United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.D., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-782
Issued: July 9, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 25, 2014 appellant, through counsel, filed a timely appeal of a January 10,
2014 decision of the Office of Workers’ Compensation Programs (OWCP) concerning a
schedule award. 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 14 percent binaural (both ears) hearing
loss, for which he received a schedule award.
On appeal appellant’s counsel contends that, based upon the opinion of OWCP’s referral
physician, appellant has a greater hearing loss than the 14 percent binaural loss for which he
received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In an August 12, 2013 decision, the
Board set aside an August 22, 2012 OWCP schedule award decision.2 The Board found that
clarification was required from Dr. L. Frederick Lassen, a second opinion Board-certified
otolaryngologist, as to why he included an impairment rating for tinnitus. The Board noted that
while Dr. Lassen provided three percent impairment for tinnitus in his monaural determination,
he failed to describe how this condition impacted appellant’s activities of daily living (ADLs).
The facts and the circumstances of the Board’s prior decisions are incorporated by reference.3
On remand OWCP prepared an amended statement of accepted facts to include tinnitus
as an additional accepted condition. It then requested that Dr. Lassen provide clarification on his
inclusion of three percent impairment for tinnitus. In an October 4, 2013 addendum, Dr. Lassen
diagnosed subjective tinnitus and bilateral hearing loss which he attributed to appellant’s federal
employment. An audiogram completed on April 10, 2012 revealed the following decibel (dB)
losses at 500, 1,000, 2,000 and 3,000 hertz (Hz): 10, 15, 50 and 70 for the left ear and 5, 20, 45
and 65 for the right ear. Speech reception thresholds were 25 dB on the right and 25 dB on the
left, while auditory discrimination were 68 percent on the right and 80 percent on the left.
Dr. Lassen stated that appellant’s tinnitus impaired his ADL. The tinnitus caused problems with
concentration, reading and sleeping and the constant humming “interferes with his emotional
well-being causing anxiety and wellness.”
Applying the standard provided by the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment4 (A.M.A., Guides) to the
April 10, 2012 audiometric data, Dr. Lassen calculated that appellant sustained 13.125 percent
monaural hearing impairment in the right ear and 16.875 percent monaural hearing impairment
in the left ear. On the form report, he added 3 percent impairment for tinnitus, resulting in a total
16.125 percent monaural hearing impairment in the right ear (13.125 percent + 3 percent for
tinnitus) and 19.875 percent monaural hearing impairment in the left ear (16.875 percent + 3
percent for tinnitus). Dr. Lassen calculated a binaural hearing impairment of 16.75 percent. He
listed April 10, 2012 as the date of maximum medical improvement.
On December 17, 2013 an OWCP medical adviser reviewed Dr. Lassen’s report and
concluded that appellant was not entitled to any additional impairment rating for tinnitus. He
applied the audiometric data to OWCP’s standard for evaluating hearing loss under the sixth
edition of the A.M.A., Guides to determine that appellant sustained 13.74 percent binaural
hearing loss. The medical adviser averaged appellant’s left ear hearing levels of 10, 15, 50 and
70 dB at 500, 1,000, 2,000 and 3,000 Hz, which totaled 14.5 which he divided by 4. He then

2

Docket No. 13-331 (issued August 12, 2013).

3

On January 31, 2012 appellant, then a 60-year-old pipefitter leader, filed an occupational disease claim alleging
that on February 3, 2005 he first realized that his bilateral hearing loss was employment related. OWCP accepted
the claim for bilateral sensorineural hearing loss and bilateral hearing loss due to noise.
4

A.M.A., Guides (6th ed. 2009).

2

subtracted a 25-dB fence and multiplied the balance of 11.25 by 1.5 to find 16.375 percent left
ear monaural hearing loss. The medical adviser then averaged appellant’s right ear hearing
levels of 5, 20, 45 and 65 dB at 500, 1,000, 2,000 and 3,000 Hz, which totaled 135, which then
divided by 4. After subtracting out a 25-dB fence, he multiplied the remaining 8.75 balance by
1.5 to calculate a 13.37 percent right ear monaural hearing loss. The medical adviser then
calculated 13.74 percent binaural hearing loss by multiplying the lesser right ear loss of 13.13
percent by five, adding the greater 16.37 percent left ear loss and dividing this sum by six. He
did not list any impairment due to tinnitus.
By decision dated January 10, 2014, OWCP informed appellant that his claim had been
expanded to include the condition of tinnitus. It then found that he had 0 percent impairment for
tinnitus and 14 percent binaural hearing loss impairment.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 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.8 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.10
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.11 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged.12 Then, the fence of 25 dB is deducted because, as the
A.M.A., Guides points out, losses below 25 dB result in no impairment in the ability to hear
everyday speech under everyday conditions.13 The remaining amount is multiplied by a factor of
5

This appears to be a mathematical error as 11.25 x 1.25 = 16.875.

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379 (2006).

9

20 C.F.R. § 10.404; see F.D., Docket No. 09-1346 (issued July 19, 2010); Billy B. Scoles, 57 ECAB 258 (2005).

10

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010). See P.B., Docket No. 10-103 (issued July 23, 2010).
11

A.M.A., Guides 250 (6th ed. 2009).

12

Id.

13

Id.

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1.5 to arrive at the percentage of monaural hearing loss.14 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.15 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.16 The Board has also noted OWCP’s policy to round the calculated
percentage of impairment to the nearest whole number.17
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.18 The A.M.A., Guides state that, if tinnitus
interferes with ADLs, including sleep, reading (and other tasks requiring concentration),
enjoyment of quiet recreation and emotional well-being, up to five percent may be added to a
measurable binaural hearing impairment.19
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical
adviser providing rationale for the percentage of impairment specified.20 OWCP may follow the
advice of its medical adviser or consultant where he or she has properly utilized the A.M.A.,
Guides.21
ANALYSIS
OWCP accepted the claim for bilateral sensorineural hearing loss and bilateral hearing
loss due to noise. On remand from the Board, it expanded acceptance of appellant’s claim to
include tinnitus. In its remand order, OWCP was instructed to obtain a clarification from
Dr. Lassen regarding the three percent impairment he assigned for appellant’s tinnitus. In its
January 10, 2014 decision, it determined that appellant had 0 percent impairment for tinnitus and
14 percent impairment for his binaural hearing loss. The issue on appeal is whether appellant is
entitled to an impairment rating for his tinnitus. The Board finds that the evidence of record
14

Id.

15

Id.

16

J.H., Docket No. 08-2432 (issued June 15, 2009); Thomas O. Bouis, 57 ECAB 602 (2006); Donald E.
Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No. 01-1570 (issued
August 13, 2002).
17

J.H., supra note 16; J.Q., 59 ECAB 366 (2008); Robert E. Cullison, 55 ECAB 570 (2004). See Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (January 2010).
18

See A.M.A., Guides 249.

19

Id. See also R.H., Docket No. 10-2139 (issued July 13, 2011); Robert E. Cullison, supra note 17.

20

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).
21

See Ronald J. Pavlik, 33 ECAB 1596 (1982).

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establishes that appellant is entitled to an additional three percent impairment for tinnitus,
resulting in a total 17 percent binaural hearing loss impairment.
In an October 4, 2013 addendum, Dr. Lassen diagnosed subjective tinnitus and bilateral
hearing loss which he attributed to appellant’s federal employment. An audiogram was
completed on April 10, 2012 which revealed the following dB losses at 500, 1,000, 2,000 and
3,000 Hz: 10, 15, 50 and 70 for the left ear and 5, 20, 45 and 65 for the right ear. Dr. Lassen
noted +3 tinnitus and diagnosed bilateral sensorineural hearing loss and noise-induced hearing
loss. He opined that the hearing loss was due to appellant’s workplace noise exposure and
recommended hearing aids. Applying the April 10, 2012 audiometric data, Dr. Lassen calculated
that appellant had 16.125 percent monaural hearing impairment in the right ear and 19.875
percent monaural hearing impairment in the left ear. On the form report, he added 3 percent
impairment for tinnitus, resulting in a total 16.125 percent monaural hearing impairment in the
right ear (13.125 percent + 3 percent for tinnitus) and 19.875 percent monaural hearing
impairment in the left ear (16.875 percent + 3 percent for tinnitus). Dr. Lassen calculated a
binaural hearing impairment of 16.75 percent. He listed October 26, 2010 as the date of
maximum medical improvement.
Dr. Lassen reported that appellant had 3+ tinnitus based on the tinnitus impairing
appellant’s ADLs. Specifically, he noted that appellant had problems with concentration,
reading and sleeping and that the constant humming caused nervousness and anxiety. Based on
these findings, Dr. Lassen added 3 percent impairment for tinnitus and calculated a binaural
hearing impairment of 16.75 percent.
OWCP then referred the medical evidence to an OWCP medical adviser, for a rating of
permanent impairment in accordance with the A.M.A., Guides.22 OWCP’s medical adviser
opined that appellant had a 14 percent binaural hearing loss under the sixth edition of the
A.M.A., Guides based on the results of the April 10, 2012 audiogram and Dr. Lassen’s two
reports. The medical adviser opined that appellant was not entitled to an additional impairment
rating for tinnitus with no explanation.
The Board finds that Dr. Lassen, the second opinion physician properly evaluated
appellant’s hearing loss. Using the April 10, 2012 audiogram to calculate appellant’s hearing
loss in accordance with the A.M.A., Guides, Dr. Lassen averaged appellant’s left hearing levels
of 10, 15, 50 and 70 dB at 500, 1,000, 2,000 and 3,000 Hz, which then averaged to total 36.25.
He subtracted the 25-dB fence and multiplied the remaining balance of 11.25 by 1.5 and then
added 3 percent for tinnitus to calculate a 19.875 percent hearing loss for the left ear.
Appellant’s right ear hearing levels of 5, 20, 45 and 65 dB at 500, 1,000, 2,000 and 3,000 Hz
were then averaged to total 33.75. Dr. Lassen subtracted the 25-dB fence and multiplied the
remaining balance of 8.75 by 1.5 and then added 3 percent for tinnitus to calculate a 16.125
percent hearing loss for the right ear. He calculated a 16.75 percent binaural hearing loss by
multiplying the lesser right ear loss of 16.125 percent by 5, adding the greater 19.875 left ear loss
and dividing this sum by 6.23 Dr. Lassen included an impairment rating for appellant’s tinnitus
22

See Hildred I. Lloyd, 42 ECAB 944 (1991).

23

Supra note 18.

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of three percent when calculating the monaural impairment as the tinnitus impacted his ability to
perform ADLs. He determined that appellant sustained a total 16.75 percent, which is rounded
up to a 17 percent binaural hearing loss. The Board finds that he properly evaluated the evidence
of record. Dr. Lassen’s report is entitled to the weight of the medical evidence.
CONCLUSION
The Board finds that appellant has established that he has an additional 3 percent bilateral
hearing loss for a total 17 percent permanent bilateral hearing loss, causally related to factors of
his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 10, 2014 is affirmed as modified.
Issued: July 9, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.S, Appellant
and
U.S. POST SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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Appearances:
C. Craig Holley, Esq., for the appellant
No Appearance, for the Director

Docket No. 07-1574
Issued: May 12, 2008

Oral Argument March 13, 2008

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 22, 2007 appellant filed a timely appeal of the February 20, 2007 decision of the
Office of Workers’ Compensation Programs, which denied her reconsideration request without a
merit review. Because more than one year has elapsed between the most recent merit decision
dated January 25, 2006 and the filing of this appeal on May 22, 2007, the Board lacks
jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On January 22, 1997 appellant, then a 37-year-old letter carrier, filed a traumatic injury
claim alleging that on January 16, 1997 she tripped on a raised cement sidewalk and fell injuring
her elbow, wrist, left knee and chin. The Office accepted appellant’s claim for sprained right
elbow and wrist, abrasion to the left knee and contusion of the chin and her claim was expanded

to include recurrent ventral incisional hernia with surgical repair. Appellant stopped work on
January 16, 1997 and returned to a limited-duty job and then stopped work on June 20, 1997. On
January 23, 1998 the Office placed appellant on the periodic rolls paying compensation every
28 days at the rate of $692.40 per week. On May 9, 2002 appellant returned to a limited-duty
position and was granted disability retirement on May 24, 2003.
The Office sent appellant Form EN1032 wage and compensation disclosure form for
verification of her wages and earnings during several periods of time for which she was
receiving temporary total disability. On May 4, 2000 and May 16, 2001 appellant completed and
signed each EN1032 form covering the preceding 15-month period and under “Part A -Employment,” appellant responded to question 2, whether she was self employed or involved in
a business enterprise and indicated that she was merely an investor in a business called Treasured
Friends, Inc., from March to November 2000 but had no work involvement and was not paid
compensation. For the EN1032 form dated May 16, 2002, appellant responded that she was not
employed, nor had she received any wages or income during this time period.
On May 9, 2002 the employing establishment offered appellant a full-time modified
position as a city carrier and she began work the same date.
In an August 7, 2002 decision, the Office found that appellant had been employed as a
full-time modified city carrier effective May 9, 2002, more than 60 days and that the pay in that
position was equivalent to the pay rate for the position she held at the time of her injury; thus no
loss of wages occurred. The Office concluded that the position of full-time modified city carrier
fairly and reasonably represented appellant’s wage-earning capacity.
On October 15, 2003 a federal grand jury indicted appellant on one count of making false
statements to obtain compensation benefits under 18 U.S.C. § 1920. On January 13, 2004
appellant entered into a Pretrial Diversion Agreement in the U.S. District Court in the District of
South Carolina admitting her guilt to one count in violation of 18 U.S.C. § 1920 for making false
statements to obtain compensation benefits. Her agreement included 12 months probation. The
Pretrial Diversion Agreement provided that after successfully completing the Pretrial Diversion
Program and fulfilling all terms and conditions of the agreement, no prosecution for the offenses
would be sought and the charges would be dismissed.
A June 28, 2004 investigative memorandum from the Office of the Inspector General
advised that appellant was investigated for making false and fraudulent representations on
CA-1032 forms to obtain disability benefits from the Office. The investigator noted that
appellant had reported on an May 1, 2000 CA-1032 form that during the preceding 15 months
she invested in a business as a shareholder but was not employed by the business. Appellant
responded to the questionnaire without providing complete and accurate answers indicating that
she was not actively involved in the business venture, Treasured Friends, Inc., when documents
revealed that she actively participated. For the period February 4, 1999 to May 9, 2002, she was
actively involved in the business, Treasured Friends, Inc. and for the same period appellant
received $92,597.86 in workers’ compensation benefits.
In an August 27, 2004 decision, the Office found that appellant forfeited monetary
compensation for the period February 4, 1999 to May 9, 2002 on the grounds that she knowingly

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failed to report her self-employment on CA-1032 forms as required under 5 U.S.C. § 8106(b) of
the Federal Employees’ Compensation Act.
In an August 27, 2004 letter, the Office made a preliminary determination that an
overpayment of compensation occurred in the amount of $92,597.86. The Office determined
that the overpayment occurred because appellant failed to report her self-employment on Forms
CA-1032 covering the period February 4, 1999 to May 9, 2002. The Office also determined that
appellant was at fault in the creation of the overpayment of $92,597.86 as she knowingly
withheld information on the CA-1032 form regarding her self-employment to ensure her
compensation would not stop or change.
In a decision dated October 4, 2004, the Office finalized its preliminary determination
with regard to the overpayment of $92,597.86. The Office determined that the overpayment
occurred because appellant failed to report her self-employment on Forms CA-1032 covering the
period February 4, 1999 to May 9, 2002. The Office also found appellant at fault in creating the
overpayment as she knowingly withheld information on the Form CA-1032 regarding her selfemployment to ensure her compensation would not stop or change. The Office requested that
appellant remit the entire overpayment immediately or contact the Office to make appropriate
arrangements for recovery of the overpayment.
On September 20, 2004 appellant requested an oral hearing. On October 18, 2005 she
withdrew her request for an oral hearing and requested a review of the written record. Appellant
submitted overpayment questionnaires dated September 20, 2004 and November 12, 2005 and
supporting financial documentation. In a brief dated December 29, 2005, appellant through her
attorney asserted that the forfeiture should be eliminated or substantially reduced because she
was never convicted of fraud in connection with a claim for compensation and the indictment
against her was dismissed by the court on January 18, 2005. She submitted an order of the Court
dated January 18, 2005 dismissing the October 15, 2003 indictment against her without
prejudice.
By decision dated January 25, 2006, the hearing representative affirmed the August 27,
2004 decision as modified. The hearing representative noted that the period of the forfeiture
should be modified to February 4, 1999 to May 16, 2001, as the evidence supported that
appellant’s involvement in the business Treasured Friends, Inc., ceased by the time she signed
the CA-1032 form on May 16, 2001. The hearing representative noted that appellant resigned
from the corporation on November 1, 2000. It was further noted that, since the period of
forfeiture was modified to February 4, 1999 to May 16, 2001, the overpayment amount
decreased to $63,872.78.
On January 24, 2007 appellant through her attorney, requested reconsideration. She
asserted that she submitted sufficient evidence to warrant further reduction of the financial
penalty and that her financial status warranted a lower repayment amount extended over a longer
period of time. Appellant asserted that since her indictment was dismissed on January 18, 2005,
the previous Office decisions were in error and should be rescinded. She submitted a 2000
federal personal income tax declaration and a 2001 South Carolina business personal property
return for Treasured Friends, Inc.
Appellant submitted a notarized document dated
September 27, 2001, which indicated that she resigned as Vice President and Director of

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Treasured Friends, Inc., as of November 1, 2000. Also submitted was a letter from
Carolyn Malphrus, appellant’s mother, dated October 18, 2005, who indicated that she and
appellant’s husband made and sold candles; however, appellant was not involved in the business.
Appellant submitted fee petitions from her prior attorney, Paul H. Felser, dated January 13 and
May 17, 2006 and letters from him requesting supplemental file information dated February 2
and July 3, 2006. Also submitted were medical reports from Dr. Gregory W. Niemer, a
Board-certified internist, dated April 17, 2006 and from Dr. Sarah H. Brown, a Board-certified
family practitioner, dated January 10, 2007. Appellant submitted a financial resources
questionnaire dated January 22, 2007 and bank statements from South Carolina Federal Credit
Union and Navy Federal Credit Union.
By decision dated February 20, 2007, the Office denied appellant’s reconsideration
request on the grounds that her letter neither raised substantive legal questions nor included new
and relevant evidence and was therefore insufficient to warrant review of the prior decision.
LEGAL PRECEDENT
Under section 8128(a) of the Act,1 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulations,2 which provides that a
claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, sets forth arguments and contain evidence which:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law;
“(ii) Advances a relevant legal argument not previously considered by the Office;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office.]”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.3
ANALYSIS
Appellant submitted a January 24, 2007 request for reconsideration which neither alleged
nor demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, she did not advance a relevant legal argument not previously considered by the
Office.
1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.606(b).

3

Id. at § 10.608(b).

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Appellant’s attorney asserted that she submitted sufficient evidence to warrant further
reduction of the financial penalty and that her financial status warranted a lower repayment
amount extended over a longer period of time. Her letter did not show that the Office
erroneously applied or interpreted a point of law nor did it advance a point of law or fact not
previously considered by the Office. Furthermore, appellant’s assertion that her financial status
warranted a lower repayment amount over a longer period of time pertains to the final
overpayment determination. The Board notes that the guidelines set forth in section 10.440(b) of
the implementing federal regulations,4 provide that a claimant can only appeal an overpayment
decision to the Board and specifically precludes appellant from exercising the option of
reconsideration under 5 U.S.C. § 8128(a). Consequently, appellant is not entitled to a review of
the merits of her claim based on the first and second above-noted requirements under section
10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant submitted a 2000 federal personal income tax
declaration and a 2001 South Carolina business personal property return for Treasured Friends,
Inc. She also submitted a financial resources questionnaire dated January 22, 2007 and bank
statements from South Carolina Federal Credit Union and Navy Federal Credit Union. However,
the financial information is similar to evidence previously submitted including overpayment
questionnaires dated September 20, 2004 and November 12, 2005 and supporting bank
statements already contained in the record5 and were previously considered by the Office in its
January 25, 2006 decision. Therefore, the Office properly found that this evidence did warrant
reopening the claim for a merit review.
Appellant submitted a notarized document dated September 27, 2001, which indicated
that she resigned as vice president and director of Treasured Friends, Inc., as of
November 1, 2000. She also submitted a letter from her mother dated October 18, 2005, who
indicated that appellant was not involved in the candle business. However, this too is duplicative
of evidence previously submitted and considered by the Office in decisions dated August 27,
2004 and January 25, 2006.6 Therefore, this evidence is insufficient to require the Office to
reopen the claim for a merit review.
Appellant submitted fee petitions from her prior attorney, Mr. Felser, dated January 13
and May 17, 2006 and letters from him requesting supplemental file information. However,
these documents are not relevant because they do not specifically address the issue of the
forfeiture of compensation and the forfeiture period of February 4, 1999 to May 16, 2001.
Likewise, appellant submitted medical reports from Drs. Niemer and Brown; however, these
reports are also not relevant because they do not pertain to the issue of the forfeiture of
compensation and the forfeiture period. Therefore, the Office properly determined that this
evidence did not constitute a basis for reopening the case for a merit review.
4

Id. at § 10.440(b).

5

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).
6

Id.

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Appellant neither showed that the Office erroneously applied or interpreted a point of
law; advanced a point of law or fact not previously considered by the Office; nor did she submit
relevant and pertinent evidence not previously considered by the Office.7
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her January 24, 2007 request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 20, 2007 is affirmed.
Issued: May 12, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

20 C.F.R. § 10.606(b).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Martin Kaplan Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1096
Issued: January 20, 2016

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 April 17, 2015 appellant, through counsel, filed a timely appeal from March 9 and
April 7, 2015 merit decisions 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 OWCP properly terminated appellant’s compensation
effective April 7, 2015 for refusing an offer of suitable work, pursuant to 5 U.S.C. § 8106(c); and
(2) whether OWCP abused its discretion in denying appellant’s request for authorization of a
sleep study.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 29, 2006 appellant, then a 31-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on March 25, 2006 she injured the top of her head when a door closed
on her head. OWCP accepted the claim for cervicalgia on June 21, 2006 and expanded the claim
on June 29, 2007 and March 3, 2010 to include headache and myofascial pain syndrome,
respectively. Appellant stopped work on December 12, 2006. OWCP paid wage-loss benefits as
of December 13, 2006, and appellant received benefits on the periodic compensation rolls as of
February 18, 2007. Appellant continued to submit documentation to OWCP regarding medical
evaluations and treatment.
By letter dated June 21, 2012, Dr. Michael Hilts, Board-certified in family medicine,
stated that appellant had reached maximum medical improvement and that she had permanent
sedentary work restrictions. In an attached work capacity evaluation, he stated restrictions of no
repetitive movements of the wrists or elbows; no pushing, pulling, or climbing; and no more than
two to four hours per day of lifting, squatting, or kneeling. Dr. Hilts further noted that appellant
could work eight-hour shifts, but could reach for no more than one to two hours per day and
bend/stop for no more than two to four hours per day.
On April 12, 2013 the employing establishment offered appellant a modified assignment
as a damaged mail processor. The duties of this assignment included up to eight hours per day of
preparing return labels for damaged packages, placing labels in envelopes, sealing them, and
retrieving the next label for processing. The physical requirements included reaching with no
repetitive movements of the wrist and elbows of the right arm for one to two hours per day;
lifting no more than 10 pounds for up to two to four hours per day, and sitting/standing for up to
eight hours per day.
In a medical report dated May 15, 2013, Dr. Albert K. Bartko, Board-certified in physical
medicine and rehabilitation, noted that appellant’s symptoms had worsened and recommended
that she be off work until further notice.
On December 2, 2013 the employing establishment again issued its job offer of April 12,
2013, with a new effective date of December 14, 2013. The offer was identical to the employing
establishment’s previous modified assignment offer, except that the average time spent in the
listed duties was stated to be up to four hours per day rather than up to six hours per day; and the
physical requirement of reaching with no repetitive movements of the wrists or elbows of the
right arm was listed as occurring on average two to four hours per day rather than one to two
hours per day.
By letter dated December 23, 2013, the employing establishment noted that appellant had
not responded to its job offer and that it assumed she had refused the position. It requested that
the claims examiner determine if the offer was suitable work within her restrictions.

2

On February 6, 2014 Dr. Hilts responded to an inquiry by OWCP as to appellant’s
capability to work. He noted:
“In your letter you asked whether I felt she was capable of working the modified
work position that you enclose involving work for four hours per day. I do think
this would fit within her permanent light[-]duty restrictions which would involve
sedentary work, 10 pounds physical demand level for up to eight[-]hour shifts. I
see no reason why she could not work the job you have proposed.”
By letter dated March 4, 2014, the employing establishment confirmed that the modified
position was still open, but that it was only able to offer appellant four hours of work per day
within her restrictions.
On March 10, 2014 OWCP notified appellant that it had been advised that she had
refused or failed to report for an offer of suitable employment. It afforded her 30 days to accept
the position and report to duty or to provide a written explanation of failure to accept the
position.
By letter dated March 18, 2014, appellant, through counsel, explained that she rejected
the job offer, as it was outside of her medical restrictions. Counsel explained, “[Appellant’s]
claim was expanded on March 3, 2010 to include myofascial pain syndrome. Dr. Hilts is an
orthopedic physician and does not treat for myofascial pain syndrome. [He] referred [appellant]
to Dr. Bartko, and as such he is also an authorized treating physician. Dr. Bartko continues to
have [appellant] out of work due to her myofascial pain.”
By letter dated June 17, 2014, OWCP notified appellant that a second opinion
examination was warranted to determine whether the modified job offer was suitable work.
In a note dated August 26, 2014, Dr. Bartko recommended that appellant undergo a sleep
study to rule out sleep apnea, before issuing a prescription for Percocet to help with appellant’s
pain. He reiterated the need for a sleep study on October 6, 2014, expressing concern that her
use of prescription medication to manage pain could be deadly without knowing whether she had
sleep apnea or not.
On October 9, 2014 OWCP referred appellant to Dr. Shervin Eshraghi, a Board-certified
neurologist, for evaluation of whether appellant continued to suffer residuals of her accepted
injuries, and whether she was capable of working her date-of-injury position. The appointment
was scheduled for November 4, 2014. Appellant did not attend, but did attend the rescheduled
appointment on December 18, 2014.
By letter dated November 17, 2014, OWCP notified appellant that the evidence of record
was insufficient to authorize a sleep study. It stated, “A determination has been made that a
second opinion examination and subsequent review by a district medical adviser (DMA) was
warranted to determine if the proposed treatment is medically and/or causally related to her
accepted conditions.”
In a second opinion report dated December 18, 2014, Dr. Eshraghi stated that appellant’s
conditions of cervicalgia, headache, and myofascial pain syndrome had not resolved. He noted
3

that the accepted conditions were highly subjective and that there were minimal objective
medical findings, other than reduced range of neck motion. Dr. Eshraghi noted that he did not
have a detailed description of the proposed job offer in his possession, but that, if it fell between
a sedentary and light demanding capacity, the job would be suitable for her. In an attached
addendum report, he stated that he had reviewed the detailed job offer, that appellant had the
ability to perform the job and its duties, and that therefore, appellant was suitable for the
position.
In a record of a telephone conversation dated January 20, 2015, the employing
establishment noted that the offered position was still available.
By letter dated January 29, 2015, OWCP notified appellant that the position remained
open, that she had refused to accept the offered position, and that it had found her reasons
insufficient for refusing to accept the offered position. It afforded her 15 days to accept or report
to the position without termination of her wage-loss and schedule award benefits.
By letter dated February 3, 2015, appellant’s representative noted that while OWCP had
informed appellant that a second opinion examination would be conducted on the issue of
authorization of a sleep study, Dr. Eshraghi’s second opinion report did not contain an opinion
on this issue.
On February 5, 2015 OWCP responded, noting that Dr. Bartko’s September 11, 2014
report referred to a sleep study for “possible” sleep apnea, which was not an accepted condition.
As such, it explained, a second opinion examination was not warranted. OWCP stated that, if
Dr. Bartko believed appellant’s possible sleep apnea was related to her accepted conditions,
appellant could submit a report from Dr. Bartko within 30 days.
On the same date, OWCP advised appellant that she had been offered a suitable position
within her work restrictions and that she had refused or failed to report to this position. It found
that the weight of the medical evidence rested with Dr. Eshraghi. OWCP afforded appellant 30
days to submit additional evidence.
By letter dated March 3, 2015, counsel responded to OWCP’s February 5, 2015 letters.
He stated that the job offer was not valid because it did not contain the date that appellant needed
to provide her agency with a decision. Further, counsel noted that the second opinion
examination was in conflict with the opinion of appellant’s treating physician, and that such a
conflict needed to be resolved via an independent medical examination. With regard to OWCP’s
letter regarding authorization for a sleep study, he noted that OWCP advised appellant in a letter
dated November 17, 2014 that the determination on authorization for a sleep study would come
after a second opinion examination and review by a DMA. Counsel stated that because the
second opinion physician’s report did not contain an opinion on the appropriateness of a sleep
study, OWCP needed to seek an addendum to the report and issue a formal decision.
In a note dated March 3, 2015, Dr. Bartko asserted that appellant was unable to return to
work or work in any capacity.
On March 4, 2015 counsel elaborated that the offered position was not suitable because it
was scheduled for night hours. With this letter, he attached a February 19, 2008 report from
4

Dr. Hilts wherein he noted that appellant had a work restriction of daytime hours only, to avoid
excessive drowsiness due to pain medication. Counsel argued that as the second opinion report
only addressed the physical requirements of the offered position, Dr. Hilts’ opinion on the hours
of work was uncontroverted.
By decision dated March 9, 2015, OWCP denied authorization for a sleep study. It stated
that it had not received a detailed medical report outlining the causal relationship between her
possible sleep apnea and an accepted injury.
By decision of the same date, OWCP found that appellant had refused to accept an offer
of suitable work. It explained that the medical note from Dr. Bartko dated March 3, 2015, was
insufficiently rationalized. OWCP noted that the report from Dr. Hilts was outdated, that he had
reviewed the job offer and opined that it was suitable. It afforded appellant 15 days to accept or
report to the position.
By decision dated April 7, 2015, OWCP terminated appellant’s compensation benefits
effective on that date for refusal of suitable work.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8106(c) provides in pertinent part:
“A partially disabled employee who (2) refuses or neglects to work after suitable
work is offered ... is not entitled to compensation. It is OWCP’s burden to
terminate compensation under section 8106(c) for refusing to accept suitable work
or neglecting to perform suitable work.2 To justify such a termination, it must
show that the work offered was suitable.3 An employee who refuses or neglects
to work after suitable work has been offered to him or her has the burden of
showing that such refusal to work was justified.4“
With respect to the procedural requirements of termination under section 8106(c), the
Board has held that OWCP must inform appellant of the consequences of refusal to accept
suitable work, and allow her an opportunity to provide reasons for refusing the offered position.5
If appellant presents reasons for refusing the offered position, OWCP must inform the employee
if it finds the reasons inadequate to justify the refusal of the offered position and afford her a
final opportunity to accept the position.
To support termination, OWCP must show that the work offered was suitable. In
determining what constitutes suitable work for a particular disabled employee, it considers the
employee’s current physical limitations, whether the work is available within the employee’s
2

Henry P. Gilmore, 46 ECAB 709 (1995).

3

John E. Lemker, 45 ECAB 258 (1993).

4

Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.124(c).

5

Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

5

demonstrated commuting area, the employee’s qualifications to perform such work and other
relevant factors.6 Section 8106(c) will be narrowly construed as it serves as a penalty provision
which may bar an employee’s entitlement to compensation based on a refusal to accept a suitable
offer of employment.7
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for cervicalgia, headache, and myofascial pain
syndrome. It found that the weight of the evidence with regard to appellant’s ability to work a
modified position offered by the employing establishment rested with Dr. Eshraghi, the second
opinion referral physician, who concluded that the modified job offer was within appellant’s
medical restrictions. By decision dated April 7, 2015, OWCP terminated her compensation
benefits as a result of appellant’s refusal to accept this offer of suitable work.
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits based upon her refusal to accept a suitable position within her medical
restrictions based upon the opinion of Dr. Eshraghi, an OWCP referral physician. Dr. Eshraghi
reviewed the history of her employment injury, medical treatment, the statement of accepted
facts, and the offered position. He reported that the accepted conditions were highly subjective
and that there were minimal objective medical reasons or findings, other than reduced range of
neck motion. In an addendum report, Dr. Eshraghi stated that he had reviewed the detailed job
offer, that appellant had the ability to perform the job and its duties, and that therefore, she was
suitable for the position.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts of the
case, the medical history provided, the care of analysis manifested and the medical rationale
expressed in support of stated conclusions.8 Dr. Eshraghi fully discussed the history of injury,
explained that there were minimal objective findings as to appellant’s conditions, and confirmed
that the modified job offer was within appellant’s medical restrictions. The Board finds that
Dr. Eshraghi’s opinion represents the weight of medical evidence and establishes that the refused
modified job offer upon which appellant’s termination of benefits was based was in fact within
appellant’s medical restrictions. As such, OWCP met its burden of proof to terminate
compensation for refusal of suitable work.
Appellant presented several arguments as to why she could not accept the job offer. The
Board notes that Dr. Bartko submitted a March 3, 2015 document asserting that appellant could
not return to work in any capacity. This document was devoid of any medical rationale. The
Board has held that reports lacking medical rationale are of limited probative value.9 As such,
the Board finds that there is no conflict in medical opinion to be resolved in this case. With
6

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

7

C.S., Docket No. 12-663 (issued September 25, 2012).

8

See K.W., 59 ECAB 271 (2007); Ann C. Leanza, 48 ECAB 115 (1996).

9

T.F., 58 ECAB 128 (2006); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

6

regard to counsel’s assertion that Dr. Hilts’ February 19, 2008 report restricted appellant to
working only during the daytime, this set of work restrictions was superseded by Dr. Hilts’ later
recommended restrictions of June 21, 2012, which contained no such daytime work restriction.
Furthermore, Dr. Hilts later commented upon the proposed modified job offer on February 6,
2014, stating that it was within her restrictions.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP
advised appellant on February 5, 2015 that it found the modified-duty job offer to be suitable and
gave her an opportunity to provide reasons for refusing the position within 30 days. It advised
her in a March 9, 2015 letter that the reasons that she had provided for not accepting the position
were unacceptable. OWCP again informed appellant that she had 15 additional days to accept
the offered position. The Board finds that OWCP followed established procedures prior to the
termination of compensation pursuant to section 8106(c) of FECA.
The Board finds that the position offered was medically and vocationally suitable and
OWCP complied with the procedural requirements of section 8106(c) of FECA. OWCP met its
burden of proof to terminate appellant’s wage-loss compensation as of April 7, 2015.10
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician who OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability or
aid in lessening the amount of monthly compensation.11 In interpreting section 8103(a), the
Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in
the shortest amount of time.12 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.13 Abuse
of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.14
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the

10

Supra note 7.

11

5 U.S.C. § 8103(a).

12

See Dale E. Jones, 48 ECAB 648, 649 (1997).

13

See Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
14

See Minnie B. Lewis, 53 ECAB 606 (2002).

7

effects of an employment-related injury or condition.15 Proof of causal relationship in a case
such as this must include supporting rationalized medical evidence.16 Therefore, in order to
prove that the surgical procedure is warranted, appellant must submit evidence to show that the
procedure was for a condition causally related to the employment injury and that the surgery was
medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.17
ANALYSIS -- ISSUE 2
On March 9, 2015 OWCP denied authorization for a sleep study. It stated that it had not
received a detailed medical report outlining the causal relationship between her possible sleep
apnea and an accepted injury. OWCP had previously noted in a development letter dated
February 5, 2015 that Dr. Bartko’s proposed sleep study was due to “possible” sleep apnea,
which was not an accepted condition. As such, it explained, a second opinion examination was
not warranted. OWCP stated that, if Dr. Bartko believed appellant’s possible sleep apnea was
related to her accepted conditions, appellant could submit a report from Dr. Bartko within 30
days as to its connection to the accepted work conditions before the March 9, 2015 denial of
authorization. No response was received.
It is appellant’s burden to provide rationalized medical evidence sufficient to establish
causal relation for conditions not accepted by OWCP. It is not OWCP’s burden to disprove any
such relationship.18 OWCP requested a report from appellant’s physicians causally linking her
possible sleep apnea to the accepted conditions of cervicalgia, headache, and myofascial pain
syndrome or to the incident of March 25, 2006 and afforded appellant 30 days to submit such a
report. No such report was received. OWCP expressed in its letter of November 17, 2014 that a
second opinion examination would be conducted on the issue of authorization of a study for
possible sleep apnea. It was correct to state in its later February 5, 2015 letter that the evidence
was insufficient to warrant a second opinion examination on the issue of possible sleep apnea,
because that was not an accepted condition under appellant’s claim.
As such, the Board finds that OWCP did not abuse its discretion in denying appellant’s
request for authorization for a sleep study under this claim.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation effective
April 7, 2015 on the grounds that she refused an offer of suitable work. The Board further finds
that OWCP did not abuse its discretion in denying appellant’s request for authorization of a sleep
study.

15

See Kennett O. Collins, Jr., 55 ECAB 648 (2004); Debra S. King, 44 ECAB 203, 209 (1992).

16

Id.; see also M.B., 58 ECAB 588 (2007); Bertha L. Arnold, 38 ECAB 282 (1986).

17

See R.C., 58 ECAB 238 (2006); Cathy B. Millin, 51 ECAB 331, 333 (2000).

18

Alice J. Tysinger, 51 ECAB 638 (2000).

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 7 and March 9, 2015 are affirmed.
Issued: January 20, 2016
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Denver, CO, Employer
__________________________________________

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Appearances:
Bernard Humbler, for the appellant
Office of Solicitor, for the Director

Docket No. 08-453
Issued: June 2, 2008

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 December 5, 2007 appellant filed a timely appeal of the December 5, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied her September 11,
2006 request for reconsideration. Because appellant filed the current appeal more than a year
after the Office’s June 29, 2005 merit decision, the Board does not have jurisdiction over the
merits of the claim.1
ISSUE
The issue is whether the Office properly declined to reopen appellant’s case for merit
review under 5 U.S.C. § 8128(a) on the grounds that appellant’s request for reconsideration was
untimely filed and did not establish clear evidence of error.
1

20 C.F.R. §§ 501.2(c), 501.3(d) (2007). The record on appeal includes additional medical evidence received
after the Office issued its December 5, 2006 decision. The Board cannot consider evidence for the first time on
appeal. The review of a case shall be limited to the evidence in the case record which was before the Office at the
time of its final decision. 20 C.F.R. § 10.501.2(c).

FACTUAL HISTORY
On October 27, 2004 appellant, then a 52-year-old ophthalmology health technician, filed
a claim for work-related stress. She first became aware of her condition on January 1, 2004, but
it was not until September 1, 2004 that she first realized her condition was caused or aggravated
by her employment. Appellant stopped work on October 27, 2004.
Dr. Robert M. Gray, a clinical psychologist, examined appellant on October 26, 2004 and
diagnosed major depression. He noted that appellant had a good deal of stress in her life and
work-related issues were the primary cause of her stress. Dr. Gray found appellant disabled from
all work effective October 27, 2004. He subsequently advised that the basic problem was that
appellant had to work at a rapid pace for extended periods without sufficient assistance from
technicians or front desk support. Appellant also had to deal with many disgruntled patients.
Dr. Gray released appellant to return to work in December 2004. Appellant worked part time for
several weeks and then resumed her regular, full-time duties.
In a December 10, 2004 statement, appellant described the eye clinic where she worked
as “dysfunctional.” The clinic was reportedly understaffed and she was overworked and
underpaid. Appellant indicated that patient appointments were backlogged and overbooked,
resulting in long delays and frequent cancellations and rescheduling. Her time was divided
between scheduling duties and conducting various eye examinations. Appellant alleged that her
work was often interrupted by telephone calls from irate patients and walk-in patients who
demanded immediate medical attention. She also claimed she was subjected to verbal abuse
from disgruntled patients. The clinic’s director, Dr. May, reportedly had anger-management
issues and he offered little support to his subordinates. Appellant described an October 15, 2001
incident when Dr. May allegedly slammed a door in her face. Dr. May was rude, unreliable and
difficult to locate at times. Appellant explained that the problems in the clinic escalated over
time to the point that she suffered a breakdown in October 2004.
In a January 12, 2005 response, the employing establishment acknowledged the
scheduling difficulties appellant described. The problem was attributed to budgetary constraints.
The employing establishment noted that the scheduling crisis at the eye clinic was beyond the
scope of appellant’s particular job duties. As to her interaction with irate patients, the employing
establishment stated it was not uncommon to encounter an upset patient while working in a
clinical environment. However, appellant was not expected to deal with complaints regarding
scheduling or clinic operations. These complaints should have been referred up the chain of
command for resolution. According to the employing establishment, appellant assumed
responsibility for a number of issues that were not within the scope of her assigned duties. As to
the allegations regarding Dr. May, the employing establishment noted that he resigned effective
November 15, 2004, and was unavailable for comment.
In a decision dated June 29, 2005, the Office denied appellant’s emotional condition
claim. It found appellant’s allegations either unsubstantiated or insufficiently documented.
Therefore, she did not establish a compensable factor of employment.

2

On June 16, 2006 appellant requested reconsideration. She submitted an annotated copy
of the June 29, 2005 decision, which identified specific findings she disagreed with. The Office
denied appellant’s request in a nonmerit decision dated July 26, 2006.
On September 11, 2006 appellant filed a request for reconsideration. She explained that
chronic pain associated with a prior back injury (12-2006697) affected her ability to cope with
the enormous stress at work. The combination of back pain and work factors caused her
disability beginning October 27, 2004. Since December 2004, she continued to work under
stressful conditions, feeling isolated, overworked, unappreciated, underpaid and depressed. In a
July 11, 2006 report, Dr. Barbara N. Briggs, a clinical psychologist, diagnosed chronic pain
syndrome, post-trauma stress and major depression.
The Office issued a December 5, 2006 decision denying reconsideration, finding
appellant’s September 11, 2006 request was untimely and she failed to demonstrate clear
evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act does not entitle a claimant
to a review of an Office decision as a matter of right.2 The Office has discretionary authority in
this regard and it has imposed certain limitations in exercising its authority.3 One such limitation
is that the application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.4 When a request for reconsideration is untimely, the Office
will undertake a limited review to determine whether the application presents “clear evidence of
error” on the part of the Office in its “most recent merit decision.”5
ANALYSIS
Appellant’s request for reconsideration was dated September 11, 2006, which is more
than a year after the Office’s June 29, 2005 merit decision.6 Because appellant’s request was

2

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a) (2000).
3

20 C.F.R. § 10.607.

4

20 C.F.R. § 10.607(a).

5

20 C.F.R. § 10.607(b).

6

If a request is submitted by mail, timeliness will be determined by the postmark if legible. 20 C.F.R.
§ 10.607(a).

3

untimely she must demonstrate “clear evidence of error” on the part of the Office in denying her
claim for work-related stress and depression.7
Appellant’s claim was denied because she did not establish a compensable employment
factor arising in the performance of duty. The denial was not premised on the lack of medical
evidence to support appellant’s claim. Therefore, the submission of additional medical evidence
from Dr. Briggs does not establish clear evidence of error with respect to the issue of whether
appellant established a compensable employment factor. In her September 11, 2006 request for
reconsideration, appellant essentially reiterated prior allegations that her condition was due to
work-related stressors. However, she did not submit any additional evidence to substantiate any
of the previously alleged employment incidents. Merely reiterating one’s prior contentions does
not constitute clear evidence of error. As such, there is no basis for further merit review.
Accordingly, the Office properly declined to reopen appellant’s case under 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant’s September 11, 2006 request was untimely and she failed
to demonstrate clear evidence of error and, therefore, she is not entitled to further merit review.

7

20 C.F.R. § 10.607(b). To establish clear evidence of error, a claimant must submit evidence relevant to the
issue that was decided by the Office. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive,
precise and explicit and it must be apparent on its face that the Office committed an error. See Leona N. Travis, 43
ECAB 227 (1991). It is not enough to merely show that the evidence could be construed to produce a contrary
conclusion. Id. Evidence that does not raise a substantial question concerning the correctness of the Office’s
decision is insufficient to establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). 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 the Office decision. Thankamma
Mathews, 44 ECAB 765, 770 (1993).

4

ORDER
IT IS HEREBY ORDERED THAT the December 5, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 2, 2008
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
__________________________________________
L.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Fresno, CA,
Employer
__________________________________________

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

Docket No. 21-0701
Issued: March 3, 2022

Case Submitted on the Record

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

JURISDICTION
On April 1, 2021 appellant, through counsel, filed a timely appeal from a February 23,
2021 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. 3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 23, 2021 decision, OWCP received additional evidence, and
appellant submitted additional evidence upon appeal. 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.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $16,873.21 during the periods July 1, 2014 through
July 20, 2019 and February 3 through April 15, 2020, for which she was without fault, as she
concurrently received Social Security Administration (SSA) age-related retirement benefits and
FECA wage-loss compensation benefits without appropriate offset; and (2) whether OWCP
properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On June 3, 1992 appellant, then a 40-year-old data transcriptionist, filed a claim for
occupational disease (Form CA-2) alleging that she sustained injuries due to factors of her federal
employment. OWCP accepted her claim for calcifying tendinitis of the right shoulder, right
complete rotator cuff tear, and right tenosynovitis of the hand and wrist.
By decision dated September 2, 1999, OWCP finalized a proposed reduction of appellant’s
compensation, finding that she was not totally disabled and capable of earning wages in the
constructed position of a hostess.
Appellant began working as a self -employed childcare provider in January 2001. OWCP
compensation history records indicate that she received payments for loss of wage -earning
capacity (LWEC) on the periodic rolls as of June 16, 2002.4
On July 16, 2020 OWCP provided SSA with a FERS/SSA dual benefits form to obtain
information regarding appellant’s receipt of SSA age-related retirement benefits.
On July 29, 2020 SSA completed the dual benefits form, which reported appellant’s SSA
age-related retirement benefit rates with a FERS offset and without a FERS offset from July 2014
through December 2019. Beginning July 2014, the SSA rate with FERS was $718.20 and without
FERS was $481.20. Beginning December 2014 and December 2015, the SSA rate with FERS was
$730.40 and without FERS was $489.30. Beginning December 2016, the SSA rate with FERS
was $732.50 and without FERS was $490.80. Beginning December 2017, the SSA rate with FERS
was $747.10 and without FERS was $500.60. Beginning December 2018, the SSA rate with FERS
was $795.10 and without FERS was $514.50. Beginning December 2019, the SSA rate with FERS
was $810.00 and without FERS was $522.70.
In a letter dated August 28, 2020, OWCP notified appellant that, based on information
provided by SSA regarding the amount of her age-related retirement benefits which were
attributable to federal service, her FECA wage-loss compensation had been adjusted. It explained
that she was in receipt of SSA age-related retirement benefits every four weeks in the amount of
$810.00. However, appellant’s federal service increased her monthly SSA age-related retirement
benefit payments by $287.30, which must be offset as this portion of her SSA age-related
retirement benefits was attributable to her federal service. OWCP explained that the $287.30
4

In a claim for compensation (Form CA-7) dated May 16, 2018, appellant requested a schedule award. By decision
dated October 2, 2019, OWCP granted her a schedule award for an additional 9 percent permanent impairment of the
right upper extremity, for a total of 16 percent permanent impairment. The award ran for 28.08 weeks from
September 15, 2019 through February 2, 2020.

2

monthly offset would be adjusted to a 28-day payment cycle to result in a $265.20 offset.
Appellant was advised that, following the SSA offset and deduction of health benefits premiums,
her 28-day gross FECA payment would be reduced from a gross payment of $531.00 to a new net
FECA compensation payment of $20.18, every 28 days. Her compensation benefits were adjusted
effective August 16, 2020.
In a FERS offset overpayment calculation worksheet dated August 31, 2020, OWCP
calculated appellant’s total overpayment amount from July 1, 2014 through September 20, 2019
and February 3 through August 15, 2020 as $16,873.21. It noted that, as she received a schedule
award from July 21, 2019 through February 2, 2020, this period was not affected by the FERS
offset. OWCP indicated that from July 1 until November 30, 2014 the amount of the overpayment
was $1,195.42; from December 1, 2014 to November 30, 2015 the amount of the overpayment
was $2,901.15; from December 1, 2015 to November 30, 2016 the amount of the overpayment
was $2,909.10; from December 1, 2016 to November 30, 2017 the amount of the overpayment
was $2,908.37; from December 1, 2017 to November 30, 2018 the amount of the overpayment
was $2,966.13; from December 1, 2018 to July 20, 2019 the amount of the overpayment was
$2,146.13; and from February 3 to August 15, 2020 the amount of the overpayment was $1,846.93.
On September 1, 2020 OWCP issued a preliminary overpayment determination that
appellant had received an overpayment of compensation, for which she was without fault, in the
amount of $16,846.93 because she concurrently received SSA age-related retirement benefits and
FECA wage-loss compensation for the periods July 1, 2014 through September 20, 2019 and
February 3 through August 15, 2020. It provided an overpayment calculation and found that she
was without fault in the creation of the overpayment. 5 OWCP requested that appellant submit a
completed overpayment recovery questionnaire (Form OWCP-20). It further requested that she
provide supporting financial documentation, including copies of income tax returns, bank account
statements, bills, pay slips, and any other records to support income and expenses. Additionally,
OWCP provided appellant with an overpayment action request form and further notified her that,
within 30 days of the date of the letter, she could request a telephone conference, a final decision
based on the written evidence, or a pre-recoupment hearing.
On September 11, 2020 appellant requested a pre-recoupment hearing before a
representative of OWCP’s Branch of Hearings and Review regarding possible waiver of recovery
of the overpayment. The hearing was held on January 6, 20201.
In a Form OWCP-20 dated January 21, 2021, appellant listed her monthly income as
consisting of $1,192.00 in SSA benefits and $16.73 in state or local welfare payments. Her
monthly expenses were listed as $704.81 for rent or mortgage; $400.00 for food; $100.00 for
clothing; $240.00 for utilities; and $100.00 for other expenses. Appellant’s assets included $10.00
in cash on hand, a checking account balance of $8,081.46 and a savings account balance of
$10,008.70. No supporting financial documentation was received.
By decision dated February 23, 2021, OWCP’s hearing representative finalized the
preliminary overpayment determination that appellant had received an overpayment of
compensation, for which she was without fault, because she had received FECA wage -loss
compensation benefits concurrently with SSA retirement benefits. He modified the total
5

The Board notes that OWCP’s overpayment calculation included in its preliminary overpayment determination of
September 1, 2020 reflected a total overpayment amount of $16,873.21.

3

overpayment amount to $16,873.21 for the periods July 1, 2014 through July 20, 2019 and
February 3 through August 15, 2020. The hearing representative noted that appellant’s assets of
$18,090.16 exceeded the resource base of $6,200.00 and therefore she did not meet hardship
criteria and recovery of the overpayment would not defeat the purpose of FECA. He further noted
that she had not submitted documentation supporting her income and expenses. However, the
hearing representative concluded that minimum collection guidelines would not collect the debt
promptly as she was currently receiving $4.29 in net compensation on the periodic rolls every 28
days. In this regard, he indicated that appellant’s monthly income included $1,192.00 in SSA agerelated retirement benefits plus $16.73 in state assistance, for a total income of $1,208.73. As
appellant had expenses of $1,544.81, the hearing representative determined that they exceeded her
income by $336.08. However, he noted that appellant had $8,081.46 in her checking account and
$10,008.70 in her savings account, for a total of $18,090.16 in her bank accounts. As to appellant’s
continuing compensation payments, and the recovery of the overpayment, the hearing
representative stated: “The claimant is being paid $4.29 in net compensation benefits on the
periodic roll and paying the overpayment at $1.07 ($4.29 x 25% = $1.07) every 28 days would not
collect the debt promptly.” He concluded therefore that, as appellant’s assets exceeded the
overpayment, she should repay the overpayment in full, immediately.6
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA 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.7 Section 8116 limits the right of an employee to receive compensation. While an employee
is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from
the United States. 8
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA age-related retirement benefits that are attributable to
federal service of the employee. 9 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit.10

6

With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing
those cases where OWCP seeks recovery from continuing com pensation benefits under FECA. As the hearing
representative required recovery in full, the Board does not have jurisdiction with respect to the recovery of the
overpayment under the Debt Collection Act. See T.C., Docket No. 21-0612 (issued December 2, 2021); R.W., Docket
No. 18-1059 (issued February 6, 2019); Cheryl Thomas, 55 ECAB 610 (2004).
7

5 U.S.C. § 8102(a).

8

Id. at § 8116.

9

20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802
(issued August 20, 2018).
10

FECA Bulletin No. 97-09 (issued February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

4

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$16,873.21 for the periods July 1, 2014 through July 20, 2019 and February 3 through April 15,
2020, for which she was without fault, because she concurrently received SSA age-related
retirement benefits and FECA wage-loss compensation for that period without appropriate offset.
The record indicates that, while appellant was receiving wage-loss compensation under
FECA, she also received SSA age-related retirement benefits attributable to her federal service
during the relevant period. A claimant cannot concurrently receive FECA wage-loss compensation
and SSA age-related retirement benefits attributable to federal service without an appropriate
offset.11 Consequently, the fact of the overpayment has been established.
To determine the amount of the overpayment, the portion of SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA on
July 29, 2020 with respect to the specific amount of SSA age-related retirement benefits that were
attributable to federal service. The SSA provided the SSA age-related retirement benefit rates with
FERS and without FERS for specific periods from July 2014 through December 2019. In a FERS
offset overpayment calculation worksheet dated August 31, 2020, OWCP calculated appellant’s
total overpayment amount from July 1, 2014 through September 20, 2019 and February 3 through
August 15, 2020 as $16,873.21, noting that, as she received a schedule award from July 21, 2019
through February 2, 2020, this period was not affected by the FERS offset.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
periods July 1, 2014 through September 20, 2019 and February 3 through August 15, 2020 finds
that an overpayment of compensation in the amount of $16,873.21 was created. 12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless 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. 13 The waiver or refusal to waive an overpayment of compensation by OWCP is a
matter that rests within OWCP’s discretion pursuant to statutory guidelines. 14
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.436
to 10.438 of OWCP’s regulations. 15 Section 10.436 provides that recovery of an overpayment
would defeat the purpose of FECA if recovery would cause hardship because the beneficiary needs
substantially all of his or her income (including compensation benefits) to meet current ordinary
11

See D.M., Docket No. 19-1369 (issued June 30, 2020).

12

See L.W., supra note 9; L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued
June 21, 2018).
13

5 U.S.C. § 8129.

14

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

15

20 C.F.R. §§ 10.436-10.438.

5

and necessary living expense, and, also, if the beneficiary’s assets do not exceed a specified amount
as determined by OWCP from data provided by the Bureau of Labor Statistics. 16
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt
and when an individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 17 OWCP’s procedures
provide that, to establish that a valuable right has been relinquished, an individual must
demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and
that his or her action was based primarily or solely on reliance on the paym ent(s) or on the notice
of payment. 18
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
and no further request for waiver shall be considered until the requested information is furnished. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
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. 20 In order to establish
that, recovery of the overpayment would defeat the purpose of FECA, appellant must show that
she requires substantially all of her income to meet current ordinary and necessary living expenses
and that her assets do not exceed the established limit as determined by OWCP procedures. 21 It
considered her financial information, as reported in her completed Form OWCP-20, to determine
if recovery of the overpayment would defeat the purpose of FECA. Appellant did not submit any
supporting financial documentation.

16
Id. at § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a.(3) (September 2020). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a.(2).
17

Id. at § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

18

Supra note 16 at Chapter 6.400.4(c)(3) (September 2020).

19

20 C.F.R. § 10.438.

20

Id. at § 10.436.

21

D.M., Docket No. 19-1311 (issued February 4, 2020); supra note 15.

6

The Board finds that OWCP properly determined that appellant’s assets of $18,090.16
exceeded the relevant resource base of $6,200.00 for an individual as provided in OWCP’s
procedures. 22 Additionally, the evidence of record does not demonstrate that recovery of the
overpayment would be against equity and good conscience. Appellant did not submit any evidence
that she relied upon the incorrect payments to her detriment or that she would experience severe
financial hardship attempting to repay the debt. 23
As appellant has not established that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery. 24
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$16,873.21, during the periods July 1, 2014 through July 20, 2019 and February 3 through
April 15, 2020, for which she was without fault, as she concurrently received SSA a ge-related
retirement benefits and FECA wage-loss compensation benefits without proper offset. The Board
further finds that OWCP properly denied waiver of recovery of the overpayment.

22

See supra note 16 at Chapter 6.400.4.a.(2) (September 2020).

23

See supra note 16 at Chapter 6.400.4a.(3) (September 2020); D.M., supra note 21.

24

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, CINCINNATI BULK
MAIL CENTER, Cincinnati, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1048
Issued: December 10, 2010

Case Submitted on the Record

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

JURISDICTION
On March 1, 2010 appellant filed a timely appeal of a November 17, 2009 merit decision
which affirmed the denial of her claim. 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 established that her right upper extremity conditions are
causally related to factors of her federal employment.

FACTUAL HISTORY
On January 2, 2009 appellant, then a 37-year-old mail handler, filed an occupational
disease claim alleging that she became aware that pain and tingling symptoms from her right
hand to her neck were caused by repetitive motion of light-duty rewrap. She did not stop work.
In support of her claim, appellant submitted a January 20, 2009 note from Dr. Thomas E.
Shockley Jr., a Board-certified orthopedic surgeon, who noted that appellant was seen on
September 9, 2008 “for her right extremity.”
By decision dated March 9, 2009, the Office denied appellant’s claim on the grounds that
she did not establish that she sustained a medical condition causally related to the accepted
factors of her federal employment.
The Office received additional medical evidence. On September 9, 2008 Dr. Shockley
reported that appellant had pain in her right upper extremity, numbness in her hand and tingling
up into her arm. He noted that she performed repetitive activities at work where she had to
bundle mail with tape, wrap and tear. Dr. Shockley concluded that he would recommend an
electromyogram (EMG) study to rule out radiculopathy or carpal tunnel. A September 12, 2008
EMG study of appellant’s right upper extremity was interpreted as within normal limits by
Dr. Timothy Flenner, Board-certified in physical medicine.
In an April 3, 2009 progress report, Dr. Shockley noted that appellant’s right arm
symptoms had increased. He recommended a repeat EMG evaluation, noting that he was
concerned that appellant at least had a strain, which had persisted. Appellant underwent a repeat
EMG evaluation on May 1, 2009 which was interpreted by Dr. Ayse L. Lee-Robinson, Boardcertified in physical medicine, as revealing mild ulnar mononeuropathy at the right elbow,
consistent with mild cubital tunnel syndrome and suspicious for overlying subacute cervical
radiculopathy. On May 12, 2009 Dr. Shockley reported that the recent EMG evaluation revealed
evidence of C7 greater than C6 cervical radiculopathy, with some changes in the ulnar nerve
consistent with cubital tunnel syndrome of the right upper extremity. He also noted that x-rays
of appellant’s cervical spine showed calcification of her cervical spine at C4-5, with disc
narrowing.
On July 7, 2009 Dr. Shockley reported that a recent MRI scan was within normal limits,
but that appellant had continuing pain over the medial epicondyle. Appellant performed
repetitive work and he opined “I think that at this point if we can decrease the amount of
repetitive activities at work that could help her.”
On August 26, 2009 appellant requested reconsideration and submitted additional
medical reports. A May 28, 2009 MRI scan of her cervical spine was interpreted by Dr. Charles
Henne Kuntz, a Board-certified radiologist, as a normal scan, with no change from a prior MRI
scan dated September 7, 2007.
On September 23, 2009 the Office asked Dr. Shockley to provide further information.
Dr. Shockley was asked to review a statement of accepted facts and submit a narrative report

2

which addressed all diagnosed medical conditions affecting appellant’s right arm, detailing
objective findings, and an opinion as to which diagnosed condition was causing her radicular
symptoms. He was also asked to provide a well-reasoned opinion as to whether appellant’s work
exposure as a modified mail handler, which she performed for four hours a day, five days a
week, caused or contributed to the development of each diagnosed condition.
On October 20, 2009 Dr. Shockley responded that, while appellant’s May 28, 2009 MRI
scan was reported as normal, a subsequent EMG did show changes within the C6-7 nerve root
consistent with cervical radiculopathy. Appellant’s symptoms of radicular-type pain radiating
into her upper extremity were in line with the EMG findings. Regarding her work duties,
Dr. Shockley noted that appellant continued to perform repetitive activities and the more she did,
the worse she felt. He also noted that appellant had a component of lateral epicondyle tenderness
as she had tenderness directly over the lateral epicondyle.
By decision dated November 17, 2009, the Office noted that the diagnosis of cervical
radiculopathy had been established. It affirmed the denial of appellant’s claim finding that the
medical evidence did not establish causal relation between the diagnosed condition and
appellant’s work exposure.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, 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.1
The evidence required to establish causal relationship is rationalized medical opinion
evidence, based upon a complete and accurate factual and medical background, showing a causal
relationship between the claimed conditions and the identified factors. The belief of appellant that
the condition was caused or aggravated by the identified factors is not sufficient to establish causal
relation.2
ANALYSIS
The Office has accepted that appellant performed rewrap duties for four hours a day, five
days a week and that she was diagnosed with cervical radiculopathy. The Board finds that
appellant has not met her burden of proof to establish that her rewrap duties caused her
diagnosed medical condition.
The medical evidence submitted in support of appellant’s claim consists of EMG and
MRI scan studies, and progress notes from Dr. Shockley. The MRI scan studies of appellant’s
1

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

2

Lourdes Harris, 45 ECAB 545 (1994).

3

cervical spine on September 7, 2007 and May 28, 2009 were both within normal limits and
showed no change from one study to the next. A September 12, 2008 EMG study of appellant’s
right extremity was normal, but on May 1, 2009 appellant underwent a repeat study which was
interpreted by Dr. Shockley as revealing C6-7 cervical radiculopathy. On September 23, 2009
the Office prepared a statement of accepted facts and asked that Dr. Shockley state his diagnosis
of appellant’s condition, and explain with medical rationale how her work duties caused or
contributed to the diagnosed condition. Dr. Shockley noted only that appellant continued to do
repetitive activities and the more she did, the worse she felt. He did not offer any explanation as
to how the specific duties outlined by the Office in the statement of accepted facts
physiologically caused cervical radiculopathy. In lieu of a medical opinion, Dr. Shockley’s
report is of limited probative value.3
Regarding the condition of lateral epicondyle tenderness, the Board finds that
Dr. Shockley did not support this diagnosis with objective findings and offered no explanation as
to whether appellant’s employment duties would cause this condition.
An award of compensation may not be based on surmise, conjecture or speculation. The
Board has held that the fact that a condition manifests itself or worsens during a period of
employment4 or that work activities produce symptoms revelatory of an underlying condition5
does not raise an inference of causal relationship between a claimed condition and employment
factors.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish causal
relationship between her right upper extremity conditions and factors of her federal employment.

3

See Mary Lou Barragy, 46 ECAB 781 (1995); Henry Bond, 35 ECAB 512 (1984).

4

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

5

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 17, 2009 be affirmed.
Issued: December 10, 2010
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