United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, CINCINNATI
PERFORMANCE & DISTRIBUTION CENTER,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 17-1706
Issued: July 10, 2018

Case Submitted on the Record

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

JURISDICTION
On August 1, 2017 appellant filed a timely appeal from a July 14, 2017 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 the case.
ISSUE
The issue is whether OWCP abused its discretion in approving an attorney’s fee in the
amount of $4,745.00 for services rendered from November 23, 2011 through December 29, 2014.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 28, 2011 appellant, then a 51-year-old dock clerk, filed a traumatic injury claim
(Form CA-1) alleging that, on April 26, 2011, she sustained a right shoulder injury while opening
a track door. She stopped work on that date and returned to limited duty on May 11, 2011.
By decision dated November 17, 2011, OWCP accepted that appellant sustained a right
shoulder strain and aggravation of her right shoulder osteoarthritis.
Appellant thereafter filed a series of claims for compensation (Form CA-7) alleging
intermittent disability commencing October 22, 2011.
The record indicates that on November 27, 2011 appellant authorized counsel, Alan J.
Shapiro, Esq. to represent her in all matters arising out of her workers’ compensation claim.
On December 20, 2011 OWCP denied appellant’s claims for compensation for wage loss
subsequent to October 22, 2011. It found that the medical evidence of record was insufficient to
support a worsening of her accepted work-related right shoulder condition to support increased
disability from work. Counsel disagreed with OWCP’s decision and requested a telephonic
hearing before an OWCP hearing representative. The record reflects that he presented several
arguments during the telephonic hearing.
Appellant underwent OWCP-approved right shoulder surgery on April 10, 2012. She
returned to part-time limited-duty work on September 11, 2012 and resumed full-time, full-duty
work on October 1, 2012.
By decision dated May 17, 2012, an OWCP hearing representative affirmed OWCP’s
December 20, 2011 decision. She found that the evidence of record did not support that appellant’s
increased disability subsequent to October 2011 was causally related to and necessitated by the
April 26, 2011 work injury without intervening new work factors. The hearing representative
further found appellant’s disability subsequent to April 10, 2012 was payable as OWCP had
authorized surgery.
Appellant also filed a claim for a schedule award (Form CA-7). By decision dated
December 19, 2014, OWCP awarded appellant a schedule award for nine percent permanent
impairment of the right upper extremity. The period of the award ran for 28.08 weeks for the
period November 7 to December 13, 2014. The record reflects that counsel filed several letters
pertaining to the status of the schedule award claim prior to its issuance.
On April 22, 2016 OWCP received counsel’s fee application in the amount of $4,745.00
for services rendered from November 23, 2011 through December 29, 2014 in the current claim
number. An itemized statement listing the services and time spent on each date was provided.2
The time spent on each service ranged from 15 to no more than 60 minutes, for a total of 875
minutes, or 14.6 hours. Counsel’s hourly rate was $325.00 per hour. The total fee requested was
in the amount of $4,745.00. In his April 19, 2016 cover letter, counsel requested that OWCP assist
2
The services provided included writing letters to appellant, appellant’s doctors, and to OWCP, telephone
conferences, and review of OWCP’s decisions.

2

in processing the fee request for OWCP file number xxxxx565. He explained that the fee petition
had been sent to appellant, but she had not signed or returned the fee petition with payment.
In a September 12, 2016 letter, counsel clarified that the fee petition was requested under
the current case file, case number xxxxx721, noting that an incorrect file number had been listed
on his April 19, 2016 letter. He indicated that appellant had reimbursed him for a medical advance,
which was listed as $500.00 on the initial fee petition and he, therefore, did not need authorization
for reimbursement of that expense. Counsel noted that he could not find any notes or letters that
the fee was reduced to $2,600.00 and, if appellant had such records, then he stood corrected. He
also indicated that appellant had agreed to pay the fee and referred to an e-mail in which she had
agreed to make installment payments. However, no e-mail was provided with his letter of
correspondence.
In a November 4, 2016 letter, counsel requested the status of his fee petition.
In a November 7, 2016 letter, OWCP forwarded to appellant a copy of counsel’s fee
application in the amount of $4,745.00 for services rendered from November 23, 2011 through
December 29, 2014. It provided her 30 days to comment on the fee application request and to
denote whether the fee charged was reasonable and appropriate. No response was received from
appellant.
OWCP sent appellant another letter dated November 28, 2016, again providing her the
opportunity to comment on counsel’s fee request for $4,745.00 for services rendered from
November 23, 2011 through December 29, 2014. Appellant was advised that, if she did not
provide comments by December 8, 2016, it would consider counsel’s fee request and approve a
fee, which was determined to be fair and reasonable.
On February 10, 2017 counsel inquired as to the status of the fee petition.
By decision dated March 8, 2017, OWCP approved counsel’s fee petition in the amount of
$4,745.00 for services rendered from November 23, 2011 through December 29, 2014. It noted
that appellant had not contested the reasonableness of the fee amount.
On April 19, 2017 appellant requested reconsideration of its March 8, 2017 decision. In a
handwritten statement dated “April 2017,” appellant indicated that she had talked with counsel on
the telephone and that they had agreed to $2,700.00, not $4,745.00. She indicated that she had
paid $500.00 and only owed the remaining $2,200.00. Appellant explained that she could not find
the original bill.
By decision dated July 14, 2017, OWCP denied modification of its March 8, 2017 decision.
It noted that an agreement to a flat rate, in this case $2,700.00, was inconsistent with FECA
regulations. OWCP further found that counsel provided active assistance to appellant with regard
to her schedule award claim and she had not contested either the time spent or the hourly rate or
submitted evidence to document that an alternative charge for legal services had been agreed upon.
LEGAL PRECEDENT
It is not the function of the Board to determine the fee for services performed by a
representative of a claimant before OWCP. That function is within the discretion of OWCP based
3

on the criteria set forth in Title 20 of the Code of Federal Regulations and mandated by Board
decisions. The sole function of the Board on appeal is to determine whether the action of OWCP
constituted an abuse of discretion.3 Generally, an abuse of discretion is 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.4
Section 10.703(a)(2) of the Code of Federal Regulations provides in pertinent part that a
representative must submit a fee application, which includes a statement of agreement or
disagreement with the amount charged, signed by the claimant.5 While the regulations provide
that a fee application is deemed approved when it is accompanied by a signed statement indicating
the claimant’s agreement with the fee,6 the regulations do not specifically provide for approval
when a claimant fails to contest a fee application.7 When a fee application has been disputed,
OWCP is required to provide the claimant with a copy of the fee application and request the
submission of further information in support of any objection.8 After the claimant has been
afforded a reasonable time to respond to the request, OWCP will then proceed to review the fee
application. Pursuant to section 10.703(c), when a fee is in dispute, OWCP will determine whether
the amount of the fee is substantially in excess of the value of services received by looking at the
following factors: (i) Usefulness of the representative’s services; (ii) The nature and complexity
of the claim; (iii) The actual time spent on development and presentation of the claim; and (iv)
Customary local charges for similar services.9
ANALYSIS
The Board finds that OWCP did not abuse its discretion in approving the requested attorney
fee in the amount of $4,745.00.
OWCP considered the relevant regulatory criteria in its decisions approving the requested
fee. In this case, appellant’s former counsel submitted an attorney authorization, as well as an
itemized statement of the time allotted on specific tasks, the hourly rate, and the total amount
charged.10 On April 19, 2016 counsel submitted a fee application in the amount of $4,745.00 for
services rendered from December 9, 2011 through December 29, 2014. While OWCP provided
appellant two opportunities to comment on the fee application request and to denote whether the
fee charged was reasonable and appropriate, she failed to respond. By decision dated March 8,
2017, OWCP approved the fee petition in the amount of $4,745.00 as requested.
3

Alvin T. Groner, Jr., 47 ECAB 588 (1996); Edward Snider, 39 ECAB 1268 (1988).

4

Daniel J. Perea, 42 ECAB 214, 221 (1990).

5

20 C.F.R. § 10.703(a)(2).

6

Id. at § 10.703(b).

7

See Helen J. Cavorley, Docket No. 02-2325 (issued February 7, 2003).

8

20 C.F.R. § 10.703(c).

9

Id.

10

See L.H., Docket No. 11-0900 (issued December 9, 2011).

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Appellant requested reconsideration and asserted, without supporting documentation, that
she and counsel had agreed upon a fee of $2,700.00. She explained that she had already paid
$500.00 and, therefore, owed only $2,200.00. Appellant indicated that she did not have the
original bill. By decision dated July 14, 2017, OWCP denied modification of its prior decision
approving the requested fee. Appellant disputed the requested free, contending only that she and
counsel had agreed upon a fee of $2,700.00 of which she paid $500.00. However, there is no
evidence to support that counsel and appellant had agreed to a reduced fee in any amount. In his
September 12, 2015 letter, counsel indicated that appellant had reimbursed him for the medical
advance, which was listed as $500.00 on the initial fee petition. However, he indicated that he
could not find any notes or letters relative to the case that the fee was reduced to $2,600.00. The
Board finds that appellant’s contention has not been established and, thus, is insufficient to
establish that OWCP abused its discretion by approving the requested attorney’s fee.11
CONCLUSION
The Board finds that OWCP did not abuse its discretion in approving an attorney’s fee in
the amount of $4,745.00 for services rendered from November 23, 2011 through
December 29, 2014.
ORDER
IT IS HEREBY ORDERED THAT the July 14, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 10, 2018
Washington, DC

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

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
11

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

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

Docket No. 15-1405
Issued: September 14, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 16, 2015 appellant filed a timely appeal from a March 4, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
right wrist fracture causally related to the November 12, 2014 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the March 4, 2015 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On November 14, 2014 appellant, then a 52-year-old rural mail carrier, filed a traumatic
injury claim alleging that on November 12, 2014 she fractured her right wrist when she fell down
in the performance of duty. She stopped work and returned to light duty on November 18, 2014.
Appellant also submitted a November 17, 2014 Form CA-16 authorization for
examination and/or treatment by Margo Soppe, a certified physician assistant for a
November 12, 2014 right wrist injury. Ms. Soppe related that on November 12, 2014 appellant
was closing a garage door at work when she tripped and fell down on her right side. She
diagnosed right wrist injury and indicated that appellant’s condition was caused or aggravated by
the described employment activity. Ms. Soppe stated that the injury happened at work when
getting mail. She reported that appellant could return to regular work. Ms. Soppe also included
a duty status report which demonstrated that appellant could return to work with no restrictions.
In a November 13, 2014 progress note, Ms. Soppe related that appellant sustained a right
wrist injury at work when she fell down in the parking lot of the employing establishment. She
described that appellant fell forward onto her wrists, right knee, and right hip. Upon
examination, Ms. Soppe observed mild swelling and erythema on the ulnar surface of her right
wrist. She reported tenderness upon palpation of the right wrist associated with the ulnar aspect.
Range of motion demonstrated mild pain with ulnar deviation. Radial and ulnar pulses were
+2/4. Ms. Soppe stated that an x-ray of the right wrist showed a possible fracture of appellant’s
scaphoid bone. She diagnosed right wrist injury.
On November 13, 2014 Dr. Stephen J. Burke, a Board-certified diagnostic radiologist,
reported regarding x-ray examination of appellant’s right wrist. He indicated that the x-ray
findings suggested that appellant may have a nondisplaced fracture, with no other acute findings.
Appellant was also examined by Kerri VanEe, a certified nurse practitioner, who in a
November 18, 2014 progress note and work status note, related appellant’s complaints of right
wrist pain particularly on the ulnar side. Ms. VanEe stated that appellant was at work when she
tripped and fell down onto her right knee, hip, and bilateral upper extremities. Upon
examination, she observed mild tenderness upon palpation over the dorsal side of the left wrist
and mild tenderness over the ulnar side of the right wrist. Range of motion of bilateral wrists
was mildly limited in all fields associated with mild discomfort. Ms. VanEe reported that
appellant’s symptoms and physical examination were suggestive of bilateral wrist sprains. She
advised appellant to wear a brace for comfort. In a work status note, Ms. VanEe stated that
appellant could return to part-time work with restrictions of lifting or carrying up to 10 pounds
and wearing a wrist brace as needed.
In a November 18, 2014 x-ray report, Dr. David E. Jensen, a Board-certified diagnostic
radiologist, stated that the examination was negative for left wrist fracture.
Appellant continued to receive medical treatment from Ms. VanEe. In progress reports
dated December 1, 2014 and January 5, 2015 progress reports, she noted that she examined
appellant for follow up of appellant’s bilateral wrist sprains. Appellant reported that she felt 100
percent improvement in her left wrist and 50 percent improvement in her right wrist. Upon

2

examination of both wrists, Ms. VanEe observed no swelling, redness, ecchymosis, or bony
tenderness upon palpation. Range of motion of the left wrist was normal without discomfort.
Range of motion of the right wrist was mildly limited with mild discomfort. Ms. VanEe also
reported normal strength of flexors and extensors of the left wrist and mildly diminished strength
of the flexors and extensors of the right wrist. She diagnosed wrist injury and sprain.
By letter dated February 2, 2015, OWCP advised appellant that the evidence submitted
was insufficient to establish her traumatic injury claim. It requested additional medical evidence
to demonstrate that she sustained a diagnosed condition causally related to the November 12,
2014 employment incident.
Appellant submitted a February 16, 2015 attending physician’s report by Ms. VanEe,
who again related appellant’s history of injury on November 12, 2014. She noted that x-rays of
both wrists were negative for fracture. Ms. VanEe diagnosed right wrist injuries and bilateral
wrist sprains. She checked a box marked “yes” that appellant’s condition was caused or
aggravated by an employment activity. Ms. VanEe reported that appellant was partially disabled
from November 18 to December 4, 2014.
In a decision dated March 4, 2015, OWCP denied appellant’s claim. It accepted that the
November 12, 2014 incident occurred as alleged, but denied her claim finding insufficient
medical evidence to demonstrate that she sustained a diagnosed condition causally related to the
accepted incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.7 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment

3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

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

7

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

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incident caused a personal injury.8 An employee may establish that the employment incident
occurred as alleged but fail to show that her disability or condition relates to the employment
incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.10 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.11 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.12
ANALYSIS
Appellant has alleged that on November 12, 2014 she sustained a right wrist fracture
when she tripped and fell down at work.13 OWCP accepted that the November 12, 2014 incident
occurred as alleged, but denied the claim finding insufficient medical evidence to establish that
she sustained a diagnosed condition causally related to the accepted incident. The Board finds
that appellant did not meet her burden of proof to establish her traumatic injury claim.
Appellant was initially examined by Ms. Soppe, a certified physician assistant, and
Ms. VanEe, a nurse practitioner. In progress notes and attending physician’s reports dated
November 13, 2014 to February 16, 2015, they described the November 12, 2014 employment
incident and provided examination findings. Appellant was diagnosed with right wrist injury and
bilateral wrist sprain. These reports, however, are of no probative value to establish appellant’s
claim as physician assistants and nurse practitioners, are not physicians as defined under
FECA.14
Appellant also submitted various diagnostic reports dated November 13 and 18, 2014
from Drs. Burke and Jensen. Dr. Burke noted that the November 13, 2014 x-ray of appellant’s
right wrist may show a nondisplaced fracture. However, his diagnosis was of limited value
8

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

9

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

10

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

11

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

12

James Mack, 43 ECAB 321 (1991).

13

While appellant submitted reports to the record also referencing left wrist symptoms, the claim was filed for a
right wrist injury.
14

Section 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).

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because it was equivocal and speculative in nature.15 Furthermore, the Board has found that a
physician must provide a narrative description of the identified employment incident and a
reasoned opinion on whether the employment incident described caused or contributed to
appellant’s diagnosed medical condition.16 Dr. Burke’s report did not provide this information.
As Dr. Jensen’s report reviewed appellant’s left wrist and noted that the test results were
negative for wrist fracture. It is of no probative value relative to appellant’s claim for right wrist
injury.
The issue of causal relationship is a medical question that must be established by
probative medical opinion from a physician.17 Because appellant has not provided such
probative medical evidence in this case, the Board finds that she did not meet her burden of proof
to establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a right wrist fracture causally related to the November 12, 2014 employment incident.

15

Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A.
Kelley, 55 ECAB 206 (2004).
16

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

17

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the March 4, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, ISLAND LAKE POST
OFFICE, Island Lake, IL, Employer
__________________________________________

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

Docket No. 19-1071
Issued: August 26, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 16, 2019 appellant filed a timely appeal from an April 11, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated August 19,
2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1071 (issued
August 19, 2020). The Board’s Rules of Procedure provide that an appeal in which a request for oral argument is
denied by the Board will proceed to a decision based on the case record and the pleadings submitted. 20 C.F.R.
§ 501.5(b).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish diagnosed medical
conditions causally related to the accepted February 7, 2018 employment incident.
FACTUAL HISTORY
On February 23, 2018 appellant, then a 51-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 7, 2018 he sustained right knee and right ankle
injuries due to slippery conditions and snow while in the performance of duty. He stopped work
on the date of injury and returned to work on February 8, 2018.
OWCP received a narrative medical report, diagnostic report, and a prescription dated
August 2, 2018 by Dr. Harpreet S. Basran, a Board-certified orthopedic surgeon. In his August 2,
2018 narrative report, Dr. Basran noted that appellant presented for an orthopedic evaluation with
a “chief complaint of left knee pain” sustained after an injury on ice at work on February 7, 2018
and exacerbated following a second injury at work on July 14, 2018. He indicated that both
injuries were twisting injuries. Dr. Basran discussed findings on physical examination and
reported that an x-ray of the left knee performed on the same day of his examination demonstrated
joint space narrowing and hardware, including screws and a button from appellant’s prior
reconstruction. He provided an impression of left knee pain after an injury at work on the abovenoted dates. In an August 2, 2018 prescription, Dr. Basran again diagnosed left knee pain and
ordered a magnetic resonance imaging (MRI) scan for evaluation of a meniscus tear.
OWCP also received narrative reports dated January 25 and February 21, 2019, a work
status report dated January 25, 2019, and a prescription note dated February 21, 2019 by
Dr. Robert T. Nixon, a Board-certified orthopedic surgeon, diagnosing left knee pain, effusion,
and swelling, and finding that appellant likely had an aggravation of chondromalacia. In his
January 25, 2019 narrative report, Dr. Nixon noted a history that he had symptoms of pain and
swelling in his left knee that had been problematic over the course of the prior few weeks. He also
noted that appellant had prior left knee injuries and surgery. Dr. Nixon indicated that appellant
explained that he did not have any new injury or event. In his January 25, 2019 work status report,
he advised that appellant could return to work with no restrictions as of that day. In his
February 21, 2019 report, Dr. Nixon noted that appellant’s complaint of left knee pain had not
responded to a cortisone injection, but he could continue to work. In a prescription note of even
date, he ordered a left knee MRI scan.
In a development letter dated March 1, 2019, OWCP notified appellant that when his claim
was received it appeared to be a minor injury that resulted in minimal or no lost time from work,
and since the employing establishment had not controverted continuation of pay or challenged the
case, a limited amount of medical expenses were administratively approved and paid. It noted that
it had reopened the claim for formal consideration. OWCP informed appellant that the evidence
submitted was insufficient to establish his claim. It advised him of the type of medical and factual
evidence necessary to establish his claim and attached a questionnaire for his completion. OWCP
afforded appellant 30 days to submit the requested evidence.
OWCP received a copy of Dr. Nixon’s February 21, 2019 report.

2

By decision dated April 11, 2019, OWCP denied appellant’s traumatic injury claim finding
that the evidence of record was insufficient to establish a diagnosed condition in connection with
the accepted February 7, 2018 employment incident. It noted that pain was a symptom, not a
medical diagnosis. OWCP concluded therefore that the requirements had not been met to establish
an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.9

3

Id.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish diagnosed
medical conditions causally related to the accepted February 7, 2018 employment incident.
In support of his claim, appellant submitted a report dated August 2, 2018 from Dr. Basran.
On August 2, 2018 he opined that the left knee pain was caused by the February 7, 2018
employment incident and an incident at work on July 14, 2018. The Board notes that OWCP has
not accepted that an employment incident occurred on July 14, 2018. Dr. Basran did not make
any diagnoses pertaining to the conditions which appellant claimed were employment related other
than pain. However, the Board has held that pain is a symptom and not a compensable medical
diagnosis.11 The Board has also held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition or disability is of no probative value on the issue of causal
relationship.12 As Dr. Basran has not offered an opinion as to whether appellant’s claimed
conditions are causally related to the accepted February 7, 2018 employment incident, the Board
finds that his August 2, 2018 report is insufficient to meet appellant’s burden of proof.
In his remaining August 2, 2018 diagnostic report, Dr. Basran reviewed an x-ray of
appellant’s left knee. The Board has held, however, that diagnostic tests, standing alone, lack
probative value as they do not provide an opinion on causal relationship between the employment
incident and the diagnosed conditions.13
Appellant also submitted Dr. Nixon’s narrative reports, work status report, and prescription
dated January 25 and February 21, 2019 diagnosing left knee pain, effusion, and swelling, and
finding that appellant likely had an aggravation of chondromalacia. In his January 25, 2019
narrative report, Dr. Nixon noted appellant’s recent history of left knee symptoms and prior history
of left knee injuries and surgery. His diagnosis of left knee pain, as noted above, is a symptom
rather than a compensable medical diagnosis.14 Dr. Nixon did not make any diagnoses pertaining
to appellant’s claimed conditions or offer an opinion specifically relating a medical condition to

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
V.W., Docket No. 19-1537 (issued May 13, 2020); N.C., Docket No. 19-1191 (issued December 19, 2019); R.D.,
Docket No. 18-1551 (issued March 1, 2019).
11

See S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

12

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13

See R.L., Docket No. 20-0284 (issued June 30, 2020); C.T., Docket No. 20-0020 (issued April 29, 2020); J.M.,
Docket No. 17-1688 (issued December 13, 2018).
14

Supra note 11.

4

the February 7, 2018 employment incident.15 For these reasons, the Board finds that the medical
evidence from Dr. Nixon is insufficient to establish appellant’s claim.
As there is no well-rationalized medical opinion presently of record before the Board
establishing appellant’s traumatic injury claim the Board finds that he has not met his burden of
proof.16
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 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 diagnosed
medical conditions causally related to the accepted February 7, 2018 employment incident.

15

See supra note 12.

16
T.J., Docket No. 19-1339 (issued March 4, 2020); F.D., Docket No. 19-0932 (issued October 3, 2019); D.N.,
Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued December 31, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the April 11, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 26, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.K., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Albuquerque, NM, Employer
__________________________________________

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

Docket No. 13-566
Issued: May 20, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 10, 2013 appellant filed a timely appeal of a November 1, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying his occupational disease
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed
genitourinary disease due to factors of his federal employment.
FACTUAL HISTORY
On September 11, 2012 appellant, then a 27-year-old forestry technician, filed an
occupational disease claim alleging that he developed genitourinary illness due to field work in
extreme environmental conditions and varying nutritional food and fluid intakes. He first
became aware of his condition and attributed it to his employment on August 15, 2012.
1

5 U.S.C. § 8101 et seq.

Appellant submitted a narrative statement dated August 20, 2012 alleging that on
August 15, 2012, while on fire assignment, he noted pain on urination and blood coming from
his urethra. He sought medical treatment and was diagnosed with a possible kidney stone.
Appellant submitted a September 11, 2012 emergency room record from a nurse with a diagnosis
of hematuria or blood in the urine.
In a letter dated September 14, 2012, OWCP requested additional factual and medical
evidence. On September 26, 2012 appellant responded that he was on a 13-day fire assignment
with access to varied water supplies and wide variety in diet. He alleged that his water supply
was sub-par for 7 to 10 days. Appellant submitted additional emergency room records dated
August 15, 2012 with an illegible physician signature noting that he reported painful urination
with blood and described the pain as a sting.
By decision dated November 1, 2012, OWCP denied appellant’s claim finding that he
had not submitted sufficient medical evidence to establish a causal relationship between his
hematuria condition and his employment duties.
LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”2 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 evidence required to establish causal relationship is rationalized medical opinion
evidence, based upon a complete factual and medical background, showing a causal relationship
between the claimed condition and identified factors. The belief of a claimant that a condition
was caused or aggravated by the employment is not sufficient to establish causal relation.3
ANALYSIS
Appellant alleged that he experienced painful urination with blood while on fire duty in
August 2012. He attributed his condition to a varied water and food supply while fighting a
wildfire while in the performance of duty. OWCP accepted the diagnosis hematuria or blood in
the urine and accepted that the employment duties occurred as alleged. OWCP found that
appellant did not submit sufficient medical evidence to establish a causal relationship between
his diagnosed condition and his accepted employment duties.

2

20 C.F.R. § 10.5(q).

3

Lourdes Harris, 45 ECAB 545, 547 (1994).

2

The only medical evidence in the record is an emergency room note dated
August 15, 2012. It was signed by a physician whose signature is illegible. The note does not
contain any history of injury or address the causal relations of appellant’s genitourinary disease
and his employment duties. Without detailed medical opinion evidence providing a history of
injury as implicated by appellant and offering a reasoned medical opinion explaining how his
employment duties caused or contributed to the diagnosed condition, appellant has failed to meet
his burden of proof.
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 failed to submit the necessary medical opinion evidence to
establish his claim for an occupational disease.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 20, 2013
Washington, DC

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

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

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

3


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

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

Docket No. 21-0741
Issued: November 23, 2021

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 January 25, 2021 appellant filed a timely appeal from an August 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 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
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from August 24, 2020, the date of OWCP’s decision, was
February 20, 2021. As this fell on a Saturday, appellant had until the next business day, Monday, February 23, 2021,
to file the appeal. Since using April 1, 2021, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is January 25, 2021, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the August 24, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On June 7, 2018 appellant, then a 58-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date a dog bit his right ankle, while he was in the performance
of duty. OWCP accepted the claim for a right shoulder contusion and complete right shoulder
rotator cuff tear.4
On July 21, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award. No medical evidence was provided in support of his claim.
In a July 22, 2020 development letter, OWCP noted that appellant had not provided
medical evidence of permanent impairment in support of his schedule award claim. It requested a
detailed narrative medical report addressing whether his accepted conditions had reached
maximum medical improvement and whether he had any permanent impairment of a scheduled
member in accordance with the sixth edition of the American Medical Associa tion, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).5 It noted that if appellant’s physician was
unable or unwilling to provide the required report, he should so advise OWCP in writing. OWCP
afforded appellant 30 days to provide the requested medical evidence. No response was received.
By decision dated August 24, 2020, OWCP denied appellant’s claim for a schedule award,
finding that there was no medical evidence to establish that he sustained permanent impairment of
a scheduled member or function of the body.
LEGAL PRECEDENT
The schedule award provisions of FECA, 6 and its implementing federal regulation, 7 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 loss of a member shall be determined.
The method used in making such a determination is a matter which rests in the discretion
of OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of
a single set of tables so that there may be uniform standards applicable to all claimants. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified

4

OWCP paid a ppellant wage-loss compensation on the supplemental rolls from July 23 through November 10,
2018; on the periodic rolls from November 11 through December 8, 2018; and on the supplemental rolls again from
December 9, 2018 through May 8, 2019.
5

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

6

Supra note 2.

7

20 C.F.R. § 10.404.

2

edition of the A.M.A., Guides, published in 2009. 8 The Board has approved the use by OWCP of
the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the
body for schedule award purposes. 9
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 10 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence, which
shows that the impairment has reached a permanent and fixed state and indicates the date on which
this occurred, describes the impairment in sufficient detail so that it can be visualized on review,
and computes the percentage of impairment in accordance with the A.M.A., Guides.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
OWCP accepted that appellant sustained a right shoulder contusion and complete rotator
cuff tear or rupture of right shoulder. On July 21, 2020 appellant filed a claim for a schedule
award.
OWCP on July 22, 2020 requested that appellant submit an impairment evaluation from
his physician addressing the extent of any employment-related permanent impairment using the
A.M.A., Guides. As noted, a claimant must submit an evaluation from a physician that includes a
description of impairment in sufficient detail so that the claims examiner and others reviewing the
file will be able to clearly visualize the impairment with its resulting restrictions and limitations. 12
Appellant, however, has not submitted any medical evidence establishing permanent impairment
of a scheduled member or function of the body due to his accepted conditions. The Board, thus,
finds that appellant has not met his burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment. 13

8

For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
9

K.J., Docket No. 19-1492 (issued February 26, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
10

M.G., Docket No. 19-1627 (issued April 17, 2020); Tammy L. Meehan, 53 ECAB 229 (2001).

11

Supra note 8; B.J., Docket No. 19-0960 (issued October 7, 2019).

12

See D.J., Docket No. 20-0017 (issued August 31, 2021); B.V., Docket No. 17-0656 (issued March 13, 2018);
C.B., Docket No. 16-0060 (issued February 2, 2016); P.L., Docket No. 13-1592 (issued January 7, 2014).
13

Id.

3

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 24, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 2021
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
U.S. POSTAL SERVICE, SOUTH SUBURBAN
PROCESSING & DISTRIBUTION CENTER,
Bedford Park, IL, Employer
__________________________________________

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

Docket No. 09-120
Issued: April 22, 2009

Oral Argument December 18, 2008

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

JURISDICTION
On October 16, 2008 appellant timely appealed the September 8, 2008 merit decision of
the Office of Workers’ Compensation Programs, which terminated her wage-loss compensation
and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective September 8, 2008.

FACTUAL HISTORY
Appellant, a 50-year-old clerk, has an accepted traumatic injury claim for left rotator cuff
strain and left glenoid labrum sprain, which arose on February 28, 2002.1 She sustained a
recurrence of disability on March 30, 2003 and has not worked since. The Office paid appellant
appropriate wage-loss compensation following her March 2003 recurrence of disability.
By decision dated May 18, 2007, the Office terminated appellant’s compensation
effective March 30, 2007 because she neglected to work after suitable employment had been
procured, offered and secured for her. In a decision dated January 7, 2008, the Branch of
Hearings & Review reversed the May 18, 2007 decision, and directed that appellant’s wage-loss
compensation be reinstated retroactive to the date of termination. The hearing representative
found that the Office relied on outdated medical evidence in determining that the offered position
was medically suitable.2 There was also an unresolved issue regarding the etiology of
appellant’s ongoing cervical condition.
Appellant claimed to have sustained injuries to her neck during a December 3, 2003
medical examination. An Office referral physician, Dr. Leonard R. Smith, reportedly applied too
much pressure to appellant’s head and neck during his December 3, 2003 physical examination.3
Although appellant believed Dr. Smith was the cause of her cervical condition, her treating
physician, Dr. Robert A. Alter, believed that the February 28, 2002 employment injury
exacerbated a preexisting cervical condition.4
By letter dated March 24, 2008, the Office advised appellant that a cervical condition had
not been accepted in relation to her February 28, 2002 employment injury. The Office further
advised that a referee examination was scheduled with Dr. Michael Cohen, a Board-certified
orthopedic surgeon, to determine, among other things, whether appellant sustained an injury to
her cervical spine as a result of the February 28, 2000 employment incident, and if so, whether

1

Appellant had preexisting lumbar and cervical strains due to an employment-related motor vehicle accident on
February 25, 2002 (File No. xxxxxx115). The February 28, 2002 left upper extremity injury occurred when
appellant stumbled over some loose flooring material.
2

The December 19, 2006 limited-duty job offer had been deemed medically suitable based on the results of an
October 1, 2004 impartial medical evaluation conducted by Dr. David A. Hoffman, a Board-certified orthopedic
surgeon.
3

In a June 3, 2004 letter to the Office, appellant complained that, while she was seated in a low chair, Dr. Smith
stood behind her and proceeded to put his weight down on her head until her neck pushed out to the left. She
claimed that since Dr. Smith’s December 3, 2003 examination she experienced additional pain and discomfort to her
neck, shoulder, back and knees, with restricted and limited movement.
4

Dr. Alter, a Board-certified internist, initially diagnosed cervical strain on March 18, 2002, which he attributed
to the February 28, 2002 employment incident. He was unaware that appellant had sustained an employment-related
cervical strain just three days prior to her February 28, 2002 injury. Regarding Dr. Smith’s alleged contribution to
appellant’s cervical and upper back complaints, Dr. Alter stated in a July 21, 2004 report that he could not determine
if appellant’s symptoms were the result of Dr. Smith’s examination.

2

she was totally disabled. An impartial medical evaluation was necessary in order to resolve a
conflict between Dr. Alter and Dr. Smith.5
In a June 23, 2008 report, Dr. Cohen found that appellant’s employment-related left
shoulder injury had resolved. He indicated that appellant’s complaints of pain in the left
shoulder, neck and trapezius region were all subjective in nature. Dr. Cohen was unable to
identify any positive physical findings to support a diagnosis that would explain appellant’s pain
or symptomatology. He explained that it was impossible to accurately assess appellant’s current
status because she demonstrated symptom magnification and subjective symptoms
unsubstantiated by her objective findings. Dr. Cohen reviewed the diagnostic studies of record
and found that appellant’s cervical disc herniation was unrelated to her February 28, 2002
employment injury. Additionally, he indicated that there was no evidence to suggest that
appellant’s cervical condition was exacerbated by an Office-directed medical examination in
December 2003. Dr. Cohen advised that appellant did not require any further treatment. In a
July 7, 2008 supplemental report, he reiterated that there were no objective findings to support
any ongoing conditions related to the events of February 28, 2002.
On July 29, 2008 the Office issued a proposed termination of compensation and medical
benefits based on Dr. Cohen’s impartial medical evaluation. It afforded appellant 30 days to
submit additional evidence or argument to the extent she disagreed with the proposed
termination of benefits. Appellant responded on August 25, 2008, noting that she had not
received Dr. Cohen’s reports. She requested a copy of his findings and the Office’s latest
statement of accepted facts. Appellant also asked that the Office postpone further action on the
proposed termination until she had an opportunity to review and respond to the requested
information.
In a September 8, 2008 decision, the Office terminated appellant’s compensation and
medical benefits effective that day. It explained that the notice of proposed termination
discussed Dr. Cohen’s opinion in detail. The Office noted that appellant waited approximately
three weeks before advising it that she had not received Dr. Cohen’s reports. Dr. Cohen’s
reports and the statement of accepted facts were enclosed with the September 8, 2008 final
decision.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
5

Dr. Smith, a Board-certified orthopedic surgeon, noted that his examination findings “may be compatible with a
left rotator cuff strain,” which had “improved with minimal evidence of any residual of injury.” According to him,
appellant had reached maximum medical improvement and was capable of performing full-time, limited-duty work.
Dr. Smith also noted that there was no definitive need for any future treatment. He further indicated that appellant’s
symptoms appeared to be subjective in nature and there was “probably some ... symptom amplification.” In an
August 28, 2007 report, Dr. Alter noted that appellant had two injuries in February 2002; a left rotator cuff injury
and a cervical strain. He also noted ongoing symptoms with respect to appellant’s neck, left shoulder and left arm.
Dr. Alter believed that, even if appellant returned to her position with limitations, her pain symptoms would worsen.
He reiterated that appellant “was disabled with regard to working.”
6

Curtis Hall, 45 ECAB 316 (1994).

3

causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.7 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.8 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.9
ANALYSIS
At oral argument appellant questioned the Office’s decision to refer her for an impartial
medical evaluation. She contended that the Office was doctor shopping. The Board notes that
the Office properly found there was a conflict of medical opinion between appellant’s physician,
Dr. Atler, and the Office referral physician, Dr. Smith. Because of this conflict, the Office
properly referred appellant to an impartial medical examiner to resolve the issue of whether there
were any residuals of the accepted employment injury.10 Dr. Cohen, the impartial medical
examiner, conducted a thorough examination, setting forth his findings on evaluation of
appellant’s left shoulder and reviewing the diagnostic studies of record. He found that appellant
no longer had an employment-related left shoulder injury. Dr. Cohen was unable to identify any
positive physical findings to support appellant’s subjective complaints and he indicated there was
evidence of symptom magnification. He believed that appellant did not require any further
treatment. In his supplemental report, Dr. Cohen reiterated that there were no objective findings
to support any ongoing conditions related to the events of February 28, 2002.
The Board finds that the Office properly accorded determinative weight to Dr. Cohen’s
findings as the impartial medical examiner.11 Dr. Cohen’s opinion is sufficiently well reasoned
and based upon a proper factual background. The Office met its burden of proof to terminate
appellant’s compensation and medical benefits with respect to the accepted conditions of left
rotator cuff strain and left glenoid labrum sprain.

7

Jason C. Armstrong, 40 ECAB 907 (1989).

8

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

9

Calvin S. Mays, 39 ECAB 993 (1988).

10

The Federal Employees’ Compensation Act provides that, if there is disagreement between the physician
making the examination for the Office and the employee’s physician, the Office shall appoint a third physician who
shall make an examination. 5 U.S.C. § 8123(a) (2006); Shirley L. Steib, 46 ECAB 309, 317 (1994).
11

Where the Office has referred appellant to an impartial medical examiner to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).

4

Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, she bears the burden of proof to establish that the condition is
causally related to the employment injury.12 Appellant contends that Dr. Smith injured her neck
and other areas of her body when he examined her on December 3, 2003. Dr. Alter, appellant’s
treating physician, indicated that the February 28, 2002 employment incident exacerbated her
preexisting cervical condition.
Although the Office asked the impartial medical examiner to address whether appellant’s
cervical condition was causally related to her February 28, 2002 employment injury, at the time
of the referral there was no conflict of medical opinion on that particular issue. The two previous
physicians selected by the Office, Dr. Smith and Dr. Hoffman, did not offer an opinion regarding
the etiology of appellant’s cervical condition.13 Thus, Dr. Alter’s belief that the February 28,
2002 employment incident exacerbated appellant’s preexisting cervical condition was not
contradicted by an Office-appointed physician; at least not until Dr. Cohen, the latest impartial
medical examiner, renders an opinion on this issue.
Appellant’s belief that Dr. Smith injured her neck is unsubstantiated. Her own treating
physician stated that he could not determine if appellant’s symptoms were the result of
Dr. Smith’s examination. Additionally, Dr. Cohen indicated that there was no evidence to
suggest that appellant’s cervical condition was exacerbated by an Office-directed medical
examination in December 2003. Accordingly, the medical evidence does not establish that
Dr. Smith either caused or contributed to appellant’s current cervical condition.
As to whether the February 28, 2002 employment incident played a role in appellant’s
current cervical condition, Dr. Cohen found that it did not. He specifically noted that appellant’s
cervical disc herniation was unrelated to her February 28, 2002 employment injury. Dr. Cohen
explained that the C6-7 disc herniation that was evident on a January 2005 cervical MRI scan
was not present on a March 2003 cervical MRI scan. In light of this fact, Dr. Cohen stated that
appellant’s disc herniation “clearly occurred at some point over a year after the incident in
question.”
Dr. Alter first diagnosed cervical strain on March 18, 2002. On a Form CA-20 (attending
physician’s report), he checked the appropriate box attributing appellant’s diagnosed conditions

12

Jaja K. Asaramo, 55 ECAB 200, 204 (2004). Causal relationship is a medical question, which generally
requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factors. Id.
13

When Dr. Hoffman initially examined appellant on October 1, 2004, the only definitive diagnosis he offered
was mild adhesive capsulitis of the left shoulder. He also noted “possible cervical nerve root syndrome C5-6, left
upper extremity. Dr. Hoffman subsequently reviewed a January 3, 2005 cervical magnetic resonance imaging
(MRI) scan, which revealed a minor broad-based disc bulge at C5-6 and a disc herniation at C6-7. He explained that
the MRI scan findings at C6-7 were inconsistent with his prior physical examination findings. Dr. Hoffman did not
otherwise comment on the cause of appellant’s cervical condition at that time.

5

to her employment.14 However, Dr. Alter did not provided a narrative explaining the basis for
his opinion on causal relationship. Moreover, he was unaware at the time that appellant
sustained a cervical strain on February 25, 2002 when she was involved in a motor vehicle
accident (MVA). In a May 8, 2007 report, Dr. Alter acknowledged that he was unaware of
appellant’s February 25, 2002 MVA when he diagnosed a cervical strain on March 18, 2002. He
explained that, after reviewing information regarding appellant’s February 25, 2002 injuries, he
was “quite certain that the injury of February 28[, 2002] exacerbated the preexisting cervical
injury from February 25[, 2002]....” Dr. Alter’s latest opinion on causal relationship is no more
enlightening than his March 18, 2002 report. In neither instance did he elaborate on what
particular factors allowed him to conclude with a level of certainty that the February 28, 2002
employment incident either caused or contributed to appellant’s cervical condition. Because
Dr. Alter failed to explain the nature of the relationship between the diagnosed cervical condition
and the February 28, 2002 employment incident, his opinion on causal relationship cannot be
considered rationalized.15
Appellant failed to establish that her diagnosed cervical condition was either a direct
result of the February 28, 2002 employment injury or a consequence of Dr. Smith’s December 3,
2003 Office-directed examination. Accordingly, the Office properly declined to expand the
current claim to include either cervical strain or cervical disc herniation as accepted conditions.
Furthermore, it properly terminated appellant’s wage-loss compensation and medical benefits
based on Dr. Cohen’s impartial medical evaluation.
CONCLUSION
The Office met its burden to terminate compensation and medical benefits effective
September 8, 2008.

14

Item number 8 on Form CA-20 asks: “Do you believe the condition found was caused or aggravated by an
employment activity?” The question is followed by a parenthetical directing the physician to “Please explain
answer.” Dr. Alter checked the “Yes” box signifying a causal relationship, but he did not otherwise elaborate.
15

Victor J. Woodhams, supra note 12.

6

ORDER
IT IS HEREBY ORDERED THAT the September 8, 2008 decision of the Office of
Workers’ Compensation Program is affirmed.
Issued: April 22, 2009
Washington, DC

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

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

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

7


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

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0128
Issued: April 8, 2016

Case Submitted on the Record

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

JURISDICTION
On October 30, 2015 appellant filed a timely appeal from a May 13, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of $64,172.00 was
created for the period January 20, 2012 to August 24, 2013; and (2) whether OWCP properly
determined appellant was at fault in creating the overpayment and therefore not entitled to
waiver.
1
2

5 U.S.C. § 8101 et seq.

The record indicates OWCP issued a September 15, 2015 decision that suspended compensation commencing
September 20, 2015, for failure to complete a Form EN1032 regarding employment activity. Appellant did not
request review of this decision on this appeal.

FACTUAL HISTORY
On August 20, 2004 appellant, then a 40-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on August 16, 2004 she sustained injuries while trying to restrain a
patient (OWCP File No. xxxxxx603). The record indicates that she also filed an occupational
disease claim (Form CA-2) on July 1, 2005 for an emotional condition resulting from an
administrative action of the employing establishment (OWCP File No. xxxxxx821).3 The date of
injury was reported as April 19, 2005. OWCP has combined the case files and accepted the
claims for lumbar sprain/strain; lumbar disc herniation; right shoulder, upper arm, and elbow
contusions; lumbago; headache; benign hypertension; migraines; post-traumatic stress disorder
(PTSD); major depression; and prolonged depressive reaction. The record indicates that OWCP
found appellant totally disabled as of April 19, 2005 and as of July 10, 2005, she began receiving
compensation for total disability on the periodic rolls. OWCP issued a schedule award decision
dated October 21, 2008 for two percent permanent impairment to the right upper extremity.
In a letter dated March 9, 2010, OWCP advised appellant that once she returned to work
or obtained new employment, she must notify OWCP immediately. If she received a
compensation payment covering a period she had worked, appellant was advised to return the
payment to OWCP to prevent an overpayment of compensation. The record indicates that she
continued to receive compensation every 28 days direct deposited to her bank account. On
February 11, 2012 a payment of $4,097.92 was deposited covering the period January 15 to
February 11, 2012. On March 10, 2012 a payment of $4,145.06 was deposited, for the period
February 12 to March 10, 2012.
In a letter dated April 17, 2012, appellant indicated that as of January 23, 2012 she had
begun work at a nursing school as a nursing program chair. She indicated that she worked as a
consultant, primarily from home, making conference calls when necessary. OWCP periodically
sent appellant EN1032 forms requesting information regarding employment activity. On
August 20, 2012 it received an August 3, 2012 Form EN1032 from her indicating that she was
working in private employment. Appellant indicated that from July to December 2011 she had
worked as a clinical coordinator at a private college. She also reported that commencing in
January 2012 she was earning $5,000.00 per month as a private nursing program consultant
working from home.
On August 24, 2013 OWCP interrupted compensation payments for total disability. By
letter dated September 10, 2013, it requested that the nursing school provide information
regarding appellant’s employment earnings. The employing establishment responded in a
September 16, 2013 letter that she had worked since January 20, 2012 earning $5,000.00 per
month. According to the nursing school, no additional benefits were provided. The nursing
school indicated that appellant worked as a consultant primarily from home, making phone calls,
submitting applications, and performing other duties. The record contains a copy of an initial
six-month contract commencing January 23, 2012. The contract indicated that it could be
3

The employing establishment issued an April 15, 2005 letter proposing to terminate appellant’s employment,
finding that, during the period September 11, 2003 to January 22, 2004, she had received compensation benefits
while working in private employment as a nurse. The record indicates that she had filed a claim for carpal tunnel
syndrome in October 2002.

2

terminated by the employing establishment at any time. On September 17, 2013 appellant
submitted a note indicating that earnings from concurrent, dissimilar employment should not be
included in determining her wage-earning capacity.
In a December 10, 2013 letter, appellant indicated that she had informed OWCP of her
private employment. She argued that dissimilar employment should not be considered in wageearning capacity and she was not employed as a nurse in private employment.
By decision dated June 19, 2014, OWCP determined that as of January 20, 2012
appellant had earnings of $1,153.85 per week. It found this fairly and reasonably represented her
wage-earning capacity, and her compensation would be reduced effective January 20, 2012. An
accompanying worksheet indicated that appellant’s pay rate as of April 19, 2005 was $1,226.54,
her current date-of-injury pay rate was $1,603.43, and therefore she knew or had a loss of wageearning capacity of 28 percent.
By letter dated June 19, 2014, OWCP advised appellant of a preliminary determination
that an overpayment of $64,172.00 had been created from January 20, 2012 to August 24, 2013.
It found that she had been paid $88,353.80 in net compensation for the period, but should have
received $24,181.80 based on her wage-earning capacity. OWCP also advised appellant of a
preliminary determination that she was at fault in creating the overpayment, as she knew or
should have known that she could not accept payments after she returned to work in private
employment.
Appellant requested a prerecoupment hearing before an OWCP hearing representative. A
hearing was held on February 17, 2015. Appellant argued that OWCP should not use her actual
earnings as a consultant in determining compensation.
By decision dated May 13, 2015, the hearing representative finalized the preliminary
determination that and overpayment of $64,172.00 was created. She also found that appellant
was at fault in creating the overpayment, and therefore not subject to waiver.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8102(a) provides that the United States shall pay compensation as specified by
this subchapter for the disability or death of an employee resulting from personal injury sustained
while in the performance of his duty. A claimant is not entitled to compensation for total
disability during a period of return to work in private employment, and an overpayment of
compensation is created when a claimant returns to work and continues to receive
compensation.4 20 C.F.R. § 10.500 provides that “compensation for wage loss due to disability
is available only for any periods during which an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related injury.”
Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his wage-earning
4

See D.S., Docket No. 09-2199 (issued June 8, 2010); Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).

3

capacity. 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 wage-earning capacity, must be accepted as such measure.5
OWCP procedures state that, after a claimant has been working for 60 days, OWCP will
make a determination as to whether actual earnings fairly and reasonably represent wage-earning
capacity.6 The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the Albert C. Shadrick decision,7 has been codified at 20 C.F.R. § 10.403. OWCP
first calculates an employee’s wage-earning capacity in terms of percentage by dividing the
employee’s earnings by the current pay rate for the date-of-injury position.8 If the actual
earnings do not fairly and reasonably represent wage-earning capacity, compensation payable
during the periods worked is reduced to reflect those earnings.9 OWCP uses the same Shadrick
formula to determine the offset based on actual earnings.10
ANALYSIS -- ISSUE 1
In the present case, appellant had been receiving compensation for temporary total
disability. On January 20, 2012 she began working as a consultant earning $5,000.00 per month
(or $1,153.85 per week). Appellant’s private employer confirmed this amount. The record
indicates that she continued to work from January 20, 2012 through August 24, 2013. Appellant
continued to receive compensation for temporary total disability during this period. Since she is
not entitled to compensation for total disability during periods that she is working, an
overpayment of compensation was created.
The amount of the overpayment is determined by calculating the amount of compensation
appellant received from January 20, 2012 to August 24, 2013, and subtracting the amount she
should have received during this period. OWCP calculated that she had received $88,353.80
from January 20, 2012 to August 24, 2013. There is no contrary evidence of record.
As to the amount appellant should have received, OWCP calculated the compensation
owed based on her wage-earning capacity. It calculated wage-earning capacity using actual
earnings of $1,153.85 per week and a pay rate date of April 19, 2005, representing the date of
injury. Under the Shadrick formula, the current earnings are compared to the current pay rate for
the date-of-injury job, to determine the wage-earning capacity percentage. The wage-earning
5

Dennis E. Maddy, 47 ECAB 259 (1995).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment, Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (February 2013).
7

5 ECAB 376 (1953).

8

20 C.F.R. § 10.403(d).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Earnings, Chapter 2.815.5(e) (June 2013).
10

See L.D., Docket No. 12-0081 (issued June 25, 2012); see also G.P., Docket No. 14-1005 (issued
November 4, 2014).

4

capacity in dollars is computed by multiplying the pay rate for compensation purposes by the
wage-earning capacity percentage, and the result is then subtracted from the pay rate for
compensation purposes to determine loss of wage-earning capacity.11
The Board notes that even if a formal wage-earning capacity determination had not been
issued, as noted above, OWCP would still be entitled to offset the actual earnings. Since
appellant worked the entire period of the overpayment, the offset for actual earnings would be
the same under the Shadrick formula.
Appellant has argued that she did not return to full-time work as reported by OWCP, but
the issue with respect to an overpayment of compensation is the amount of earnings. The record
clearly indicated that she returned to private employment and earned $1,153.85 per week. As
discussed above, OWCP may properly find an overpayment of compensation. Appellant also
argues that earnings as a consultant were dissimilar earnings, but the issue of concurrent and
dissimilar earnings is not presented here. The Board has held that, in determining a claimant’s
pay rate under 5 U.S.C. § 8114, earnings from a private-sector job are not combined with
concurrent federal employment earnings if the private earnings are dissimilar.12 The present case
does not involve concurrent federal employment earnings and a determination of pay rate under
5 U.S.C. § 8114. In this case, appellant had earnings from private employment and she is not
entitled to compensation for total disability during the period worked. Whether pursuant to a
formal wage-earning capacity determination or an informal offset of earnings, compensation
must be reduced to reflect her actual earnings.
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of [FECA] or would be against equity and good
conscience.”13 A claimant who is at fault in creating the overpayment is not entitled to waiver.14
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault if he or
she has done any of the following: “(1) made an incorrect statement as to a material fact which
he or she knew or should have known to be incorrect; (2) failed to provide information which he
or she knew or should have known to be material; or (3) accepted a payment which he or she
knew or should have known was incorrect.”
ANALYSIS -- ISSUE 2
The finding of fault in this case was based on the acceptance of payments that appellant
knew or should have known were incorrect. Although she had notified OWCP of her return to
work, the basis for finding of fault was not based on her failure to provide material information.
11

20 C.F.R. § 10.403.

12

Irwin E. Goldman, 23 ECAB 6 (1971); see also Steven J. Rose, 44 ECAB 211 (1992).

13

5 U.S.C. § 8129(b).

14

See Robert W. O’Brien, 36 ECAB 541, 547 (1985).

5

Rather, the issue is whether appellant accepted payments she knew or should have known were
incorrect.
In the context of receiving compensation after returning to work, the Board precedent on
the issue of fault clearly establishes that the first payment received must be properly considered.
The Board has held that receiving an initial erroneous direct deposit payment following the
employee’s return to work does not necessarily create the requisite knowledge to find that a
claimant was at fault in the creation of the overpayment.15 Unlike the situation where a physical
check is sent to appellant with the period of compensation covered, at the time of the acceptance
of the first direct deposit after a return to work, a claimant does not know that an incorrect
payment would be deposited on that date.16 OWCP did not establish that for the payment
deposited on February 11, 2012 she knew or should have known it was incorrect. A finding that
appellant was not at fault with respect to the February 11, 2012 direct deposit payment does not
establish that she was entitled to waiver of that portion of the overpayment and therefore the case
shall be returned to OWCP. On return of the case record, OWCP should properly consider the
issue of waiver.
When appellant accepted the March 10, 2012 payment representing a full compensation
payment for total disability, and continued to accept payments deposited every 28 days, she
clearly should have known they were incorrect. She had been advised in a March 9, 2010 letter
that she could not receive total disability after returning to work. When it became clear that
OWCP was continuing to deposit compensation for total disability after her return to work,
appellant is properly found to be at fault for accepting such payments.17
Since appellant was at fault for accepting the March 10, 2012 direct deposit and
subsequent deposits through August 24, 2013, she is not entitled to waiver for this portion of the
overpayment. OWCP properly denied waiver with respect to the overpayment amount
commencing with the March 10, 2012 direct deposit.
CONCLUSION
The Board finds that OWCP properly found an overpayment of $64,172.00 was created
for the period January 20, 2012 to August 24, 2013. The Board further finds that OWCP
properly denied waiver with respect to direct deposits commencing March 10, 2012. The
evidence does not establish that appellant was at fault with respect to the February 11, 2012
direct deposit and the case remanded for consideration of waiver as to that portion of the
overpayment.

15

See R.R., Docket No. 15-1395 (issued December 11, 2015) (claimant returned to work February 25, 2015 and
OWCP was notified April 7, 2015. The Board found that appellant was not at fault with respect to a March 7, 2015
direct deposit payment).
16

Id.

17

See M.B., Docket No. 10-564 (issued December 16, 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 13, 2015 is affirmed with respect to the fact and amount of
overpayment. As to denial of waiver, the decision is affirmed with respect to the overpayment
from February 12, 2012 to August 24, 2013, and set aside and remanded for further action
regarding waiver from January 20 to February 11, 2012.
Issued: April 8, 2016
Washington, DC

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

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

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

7