United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Federal Way, WA, Employer
__________________________________________

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Appearances:
Rainer Brown, for the appellant
Office of Solicitor, for the Director

Docket No. 14-855
Issued: August 27, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 4, 2014 appellant, through his representative, filed a timely appeal from the
January 28, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained additional left hip and knee conditions caused or aggravated by his established
employment factors; and (2) whether appellant met his burden of proof to establish that his left
hip and knee surgery were warranted as a consequence of his accepted employment injury or
other factors of his federal employment.
On appeal, appellant’s representative contends that OWCP improperly referred appellant
to a second opinion examination as appellant had provided medical evidence from physicians
1

5 U.S.C. § 8101 et seq.

who found that his left knee and hip conditions were aggravated by his work duties. Appellant
contends that the opinion of OWCP’s referral physician was not independent as he is an
employee of MES Solutions and OWCP is a client of the service company. Appellant’s
representative asserts that there is a conflict in medical opinion between the second opinion
physician and appellant’s attending physicians and that appellant should have been referred to an
impartial medical specialist.
FACTUAL HISTORY
OWCP accepted that appellant, then a 59-year-old mail handler, sustained temporary
aggravation of osteoarthritis of the patellofemoral joint on the left knee due to standing, walking,
pushing over-the-road containers and in-house containers, using a can-puller at inbound and
carrying nonmoving objects at work.
On April 9 and 23 and May 7, 2013 appellant filed claims for compensation for leave
without pay (Form CA-7) from April 5 through May 24, 2013. On March 18, 2013 he requested
that his left hip condition be added to his claim.
In duty status reports (Form CA-17) dated February 28 and March 26, 2013,
Dr. Steven M. Teeny, an attending Board-certified orthopedic surgeon, diagnosed severe left hip
degeneration and left knee degenerative joint disease. He listed appellant’s restrictions and
advised that he was not able to perform his regular work duties. In narrative reports and a
follow-up note dated February 28, 2013, Dr. Teeny noted appellant’s complaints of severe pain
in his left knee, groin and lateral hip. He obtained a history of appellant’s medical treatment,
family and social background. Dr. Teeny stated that appellant’s symptoms had been present for
years and were significantly aggravated by his job, which involved constant walking, standing,
lifting, prolonged weight-bearing and twisting activities. He listed findings on physical and
x-ray examination. Dr. Teeny diagnosed osteoarthritis of the left leg and pelvis that required a
total hip replacement first followed by a total knee replacement. He believed that some of
appellant’s knee pain was due to the referred hip pain. Dr. Teeny advised that appellant’s hip
degeneration had been a long-standing progressive process which worsened his knee pain. In a
March 26, 2013 follow-up note, he reiterated the diagnoses of left knee and hip osteoarthritis. In
a report also dated Mach 26, 2013, Dr. Teeny advised that appellant could return to
modified-duty work on April 1, 2013 with restrictions.
By letter dated April 9, 2013, OWCP referred appellant for a second opinion evaluation
with Dr. Lee A. McFadden, a Board-certified orthopedic surgeon, for May 3, 2013 at 3:45 p.m.
by MES Solutions.
In an April 23, 2013 Form CA-17 report, Dr. Teeny reiterated his prior diagnoses of left
knee and hip degenerative joint disease.
In an April 23, 2013 report, Tiffany Crabb, a physician’s assistant, listed findings on
physical examination and diagnosed osteoarthritis of the left leg and pelvis.
In an April 25, 2013 report, Dr. John R. Replogle, a Board-certified internist, stated that
he reviewed appellant’s x-rays and medical history. He noted that appellant had been evaluated

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for severe patellofemoral osteoarthritis and referenced his current open claim under
File No. xxxxxx921 for this condition. Dr. Replogle advised that recent radiographs showed
severe osteoarthritis of the left hip, which had progressed markedly since prior films taken in
2005. He opined that it was more probable than not that this related to appellant’s work at the
employing establishment. Dr. Replogle concluded that appellant would likely need a total left
hip replacement.
In a May 3, 2013 report, Dr. McFadden reviewed the medical record and statement of
accepted facts. He listed a history of appellant’s medical treatment, family, social and
employment background. Dr. McFadden noted that appellant was honorably discharged from
the Army with a 90 percent service-related disability. Appellant underwent arthroscopic surgery
on both knees in 1981. He had restrictions regarding activities of daily living, walking,
climbing, kneeling, bending, stooping, twisting, pushing and pulling. Dr. McFadden noted
appellant’s complaints of left knee and hip pain. On physical examination, he reported that
appellant had an antalgic gait. Appellant used a cane for ambulation and had a shortened stance
phase on the left compared to the right. He was unable to stand independently on the left side
secondary to pain. Appellant demonstrated significant limitations in range of motion secondary
to pain at both the hip and knee, which made an accurate assessment of ranges of motion
somewhat problematic. He could flex his hip to approximately 60 degrees before a significant
report of pain. Appellant could bend the knee to approximately 110 degrees. He had 10 degrees
short of frill extension at the knee. Abduction was to 30 degrees with significant discomfort.
Adduction was to five degrees. Internal rotation was at -10 degrees. External rotation was
minimal with perhaps 5 degrees more external rotation from a relatively fixed position of 15
degrees of external rotation. There was palpable crepitation in the patellofemoral joint with the
elicited limited range of motion. There was no ligamentous laxity about the left knee. Appellant
had a negative Lachman’s test and no vans or valgus instability with vans and valgus stressing at
20 degrees of flexion.
Dr. McFadden advised that appellant had end-stage osteoarthritic changes of the left
knee, primarily involving his patellofemoral joint. He also had bone-on-bone involvement of the
tibiofemoral joint as evidenced on his lateral view. This was substantiated by objective findings
and appellant’s subjective complaints. Dr. McFadden advised that he had severe end-stage
osteoarthritis of the left hip, as evidenced by severe loss of joint space, a subchondral cyst
formation, lateralization of the femoral head, curtain osteophyte formation over the cotyloid
fossa and severe limitations in range of motion. He stated that appellant’s left hip condition was
not precipitated by his accepted left knee condition. Dr. McFadden related that appellant’s
condition should only be added if the overall perception was that his activities as a mail carrier
and mail handler had any substantive role in the progression of his arthritis. If this were accepted
as a medical fact, then the same precipitating factors that contributed to appellant’s degenerative
changes in his knee would have contributed to degenerative changes in his hip. Dr. McFadden
opined that appellant had a long-standing history of ongoing issues with his knees and hip with
significant disability associated with his retirement from the Army for arthritic conditions. He
opined that the natural progression of the disease process in the knee and hip had certainly been
more symptomatic for appellant due to his mail carrier and mail handler activities. However,
Dr. McFadden stated that it was unlikely on a more probable than not basis that these activities
made any significant structural difference in the development of his osteoarthritis or the
progression of his condition. He related that individuals who had significant degenerative
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changes involving their joints were likely to have more symptoms if they needed to put higher
loads on these joints. Common sense indicated that, if one had an arthritic knee and walked on it
a lot, it would tend to hurt more. Dr. McFadden advised that this was appellant’s condition, as
he had preexisting and unrelated arthritic changes of his joints. Appellant’s occupational choice
to become a mail carrier at the employing establishment was not the best option for someone
who already had symptomatic arthritic joints.
Dr. McFadden stated that it was unlikely that appellant’s occupational exposures made
any significant difference in the natural progression of his disease process. He agreed that
appellant’s workplace tolerances would be likely significantly impacted by his ongoing hip and
knee arthritic changes, however, this was not the natural history of everyone that worked at the
employing establishment. Dr. McFadden opined that it was more probable than not that neither
appellant’s hip nor knee condition was causally related to his occupational exposures at the
employing establishment. Appellant had pain due to his preexisting arthritis that he walked on
every day. He would still have arthritis even if he did not walk on it, it would just hurt less.
Dr. McFadden related that more pain with more weight bearing represented the natural history of
his disease process and did not represent either a temporary or permanent aggravation of the
underlying disease process by his occupational exposures at work. He recommended hip and
knee arthroplasty with the hip being done first followed by the knee.
In an undated letter, the employing establishment stated that it had no work available
within Dr. Teeny’s March 26, 2013 restrictions.
In a May 22, 2013 decision, OWCP denied appellant’s claim for compensation for the
period April 5 to May 22, 2013. It found that the medical evidence of record was insufficient to
establish his left hip condition or temporary aggravation of his left knee condition causally
related to his accepted employment-related injury. OWCP also found that the medical evidence
did not establish appellant’s inability to work from April 5 to May 22, 2013 due to the accepted
injury.
On June 6, 2013 appellant requested a review of the written record by an OWCP hearing
representative.
In a November 26, 2013 decision, an OWCP hearing representative reversed in part and
set aside in part the May 22, 2013 decision. She found that the factual and medical evidence was
sufficient to establish appellant’s entitlement to wage-loss compensation for the period April 5 to
May 22, 2013. The hearing representative found that the issue in the case was whether
appellant’s left hip condition should be accepted as causally related to his employment activities,
not whether it was related to or precipitated by his employment-related left knee condition. She
noted that OWCP did not ask Dr. McFadden to determine whether appellant’s left hip and knee
osteoarthritis were causally related through aggravation, precipitation or exacerbation and if so,
whether the conditions were permanently or temporarily aggravated, precipitated or exacerbated.
The hearing representative found that Dr. McFadden’s report was of diminished probative value
in determining causal relationship between appellant’s left knee and hip osteoarthritis and his
employment as OWCP failed to properly identify the issues to be addressed. She noted evidence
submitted by appellant’s representative which indicated that Dr. McFadden was not a Boardcertified orthopedic surgeon as indicated in OWCP’s decision. On remand, the hearing

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representative instructed OWCP to contact MES Solutions to determine his professional
qualifications. She also instructed OWCP to rewrite the statement of accepted facts to reflect
that appellant filed an occupational disease claim and not a traumatic injury claim. If it was
determined that Dr. McFadden was a Board-certified orthopedic surgeon, then OWCP should
request an addendum report from him and, if not, then a new second opinion examination should
be arranged to determine whether the medical and factual evidence demonstrated that appellant’s
left knee and/or left hip osteoarthritis was causally related to his employment activities and
whether his left knee and/or left hip replacement surgery was necessitated as a result of any
employment-related conditions.2
On December 26, 2013 OWCP requested that Dr. McFadden review a corrected
statement of accepted facts and provide a supplemental report to clarify his opinion as to whether
appellant’s left knee and hip osteoarthritis were causally related to his employment duties and
whether the proposed left knee and hip replacement surgeries were causally related to any
employment-related conditions. Appellant was also asked to list his work restrictions.
On January 8, 2014 Dr. McFadden advised that the medical and factual evidence did not
demonstrate that appellant’s left hip and knee osteoarthritis were causally related to his mail
handler employment activities. He further advised that the proposed hip and knee replacement
surgeries were not causally related to appellant’s occupational exposures as a mail carrier. There
was no convincing evidence that occupational exposures (increased levels of physical activity)
caused any statistically significant increase in the rates of symptomatic osteoarthritis. The
largest longitudinal study in the literature regarding osteoarthritis progression (the Framingham
study) extrapolated multiple subsequent studies using the data collected over 40 years. This data
suggested a significant correlation with the progression of osteoarthritis with the female gender,
advancing age, obesity and prior surgery.
Dr. McFadden stated that appellant had a significant past medical history of arthroscopic
interventions on both knees in the early 1980s and significant symptomatic arthritis at the time of
his discharge from the Army culminating in 90 percent disability. Appellant also had significant
preexisting and ongoing risk factors that placed him at an extremely high risk of progression to
symptomatic osteoarthritis. The rate of progression had been quoted as approaching five percent
per year after the age of 40. This percentage was applicable to the most high risk individuals.
The categories were upper third of weight for age (for appellant this was greater than
195 pounds) or prior history of knee surgery. Dr. McFadden related that appellant had both of
these risk factors, as he weighed 255 pounds and had surgery on both knees prior to working at
the employing establishment. Appellant also had a past history of 90 percent disability for
arthritis from the Army at time of retirement. Dr. McFadden stated that there was a correlation
from the Framingham study data to suggest that the development of radiographic osteoarthrosis
(bone spurs and joint space narrowing) could be associated with occupations that required
frequent deep knee bending, however, there was no statistically significant correlation with the
development of symptomatic arthritis. Joint replacement surgery was not undertaken for x-ray
changes or findings in the absence of symptoms. Appellant had preexisting and unrelated
2

CA-17 form reports dated November 18 and December 21, 2013 contained an illegible signature. The reports
stated that appellant had left knee degenerative joint disease and was not able to perform his regular work.
Appellant’s physical restrictions were listed.

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symptomatic osteoarthritis and preexisting unrelated ongoing risk factors that included obesity
and prior surgery on his knees.
Dr. McFadden reiterated that being a postal worker was a poor occupational choice for an
individual with preexisting and unrelated osteoarthritis since it was a virtual certainty that
symptoms would be provoked in an occupation that required prolonged standing, walking,
pushing, pulling and carrying. However, provocation of pain did not equate to direct causation,
permanent aggravation, acceleration or precipitation. Dr. McFadden stated that appellant’s
progression to symptomatic end-stage osteoarthritic changes represented the natural progression
of the disease process and was not causally related, on a more probable than not basis, to his
occupational exposures as a postal worker. His current work limitations were based on his
preexisting disease process and the natural progression of this disease process over time, on a
more probable than not basis.
In a January 28, 2014 decision, OWCP denied appellant’s request to expand his claim to
include left hip and knee conditions and request for authorization to undergo left hip and knee
replacement surgeries. It found that Dr. McFadden’s January 8, 2014 report represented the
weight of the medical evidence in establishing that his left hip condition and proposed left hip
and knee surgeries were not causally related to his established work duties.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty and must be supported by
3

Id.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

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medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.6 Neither the fact that appellant’s
condition became apparent during a period of employment nor, his or her belief that the
condition was caused by his or her employment is sufficient to establish a causal relationship.7
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 of Labor, considers likely to cure, give relief, reduce the degree or the period of
disability or aid in lessening the amount of monthly compensation.8 While OWCP is obligated
to pay for treatment of employment-related conditions, the employee has the burden of
establishing that the expenditure is incurred for treatment of the effects of an employment-related
injury or condition.9 To be entitled to reimbursement of medical expenses, a claimant has the
burden of establishing that the expenditures were incurred for treatment of the effects of an
employment-related injury or condition. Proof of causal relationship in a case such as this must
include supporting rationalized medical evidence.10 In order for a surgical procedure to be
authorized, a claimant must submit evidence to show that the surgery is for a condition causally
related to an employment injury and that it is medically warranted. Both of these criteria must be
met in order for OWCP to authorize payment.11
ANALYSIS -- ISSUES 1 & 2
OWCP previously accepted appellant’s occupational disease claim for temporary
aggravation of osteoarthritis of the patellofemoral joint on the left knee due to his mail handler
work duties. It denied his claim for the acceptance of additional injuries on the grounds that the
evidence failed to establish a causal relationship between the accepted employment factors and
his diagnosed conditions. The Board finds that the medical evidence of record is insufficient to
establish that appellant developed left hip and knee conditions caused or aggravated by the
accepted work factors.
The Board finds that the weight of the medical evidence rests with the opinion of
Dr. McFadden, an OWCP referral physician Board-certified in orthopedic surgery. In a report
dated May 3, 2013, Dr. McFadden reviewed the statement of accepted facts and medical record.
He provided a history of appellant’s medical treatment, family and social background.
Dr. McFadden noted appellant’s complaints of left knee and hip pain. He listed findings on
examination and diagnosed end-stage osteoarthritic changes of the left knee primarily in the
6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id. at 351-52.

7

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

8

5 U.S.C. § 8103; see L.D., 59 ECAB 648 (2008).

9

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

10

M.B., 58 ECAB 588 (2007).

11

See also J.H., Docket No. 12-1950 (issued February 13, 2013); R.C., 58 ECAB 238 (2006).

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patellofemoral joint, bone-on-bone involvement of the tibiofemoral joint and severe end-stage
osteoarthritis of the left hip. Dr. McFadden found that it was more probable than not that
appellant’s left hip and knee osteoarthritis were not causally related to the accepted employment
duties. He recommended hip and knee arthroplasty. OWCP asked Dr. McFadden to clarify
whether appellant’s left knee and hip osteoarthritis were causally related to his accepted
employment duties and whether the proposed left knee and hip replacement surgeries were
causally related to any employment-related conditions. In a report dated January 8, 2014,
Dr. McFadden opined that the medical and factual evidence did not demonstrate that appellant’s
left hip and knee osteoarthritis and proposed left hip and knee replacement surgeries were caused
by the accepted employment factors. He explained that there was no convincing evidence that
occupational exposures caused any statistically significant increase in the rates of symptomatic
osteoarthritis. Dr. McFadden referenced the Framingham study and stated that appellant had
significant preexisting and ongoing risk factors, such as obesity, prior knee surgeries and 90
percent military service-related disability for arthritis, which placed him at an extremely high
risk of progression to symptomatic osteoarthritis. While data from the Framingham study
suggested a correlation that, the development of radiographic osteoarthrosis could be associated
with occupations that required frequent deep knee bending, there was no statistically significant
correlation with the development of symptomatic arthritis. He related that joint replacement
surgery was not undertaken for x-ray changes or findings in the absence of symptoms.
Dr. McFadden noted that being a postal worker would provoke appellant’s symptoms as it
required prolonged standing, walking, pushing, pulling and carrying, but stated that provocation
did not equate to direct causation, permanent aggravation, acceleration or precipitation. He
concluded that appellant’s end-stage osteoarthritis which represented the natural progress of the
disease process was not causally related to the accepted employment factors and that his current
work limitations were related to his preexisting disease process and the natural progress of this
disease process over time on a more probable than not basis. The Board finds that
Dr. McFadden provided adequate rationale in support of his conclusions.
The Board finds that OWCP properly deferred to Dr. McFadden’s opinion.
Dr. McFadden provided detailed reports that were based on a complete factual and medical
background and he supported his opinion with medical rationale. The Board finds that his
opinion represents the weight of the medical evidence in this case.
Dr. Replogle’s April 25, 2013 report found that appellant’s severe osteoarthritis of the
left hip was more probable than not related to his employment. He advised that appellant would
likely need a total left hip replacement. Dr. Replogle’s opinion is speculative and does not
establish causal relationship. He did not provide adequate medical rationale explaining how the
diagnosed left hip condition which required surgery was caused or aggravated by the accepted
employment duties.12 The Board finds that Dr. Replogle’s opinion is insufficient to discharge
appellant’s burden of proof.
Dr. Teeny’s reports found that appellant had severe left hip degeneration, left knee
degenerative joint disease and osteoarthritis of the left leg and pelvis. He further found that
appellant was unable to perform his regular work duties. However, Dr. Teeny did not provide a
12

See K.W., Docket No. 10-98 (issued September 10, 2010).

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narrative opinion on causal relation. Medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relation.13 The Board finds that Dr. Teeny’s reports are of limited probative value as he
did not adequately explain the causal relationship of the diagnosed left hip and knee conditions
and resultant disability and the accepted employment duties.
The April 23, 2013 report of Ms. Crabb, a physician’s assistant, has no probative value in
establishing that the diagnosed osteoarthritis of the left leg and pelvis were causally related to the
accepted employment duties.14 A physician’s assistant is not a physician as defined under
FECA.
The CA-17 form reports dated November 18 and December 21, 2013 which contained an
illegible signature also have no probative value in establishing a causal relationship between the
diagnosed left knee degenerative joint disease conditions that required surgery and the accepted
employment duties. Reports that are unsigned or bear illegible signatures, lack proper
identification and cannot be considered probative medical evidence.15
On appeal, appellant’s representative contended that OWCP improperly referred
appellant to a second opinion examination without cause as appellant had provided medical
evidence from physicians who found that his left knee and hip conditions were aggravated by his
work duties. Alternatively, he contended that there was a conflict in medical opinion between
Dr. McFadden and appellant’s attending physicians and that OWCP should have referred
appellant to an impartial medical specialist. As discussed above, appellant did not submit
probative medical evidence that was sufficiently rationalized to establish that he sustained
additional left knee and hip conditions that warranted surgery due to the accepted employment
duties. Dr. McFadden provided a well-reasoned medical opinion explaining that appellant’s left
hip and knee conditions and proposed surgeries were not causally related to the accepted
employment duties.
Appellant’s representative contended that Dr. McFadden’s opinion was not independent
as he is an employee of MES Solutions and OWCP is a client of the same service company. He
further contended that pulling, pushing, twisting and bending while carrying heavy mail 8 to 10
hours a day on a cement floor contributed to appellant’s condition based on Dr. McFadden’s
opinion that his body weight and prior knee surgeries put him at an extremely high risk of
progression to symptomatic osteoarthritis. While Dr. McFadden addressed the mechanism by
which appellant’s work duties could provoke the progression to symptomatic osteoarthritis due
to his risk factors of obesity and prior surgeries, he explained that provocation of pain did not
equate to direct causation, permanent aggravation, acceleration or precipitation. He concluded
that appellant’s left hip and knee conditions and proposed surgeries were not causally related to
the accepted employment duties.

13

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

14

George H. Clark, 56 ECAB 162 (2004).

15

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

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Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review
evidence for the first time on appeal.16 Appellant may submit this or any other new evidence or
argument with a written request for reconsideration to OWCP within one year of this merit
decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant had failed to establish that he sustained additional left hip
and knee conditions caused or aggravated by his established employment factors. The Board
further finds that he has failed to establish that his left hip and knee surgery were warranted as a
consequence of his accepted employment injury or other factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 27, 2014
Washington, DC

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

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

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

16

20 C.F.R. § 501.2(c)(1).

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

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

Docket No. 08-1230
Issued: October 15, 2008

Case Submitted on the Record

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

JURISDICTION
On March 14, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated January 28, 2008 which denied appellant’s
reconsideration request on the grounds that it was untimely filed and failed to establish clear
evidence of error. Because more than one year has elapsed between the last merit decision dated
December 11, 1995 and the filing of this appeal, the Board lacks jurisdiction to review the merits
of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
This is the fifth appeal before the Board. The Office accepted that appellant sustained
tendinitis and de Quervain’s complex of the right hand and wrist and she returned to limited-duty
work on December 29, 1990. In decisions dated April 8 and June 9, 1994, it found that appellant

did not sustain a recurrence of total disability on or after February 19, 1992 due to her accepted
right hand and wrist conditions. The Board issued a decision on December 11, 1995 affirming
the Office’s decisions.1 The Board determined that the reports of appellant’s attending Boardcertified orthopedic surgeons, Dr. Rida N. Azer and Dr. William E. Gentry, did not show that she
sustained such an employment-related recurrence of disability. By decisions dated April 3, 1997,
April 10 and September 29, 1998, June 3, 1999, March 14 and June 23, 2000, February 21 and
May 4, 2001, the Office denied appellant’s request for merit review on the grounds that her
applications for review were not timely filed and failed to present clear evidence of error. In
decisions dated March 17, 20032 and July 13, 2004,3 the Board affirmed the Office’s refusal to
reopen appellant’s case for merit review because her applications for review were not timely
filed and failed to present clear evidence of error.
On May 9, 2005 appellant requested reconsideration of her claim that she sustained a
recurrence of disability due to her accepted right hand and wrist injury. She contended that her
September 4, 2003 reconsideration request was timely because it was filed within one year of the
Board’s March 17, 2003 decision; she argued that her claim should have been reviewed on the
merits. Appellant alleged that the reports of Dr. Azer showed that she had disability after
February 19, 1992 due to her accepted right hand and wrist injury. She submitted an April 27,
2005 report from Dr. Azer, who stated findings on examination, reviewed the medical history
and stated:
“[Appellant] informed me that the injury occurred in 1986 but in 1992 she was
placed on a full-time modified distribution clerk [job] ... with symptoms and
exacerbation[.] [H]er condition was regarded as a ‘recurrence.” It is noted that
[appellant’s] conditions are caused by the work injuries as indicated and that
delay has compromised the outcome inasmuch as she now has atrophy of the
thenar muscles with weakness and exacerbation.... [Appellant] does need the
surgery. At present she has been unable to work and remains so until her
condition has been treated and she has recuperated.
“It is noted that the recurrence occurred when the patient was working full time in
the modified distribution clerk position. [A]ccording to her employer this was a
recurrence. [Appellant] informs me that this date was February 19, 1992.”
In decisions dated January 26, 2006 and March 5, 2007, the Office denied appellant’s
requests for reconsideration without merit review. By decision dated December 12, 2007,4 the
Board set aside the March 5, 2007 Office decision, finding that the Office did not provide
sufficient findings of fact and reasoning to explain its determination that appellant was not
entitled to a review of the merits of her claim. The Board stated that the Office did not
adequately explain why it did not evaluate appellant’s reconsideration request, which addressed
1

Docket No. 95-802 (issued December 11, 1995).

2

Docket No. 01-2038 (issued March 17, 2003).

3

Docket No. 04-545 (issued July 13, 2004).

4

Docket No. 07-1364 (issued December 12, 2007).

2

the merits of her claim that she sustained a recurrence of disability, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. § 10.607. The Board found that the Office did not discuss whether
appellant’s December 2006 reconsideration request was timely or apply the appropriate standard
for evaluating her reconsideration request after making such a determination. It remanded the
case to the Office for a proper evaluation of appellant’s December 2006 reconsideration request
in accordance with 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.607. The facts and the circumstances
of the case are set forth in the Board’s prior decisions and are incorporated herein by reference.
By decision dated January 28, 2008, the Office denied appellant’s request for
reconsideration without a merit review, finding she had not timely requested reconsideration and
had failed to submit factual or medical evidence sufficient to establish clear evidence of error. It
stated that appellant was required to present evidence which showed that the Office made an
error, and that there was no evidence submitted that showed that its final merit decision was in
error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act5 does not entitle an
employee to a review of an Office decision as a matter of right.6 This section, vesting the Office
with discretionary authority to determine whether it will review an award for or against
compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may-(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).7 As one such limitation, the Office has stated
that it will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.8 The Board has found that the

5

5 U.S.C. § 8128(a).

6

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).
7

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by
(1) showing that the Office erroneously applied or interpreted a point of law; or (2) advances a relevant legal
argument not previously considered by the Office; or (3) constituting relevant and pertinent new evidence not
previously considered by the Office. See 20 C.F.R. § 10.606(b).
8

20 C.F.R. § 10.607(b).

3

imposition of this one-year time limitation does not constitute an abuse of the discretionary
authority granted by the Office under 5 U.S.C. § 8128(a).9
In those cases where a request for reconsideration is not timely filed, the Board had held
however that the Office must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.10 Office procedures
state that the Office will reopen an appellant’s case for merit review, notwithstanding the oneyear filing limitation set forth in 20 C.F.R. § 10.607(b), if appellant’s application for review
shows “clear evidence of error” on the part of the Office.11
To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by the Office.12 The evidence must be positive, precise and explicit and
must be manifested on its face that the Office committed an error.13 Evidence which does not
raise a substantial question concerning the correctness of the Office’s decision is insufficient to
establish clear evidence of error.14 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.15 This entails a limited review by the Office of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of the Office.16 To
show clear evidence of error, the evidence submitted must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must be of
sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of the Office’s decision.17 The Board makes
an independent determination of whether an appellant has submitted clear evidence of error on
the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.18
ANALYSIS
The Office properly determined in this case that appellant failed to file a timely
application for review. The last merit decision in this case was dated December 11, 1995.
9

See cases cited supra note 2.

10

Rex L. Weaver, 44 ECAB 535 (1993).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

12

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

13

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

14

See Jesus D. Sanchez, supra note 6.

15

See Leona N. Travis, supra note 13.

16

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

17

Leon D. Faidley, Jr., supra note 6.

18

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

4

Appellant requested reconsideration on December 4, 2006; thus, the reconsideration request is
untimely as it was outside the one-year time limit.
The Board finds that appellant’s December 4, 2006 request for reconsideration failed to
show clear evidence of error. The only new medical report submitted in support of the untimely
request for reconsideration was the April 27, 2005 report from Dr. Azer, whose April 27, 2005
report is of limited probative value as it did not provide a reasoned medical opinion on the
relevant issue, i.e., whether appellant sustained a recurrence of total disability on or after
February 19, 1992 due to her accepted right hand and wrist conditions.
Dr. Azer stated findings on examination, reviewed appellant’s medical history and noted
her complaints of pain. She related that appellant believed she experienced symptoms and
exacerbation of her pain. Dr. Azer indicated generally that appellant’s conditions as of
February 1992 were caused by her accepted work injuries and recommended surgery. However,
her report did not contain an explanation of how appellant’s condition and or disability as of
February 19, 1992 was caused or aggravated by her accepted right hand and wrist conditions and
did not contain any probative, rationalized medical opinion sufficient to prima facie shift the
weight of the evidence in favor of appellant. A review of the medical evidence of record does
not establish that the Office erred in finding that appellant did not sustain a recurrence of her
work-related disability as of February 19, 1992. Further, the report and appellant’s request letter
were cumulative and repetitive of reports and arguments previously rejected by the Board and
the Office. No other evidence was received by the Office. Appellant has failed to demonstrate
clear evidence of error on the part of the Office.
The Office reviewed the evidence appellant submitted and properly found it to be
insufficient to prima facie shift the weight of the evidence in favor of appellant. Consequently,
the evidence submitted by appellant on reconsideration is insufficient to establish clear evidence
of error on the part of the Office such that the Office abused its discretion in denying merit
review. The Board finds that the Office did not abuse its discretion in denying further merit
review.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of the Office in her reconsideration request dated December 4, 2006. Inasmuch as
appellant’s reconsideration request was untimely filed and failed to establish clear evidence of
error, the Office properly denied further review on January 28, 2008.

5

ORDER
IT IS HEREBY ORDERED THAT the January 28, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 15, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.F., Appellant
and
SMITHSONIAN INSTITUTION, OFFICE OF
PUBLIC AFFAIRS, Washington, DC, Employer
__________________________________________

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

Docket No. 19-1019
Issued: November 6, 2019

Case Submitted on the Record

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

JURISDICTION
On April 9, 2019 appellant filed a timely appeal from a November 16, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP has met its burden of proof to reduce appellant’s compensation
benefits to zero based on her actual earnings as a full-time reference librarian.
FACTUAL HISTORY
Appellant, a 59-year-old former public affairs specialist, has an accepted traumatic injury
claim (Form CA-1) for multiple injuries that she sustained from a November 21, 1994 motor
vehicle accident that occurred while in the performance of duty. The claim was accepted for
1

5 U.S.C. § 8101 et seq.

adjustment disorder with depressed mood, calcifying tendinitis of the right shoulder, contusion of
back, shoulder, and upper arm, herpes zoster with other nervous system complications, and other
injury to liver. Appellant stopped work for intermittent periods. OWCP then paid her wage-loss
compensation on the periodic rolls beginning June 16, 2002.
On January 15, 2004 OWCP proposed to reduce appellant’s wage-loss compensation,
finding that the evidence of record established that she was no longer totally disabled from work.
It determined that she had the capacity to earn wages as a secondary school teacher at the rate of
$579.26 per week.
On March 12, 2004 OWCP finalized the proposed reduction of appellant’s wage-loss
compensation, effective March 21, 2004, based on her capacity to earn wages as a secondary
school teacher. It found that the position was medically and vocationally suitable for her and fairly
and reasonably represented her wage-earning capacity.
In a letter dated January 21, 2008, appellant informed OWCP that she had returned to work
full time and was earning a salary commensurate with the salary that she had earned at the time of
her November 21, 1994 employment injury.
In a July 17, 2008 Form CA-1032, appellant indicated that in December 2007 she began
employment as a reference librarian for the Library of Congress.
Appellant continued to receive medical treatment. On an August 23, 2016 Family and
Medical Leave Act health care provider certification form, Dr. William F. Postma, a Boardcertified orthopedic surgeon specializing in sports medicine, noted her medical condition of left
knee meniscal tear and arthrosis and status post arthroscopic surgery. He indicated that appellant
was unable to perform her employment duties of prolonged standing and walking. Dr. Postma
reported that she was disabled from work for the period July 1 to August 1, 2016. The form listed
appellant’s essential job functions as pushing book trucks, shelving and sorting materials,
computer work, movement between three buildings via tunnels (or outdoors), lifting and
transporting materials often oversized. There is no medical evidence in the record from 2017
to 2018.
In a September 10, 2018 letter, a workers’ compensation specialist for the employing
establishment informed OWCP that appellant was a Grade 9, Step 1 when she worked for the
employing establishment. She noted that, according to the 2018 GS pay schedule, the annual rate
of pay was $56,233.00. The workers’ compensation specialist indicated that, according to
appellant’s CA-1032 form, she was currently making $50,400.00 annually in her current position.
Thus, she concluded that appellant was at 89 percent wage-earning capacity.
By decision dated November 16, 2018, OWCP found that appellant had no loss of wageearning capacity (LWEC). It indicated that she had been employed as a reference librarian full
time commencing December 1, 2007 for a period of more than 60 days, with weekly wages of
$1,084.62. Effective September 10, 2018, the current pay rate for appellant’s date-of-injury job
and step when injured was $1,081.40 a week. When rounded to the nearest percentage point as
required by the formula used to determine wage-earning capacity, OWCP found that she had no
LWEC as her current actual earnings were essentially equal to the current pay rate of her date-of-

2

injury position. It further determined that appellant’s reference librarian position met all the
requirements of 20 C.F.R. § 10.510 for a light-duty position.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of the compensation benefits.2 An injured employee who is either unable to return
to the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled from all gainful employment, is considered partially disabled and is entitled to
compensation computed on loss of wage-earning capacity.3
Section 8115(a) of FECA provides that, in determining compensation for partial disability,
the wage-earning capacity of an employee is determined by his or her actual earnings if his or her
actual earnings fairly and reasonably represent his or her wage-earning capacity.4 Generally,
wages actually earned are the best measure of a wage-earning capacity and in the absence of
evidence showing that they do not fairly and reasonably represent the injured employee’s wageearning capacity, must be accepted as such measure.5 Once OWCP determined that the actual
wages of a given position represent an employee’s wage-earning capacity, OWCP applies the
principles developed in the Albert C. Shadrick6 decision, now codified at 20 C.F.R. § 10.403, in
order to calculate the adjustment in the employee’s compensation. Compensation payments are
based on the wage-earning capacity determination, and OWCP’s finding remains undisturbed until
properly modified.7
A light-duty position that fairly and reasonably represents an employee’s ability to earn
wages may form the basis of an LWEC determination if that light-duty position is a classified
position to which the injured employee has been formally reassigned.8 The position must conform
to the established physical limitations of the injured employee; the employing establishment must
have a written position description outlining the duties and physical requirements; and the position
must correlate to the type of appointment held by the injured employee at the time of injury.9 If
2
M.K., Docket No. 17-0208 (issued April 17, 2018); H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58
ECAB 128 (2006).
3

20 C.F.R. § 10.402 and 10.403; J.H., Docket No. 18-1319 (issued June 26, 2019); John D. Jackson, 55 ECAB
465 (2004).
4

5 U.S.C. § 8115(a); B.W., Docket No. 19-0207 (issued August 23, 2019); N.J., 59 ECAB 171 (2007).

5

B.G., Docket No. 17-1763 (issued April 9, 2018); Lottie M. Williams, 56 ECAB 302 (2005).

6

Albert C. Shadrick, 5 ECAB 376 (1953). The formula developed in the Shadrick decision has been codified at 20
C.F.R. § 10.403(d), which provides that the employee’s wage-earning capacity in terms of percentage is obtained by
dividing the employee’s actual earnings or the pay rate of the position selected by OWCP, by the current pay rate for
the job held at the time of the injury.
7

D.M., Docket No. 16-1527 (issued July 25, 2017); Katherine T. Kreger, 55 ECAB 633 (2004).

8

20 C.F.R. § 10.510.

9

Id.

3

these circumstances are present, a determination may be made that the position constitutes regular
federal employment.10 In the absence of a light-duty position as described above, OWCP will
assume that the employee was engaged in noncompetitive, makeshift, or odd-lot employment.11
ANALYSIS
The Board finds that OWCP has not met its burden of proof to reduce appellant’s
compensation benefits to zero based on her actual earnings as a full-time reference librarian.
In December 2007, appellant began employment as a full-time reference librarian for the
Library of Congress. On November 16, 2018 OWCP issued a decision finding that the position
fairly and reasonably represented her wage-earning capacity as she had been performing the
position since December 1, 2007 and had demonstrated the ability to perform the duties of the
modified job for 60 days or more. It noted that the reference librarian position to which appellant
had returned met the criteria of 20 C.F.R. § 10.510 for a light-duty position.
The Board finds, however, that the current record does not establish that the reference
librarian position complied with OWCP’s regulations regarding light-duty job offers as established
in 20 C.F.R. § 10.510. Although the November 16, 2017 decision referenced an August 23, 2016
position description, the evidence of record does not contain such a written position description
outlining the duties and physical requirements of the offered position. Accordingly, the Board is
unable to determine from the evidence of record whether the physical requirements of the position
were within appellant’s medical restrictions.12 As the record is incomplete, the Board finds that
OWCP has not met its burden of proof to reduce her compensation benefits to zero.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to reduce appellant’s
compensation benefits to zero based on her actual earnings as a full-time reference librarian.

10

Id.

11

Id.

12

See W.R., Docket No. 18-1782 (issued May 29, 2019).

4

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 6, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.V., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Mesa, AZ,
Employer
__________________________________________

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

Docket No. 17-0269
Issued: April 4, 2018

Case Submitted on the Record

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

JURISDICTION
On November 15, 2016 appellant filed a timely appeal from an October 20, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his cervical
condition was causally related to the accepted February 25, 2016 employment incident.
FACTUAL HISTORY
On May 9, 2016 appellant, then a 58-year-old Mine Safety and Health Inspector, filed a
traumatic injury claim (Form CA-1) alleging that on February 25, 2016 he injured his neck as he
1

5 USC § 8101 et seq.

climbed down the fixed ladder of a Caterpillar haul truck while in the performance of duty. He
explained that he experienced a sharp pain in his right shoulder that ran down his right arm and
fingers. Appellant stopped work on February 25, 2016 and returned to work on May 4, 2016.
In a May 4, 2016 note, Dr. Naveen Reddy, an anesthesiologist, opined that appellant could
return to light-duty work with restrictions. In a May 12, 2015 note, he indicated that appellant was
unable to work from February 26 to April 10, 2016 due to injury.
In a July 11, 2016 electromyogram (EMG) and nerve conduction velocity (NCV) study,
Dr. Ales Hlubocky, a Board-certified neurologist, noted that appellant had complaints of neck pain
and right upper extremity pain, burning, numbness/tingling, and weakness for the past six months.
He found EMG results consistent with a chronic active right C7 radiculopathy with signs of
ongoing denervation in the corresponding muscles. There was no convincing electrophysiological
evidence of upper extremity mononeuropathy or brachial plexopathy to explain appellant’s
symptoms.
In a July 18, 2016 document titled, “General Discussion of Spinal Surgery,” a provider
with an illegible signature recommended that appellant undergo a cervical discectomy and fusion
at C5-6 and C6-7.
By development letter dated September 19, 2016, OWCP advised appellant that additional
factual and medical evidence was needed to establish his claim. Appellant was advised that he
should provide a narrative medical report from his physician, which contained a detailed
description of findings and diagnoses and the physician’s opinion, supported by medical rationale,
as to how the reported work incident caused or aggravated a medical condition. He was afforded
30 days to submit the requested information.
In a February 25, 2016 emergency department report, Dr. Michael A. Treiman, an
emergency medical specialist, noted appellant’s complaints of right upper back and shoulder pain
radiating into the neck, chest, and right hand and bilateral feet tingling. He noted that symptoms
started three weeks prior and had been constant and became worse since 10:00 a.m. Dr. Treiman
provided an impression of right arm pain and possible rotator cuff injury. Copies of diagnostic
testing were included.
A March 8, 2016 magnetic resonance imaging (MRI) scan report of the cervical spine was
also submitted. This MRI scan noted degenerative changes from C3-C6.
In a May 5, 2016 witness statement, a coworker stated that on February 25, 2015 appellant
was performing an inspection of their maintenance shop and started to complain of shoulder and
arm pain. He stated that appellant asked for and took some Ibuprofen, continued his inspection in
the shop, and then asked if there was an urgent care facility nearby. The coworker indicated that
he gave appellant directions to the urgent care facility and appellant stopped his inspection and
left.
Treatment records from Dr. William R. Stevens, an orthopedic spine surgeon, dated
June 13, July 18, and August 24, 2016 were received. In his June 13, 2016 report, Dr. Stevens
reported the history of illness as ongoing cervical radicular pain since February which had
progressively worsened. He noted that appellant had three cervical epidural injections and
2

hydrocodone, Lyrica, and anti-inflammatories without any relief. Dr. Stevens also reported that
this problem began after a work injury. In his June 18, 2016 report, he noted that appellant had
failed all conservative measures and was considering surgery. Dr. Stevens noted that the EMG
ordered at the last visit showed chronic active right C7 radiculopathy. In his August 24, 2016
report, he provided an impression of cervical radiculopathy C5-6 and C6-7 and noted that surgery
was scheduled.
In an October 3, 2016 statement, appellant indicated that the injury occurred on
February 25, 2016 while he was in the performance of duty. He reported the incident to his
supervisor from the mine site, returned to the field office, and then went to the emergency room
for treatment. Appellant stated that he did not think it would be a serious injury and thought his
accumulated vacation and sick leave would allow him time to recover. However, after the epidural
injections failed, he realized that his condition was serious and he filed a claim.
By decision dated October 20, 2016, OWCP denied the claim finding that the evidence of
record was insufficient to establish that the diagnosed medical condition was causally related to
the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.4 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.5
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The opinion
2

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

3

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

5

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

3

of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medial certainty, and must be supported by medical rationale explaining
the nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
ANALYSIS
OWCP accepted that the February 25, 2016 work incident occurred as alleged. The issue
is whether appellant has met his burden of proof to establish that the incident caused or aggravated
a cervical condition. The Board finds that he has failed to submit sufficient medical evidence to
support a cervical condition causally related to the accepted employment incident.7
On the date of injury appellant sought emergency medical treatment with Dr. Treiman. In
his February 25 2016 report, Dr. Treiman reported that appellant presented to the emergency
department with complaints of right upper back and shoulder pain radiating into the neck, chest
and right hand as well as bilateral feet tingling. He noted that the symptoms started three weeks
earlier, were constant, but had worsened. Dr. Treiman provided an impression of right arm pain
and possible rotator cuff injury. This opinion is not well rationalized. A well-rationalized report
is especially important because Dr. Treiman noted a three-week history of symptoms, suggesting
appellant had evidence of a preexisting condition.8 Dr. Treiman noted a possible rotator cuff
injury, but this diagnosis is speculative and equivocal.9 He did not explain whether the claimed
injury caused or aggravated the diagnosed condition. Neither the fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents, is sufficient to establish causal
relationship.10 A medical opinion should reflect a correct history and offer a medically sound
explanation by the physician of how the specific employment incident physiologically caused or
aggravated the diagnosed conditions.11 As his reports fail to present the necessary medical
rationale, Dr. Treiman’s opinion on causal relationship is insufficiently rationalized to establish
appellant’s claim.12
The medical reports from Dr. Stevens noted that appellant had ongoing cervical radicular
pain since February. Dr. Stevens presented findings on examination and interpretations of
diagnostic studies and provided an impression of cervical radiculopathy at C5-6 and C6-7. This
report, however, is of limited probative value as Dr. Stevens failed to note the history of the

6

Solomon Polen, 51 ECAB 341 (2000).

7

See Robert Broome, 55 ECAB 339 (2004).

8

See S.D., Docket No. 16-0999 (issued October 16, 2017).

9

See T.J., Docket No. 15-0248 (issued March 16, 2016).

10

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

11

See J.M., Docket No. 17-1002 (issued August 22, 2017).

12

See D.R., Docket No. 17-1584 (issued February 8, 2018).

4

accepted February 25, 2016 work incident and did not offer any opinion regarding the cause of
appellant’s condition.13
The other medical reports of record, including Dr. Reddy’s work restrictions notes,
instruction sheets regarding cervical, thoracic, and lumbar epidural steroid injections, the general
discussion of spinal surgery document, and postprocedure discharge instructions, are insufficient
to support appellant’s claim as none of the physicians addressed how appellant’s diagnosed
conditions were caused or aggravated by the accepted February 25, 2016 employment incident.14
The diagnostic testing of record is similarly of diminished probative value and is
insufficient to establish appellant’s claim. Diagnostic test reports are not probative to the issue of
causal relationship as they do not offer any opinion regarding the cause of an employee’s
condition.15
Accordingly, the medical evidence contained in this case record does not provide a wellrationalized medical opinion establishing that the diagnosed cervical condition was causally
related to the accepted February 25, 2016 employment incident. OWCP advised appellant that it
was his responsibility to provide a comprehensive medical report explaining how the diagnosed
medical condition was caused or aggravated by the accepted employment incident. Appellant
failed to submit appropriate medical documentation in response to OWCP’s request.16
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.17 An award of compensation may not
be based on surmise, conjecture, speculation, or upon appellant’s own belief that there was a causal
relationship between his or her condition and his or her employment.18 Causal relationship must
be based on rationalized medical opinion evidence.19 As appellant did not submit a rationalized
medical opinion supporting that his cervical condition was causally related to the accepted
February 25, 2016 employment incident, he did not meet his burden of proof to establish an
employment-related traumatic injury.
On appeal appellant contends that his work requirements/activities of a Mine Safety and
Health Inspector as well as his previous positions in the mining industry clearly establish the causal
relationship of his cervical condition. However, causal relationship is a medical issue and the
13
C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); Jaja K.
Asaramo, 55 ECAB 200 (2004).
14

Id.

15

S.S., Docket No. 16-1760 (issued January 23, 2018).

16
See D.B., Docket No. 16-1219 (issued November 8, 2016); see also T.H., Docket No. 15-0772 (issued
May 12, 2016).
17

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).
18

Patricia J. Glenn, 53 ECAB 159, 160 (2001).

19

M.E., Docket No. 14-1064 (issued September 29, 2014).

5

medical evidence generally required to establish causal relationship is rationalized medical opinion
evidence, which was not submitted in this case.20
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his cervical
condition was causally related to the accepted February 25, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated October 20, 2016 is affirmed.
Issued: April 4, 2018
Washington, DC

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

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

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

20

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., supra note 17.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Midflorida, FL, Employer
__________________________________________

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)
)
)
)
)
)
)

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

Docket No. 09-739
Issued: December 15, 2009

Case Submitted on the Record

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

JURISDICTION
On January 22, 2009 appellant filed a timely appeal of the October 20, 2008 decision of
the Office of Workers’ Compensation Programs which found that he received an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment in the amount of $159,918.02 from September 4, 1993 to November 22, 2003 due
to his receipt of dual benefits; and (2) whether the Office properly denied waiver of the
overpayment.
FACTUAL HISTORY
This is the second appeal in this case. In a September 18, 2007 decision, the Board
affirmed a December 20, 2005 decision of the Office as to fact of overpayment but set aside the
decision with regard to the amount of overpayment. The case was remanded for further

development. The Board determined that appellant received an overpayment of compensation
from September 4, 1993 to November 22, 2003 because he received dual benefits from the
Office and the Department of Veterans Affairs (VA) during that period. However, the Office
incorrectly calculated the amount of the overpayment. The Office was directed to make a new
determination on the amount of the overpayment. The facts and circumstances of the case are set
forth in the Board’s prior decision and incorporated herein by reference.1
In a fiscal payment worksheet dated November 29, 2007, the Office noted that appellant
was paid wage-loss compensation for the period September 4, 1993 to November 8, 1996 in the
amount of $11,572.64, and was paid a schedule award from May 31, 1994 to November 22, 2003
in the amount of $148,345.38. It determined that from September 4, 1993 to November 22, 2003
appellant had been paid benefits in the amount of $159,918.02. The Office attached a detailed
breakdown for applicable pay rates and gross compensation. Also submitted was an Office
payment history inquiry report dated November 16, 2007.
In a November 30, 2007 letter, the Office informed appellant that it had made a
preliminary determination that he received a $159,918.02 overpayment of compensation from
September 4, 1993 to November 22, 2003 for which he was not at fault in creating. Appellant
received an overpayment of $159,918.02 in wage-loss compensation and compensation for leave
buyback for his left knee condition September 4, 1993 to November 8, 1996 and was paid a
schedule award for the period May 31, 1994 to November 22, 2003. He also received an
increase in VA benefits for the same injury for the period beginning on August 31, 1993. The
Office advised that the overpayment occurred because appellant received compensation benefits
from both the Office and the VA during the same period for the same injury. It advised him of
his right to submit additional evidence and to request a prerecoupment hearing. The Office
instructed appellant to complete an enclosed overpayment recovery form and submit supporting
documentation.
On December 23, 2007 appellant requested a prerecoupment hearing. He noted that,
since 1993, he had accurately reported his VA benefits to the Office but was never informed
about prohibited dual benefits. Appellant asserted that he would suffer severe financial hardship
if he was required to repay the debt, that he was 65 years old with debilitating health issues and
his wife was totally disabled. He requested waiver of the overpayment. Appellant submitted a
December 22, 2007 overpayment recovery form with supporting financial documents noting that
his monthly income was $4,662.00 and expenses were $4,346.00. He noted cash on hand of
$50.00, checking account balance of $800.00 and his wife had a savings account balance of
$10,000.00.
The hearing was held on April 16, 2008. Appellant noted monthly expenses of $4,562.90
and monthly income of $4,662.00. The employing establishment submitted an investigative
memorandum dated May 22, 2008 from the U.S. Postal Inspection Service which referenced an
October 7, 2004 letter from appellant’s attorney to State Farm Insurance Company issuing a
demand for $25,000.00 for injuries sustained in an off-duty motor vehicle accident on
August 16, 2003.
1

Docket No. 06-949 (issued September 18, 2007).

2

Appellant submitted a May 23, 2008 letter asserting that he and his wife were disabled
and could not work. He noted his medication bills had increased over the prior two years and he
was unable to make any payments on the debt. Appellant contended that the Office was at fault
in creating the overpayment as he was not notified of receiving dual benefits until 2004. He
asserted that the recovery would be against equity and good conscience, that he acted on
incorrect information from the Office and spent the funds which he would not have otherwise
done and would suffer financial hardship if he was required to make repayment. Appellant
advised that if waiver of repayment was denied he would have to sell his home, file bankruptcy
and be reduced to a lower standard of living.
By decision dated October 20, 2008, an Office hearing representative found that appellant
received a $159,918.02 overpayment of compensation from September 4, 1993 to November 22,
2003 for which he was not at fault. The hearing representative noted that appellant had received
an overpayment of $159,918.02 in wage-loss compensation and leave buyback for his left knee
condition for the period September 4, 1993 to November 8, 1996 and was paid a schedule award
from May 31, 1994 to November 22, 2003 while also receiving an increase in VA benefits for
the same injury for the period beginning on August 31, 1993. The hearing representative denied
waiver of the overpayment, finding that recovery of the overpayment would not defeat the
purpose of the Act or would it be against equity and good conscience. The hearing
representative directed repayment of the overpayment at the rate of $1,000.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(a) of the Federal Employees’ Compensation Act2 states:
“(a) While an employee is receiving compensation under this subchapter, or if he
has been paid a lump sum in commutation of installment payments until the
expiration of the period during which the installment payments would have
continued, he may not receive salary, pay, or remuneration of any type from the
United States, except-(1) in return for service actually performed;
(2) pension for service in the Army, Navy or Air Force;
(3) other benefits administered by the Department of Veterans Affairs
unless such benefits are payable for the same injury or the same death; and
(4) retired pay, retirement pay, retainer pay or equivalent pay for service in
the Armed Forces or other uniformed services....
“However, eligibility for or receipt of benefits under subchapter III of chapter 83
of this title, or another retirement system for employees of the [g]overnment, does

2

5 U.S.C. § 8116(a).

3

not impair the right of the employee to compensation for scheduled disabilities
specified by section 8107(c) of this title.”3
Section 8116(b) provides that in such cases an employee shall elect which benefits he
shall receive. Thus, the Act prevents payment of dual benefits in cases where the Office has
found that the disability was sustained in civilian federal employment and the VA has held that
the same disability was caused by military service.4
ANALYSIS -- ISSUE 1
Following the prior appeal, the Office provided a detailed breakdown for appellant’s pay
rates and gross compensation from September 4, 1993 to November 22, 2003 and included a
payment history inquiry report on November 16, 2007 in support of the overpayment calculation.
From September 4, 1993 to November 8, 1996 appellant received $11,572.64 in wage-loss
compensation and leave buyback and from May 31, 1994 to November 22, 2003 he received
$148,345.38 for a schedule award for his accepted work-related conditions of left knee strain,
aggravation of osteoarthritis of the left knee. He was not entitled to the wage-loss compensation
or the schedule award for the left knee injury because he had elected to receive VA benefits for
the left knee injury. This dual payment of benefits created an overpayment of $159,918.02.
The Office properly determined that from September 4, 1993 to November 22, 2003
appellant received an overpayment of $159,918.02 due to his receipt of dual benefits from both
the Office and the VA for the same injury. Appellant does not dispute that he received the
overpayment in question nor does he dispute the amount of the overpayment. The Board finds
that the Office properly determined the amount of the overpayment that covered the period
September 4, 1993 to November 22, 2003.
LEGAL PRECEDENT -- ISSUE 2
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment.5 If the Office finds that the
recipient of an overpayment was not at fault, repayment will still be required unless:
(1) adjustment or recovery of the overpayment would defeat the purpose of the Act; or
(2) adjustment or recovery of the overpayment would be against equity and good conscience.6
Recovery of an overpayment will defeat the purpose of the Act if such recovery would
cause hardship to a currently or formerly entitled beneficiary because: (a) the beneficiary from
whom the Office seeks recovery needs substantially all of his or her current income (including
compensation benefits) to meet current ordinary and necessary living expenses; and (b) the
beneficiary’s assets do not exceed a specified amount as determined by the Office from data
3
4

Id.
Sinclair L. Taylor, 52 ECAB 227 (2001); Allen W. Hermes, 43 ECAB 435 (1992).

5

20 C.F.R. § 10.433(a).

6

Id. at § 10.434. See Keith H. Mapes, 56 ECAB 130 (2004).

4

furnished by the Bureau of Labor Statistics. A higher amount is specified for a beneficiary with
one or more dependents.7 Recovery of an overpayment is considered to be against equity and
good conscience when any individual who received an overpayment would experience severe
financial hardship in attempting to repay the debt.8 Recovery of an overpayment is also
considered to be against equity and good conscience when any 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.9
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of the Act or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.10
ANALYSIS -- ISSUE 2
The Office determined that appellant was without fault in the creation of the
overpayment. Because he is without fault, the Office may adjust later payments only if
adjustment would not defeat the purpose of the Act or be against equity and good conscience.
Appellant was advised by the Office to provide the necessary financial information if he
desired waiver. The Office sought financial information and documentation to help determine
whether recovery would defeat the purpose of the Act or would be against equity and good
conscience. The information provided by appellant in the overpayment recovery questionnaire
revealed that he had monthly expenses which included, rent or mortgage of $889.05, automobile
leases of $599.58, credit cards of $235.00, newspaper of $12.80, air-conditioning contract of
$10.00, cable of $58.51, electric of $220.00, telephone of $120.00, water/sewer of $85.00, SBA
loan of $44.00, termite protection of $41.50, insurance (home and automobile) of $343.00, taxes
of $45.00, pool services of $65.00, fuel/cars of $200.00, food of $525.00, miscellaneous
household expenses of $250.00, dental of $95.00, medical insurance of $280.00, medical
expenses of $90.00 and clothing of $125.00 for a total of $4,333.2711 per month. The
questionnaire noted that appellant earned $2,600.00 in compensation benefits from the VA,
$1,522.00 from social security benefits and $540.00 from the Office of Personnel Management
for a total of $4,662.00.12 Appellant noted assets that included cash of $50.00, check account
balance of $800.00 and savings account balance for his wife of $10,000.00. At the hearing on
7

Id. § 10.436.

8

Id. at § 10.437(a).

9

Id. at § 10.437(b).

10

Id. at § 10.438(a). See Keith H. Mapes, supra note 6.

11

The Board notes that there was an addition error and the total expense amount was $4,333.44.

12

The Board notes that analyzing the overpayment questionnaire of December 22, 2007 appellant’s income
exceeds his expenses by $316.00. In analyzing appellant’s monthly expense worksheet of May 23, 2008, his income
exceeds his expenses by $100.00.

5

April 16, 2008, and subsequently, appellant listed additional expenses for mortgage, household
bills to bring his listed monthly expenses to $4,562.90.13 With total income of $4,662.00 and
expenses of $4,562.90, the record establishes that his current income exceeds his monthly
expenses by more than $50.00. Therefore, he is not deemed, pursuant to Office procedures, to
need substantially all of his income to meet his ordinary and necessary living expenses.14
Because appellant has income which exceeds his monthly expenses by more than $50.00, the
Board concludes that appellant has failed to demonstrate that recovery of the overpayment would
defeat the purposes of the Act.15
With respect to whether recovery would be against equity and good conscience, section
10.437(a)(b) of the federal regulations provides that recovery of an overpayment is considered to
be against equity and good conscience when an individual would experience severe financial
hardship in attempting to repay the debt or, in reliance on such payments or on notice that such
payments would be made, relinquished a valuable right or changed his position for the worse.
Appellant asserts that he notified the Office on several occasions of his receipt of VA
benefits and reported the income annually on CA-1032 forms. He further advised that he was
never informed by the Office that he was not permitted to receive both VA and Office benefits.
Appellant indicated he was without fault in the creation of the overpayment, rather it was the
fault of the Office as he was not notified of receiving dual benefits until 2004 when benefits
expired.16 He asserted the recovery would be against equity and good conscience, that he acted
on incorrect information from the Office and spent the funds which he would not have otherwise
done and would suffer financial hardship if he was required to make repayment. However, the
evidence does not show that appellant would experience severe financial hardship in attempting
to repay the debt.17 Although appellant asserted that he acted on incorrect information from the
13

The hearing representative found that the additional expenses were “in line” with appellant’s earlier listed
expenses except for the mortgage amount. The Board notes that on December 22, 2007 appellant noted on the
overpayment recovery questionnaire that his mortgage payment was $889.05 per month and submitted a Chase
Mortgage Loan Statement dated November 3, 2007 supporting this figure. On May 23, 2008 appellant submitted an
overview of monthly expenses which reflected a mortgage payment of $1,099.05; however, he provided no
supporting documentation for this amount. As appellant’s monthly income, using the higher mortgage amount, still
exceeds his monthly expenses by more than $50.00, as addressed infra, this discrepancy in mortgage amount does
not affect the waiver determination.
14

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(1) (October 2004) (an individual is deemed to need substantially all of his or her current income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00).
15

See id. (noting that claimant must show both that he or she needs substantially all of his or her current income
to meet current ordinary and necessary living expenses; and that his or her assets do not exceed the applicable
resource base in order to establish that recover of the overpayment would defeat the purpose of the Act).
16

Although the Office found that appellant was without fault in the matter of the overpayment, repayment is still
required unless adjustment or recovery of the overpayment would defeat the purpose of the Act or be against equity
and good conscience. See Keith H. Mapes, supra note 7.
17

The factors to be considered in making a financial hardship determination are the same as those considered in
determining whether recovery of the overpayment would defeat the purpose of the Act. See id., at 6.200.6(b).

6

Office and spent the funds which he would not have otherwise done, he failed to submit evidence
substantiating that he relinquished a valuable right that he was unable to get back or that his action
was based chiefly or solely on reliance on payments or notice of payment.18 Appellant has not
established that, if required to repay the overpayment, he would be in a worse position after
repayment than would have been the case if the benefits had never been received in the first
place.19 The Board finds that recovery of the overpayment would not be against equity and good
conscience since there is no evidence of record from which to conclude that appellant relied on
his incorrectly calculated compensation payments to relinquish a valuable right or change his
position for the worse.
As appellant has not shown that recovery would “defeat the purpose of the Act” or would
“be against equity and good conscience,” the Board finds that the Office properly denied waiver
of recovery of the overpayment. Thus, appellant does not qualify for waiver by reason of
financial hardship. Further, appellant did not argue or submit evidence to establish that recovery
of the overpayment would be against equity or good conscience because, or that in reliance on
the overpaid compensation, he relinquished a valuable right or changed his position for the
worse.
The Board further finds that it does not have jurisdiction to review the Office’s
determination that the overpayment of compensation would be recovered through payments of
$1,000.00 a month. It does not appear from the record that appellant is receiving continuing
compensation benefits. The Board’s jurisdiction to review recovery of an overpayment is limited
to the situation where recovery is made from continuing benefits.20
CONCLUSION
The Board finds that appellant received an overpayment of $159,918.02 in compensation
from September 4, 1993 to November 22, 2003. The Board also finds that the Office did not
abuse its discretion in denying waiver of the overpayment.

18

See 20 C.F.R. § 10.438(a) (it is the responsibility of the overpaid individual to provide evidence of income,
expenses and assets that will be used in determining whether the overpayment may be waived).
19

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(b)(3) (May 2004).
20

See Rose Carye, 50 ECAB 482, (1999); Lewis George, 45 ECAB 144 (1993); Levon H. Knight, 40 ECAB 658
(1989); Edward O. Hamilton, 39 ECAB 1131 (1988).

7

ORDER
IT IS HEREBY ORDERED THAT the October 20, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 15, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8