma following many years of stable HIV infection without other complications.”
Dr. Dean recommended approval of appellant’s claim based upon his occupational exposure and
subsequent lymphoma diagnosis.
By decision dated July 20, 2018, OWCP denied modification of its prior decision finding
that the additional evidence submitted was insufficient to establish hazardous exposures at work.
On July 27, 2018 appellant, through counsel, requested reconsideration and submitted
additional evidence. In a letter dated July 25, 2018, Dr. Calabrese noted that appellant’s HIV had
been stable for over 20 years until the lymphoma diagnosis in 2014. He opined that appellant
should be entitled to compensation benefits.
3

By decision dated July 30, 2018, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence submitted by
him in support of his reconsideration request was irrelevant and repetitious.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. It may review an award for or against payment
of compensation at any time based on its own motion or on application.5
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence which: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.6 If OWCP determines
that at least one of these requirements is met, it reopens and reviews the case on its merits.7 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will
deny the request for reconsideration without reopening the case for review on the merits.8
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record9 and the submission of evidence or
argument, which does not address the particular issue involved does not constitute a basis for
reopening a case.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
With his timely request for reconsideration appellant did not show that OWCP erroneously
applied or interpreted a specific point of law, nor did he advance a relevant legal argument not
previously considered by OWCP.11 Consequently, appellant is not entitled to review of the merits
of his claim on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

5

5 U.S.C. § 8128(a).

6
20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 081569 (issued December 9, 2008).
7

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

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

10

K.B., Docket No. 18-1392 (issued January 15, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

11

See J.F., Docket No. 16-1233 (issued November 23, 2016).

4

Additionally, appellant has not submitted relevant and pertinent new evidence not
previously considered by OWCP. The underlying issue in this case is whether he has submitted
sufficient evidence to establish the hazard exposures as alleged in his occupational disease claim.
In support of his July 27, 2018 reconsideration request, appellant submitted a July 15, 2018
letter in which Dr. Calabrese noted that appellant should be entitled to compensation benefits as
his HIV disease had been stable for over 20 years prior to the 2014 lymphoma diagnosis.
Because the underlying issue in this case is factual in nature, it must be addressed by
relevant factual evidence. The Board finds that appellant has not submitted relevant and pertinent
new evidence on reconsideration.12 Appellant’s submission of Dr. Calabrese’s July 15, 2018 letter
does not require reopening his claim for review on the merits because such medical evidence is
not relevant to the above-noted underlying factual issue of this case. 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.13
The Board accordingly finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied
merit review.
On appeal counsel contends that the July 30, 2018 OWCP decision is contrary to fact and
law. As stated above, the evidence appellant submitted on reconsideration has not met the
requirements to reopen his case for a review of the merits of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

12

K.B., supra note 10; see J.F., supra note 11.

13

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the July 30, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 25, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, San Juan, PR, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Melba N. Rivera Camacho, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1861
Issued: December 13, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 23, 2006 appellant filed a timely appeal from the April 24, 2007 merit
decision of the Office of Workers’ Compensation Programs denying her traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a back injury while in the performance of duty
on June 4, 2004.
FACTUAL HISTORY
On June 9, 2004 appellant, a 44-year-old security screener, filed a traumatic injury claim
alleging that she injured her back on June 4, 2004 while working on the x-ray machine and handwanding passengers. On July 29, 2004 she submitted a claim for a recurrence of disability (Form
CA-2a), alleging that on July 24, 2004 she experienced pain in her back during her shift.

Appellant claimed that, due to a heavy volume of passengers, she was unable to “rotate and sit
down every hour,” as required by her doctor’s restrictions.
In a July 28, 2004 note, Dr. Edwin F. Rodriguez Allende, a treating physician, diagnosed
a lumbosacral strain. He stated: “sick days since July 25 to August 5, [20]04.” Appellant
submitted August 2 and 13, 2004 reports, bearing an illegible signature, reflecting her reports of
low back pain since June 4, 2004, after prolonged standing and providing a diagnosis of back
strain.
On February 8, 2005 the Office informed appellant that her claim for a June 4, 2004
injury had been administratively closed without review but was being reopened pursuant to the
filing of her recurrence claim. The Office requested additional details surrounding the alleged
June 4, 2004 injury, including the work activities claimed to have caused the injury, the
immediate effects of the injury and the reason she delayed seeking medical treatment. In a
separate letter dated February 8, 2005, the Office advised appellant that the information
submitted was insufficient to establish her claim and allowed her 30 days to submit additional
information, including a detailed account of the alleged injury and a physician’s report, with a
diagnosis and a rationalized opinion, as to how the claimed work incident caused her diagnosed
condition.
Appellant submitted notes dated June 10, 2004 from Dr. G. Satz, a family physician,
reflecting her complaints of pain in the sacral area for one week, “after doing heavy work.” On
June 14, 2004 Dr. Satz diagnosed low back sprain and placed a checkmark in the “yes” box that
he believed appellant’s condition was caused or aggravated by employment activities. He
recommended that appellant avoid heavy lifting. On June 15, 2004 Dr. Satz diagnosed
lumbosacral pain/sprain and stated that the injury occurred at work on June 4, 2004 while
“bending, twisting and lifting the bag.” Recommended restrictions included: intermittent sitting
for no more than four hours per day; intermittent standing and walking for no more than one
hour per day; twisting, bending, squatting and kneeling for no more than one hour per day and
lifting no more than 10 pounds for one hour per day. Dr. Satz also stated that appellant needed
intermittent changes in position every 30 minutes. Appellant also provided notes from Dr. Satz
for the period June 14 through July 9, 2004.
On July 9, 2004 Dr. Satz again diagnosed a lumbosacral sprain. He recommended
restrictions, including lifting or carrying no more than 10 pounds; intermittent sitting, walking or
standing no more than four hours per day; and intermittent twisting and bending no more than
two hours per day. On July 15, 2004 appellant accepted a light-duty assignment which included
the following duties: “divesting, exit lanes and walk through metal detectors (MAG) and hand
wanding. Needs to be rotated every 30 minutes and needs to be able to sit at least every other
hour.”
Notes from Dr. Allende dated July 28, 2004 reflect that appellant incurred low back pain
while working at her job. On August 3, 2004 Dr. Marie C. Lugo Cruz, a treating physician,
diagnosed an L5 strain and indicated that appellant was unable to work until August 16, 2004.
On August 13, 2004 she revised appellant’s recommended limitations prohibiting any carrying or
lifting and limiting squatting, kneeling or reaching over the shoulder to two hours per day.
Dr. Cruz diagnosed lumbosacral strain and stated that the June 4, 2004 injury occurred due to

2

“prolonged standing position [with] trun[k] rotation movements and lifting heavy objects.” An
August 3, 2004 x-ray report from Dr. Saul Cordero, a radiologist, provided an impression of
L1-2 spondylosis.
On March 3, 2005 appellant stated that, on June 4, 2004, due to a heavy traffic volume in
the selectee line, she was unable to adhere to her work restrictions, which required her to sit
down every hour for at least 30 minutes and rotate positions every 30 minutes. By the end of her
shift, she felt pain in her lower back. Appellant alleged that her duties on June 4, 2004 included
“mostly standing up, lifting bags and hand wanding 45 minutes to an hour,” and that she was
able to sit at the x-ray operator position for only one or two 30-minute periods during her shift.
On June 5, 2004 the pain was so bad that she was not able to walk, sit or stand for very long.
Appellant indicated that the original injury occurred on June 4, 2004; she experienced a
recurrence on July 24, 2004 and she received medical treatment on July 28, 2004.1
By decision dated March 21, 2005, the Office denied appellant’s claim, finding that she
had failed to establish the fact of injury. The Office noted that the medical evidence was based
on an inaccurate history of injury.
On April 19, 2005 appellant requested an oral hearing. On February 15, 2007 she
requested a review of the written record in lieu of an oral hearing. By decision dated April 27,
2007, an Office hearing representative affirmed the March 21, 2005 decision on the grounds that
the medical evidence did not establish that appellant’s back condition was causally related to
factors of her federal employment. The Office accepted that appellant worked on a selectee line
performing her assigned duties, with only a half hour to sit down at the x-ray machine and hand
wanding for 45 minutes, but found that her physicians failed to provide a diagnosis that could be
causally related to the identified work activities.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty. The phrase “sustained while in the performance of duty” is regarded as the
equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment.2
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of her claim, including the fact that the individual is an employee of the
United States within the meaning of the Act, that the claim was timely filed within the applicable
time limitation period of the Act, that an injury was sustained in the performance of duty as
alleged and that any disability or specific condition for which compensation is claimed is
1

Appellant stated that, on September 9, 2004, she filed a claim for a “hurt chest and right shoulder muscles”
while hand wanding.
2

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum,
1 ECAB 1 (1947).

3

causally related to the employment injury.3 When an employee claims that she sustained a
traumatic injury in the performance of duty, she must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury and generally this can be established only by medical evidence.4
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship.6 Neither the mere
fact that a disease or condition manifests itself during a period of employment, nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents, is
sufficient to establish a causal relationship.7 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.9
ANALYSIS
The Office accepted that appellant was a federal employee, that she timely filed her claim
for compensation benefits and that the June 4, 2004 workplace incident occurred as alleged,
namely that she worked on a selectee line performing her assigned duties, with only a half hour
to sit down at the x-ray machine and hand wanding for 45 minutes. The issue, therefore, is
whether appellant has submitted sufficient medical evidence to establish that the employment
incident caused an injury. The medical evidence presented does not contain a rationalized
3

Robert Broome, 55 ECAB 339 (2004).

4

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith,
54 ECAB 174 (2002). The term “injury,” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q)(ee).
5

Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

7

Id.

8

20 C.F.R. § 10.303(a).

9

John W. Montoya, 54 ECAB 306 (2003).

4

medical opinion establishing that the work-related incident caused or aggravated any particular
medical condition or disability. Therefore, appellant has failed to satisfy her burden of proof.
Medical evidence submitted by appellant consists of notes and reports from Drs. Allende,
Satz and Cruz; notes and reports bearing illegible signatures; and reports of x-rays and MRI
scans. None of these reports constitute probative medical evidence.
On June 10, 2004 Dr. Satz noted appellant’s complaints of pain in the sacral area for one
week, “after doing heavy work.” However, he provided no diagnosis and no opinion as to the
cause of appellant’s condition. Medical evidence which does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value.10 Similarly, treatment notes for
the period June 14 through July 9, 2004 do not contain an opinion as to the cause of appellant’s
condition; therefore, they are also of diminished probative value. On June 14, 2004 Dr. Satz
diagnosed low back sprain and indicated by placing a checkmark in the “yes” box that he
believed appellant’s condition was caused or aggravated by employment activities. The Board
has held that a mere checkmark or affirmative notation in response to a form question on causal
relationship is not sufficient to establish a claim.11 In June 15 and July 9, 2004 “work ability and
limitations” reports, Dr. Satz diagnosed lumbosacral sprain and stated that the injury occurred at
work on June 4, 2004 while bending, twisting and lifting bags. However, he failed to explain
how the work activities described caused appellant’s condition. A medical opinion not fortified
by medical rationale is of little probative value.12 Moreover, Dr. Satz’ description of the duties
performed by appellant on the date of injury was not consistent with those alleged by her in her
Form CA-1, wherein she attributed her condition to prolonged standing and hand wanding.
In a July 28, 2004 work excuse, Dr. Allende provided a diagnosis of lumbosacral strain
and indicated that appellant was “sick” from July 25 to August 5, 2004. As he failed to address
the cause of appellant’s condition, this evidence is of limited probative value. Notes from
Dr. Allende dated July 28, 2004 reflected that appellant incurred low back pain while working at
her job. The Board has long held that pain is a symptom, not a diagnosed condition and that pain
without objective physical or diagnostic findings to support a condition causing the pain is not
compensable under the Act.13 Moreover, Dr. Allende did not discuss the employment activities
in which appellant was engaged or the physiological process whereby those activities caused her
back condition, thereby, diminishing the probative value of the report.
Reports from Dr. Cruz are also insufficient to establish appellant’s claim. In an August 3,
2004 work excuse, she provided a diagnosis of “L5 strain” and indicated that appellant was
unable to work until August 16, 2004. As Dr. Cruz did not offer any opinion regarding the cause
of appellant’s condition, her note is of limited probative value.14 In a “work ability and
10

Michael E. Smith, 50 ECAB 313 (1999).

11

See Gary J. Watling, 52 ECAB 278 (2001).

12

George Randolph Taylor, 6 ECAB 986, 988 (1954)

13

See John L. Clark, 32 ECAB 1618 (1981).

14

Michael E. Smith, supra note 10.

5

limitations” report, dated August 13, 2004, Dr. Cruz diagnosed lumbosacral strain and stated that
the alleged June 4, 2004 injury occurred due to “prolonged standing position [with] trun[k]
rotation movements and lifting heavy objects.” Although Dr. Cruz provided a diagnosis and an
opinion as to the cause of appellant’s condition, her report offers no findings on examination, no
medical background and no rationale explaining the nature of the relationship between
appellant’s diagnosed condition and the accepted employment incident. Dr. Cruz’ cursory
opinion without explanation is of diminished probative value.15 Additionally, the history of
injury provided included not only prolonged standing, which was accepted by the Office, but
also “lifting heavy objects,” which was neither alleged by appellant in her CA-1 nor accepted by
the Office. The probative value of Dr. Cruz’ report is further diminished by the inaccurate
factual background.
The record does not contain an opinion by any qualified physician supporting appellant’s
contention that her back condition was causally related to the accepted employment activity.
While appellant has submitted chart notes and other medical documents which track her
treatment, she has not provided a narrative report containing a physician’s rationalized opinion
on whether there is a causal relationship between her condition and the established June 4, 2004
work incident. The Board notes that appellant submitted notes and reports bearing illegible
signatures. These reports do not constitute probative medical evidence, in that they lack proper
identification.16 For reasons stated above, reports of MRI scans and x-rays, which do not contain
an opinion as to the cause of appellant’s condition are of diminished probative value and are
insufficient to establish appellant’s claim.
Appellant expressed her belief that her back condition resulted from the June 4, 2004
employment incident. The Board has held that the mere fact that a condition manifests itself
during a period of employment does not raise an inference that there is a causal relationship
between the two.17 Neither the fact that the condition became apparent during a period of
employment, nor the belief that the condition was caused or aggravated by employment factors
or incidents, is sufficient to establish causal relationship.18 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Therefore, appellant’s belief that her condition was caused by the work-related incident
is not determinative.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of her condition. Appellant failed to submit
appropriate medical documentation in response to the Office’s request. As there is no probative,
rationalized medical evidence addressing how appellant’s claimed knee condition was caused or
15

See Brenda L. DuBuque, 55 ECAB 212 (2004); see also David L. Scott, 55 ECAB 330 (2004); Willa M.
Frazier, 55 ECAB 379 (2004); George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a
medical opinion not fortified by medical rationale is of little probative value ).
16

See Merton J. Sills, 39 ECAB 572 (1988).

17

See Joe T. Williams, 44 ECAB 518, 521 (1993).

18

Id.

6

aggravated by her employment, she has not met her burden of proof to establish that she
sustained an injury in the performance of duty causally related to factors of her federal
employment.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained a traumatic injury in the performance of duty on June 4, 2004.
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 13, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1335
Issued: March 11, 2021

Case Submitted on the Record

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

JURISDICTION
On June 25, 2020 appellant filed a timely appeal from a March 31, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,389.20 for the period February 13 through 29, 2020 because she had returned to fulltime work on February 13, 2020, but continued to receive wage-loss compensation through
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 31, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

February 29, 2020; and (2) whether OWCP abused its discretion in denying waiver of recovery of
the overpayment.
FACTUAL HISTORY
On October 4, 2018 appellant, then a 34-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on October 2, 2018 she sustained a right shoulder injury
when she reached to close a truck door that stalled after unloading a package while in the
performance of duty. She stopped work on October 2, 2018. OWCP accepted the claim for strain
of the muscles and tendons of the right rotator cuff, and right shoulder impingement syndrome. It
paid appellant wage-loss compensation for disability from November 17, 2018 through October 1,
2019, when she returned to full-time limited-duty work.
On November 12, 2019 appellant underwent authorized right rotator cuff repair and
subacromial decompression. OWCP paid her compensation on the supplemental rolls for the
period November 10, 2019 through February 1, 2020 and on the periodic rolls from February 2
through 29, 2020.
On February 5, 2020 OWCP outlined appellant’s entitlement to compensation benefits. An
attached Form EN1049 instructed that, if she worked during any portion of the covered period
from January 4 through February 29, 2020, and compensation payments were received via either
paper check or for payments sent by electronic funds transfer (EFT), she was to return the payment
to OWCP even if she had already advised OWCP that she was working. OWCP noted that
appellant was expected to monitor her deposits carefully, at least every two weeks.
The employing establishment, in a return to work form (Form CA-3) dated February 25,
2020, advised OWCP that appellant had returned to full-time, modified-duty work on
February 13, 2020.
In a February 26, 2020 worksheet, OWCP calculated that appellant received a $1,389.20
overpayment in compensation for the period February 13 through 29, 2020.
By letter dated February 26, 2020, OWCP advised appellant of its preliminary
determination that she received an overpayment of compensation in the amount of $1,389.20
because she received wage-loss compensation for temporary total disability (TTD) for the period
February 13 through 29, 2020 after she had returned to full-time work. It also made a preliminary
finding that she was without fault in the creation of the overpayment as she did not have knowledge
of the erroneous payment. OWCP advised appellant that she could submit evidence challenging
the fact, amount, or finding of fault, and request waiver of recovery of the overpayment. It
requested that she complete an enclosed overpayment recovery questionnaire (Form OWCP-20)
and submit supporting financial documentation. Additionally, OWCP notified appellant that,
within 30 days of the date of the letter, she could request a final decision based on the written
record, or a prerecoupment hearing. No response was received.
On February 29, 2020 the EFT for the period February 2 through 29, 2020 was deposited
into appellant’s bank account.

2

By decision dated March 31, 2020, OWCP finalized the preliminary overpayment
determination, indicating that appellant had received an overpayment of compensation in the
amount of $1,389.20 for the period February 13 through 29, 2020. It further found that she was
not at fault in the creation of the overpayment because she was not, or could not have been aware,
that she was not entitled to the payment received. OWCP noted that appellant had not submitted
financial information justifying waiver of recovery of the overpayment. It therefore found that she
was not entitled to waiver of recovery of the overpayment. OWCP ordered that appellant should
repay the overpayment in its entirety.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.3 Section 8129(a) of FECA provides, in pertinent part, that when
an overpayment has been made to an individual under this subchapter because of an error of fact
or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.4
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.5 Section 10.500 of OWCP’s regulations provides that compensation for wage loss due
to disability is available only for periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.6 A
claimant is not entitled to receive TTD benefits and actual earnings for the same time period.7
OWCP’s procedures provide that an overpayment of compensation is created when a claimant
returns to work, but continues to receive wage-loss compensation for TTD.8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$1,389.20 for the period February 13 through 29, 2020 because she had returned to full-time

3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

5

Id. at § 8116(a).

6

20 C.F.R. § 10.500(a).

7

See L.T., Docket No. 19-1389 (issued March 27, 2020); C.H., Docket No. 19-1470 (issued January 24, 2020);
L.S., 59 ECAB 350, 352-53 (2008).
8
L.T., id.; C.H., id.; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating
an Overpayment, Chapter 6.200.1(a) (September 2018).

3

modified-duty work on February 13, 2020, but continued to receive wage-loss compensation
through February 29, 2020.
The Board finds that the evidence of record establishes that appellant returned to full-time,
modified-duty work for the employing establishment, effective February 13, 2020, but continued
to receive full wage-loss compensation through February 29, 2020. As noted above, a claimant is
not entitled to receive wage-loss compensation benefits for TTD and actual earnings for the same
time period.9 Therefore, an overpayment of compensation was created in this case.
With regard to the amount of overpayment, the Board finds that OWCP properly calculated
appellant’s compensation paid for the period February 13 through 29, 2020. Thus, the Board finds
that appellant received an overpayment of compensation in the amount of $1,389.20 for the period
February 13 through 29, 2020.
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.”10
Section 10.438 of OWCP’s regulations provides that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. Failure
to submit the requested information within 30 days of the request shall result in denial of waiver.11
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $1,389.20
overpayment of compensation.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.12 For consideration
of waiver, appellant had the responsibility to provide the appropriate financial information to
OWCP.13
9

See supra notes 6-8.

10

5 U.S.C. § 8129(b).

11

20 C.F.R. § 10.438; R.Q., Docket No. 18-0964 (issued October 8, 2019).

12

Id.; see also O.B., Docket No. 19-0034 (issued April 22, 2019).

13

Id.; see also S.M., Docket No. 17-1802 (issued August 20, 2018).

4

In its preliminary overpayment determination dated February 26, 2020, OWCP requested
that appellant provide a completed overpayment recovery questionnaire and supporting financial
information. It advised her that waiver of recovery would be denied if she failed to furnish the
requested financial information within 30 days. No response was received. As a result, OWCP
did not have the necessary financial information to properly determine whether recovery of the
overpayment would defeat the purpose of FECA or if recovery would be against equity and good
conscience.
As appellant did not submit the financial information required under section 10.438 of
OWCP’s regulations,14 which was necessary to determine her eligibility for waiver, the Board
finds that OWCP properly denied waiver of recovery of the $1,389.20 overpayment of
compensation.15
On appeal appellant contends that OWCP should have waived recovery of the overpayment
as she was not at fault in its creation and as recovery would cause financial hardship. As explained
above, appellant did not submit the financial information necessary for OWCP to consider waiver
of recovery of the overpayment.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$1,389.20 for the period February 13 through 29, 2020 because she had returned to full-time
regular-duty work on February 13, 2020, but continued to receive wage-loss compensation for
TTD through February 29, 2020. The Board further finds that OWCP properly denied waiver of
recovery of the $1,389.20 overpayment of compensation.

14

20 C.F.R. § 10.438.

15

E.K., Docket No. 18-0587 (issued October 1, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the March 31, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6