United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
PATENT & TRADEMARK OFFICE,
Alexandria, VA, Employer
__________________________________________

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

Docket No. 19-1765
Issued: March 13, 2020

Case Submitted on the Record

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

JURISDICTION
On August 10, 2019 appellant, through counsel, filed a timely appeal from a May 9, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the issuance of the May 9, 2019 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 disability,
commencing April 12, 2018, causally related to his accepted October 14, 2015 employment injury.
FACTUAL HISTORY
On November 6, 2015 appellant, then a 50-year-old patent examiner, filed a traumatic
injury claim (Form CA-1) alleging that on October 14, 2015 he sustained a left foot sprain of the
calcaneofibular ligament of the ankle, right rotator cuff capsule sprain, and neck sprain when he
lost his balance and fell while in the performance of duty. On the reverse side of the claim form
the employing establishment indicated that appellant stopped work on the date of injury.
On November 13, 2015 OWCP accepted appellant’s claim for unspecified sprain of the
right shoulder joint, sprain of ligaments of the cervical spine, and sprain of an unspecified ligament
of the left ankle. It paid him wage-loss compensation on the supplemental rolls commencing
November 29, 2015.
Appellant returned to part-time work without restrictions on January 11, 2016. OWCP
paid him wage-loss compensation benefits on the supplemental rolls for partial disability
commencing January 12, 2016.
Thereafter, appellant filed several wage-loss compensation claims (Form CA-7) seeking
compensation for leave without pay (LWOP) from April 6 through August 5, 2016 and August 26
through November 18, 2016. By decisions dated November 2, 2016 and February 15 and April 3,
2017, OWCP denied appellant’s wage-loss compensation claims.
OWCP subsequently received a May 4, 2018 progress note from Dr. Kenneth R. Zaslav,
an attending Board-certified orthopedic surgeon. Dr. Zaslav indicated that appellant presented as
a former patient with a recurrent chief complaint of atraumatic onset of right shoulder pain that
began about two and one-half years ago. He noted that appellant sustained work-related neck and
right shoulder injuries in October 2015. Dr. Zaslav reported examination findings and reviewed
diagnostic test results. He diagnosed primary osteoarthritis of the right shoulder, incomplete tear
of the right rotator cuff, and cervical radiculopathy. Dr. Zaslav referred appellant for physical
therapy, twice a week for six weeks.
OWCP also received an April 13, 2018 narrative report and a June 20, 2018 attending
physician’s report (Form CA-20) from Dr. Albert M. Jones, Jr., a Board-certified physiatrist.
Dr. Jones noted a history of appellant’s accepted October 14, 2015 work injury, reviewed his
medical records, and discussed examination findings. He provided impressions of neck, back, and
shoulder injuries secondary to the work injury, and chronic pain syndrome secondary to these
conditions and in association with previously confirmed persisting symptoms of depression and
anxiety. Additionally, Dr. Jones provided an impression of specific objective abnormalities
identified on previous imaging testing that included, degenerative cervical disc and spondylitic
changes at several levels with multiple levels of foraminal narrowing and mild spinal stenosis, but
without evidence of cord compression. The imaging testing was also negative for cervical
myelopathy. A magnetic resonance imaging scan confirmed supraspinatus tendinopathy and
partial interstitial tearing of the infraspinatus in the right shoulder. Dr. Jones further provided an
impression of self-reported persisting problems with long-term memory, visual working memory,
2

distractibility, and concentration. However, he did not believe that these problems were worked
up specifically with psychometric cognitive testing. Dr. Jones advised that appellant was disabled
from work commencing April 12, 2018 and could perform sedentary light work for five hours per
day, as of April 12, 2018.
On June 30, 2018 appellant filed an additional Form CA-7 claims requesting disability
compensation for LWOP through June 22, 2018.
In a July 5, 2018 development letter, OWCP informed appellant that additional medical
evidence was required to establish disability from work during the period claimed. It afforded him
30 days to submit the necessary evidence.
Dr. Zaslav, in a July 16, 2018 progress note, indicated that appellant presented for followup conservative treatment of his right shoulder pain. He reported examination findings and
reiterated his prior assessments of primary osteoarthritis of the right shoulder and incomplete tear
of the right rotator cuff. Dr. Zaslav related that there was no history of new injury sustained
between 2015 and the date of his examination. He noted that appellant had returned to work, but
his symptoms had recurred over the prior six months. Dr. Zaslav advised that this was “the same
problem he always had.” He was not surprised that appellant was not better since his request for
physical therapy was denied by workers’ compensation.
Appellant filed additional Form CA-7 claims for disability compensation for LWOP
through August 17, 2018.
OWCP, by decision dated August 28, 2018, denied appellant’s claims for LWOP
compensation for the period April 12, 2018 and continuing finding that the medical evidence of
record was insufficient to establish that he was partially disabled, during the period claimed,
causally related to his accepted October 14, 2015 employment injuries.
OWCP thereafter received office/clinic notes dated June 26 and October 1, 2018 and
January 8, 2019 from Dr. Jones who continued to treat appellant. Dr. Jones reiterated the
impressions that appellant sustained neck, back, and shoulder injuries secondary to his October 14,
2015 employment injury and resultant chronic pain syndrome. In addition, he diagnosed right
rotator cuff tendinitis, chronic cervical pain (neck), post-concussional syndrome with persisting
problems including short-term and visual working memory, distractibility and concentration, and
bilateral carpal tunnel syndrome. Dr. Jones referenced his previous reports indicating that
appellant was working full time, but with great difficulties. He also restated his prior finding that
appellant could perform sedentary light work five hours per day. Dr. Jones noted that appellant’s
work restrictions were related to his chronic pain and possibly a previous old concussion, which
were directly related to his work-related fall in October 2015.
OWCP also received an October 29, 2018 progress note and a December 14, 2018
evaluation from appellant’s physical therapists.
In an October 25, 2018 referral and November 12, 2018 progress note, Dr. Zaslav
continued to diagnose primary osteoarthritis of the right shoulder and incomplete tear of the right
rotator cuff. He referred appellant for physical therapy, twice a week for six weeks.

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Dr. Adam C. Crowl, a Board-certified orthopedic surgeon, in a referral dated November 8,
2018, diagnosed neck and low back pain, unspecified back pain laterality with unspecified
chronicity, and unspecified presence of sciatica. He referred appellant for physical therapy once
or twice per week for six weeks.
On February 20, 2019 appellant requested reconsideration regarding the August 28, 2018
decision. He submitted an October 22, 2018 electromyogram (EMG) performed by Dr. Douglas
Wayne, a Board-certified physiatrist. Dr. Wayne provided impressions of electrodiagnostic
evidence of right carpal tunnel syndrome, mild left carpal tunnel syndrome, and moderate sensory
and borderline motor involvement, and no electrodiagnostic evidence of ulnar neuropathies
bilaterally and polyneuropathy or radiculopathies involving the bilateral upper extremity motor
axoms.
OWCP subsequently received a June 26, 2018 report from a licensed practical nurse.
By decision dated May 9, 2019, OWCP denied modification of its August 28, 2018
decision.
LEGAL PRECEDENT
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.4 Whether a
particular injury causes an employee to become disabled from work, and the duration of that
disability, are medical issues that must be proven by a preponderance of probative and reliable
medical opinion evidence.5
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.6 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.7
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.8 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of

4

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
5

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

6

Id. at § 10.5(f); see e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

7

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

8

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

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the relationship between the diagnosed condition and the specific employment factors identified
by the employee.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability from
work commencing April 12, 2018 causally related to his accepted October 14, 2015 employment
injury.
In support of his claims for compensation, appellant submitted reports dated April 13 and
June 20, 2018 and office/clinic notes dated June 26 and October 1, 2018 and January 8, 2019 from
Dr. Jones who diagnosed right rotator cuff tendinitis, chronic cervical pain, post-concussional
syndrome with persisting problems regarding memory and concentration problems, and bilateral
carpal tunnel syndrome causally related to the accepted October 14, 2015 employment injury.
However, he did not provide medical rationale explaining why appellant’s current conditions were
due to the accepted October 14, 2015 employment injury.10 Furthermore, while Dr. Jones
indicated that appellant was disabled from work commencing April 12, 2018, he did not relate his
disability to the accepted conditions of unspecified sprain of the right shoulder joint, sprain of
cervical spine ligaments, and unspecified sprain of a left ankle ligament.11 Dr. Jones did not
explain how appellant’s accepted conditions caused disability during the periods alleged. For these
reasons, the Board finds that his reports and office/clinic notes are insufficient to establish
appellant’s claim for compensation.12
Dr. Zaslav’s May 4, July 16, and November 12, 2018 progress notes and October 25, 2018
referral diagnosed primary osteoarthritis of the right shoulder, incomplete tear of the right rotator
cuff, and cervical radiculopathy. However, he did not address whether appellant was disabled due
to the accepted employment conditions.13 Thus, Dr. Zaslav’s progress notes and referral report are
of no probative value and are insufficient to establish appellant’s claim for compensation.
Likewise, Dr. Crow’s November 8, 2018 referral report also offered no opinion on
appellant’s disability from work.14 Thus, this evidence is insufficient to meet appellant’s burden
of proof.
Appellant also submitted the results of an October 22, 2018 EMG study. However, the
Board has consistently held that diagnostic test studies are of limited probative value as they do

9

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
10

See L.S., Docket No. 18-0264 (issued January 28, 2020); J.M., Docket No. 18-0847 (issued December 5, 2019).

11

L.S., id.; V.G., Docket No. 18-0936 (issued February 6, 2019).

12

Id.

13

See supra note 10.

14

Id.

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not address whether the employment injury caused disability from work during the claimed
period.15
The progress note and physical therapy evaluation notes from appellant’s physical
therapists and the report from a licensed practical nurse are of no probative value as neither
physical therapists nor a licensed practical nurses are considered physicians as defined under
FECA.16 Consequently, their findings or opinions will not suffice for purposes of establishing
entitlement to compensation benefits.17
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury.18 Because appellant has not submitted rationalized medical opinion evidence
to establish employment-related partial disability commencing April 12, 2018 as a result of his
accepted right shoulder, cervical, and left ankle conditions, the Board finds that he has not met his
burden of proof to establish his claim for disability compensation.
On appeal counsel contends that OWCP’s May 9, 2019 decision is contrary to fact and law.
He has not, however, provided any evidence to support his argument. As explained above,
appellant has not submitted rationalized medical evidence to establish causal relationship between
his claimed disability and the accepted October 14, 2015 employment injury. As such, he has not
met 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 has not met his burden of proof to establish disability
commencing April 12, 2018, causally related to his accepted October 14, 2015 employment injury.

15

See R.B., Docket No. 18-0048 (issued June 24, 2019); J.S., Docket No. 17-1039 (issued October 6, 2017).

16

5 U.S.C. § 8101(2); R.B., id.; Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapists); O.W., Docket No.
17-1881 (issued May 1, 2018); H.B., Docket No. 16-1711 (issued March 15, 2017) (nurse practitioners, licensed
practical nurses). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949)
(a medical issue can only be resolved through the submission of probative medical evidence from a physician).
17

R.B., supra note 15; K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

18

Supra note 4.

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ORDER
IT IS HEREBY ORDERED THAT the May 9, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 13, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Warner Robins, GA, Employer
__________________________________________

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Appearances:
Brett E. Blumstein, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1551
Issued: December 17, 2013

Case Submitted on the Record

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

JURISDICTION
On June 18, 2013 appellant, through counsel, filed a timely appeal from a March 18,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
claim for compensation. Pursuant to the Federal Employees’ Compensation Appeals Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
foot injury causally related to factors of her federal employment.
On appeal, appellant’s counsel contends that she submitted medical evidence to establish
the causal relationship between her employment duties and her claimed condition.
1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted new medical evidence. However, the Board has no jurisdiction to review this
evidence for the first time on appeal.

FACTUAL HISTORY
On April 10, 2012 appellant, then a 47-year-old sales service distribution associate clerk,
filed an occupational disease claim alleging right foot pain due to working on her feet for
extended periods of time. In an accompanying statement, she described foot pain that started on
approximately December 8, 2011 and became worse. Appellant worked on a hard concrete floor
all day and did not have the opportunity to sit down except for breaks or lunch. She submitted a
statement from Dr. Dallas Morgan, a podiatrist, dated April 12, 2012. Dr. Morgan advised that
appellant had chronic ankle/foot pain with swelling and was unable to work for the next week.
By letter dated April 20, 2012, OWCP asked that appellant submit additional evidence in
support of her claim.
On June 14, 2012 appellant submitted a portion of an article from a magazine with regard
to the impact on workers of standing for long periods of time. She stated that Dr. Stewart told
her that her ankle was swollen and that it would never go down as long as she was on her feet all
day.
In a report dated May 31, 2012, Dr. Gary Stewart, a Board-certified orthopedic surgeon,
assessed appellant with plantar fasciitis and treated her with a flector transdermal patch.
By decision dated July 6, 2012, OWCP denied appellant’s claim. It found that the
medical evidence was not sufficient to establish a right ankle condition causally related to the
accepted work factors.
By letter dated January 30, 2013, appellant, through counsel, requested reconsideration.
She submitted a January 21, 2013 note from Dr. Derrick D. Phillips, a Board-certified orthopedic
surgeon, who stated that appellant related that her job involved predominantly standing for at
least 6 hours a day with a 10 minute break, and that she frequently lifted packages that weighed
20 pounds or more. Dr. Phillips advised that, although appellant’s employment did not cause her
flatfoot condition, her work activities lead to pain and discomfort. He noted that her other
diagnoses included posterior tibial tendinitis, a condition that frequently developed as a result of
repetitive physical activities. Based on appellant’s work history, the condition could be due to
repetitive standing and walking activities or such activities could aggravate the underlying
condition.
By decision dated March 18, 2013, OWCP denied modification of the July 6, 2012
decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA3 has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence,4
3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

2

including that he is an “employee” within the meaning of FECA5 and that she filed her claim
within the applicable time limitation.6 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that disability for work, if any, was causally
related to the employment injury.7 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.8
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.9
The medical evidence required to establish causal relationship is usually rationalized
medical evidence.10 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 of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained a right ankle or foot condition causally related to accepted factors of her federal
employment. The medical evidence is insufficient to support causal relation. An award of
compensation may not be based on appellant’s belief of a causal relationship.12 Appellant
submitted a portion of a magazine article in support of her claim, but the Board has held that
excerpts from publications and medical literature are not of probative medical value in

5

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see also 5 U.S.C. § 8101(1).
6

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

7

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

8

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

9

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

10

D.V., Docket No. 13-1114 (issued August 26, 2013).

11

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

12

S.R., Docket No. 13-932 (issued August 19, 2013).

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establishing causal relationship. They do not specifically address the individual claimant’s
medical situation and work factors.13
Neither Dr. Morgan nor Dr. Stewart discussed the nature or extent of appellant’s
employment activities or attributed her medical condition to her federal employment.
Dr. Phillips noted that she had flat feet not caused by her employment, but that her work
activities could result in pain or discomfort. He also noted that possible posterior tibial tendinitis
could be due to her work activities. The Board finds that Dr. Phillips’ opinion is speculative.
While the opinion of a physician supporting causal relationship need not be one of absolute
medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty.14 Dr. Phillips failed to provide a
full or accurate history of appellant’s right foot condition.
Appellant has not submitted sufficient medical opinion evidence to establish causal
relationship. The Board finds that she did not meet her burden of proof. 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 has not met her burden of proof to establish that she
suffered from a foot injury causally related to her federal employment, as alleged.

13

Gloria J. McPherson, 51 ECAB 441 (2000).

14

Ricky S. Storms, 52 ECAB 349 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 18, 2013 is affirmed.
Issued: December 17, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, COLEMAN FEDERAL
CORRECTIONAL COMPLEX, Coleman, FL,
Employer
__________________________________________
Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1341
Issued: March 24, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 8, 2021 appellant, through counsel, filed an appeal from a March 11, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-1341.
The Board has duly considered the matter and notes that it has jurisdiction to review final
adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2 For final
adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review authority

1

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

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.3
The 180 th day following the March 11, 2021 decision was September 7, 2021. As appellant
did not file an appeal with the Board until September 8, 2021, more than 180 days after the
March 11, 2021 OWCP decision, the Board finds that the appeal docketed as No. 21 -1341 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered
a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances. Because there is no final adverse decision issued by OWCP
within 180 days of the filing of the instant appeal, the Board concludes that the appeal docketed
as No. 21-1341, must be dismissed.4 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1341 is dismissed.
Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

Id. at § 501.3(e).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” Id.
at § 501.6(d).
4

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 21-1195
Issued: March 17, 2022

Case Submitted on the Record

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

JURISDICTION
On August 2, 2021 appellant, through counsel, filed a timely appeal from a June 22, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted April 19, 2020 employment incident.

1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 21, 2020 appellant, then a 39-year-old assistant rural carrier, filed a traumatic
injury claim (Form CA-1) alleging that on April 19, 2020 she sprained her back while in the
performance of duty. 3 She indicated that the cause of the injury was “unknown.” Appellant
stopped work on that date. On the reverse side of the claim form, G.T., a customer supervisor,
indicated that appellant was instructed to perform duties within her work limitations, but she did
not follow instructions.
In a May 4, 2020 letter, the employing establishment controverted appellant’s claim on the
basis of performance of duty and fact of injury. It noted that the alleged injury occurred on
April 19, 2020, but appellant did not report the injury until April 21, 2020 and did not seek medical
attention until April 22, 2020. The employing establishment also asserted that appellant was filing
a new traumatic injury claim because she had wage-loss compensation claims (Form CA-7s) that
were denied under a previous claim.
In a May 6, 2020 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and also provided a questionnaire for completion.
OWCP afforded appellant 30 days to provide the necessary factual information and medical
evidence.
Appellant submitted a statement dated April 21, 2020. She explained that on April 19,
2020 she repeatedly bent down to pick up packages and climbed up and down stairs while
delivering mail. Appellant recounted that she reached for two boxes and turned right to step out
of the long-life vehicle (LLV) when she felt a sharp pain in her back. She noted that she called
G.T., her supervisor, and informed him that her back had gone out. Appellant also provided a
statement by A.S. and P.S., appellant’s brother-in-law and sister, who indicated that on April 19,
2020 they picked appellant up from the job site after her alleged injury.
In April 20, 2020 reports, Dr. Shabnam Guard, a Board-certified family medicine
physician, recounted appellant’s complaints of thoracic and lumbar spine pain and noted that
appellant was injured last year at work. On physical examination, he reported reduced range of
motion and tenderness on palpation of the thoracic spine. Examination of the lumbar spine
revealed tenderness on palpation and limited range of motion due to pain. Dr. Guard diagnosed
degeneration of lumbar intervertebral disc and noted that it was a “work[-]related injury.” He
completed a work status note releasing appellant to limited duty on April 23, 2020.

3

OWCP assigned the present claim OWCP File No. xxxxxx088. Appellant has a previously accepted traumatic
injury claim related to a June 23, 2019 employment incident. OWCP assigned that claim OWCP File No. xxxxxx684
and accepted it for lumbar back strain. Appellant stopped work on June 23, 2019 and accepted a full-time, limitedduty position on January 31, 2020. She also subsequently filed another traumatic injury claim under OWCP File No.
xxxxxx425 for a back injury related to a September 18, 2020 employment incident. By decisions dated January 5 and
June 22, 2021, OWCP denied the claim. It has administratively combined OWCP File Nos. xxxxxx088, xxxxxx425,
and xxxxxx826, with the latter designated as the master file.

2

OWCP received an April 29, 2020 return to work note containing an illegible signature.
The note indicated a diagnosis of lumbar radiculopathy and low back pain and date of injury of
April 19, 2020.
In a May 21, 2020 letter, appellant informed E.S. that she had the same back condition as
under OWCP File No. xxxxxx684. She indicated that all her medical records said the same thing
and that she was waiting for a diagnostic test to determine how serious the back condition was.
In a May 21, 2020 letter, Dr. George Thomas, a family medicine specialist, indicated that
appellant was seen in the office for complaints of continued back pain. He noted that appellant
had an appointment with an orthopedic surgeon scheduled for June 1, 2020.
OWCP received an authorization for examination and/or treatment (Form CA-16) dated
April 21, 2020 signed by G.T., appellant’s supervisor, who authorized treatment at an urgent care
facility. Appellant’s alleged injury was described as middle back sprain.
In a letter dated May 15, 2020, A.N., an employing establishment human resource
management specialist, asserted that appellant had not met her burden of proof to establish “fact
of injury” or “performance of duty.” She also alleged that appellant switched doctors in order to
obtain stricter work limitations.
On May 22, 2020 appellant accepted a full-time, limited-duty position as an assistant rural
carrier.
A May 23, 2020 lumbar spine magnetic resonance imaging (MRI) scan interpreted by
Dr. Matthew Dobbs, a Board-certified radiologist, revealed mild facet ligamentous hypertrophy at
L4-5 and mild degenerative endplate changes and mild broad-based disc bulge and degenerative
changes at L5-S1.
In a June 1, 2020 examination report, Heather Wilson, a certified nurse practitioner, noted
that appellant was seen for complaints of chronic low back pain with recent exacerbation. She
reported no acute findings on physical examination and diagnostic films. Ms. Wilson diagnosed
low back pain and lumbar spondylosis.
A June 1, 2020 diagnostic report demonstrated mild degenerative disc changes at L5 -S1
and no acute abnormality.
Appellant submitted workers’ compensation injury form reports dated April 22 through
June 3, 2020 by a provider with an illegible signature. The report noted an April 19, 2020 date of
injury and diagnosis of lumbar radiculopathy or lumbar pain.
On June 23, 2020 OWCP received statements from appellant. Appellant indicated that on
April 19, 2020 she reached for a package and turned to get out of her LLV when she felt her back
give out. She noted that she notified her supervisor and called 911 for help. Appellant explained
that she initially sought treatment from an urgent care facility, but was informed that they did not
have a workers’ compensation doctor available on Sundays. She asserted that she did not suffer
another low back sprain, but had trauma to her disc due to repetitively ascending flights of stairs.

3

OWCP received epidural injection procedure notes dated June 25 and July 9, 2020 by
Dr. Jacob Vella, Board-certified pain management and anesthesiology, who noted a diagnosis of
lumbar radiculitis.
In a July 2, 2020 letter, Dr. Thomas noted that appellant injured her lower back and both
wrists on June 23, 2019 while lifting and delivering packages. He indicated that appellant
sustained another injury on April 19, 2020 after bending to organize packages and climbing up
stairs. Dr. Thomas explained that a lumbar spine MRI scan demonstrated increased loss in disc
height, a mild broad-based disc bulge, and mild left foraminal narrowing at L5-S1. He discussed
the medical treatment that appellant received and recommended that appellant’s activities be
limited to sitting and lifting up to 10 pounds.
By decision dated July 20, 2020, OWCP denied appellant’s claim. It accepted that the
April 19, 2020 incident occurred as alleged and that a lumbar condition had been diagnosed;
however, it denied her claim finding that she had failed to establish causal relationship between
the accepted employment incident and the diagnosed condition.
On July 24, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted additional medical evidence. In an April 29, 2020 examination note,
Dr. John Tinglin, a general surgeon, indicated that appellant was seen for follow-up of low back
pain and noted physical examination findings of marked tenderness of the lum bar spine. He
diagnosed low back pain.
In examination notes dated May 19 and 22, 2020, Dr. Bernard Hale, a family medicine
specialist, indicated that appellant was examined for follow-up of back pain. He reported that
musculoskeletal examination revealed abnormal gait and stance and diminished strength. Dr. Hale
diagnosed lumbar radiculopathy.
In examination notes dated May 23 and 27, 2020, Dr. Mark Pita, a family medicine
specialist, reported that he treated appellant for several months of lower back pain and lumbar
radiculopathy. He indicated that physical examination findings were normal and diagnosed lumbar
radiculopathy and low back pain.
In a September 10, 2020 work status note, Jessica Rollins, a nurse practitioner, indicated
that appellant could return to work on September 24, 2020.
On September 17, 2020 appellant accepted a full-time, limited-duty job offer for an
assistant rural carrier position.
In a September 21, 2020 report and return to work note, Dr. Thomas indicated that
appellant was treated for complaints of back pain and diagnosed with low back pain. He authorized
appellant to return to work on September 28, 2020.
In a September 24, 2020 letter, the employing establishment indicated that it continued to
challenge appellant’s claim on the basis of fact of injury and performance of duty. It alleged that
appellant went to several medical facilities in order to receive pain medication. The employing
establishment also noted that appellant had two previous back injuries.
4

On October 5, 2020 a telephonic hearing was held. Appellant testified that she had a
history of back pain, but that the incident that occurred on April 19, 2020 was different than a
sprain. She explained that she felt a disc in her back move and felt sharp pain that went down to
her legs.
An October 19, 2020 lumbar spine MRI scan interpreted by Dr. Ronald Ng, a Boardcertified diagnostic radiologist, demonstrated mild diffuse disc bulge and facet disease without
significant central foraminal canal stenosis at L5-S1.
In an October 28, 2020 report, Heather Wilson, a certified nurse practitioner, noted that
appellant was seen for low back pain. She reviewed diagnostic testing and diagnosed low back
pain.
In a November 2, 2020 letter, Dr. Thomas reported that appellant was treated on April 29
and May 21, 2020 for back pain following an April 19, 2020 work incident. He explained that
appellant was again seen in the office on September 18, 2020 after she injured her back at work.
In a November 24, 2020 decision, OWCP’s hearing representative affirmed, but modified,
the July 20, 2020 decision. He determined that the medical evidence of record did not include
medical evidence containing a diagnosis in connection with the accepted April 19, 2020
employment incident. Thus, OWCP’s hearing representative found that appellant had failed to
establish an injury or condition under FECA. 4
On May 7, 2021 appellant indicated that she wanted to appeal her claim under OWCP File
No. xxxxxx088.
In a September 18, 2020 emergency room report, Dr. Anitricia Lumpkin, an osteopathic
physician Board-certified in emergency and internal medicine, recounted that on September 18,
2020 appellant “tweaked” her back when she sat on a low chair at work. She noted that appellant
had a history of back injury and described the June 23, 2019 and April 19, 2020 work incidents.
Dr. Lumpkin reported physical examination findings of normal range of motion and no tenderness.
She indicated that a lumbar spine MRI scan demonstrated degenerative disc disease at L5-S1 and
no suspicious osseous lesion. Dr. Lumpkin diagnosed degenerative disc disease at L5-S1.
Emergency room discharge instructions noted diagnoses of back pain and lumbar degenerative
disc disease.
In a January 27, 2021 report, Dr. Timothy Holt, an orthopedic surgeon, indicated that
appellant was seen for evaluation of low back pain radiating down into her bilateral legs.
Regarding appellant’s mechanism of injury, he described that on June 23, 2019 appellant lifted
heavy boxes and tried to fix a seatbelt at work; on April 19, 2020 she bent down to organize
packages and had climbed three flights of stairs when she felt something twist in h er lower back;
and on September 18, 2020 she was changing chairs at work when it suddenly dropped down. On
physical examination, Dr. Holt reported positive straight leg raise and cram testing. He indicated
that a lumbar spine MRI scan demonstrated degenerative disc disease at L4-5 and L5-S1. Dr. Holt

4

The hearing representative also instructed OWCP to combine the present claim, OWCP File No. xxxxxx088, and
OWCP File No. xxxxxx684 serving as the master file.

5

diagnosed lumbar radiculopathy, cervicalgia, intervertebral disc displacement of the lumbar
region, and spinal instabilities of the lumbar region.
Dr. Holt continued to treat appellant and provided reports dated February 4 and
April 13, 2021. He reported physical examination findings of limited range of motion and
shuffling gait. Dr. Holt reviewed the results of a lumbar discogram and diagnosed lumbar
radiculopathy and lumbar intervertebral disc degeneration. He recommended surgical
intervention.
A March 15, 2021 lumbar spine MRI scan demonstrated chronically degenerated disc at
L4-5 with minimal bulge, chronically degenerated disc protruding at L5 -S1, and endplate
degeneration at the L5-S1.
In an April 21, 2021 report, Dr. Andrew W. Murkett, a Board-certified internal medicine
physician, noted physical examination findings of normal range of motion. He diagnosed low
back pain, status post lumbar L5-S1 fusion.
An April 23, 2021 discharge summary report noted that Dr. Holt performed an anterior
lumbar interbody fusion at the L5-S1 with a discharge diagnosis of lumbar degenerative disc
disease.
By decision dated June 22, 2021, OWCP denied modification of the November 24, 2020
decision.5
LEGAL PRECEDENT
An employee seeking benefits under FECA 6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence 7 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, 8 that an
injury was sustained in the performance of duty as alleged, and that any specific condition or
disability from work for which compensation is claimed is causally related to that employment
injury.9 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. 10

5

The Board notes that appellant has an appeal pending before the Board concerning a separate June 22, 2021
OWCP decision under File No. xxxxxx425. That appeal will proceed under Docket No. 21-1196.
6

Supra note 1.

7

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

8

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).
9

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

10

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).

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. 11
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 and place, and in the manner alleged. 12 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment incident
caused a personal injury. 13
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence. 14 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 factor(s) identified by the employee. 15 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.16
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. 17
ANALYSIS
The Board finds that appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted April 19, 2020 employment incident.
In April 20, 2020 reports, Dr. Guard reported reduced range of motion and tenderness on
palpation of the thoracic spine. Examination of the lumbar spine revealed tenderness on palpation
and limited range of motion due to pain. Dr. Guard diagnosed degeneration of lumbar
intervertebral disc and noted that it was a “work[-]related injury.”
In examination notes dated May 19 and 22, 2020, Dr. Hale noted that appellant was
examined for follow-up of back pain. He reported that musculoskeletal examination revealed
abnormal gait and stance and diminished strength. Dr. Hale diagnosed lumbar radiculopathy.
11

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

12

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

13

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

14

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

15

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
16

James Mack, 43 ECAB 321 (1991).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

7

In examination notes dated May 23 and 27, 2020, Dr. Pita indicated that physical
examination findings were normal and diagnosed lumbar radiculopathy and low back pain.
In a September 18, 2020 emergency room report, Dr. Lumpkin reported physical
examination findings of normal range of motion and no tenderness. She indicated that a lumbar
spine MRI scan demonstrated degenerative disc disease at L5-S1 and no suspicious osseous lesion.
Dr. Lumpkin diagnosed degenerative disc disease at L5-S1. Emergency room discharge
instructions noted diagnoses of back pain and lumbar degenerative disc disease.
In a January 27, 2021 report, Dr. Timothy Holt, an orthopedic surgeon, indicated that
appellant was seen for evaluation of low back pain radiating down into her bilateral legs. On
physical examination, he reported positive straight leg raise and cram testing. Dr. Holt indicated
that a lumbar spine MRI scan demonstrated degenerative disc disease at L4 -5 and L5-S1. He
diagnosed lumbar radiculopathy, cervicalgia, intervertebral disc displacement of the lumbar
region, and spinal instabilities of the lumbar region. The Board thus finds that evidence of record
establishes diagnoses including degenerative disc disease at L5-S1, lumbar radiculopathy,
cervicalgia, intervertebral disc displacement of the lumbar region, and spinal instabilities of the
lumbar region.
The Board further finds, however, that the case is not in posture for decision with regard
to whether the diagnosed medical conditions are causally related to the accepted April 19, 2020
employment incident. As the medical evidence of record establishes diagnosed medical
conditions, the case must be remanded for consideration of the medical evidence with regard to
the issue of causal relationship. 18 Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.19
CONCLUSION
The Board finds that appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted April 19, 2020 employment incident. The Board further

18

See F.D., 21-1045 (December 22, 2021).

19
A completed Form CA-16 authorization may constitute a contract for payment of medical expenses to a medical
facility or physician, when properly executed. The form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See
20 C.F.R. § 10.300(c); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

8

finds that the case is not in posture for decision with regard to whether the diagnosed medical
condition is causally related to the accepted April 19, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2021 decision of the Office of Workers’
Compensation Programs is reversed in part and set aside in part. The case is remanded for further
proceedings consistent with this decision of the Board.
Issued: March 17, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1162
Issued: January 10, 2008

Case Submitted on the Record

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

JURISDICTION
On March 26, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 25, 2006 merit decision denying his request for reimbursement
of aquatic therapy expenses and the Office’s December 21, 2006 nonmerit decision denying his
request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office abused its discretion by denying appellant’s
request for reimbursement of aquatic therapy expenses; and (2) whether it properly denied his
request for further review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
The Office accepted that on December 28, 1990 appellant, then a 53-year-old mail
carrier, sustained an acute lumbar strain and a sprain of his right fifth finger. It also accepted that
on December 3, 1991 he sustained a lumbar strain due to lifting mail from a container.

Appellant began to work in limited-duty positions for the employing establishment and the
Office paid appropriate compensation for periods of disability.1
On February 13, 1991 Dr. Bong S. Lee, a Board-certified orthopedic surgeon, performed
a fitness-for-duty examination for the employing establishment. He indicated that examination
of appellant’s lower back “did not reveal any significant findings to reflect recent traumatic
pathology” and recommended work restrictions based on a sprain of the proximal
interphalangeal joint of his right fifth finger.
On July 17, 1991 Dr. Paul M. Shipkin, an attending Board-certified neurologist, stated
that appellant reported low back pain radiating into his legs, mostly on the right, since his
December 28, 1990 fall.2 Dr. Shipkin diagnosed “resolving right post-traumatic lumbosacral
radicular syndrome, much greater on the right.” On April 8, 1992 Dr. Shipkin indicated that
appellant continued to suffer from “protracted bilateral lumbosacral radicular syndrome (by
history) and probable muscle tension headaches (possibly related to a right cervical radicular
syndrome).”
In March 1992, the Office determined that there was a conflict in the medical evidence
between Dr. Shipkin and Dr. Lee and referred appellant to Dr. Noubar Didizian, a Boardcertified orthopedic surgeon, for an impartial medical examination. On April 23, 1992
Dr. Didizian stated that appellant had a permanent fixed deformity of 20 degrees flexion
contracture of the proximal interphalangeal joint of his right fifth finger with boutonniere
hyperextension deformity of the distal joint. He indicated that appellant had excessive subjective
complaints and stated, “Based on today’s clinical examination, it is my medical opinion that
[appellant’s] symptomatology seems to be more of a deconditioned back rather than neurogenic.
I can not find any evidence of individual nerve compression in the lumbar or cervical spine.”
The Office asked Dr. Didizian to provide clarification of his April 23, 1992 report. On
June 10, 1992 Dr. Didizian stated that appellant had a permanent deformity in the form of a
boutonniere deformity of the right fifth finger and noted that he had a “deconditioned back
mechanically without any evidence of nerve compression.” He indicated that the normal length
of time for pain symptoms after a soft-tissue back injury would be five or six months and noted
that appellant’s right fifth finger condition was a “very minimal deformity” which represented “a
very minimal disability.”3 On July 29, 1992 Dr. Didizian stated that appellant had subjective
complaints without any evidence of objective findings to substantiate that he had an ongoing
strain or sprain of the low back and noted, “Therefore, in my opinion, whatever soft tissue
injuries [appellant] sustained in December 1990 were resolved at the time of my evaluation from
a soft tissue point of view.”
1

Appellant stopped work on May 20, 1992 and was separated from the employing establishment effective
October 2, 1992.
2

Dr. Shipkin stated that magnetic resonance imaging (MRI) scan showed a mild L3-4 bulge with hypertrophic
changes and that electromyogram (EMG) testing from February 1991 revealed a mild bilateral radiculopathy. It
does not appear that these testing results are included in the present record.
3

Dr. Didizian indicated that appellant could lift up to 50 pounds and stated that there were no restrictions on
work with his hands including simple grasping and fine manipulation.

2

In a September 22, 1992 decision, the Office terminated appellant’s compensation
effective April 4, 1992 on the grounds that he had no disability due to his employment injuries
after that date. It found that the weight of the medical evidence rested with the opinion of
Dr. Didizian. The Office determined that the evidence showed that appellant sustained a
permanent boutonniere deformity of the right fifth finger due to the December 28, 1990 fall. It
found that appellant was entitled to receive medical benefits for this condition but not for any
other condition.4
On July 19, 2006 appellant requested reimbursement for aquatic therapy he believed was
required by his employment injuries. He stated, “I have been receiving therapy since 1990 and
have been paying for it since 1992.” Appellant noted that his cost for therapy received between
2005 and 2006 was $378.00 and indicated that he also incurred expenses for travel to and from
his therapy sessions. He submitted a January 14, 1992 form report in which Dr. Shipkin
recommended appellant undergo “aquatic therapy” to “recondition” his employment-related low
back condition and lessen his low back pain. In a July 7, 1993 note, Dr. Shipkin stated,
“Physical therapy, diagnosis left lower back pain” and, in a note with an illegible date, he stated,
“Aquatic therapy.” In a January 30, 1992 letter, a manager at appellant’s fitness center detailed
the cost of an aquatic therapy program and, in a January 31, 2006 letter, the director of his fitness
center stated that appellant was a member in good standing.
In an August 25, 2006 decision, the Office denied appellant’s request for reimbursement
of aquatic therapy expenses including travel to and from therapy sessions. It stated: “[Y]our
physical therapy was covered from 1990 to 1992. The Office determined that you were no
longer eligible for benefits on September 22, 1992; hence, your benefits were terminated. This
office recently determined that you were entitled to a schedule award but this does not entitle
you to medical benefits.”
On October 8, 2006 appellant requested reconsideration of the Office’s August 25, 2006
decision. He argued that the aquatic therapy was necessitated by the December 29, 1990
employment injury to his back and criticized the opinion of Dr. Didizian. Appellant submitted a
July 4, 2006 request for reimbursement of expenses related to aquatic therapy received between
1992 and 2006 along with other documents detailing his therapy expenses. He also resubmitted
a number of the documents that he submitted in July 2006.
In a December 21, 2006 decision, the Office denied appellant’s reconsideration request
indicating that the evidence and argument he submitted was repetitious or irrelevant.

4

In May 1996, appellant requested a hearing before an Office hearing representative and in a June 25, 1998
decision the Office denied his hearing request as untimely. On August 11, 2006 appellant received a schedule award
for a nine percent permanent impairment of his right arm. In an October 30, 1998 decision, the Office denied
appellant’s reconsideration request because it was untimely and failed to present clear evidence of error. In a
December 5, 2000 decision, the Board affirmed the Office’s June 25 and October 30, 1998 decisions on the grounds
that the Office properly denied appellant’s request for a hearing and properly denied his reconsideration request
because it was untimely and failed to present clear evidence of error.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of the Federal Employees’ Compensation Act states in pertinent part:
“The United States shall furnish to an employee who is injured while in the performance of duty,
the services, appliances and supplies prescribed or recommended by a qualified physician, which
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 the monthly compensation.”5
The Board has found that the Office has great discretion in determining whether a
particular type of treatment is likely to cure or give relief.6 The only limitation on the Office’s
authority is that of reasonableness.7 Abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deductions from established facts. It is not enough to merely show that
the evidence could be construed so as to produce a contrary factual conclusion.8
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained an acute lumbar strain and a sprain and
boutonniere deformity of his right fifth finger due to a December 28, 1990 fall and a lumbar
strain due to a December 3, 1991 lifting incident. In a September 22, 1992 decision, it
terminated appellant’s compensation effective April 4, 1992 on the grounds that he had no
disability due to his employment injuries after that date. The Office found that appellant was
entitled to receive medical benefits for his right fifth finger condition but not for his back
condition.
The Board finds that the Office did not abuse its discretion when it denied appellant’s
request for reimbursement for expenses related to aquatic therapy received between 1992
and 2006. Appellant submitted several brief reports and notes of Dr. Shipkin, an attending
Board-certified neurologist, including a January 14, 1992 report in which he recommended
“aquatic therapy” to lessen his employment-related low back pain and a July 7, 1993 note in
which he stated, “Physical therapy, diagnosis left lower back pain.” However, these reports do
not provide a detailed description of the type of recommended therapy and they do not contain
any explanation of the medical process through which this therapy would be likely to cure
appellant’s employment-related back condition, give relief from the condition, reduce the degree
or the period of disability or aid in lessening the amount of the monthly compensation.9 The
Board further notes that effective April 4, 1992 the Office terminated appellant’s entitlement to
5

5 U.S.C. § 8103.

6

Vicky C. Randall, 51 ECAB 357 (2000).

7

Lecil E. Stevens, 49 ECAB 673, 675 (1998)

8

Rosa Lee Jones, 36 ECAB 679 (1985).

9

See supra note 5 and accompanying text. Appellant also submitted letters from employees at his fitness center
but these nonmedical documents would not be relevant to the question of whether his claim for reimbursement of
aquatic therapy expenses should have been approved.

4

receive medical benefits for his back condition and it appears that his request for reimbursement
relates to a period starting after April 4, 1992.10
The Office has great discretion in determining whether a particular type of treatment is
likely to cure or give relief.11 Given the above-described circumstances, the Office’s denial of
appellant’s request for reimbursement of aquatic therapy expenses would not constitute an abuse
of discretion.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,12 the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.13 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.14 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.15 The Board has held that the submission of
evidence or argument which repeats or duplicates evidence or argument already in the case
record16 and the submission of evidence or argument which does not address the particular issue
involved does not constitute a basis for reopening a case.17
ANALYSIS -- ISSUE 2
In support of his October 2006 reconsideration request, appellant submitted a July 4, 2006
request for reimbursement of expenses related to aquatic therapy received between 1992 and
2006 along with other documents detailing his therapy expenses. The submission of these
documents would not require reopening of his claim for merit review because these nonmedical
10

The matter of the termination of appellant’s disability compensation and compensation for back-related medical
benefits is not currently before the Board. It should be noted that appellant has not submitted any medical evidence
showing that he had residuals of an employment-related back condition after April 4, 1992.
11

See supra note 7 and accompanying text.

12

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
13

20 C.F.R. § 10.606(b)(2).

14

20 C.F.R. § 10.607(a).

15

20 C.F.R. § 10.608(b).

16

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

17

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

5

documents are not relevant to the question of whether the aquatic therapy was medically
indicated.18 Appellant also resubmitted a number of the documents that he first submitted in
July 2006 and repeated the arguments he presented at that time. However, the submission of
previously considered evidence and argument would not require reopening of his claim for merit
review.19
Appellant has not established that the Office improperly denied his request for further
review of the merits of its August 25, 2006 decision under section 8128(a) of the Act, because
the evidence and argument he submitted did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or constitute relevant and pertinent new evidence not previously considered by the
Office.
CONCLUSION
The Board finds that the Office did not abuse its discretion by denying appellant’s request
for reimbursement of aquatic therapy expenses. The Board further finds that the Office properly
denied appellant’s request for further review of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).

18

See supra note 17 and accompanying text.

19

See supra note 16 and accompanying text.

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
December 21 and August 25, 2006 decisions are affirmed.
Issued: January 10, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Marcus, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 20-1435
Issued: July 2, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 25, 2020 appellant filed a timely appeal from a June 25, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
docketed the appeal as No. 20-1435.2
On May 16, 2017 appellant, then a 52-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on May 12, 2017 she twisted her right foot in a trailer floor
hole while in the performance of duty. She stopped work that day. OWCP accepted the claim for
lumbar sprain, left hip sprain, left foot sprain, and strain of muscle, fascia, and tendon at neck. It
1

Appellant’s AB-1 form notes that she is also appealing from a September 25, 2019 merit decision. For final
adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review authority is limited to appeals
which are filed within 180 days from the date of issuance of OWCP’s decision. The 180th day following the
September 25, 2019 decision was March 23, 2020. As appellant did not file an appeal with the Board until July 25,
2020, the Board is without jurisdiction to review the appeal. Appellant has not offered a reason to explain the failure
to timely file an appeal with supporting documentation sufficient to establish compelling circumstances.
2

The Board notes that OWCP received additional evidence following the June 25, 2020 decision. 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.

paid appellant on the supplemental rolls from June 27 through July 22, 2017 and on the periodic
rolls from July 23 through August 19, 2017.
Appellant returned to work on August 16, 2017 in a limited-duty capacity working four
hours a day. She stopped work the same day and filed a claim for disability compensation (Form
CA-7) for the period August 16, 2017 and continuing. OWCP, by decisions dated October 23,
2017 and May 14, 2018, denied the claim. Effective February 9, 2018, the employing
establishment terminated appellant’s employment finding that she had abandoned her position.
By decision dated January 11, 2019, OWCP vacated its May 14, 2018 decision and
awarded compensation for the period August 17, 2017 through February 10, 2018.
On January 2, 2019 appellant filed a Form CA-7 claiming disability for the period
February 10, 2018 through January 2, 2019 and continuing. In a June 20, 2019 developmental
letter, OWCP treated her claims for disability as a claim for a recurrence, advised appellant of the
deficiencies of her recurrence claim, and requested a narrative report from her physician
addressing appellant’s disability as of February 11, 2018 and continuing. It afforded her 30 days
to submit the requested evidence.
On July 5, 2019 appellant filed a notice of recurrence (Form CA-2a) claiming a recurrent
need for medical treatment and wage-loss compensation from February 9, 2018 onwards. She
indicated that she had restrictions on file, but her job was terminated/withdrawn on February 9,
2018 due to the accepted conditions. Appellant added that she filed the Form CA-2a “due to
withdrawal of job I was working due to accepted conditions.”
Appellant submitted medical evidence, which noted the history of the May 12, 2017
employment injury, discussed her medical conditions and her ability to work. This included a
July 15, 2019 report from Dr. John W. Ellis, a Board-certified family practitioner, and medical
evidence from Dr. Jeffrey Traina, a Board-certified orthopedic surgeon, dated February 5 through
June 6, 2018.
In a July 16, 2019 letter, the employing establishment indicated that after appellant’s injury
and period of disability, it made multiple unsuccessful attempts to contact appellant to request
medical documentation substantiating her absences and/or report to work. It indicated that it had
terminated appellant’s employment pursuant to its attendance policy as she failed to report to work
without a probative cause and substantial justification.
Appellant submitted additional statements dated August 20 and September 23, 2019 and a
June 27, 2019 report from Dr. Richard Francis, an orthopedic spine specialist.
By decision dated September 24, 2019, OWCP denied appellant’s claim for compensation
from February 11, 2018 through June 13, 2019 and continuing. It found that the employing
establishment exercised its right to terminate her from employment effective February 9, 2018 as
she had failed to report to work without probable cause and substantial justification. OWCP
concluded that the evidence failed to establish that appellant’s disability occurred or increased due
to a change in the nature and extent of her light-duty job requirements or withdrawal of a lightduty assignment made specifically to accommodate her employment-related condition.

2

On November 8, 2019 appellant requested reconsideration. She submitted a November 7,
2019 report from T. Keith Wheeler, a chiropractor, and October 17, 2018 and April 23, 2020
reports from Dr. Ellis.
By decision dated June 25, 2020, OWCP denied modification of its September 24, 2019
decision. It listed Dr. Ellis’ reports and hospital reports received.
The Board, having duly considered the matter, notes that in denying appellant’s
November 8, 2019 reconsideration request, OWCP did not fully discuss the medical evidence
submitted in support of the reconsideration request.
Because Board decisions are final with regard to the subject matter appealed,3 it is crucial
that OWCP address all relevant evidence received prior to the issuance of its final decision. 4 As
OWCP did not address the relevant medical evidence, which was of record prior to OWCP’s
June 25, 2020 decision the Board finds that this case is not in posture for decision.5 On remand,
OWCP shall review all relevant submitted evidence of record at the time of the June 25, 2020
decision. Following any further development of the medical evidence deemed necessary, it shall
issue a de novo decision.

3

20 C.F.R. § 501.6(d).

4

See E.D., Docket No. 20-0620 (issued November 18, 2020); B.C., Docket No. 15-1222 (issued October 20, 2015);
William A. Couch, 41 ECAB 548, 553 (1990).
5
See M.N., Docket No. 20-0110 (issued July 7, 2020); Y.B., Docket No. 20-0205 (issued July 7, 2020); H.H.,
Docket No. 14-1985 (issued June 26, 2015).

3

IT IS HEREBY ORDERED THAT the June 25, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: July 2, 2021
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
K.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Reynoldsburg, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1646
Issued: December 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On July 21, 2014 appellant filed a timely appeal of the June 18, 2014 decision of the
Office of Workers’ Compensation Programs (OWCP) which found that appellant received an
overpayment of compensation. 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.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of $487.37 was
created from April 6, 2010 to February 9, 2013 due to a failure to deduct postretirement life
insurance premiums and optional life insurance premiums; (2) whether OWCP properly denied
waiver of the overpayment; and (3) whether OWCP properly determined that the overpayment
would be recovered by deducting $100.00 from continuing compensation payments.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On November 25, 2008 appellant, then a 44-year-old letter carrier, sustained a low back
injury while carrying his mailbag on November 25, 2008. OWCP accepted his claim for acute
lumbar strain. Appellant stopped work on November 26, 2008 and did not return. He retired on
April 9, 2010 and elected to receive FECA benefits from OWCP.
In a pay rate memorandum dated March 10, 2009, OWCP noted that appellant’s base pay
was $47,685.00 per year and he elected basic life insurance and optional life insurance code
“Z5.” It began paying him compensation on January 12, 2009. Because of appellant’s extended
disability, on April 17, 2009, OWCP placed him on the periodic rolls where appellant would be
paid every 28 days effective April 12, 2009.
In correspondence dated February 6, 2013, the Office of Personal Management (OPM)
notified OWCP that appellant’s final salary rate on which the Federal Employees’ Group Life
Insurance (FEGLI) was based was $51,320.00. It advised that appellant was enrolled in
postretirement basic life insurance at a 50 percent reduction effective April 6, 2010 and
appellant’s optional life insurance code was “J3.”
In a periodic disability worksheet dated February 19, 2013, OWCP adjusted appellant’s
compensation payment effective February 10, 2013 and began deducting postretirement basic
life insurance at a 50 percent reduction. It changed his optional life insurance code to “J3” and
based the life insurance calculation on the annual salary of $51,320.00.
In a February 20, 2013 letter, OWCP notified appellant that his periodic rolls payment
would reflect deductions for postretirement basic life insurance at a 50 percent reduction, an
optional life insurance code “J3” and the life insurance calculation would be based on the annual
salary of $51,320.00.
In a preliminary overpayment determination dated May 15, 2014, OWCP advised
appellant that he received a $487.37 overpayment of compensation because postretirement basic
life insurance premiums were not deducted from his compensation, that optional life insurance
premiums should have been deducted at code “J3,” and that his final salary for FEGLI purposes
was $51,320.00 for the period April 6, 2010 to February 9, 2013. It advised that for the period
April 6, 2010 to February 9, 2013, the amount of postretirement basic life insurance premiums
that should have been deducted was $1,737.47. Additionally, OWCP noted that optional life
insurance was deducted at code “Z5” instead of “J3” and therefore appellant overpaid premiums
by $1,294.58. It further noted that the final salary used to calculate the basic life insurance was
$47,685.00 instead of the final salary for FEGLI of $51,320.00 and therefore basic life insurance
premiums of $44.57 should have been deducted. OWCP noted that this resulted in an
overpayment of compensation of $487.37. It made a preliminary finding that appellant was
without fault in creating the overpayment. OWCP informed him that, if he believed the
overpayment should be waived, he should complete a financial recovery questionnaire form and
submit documents such as income tax returns, bank statements, bills, canceled checks, pay slips
and other records to support his claimed income and expenses. No additional information was
provided by appellant.

2

In a June 18, 2014 decision, OWCP determined that appellant received a $487.37
overpayment of compensation from April 6, 2010 to February 9, 2013 because postretirement
basic life insurance premiums were not deducted from his compensation in the amount of
$1,737.47. Optional life insurance premiums should have been deducted at “J3” instead of “Z5.”
Appellant, therefore, overpaid premiums by $1,294.58, and the final salary for FEGLI purposes
was $51,320.00, not $47,685.00, and therefore basic life insurance premiums of $44.57 should
have been deducted. It found that he was without fault in creating the overpayment, but that
waiver of recovery was not warranted. OWCP noted that appellant did not respond to the
preliminary overpayment determination and did not submit a financial recovery questionnaire
form and supporting documents. As appellant failed to submit current income and expense
information it determined that waiver of the overpayment could not be granted. OWCP directed
that $100.00 be withheld from his continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his duty.2
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.
Under the Federal Employees Group Life Insurance Program (FEGLI), most civilian
employees of the Federal Government are eligible to participate in basic life insurance and one
or more of the options.3 The coverage for basic life insurance is effective unless waived4 and the
premiums for basic and optional life coverage are withheld from the employee’s pay.5 While the
employee is receiving compensation under FECA, deductions for insurance are withheld from
the employee’s compensation.6 At separation from the employing establishment, the FEGLI
insurance will either terminate or be continued under compensationer status. If the
compensationer chooses to continue basic and optional life insurance coverage, the schedule of
deductions made will be used to withhold premiums from his or her compensation payments.7
When an under withholding of life insurance premiums occurs, the entire amount is deemed an
overpayment of compensation because OWCP must pay the full premium to OPM upon
discovery of the error.8

2

Id. at § 8102(a).

3

5 U.S.C. § 8702(a).

4

Id. at § 8702(b).

5

Id. at § 8707.

6

Id. at § 8707(b)(1).

7

Id. at § 8706(b).

8

Id. at § 8707(d); see Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997).

3

ANALYSIS -- ISSUE 1
The record reflects that OWCP failed to deduct postretirement basic life insurance
premiums from appellant’s compensation benefits, that optional life insurance premiums should
have been deducted at “J3” instead of “Z5,” and that the final salary for FEGLI purposes was
$51,320.00, not $47,685.00, for the period April 6, 2010 to February 9, 2013. It advised that for
the period April 6, 2010 to February 9, 2013, the amount of postretirement basic life insurance
premiums that should have been deducted was $1,737.47. Additionally, OWCP noted that
optional life insurance was deducted at code “Z5” instead of “J3” and therefore appellant
overpaid optional life insurance premiums by $1,294.58. It further noted that the final salary
used to calculate the basic life insurance was $47,685.00 instead of the final salary for FEGLI of
$51,320.00 and therefore basic life insurance premiums of $44.57 should have been deducted.
OWCP determined that this resulted in an overpayment of compensation of $487.37. As no
postretirement basic life insurance deductions were made, as optional life insurance premiums
were deducted at “Z5” instead of “J3” and that the final salary for FEGLI purposes was
$51,320.00 and not $47,685.00, the Board finds that an overpayment was created in the amount
of $487.37 due to the under withholding of postretirement basic life insurance and the over
withholding of optional life insurance premiums. OWCP explained how the overpayment
occurred and provided this to appellant with the preliminary notice of overpayment.9
Appellant does not dispute that he received the overpayment in question nor does he
dispute the amount of the overpayment. Thus, it is found that the failure to deduct postretirement
basic life insurance, using the incorrect code for the optional life insurance premiums and basing
the life insurance on an incorrect final FEGLI salary caused an overpayment in compensation in
the amount of $487.37.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.10 These statutory
guidelines are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an
overpayment] 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
this subchapter or would be against equity and good conscience.”11 When a claimant is found to
be without fault in the matter of the overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
Section 10.436 of the implementing regulations12 provide that recovery of an
overpayment will defeat the purpose of FECA if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks
9

See Sandra K. Neil, 40 ECAB 924 (1989).

10

See Robert Atchison, 41 ECAB 83, 87 (1989).

11

5 U.S.C. § 8129(b).

12

20 C.F.R. § 10.436.

4

recovery needs substantially all of his or her current income (including compensation benefits) to
meet current or ordinary and necessary living expenses; and (b) the beneficiary’s assets do not
exceed a specified amount as determined [by OWCP] from data furnished by the Bureau of
Labor Statistics.13 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.14
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.15
Section 10.438 of the regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by OWCP. This information is needed to determine whether or not recovery on an
overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.16
ANALYSIS -- ISSUE 2
OWCP determined that appellant was without fault in creating the overpayment.
Because he is without fault in the matter of the overpayment, OWCP must adjust later payments
only if adjustment would not defeat the purpose of FECA or be against equity and good
conscience.
On May 15, 2014 OWCP requested that appellant provide necessary financial
information by completing an overpayment recovery questionnaire, OWCP-20, if he desired
waiver of the overpayment in question. Appellant did not submit a completed OWCP-20
overpayment questionnaire or otherwise submit financial information supporting his income and
expenses. As a result, OWCP did not have the necessary financial information to determine
whether recovery of the overpayment would defeat the purpose of FECA or if recovery would be
against equity and good conscience.17
Consequently, as appellant did not submit the financial information required by section
10.438 of the OWCP’s regulations,18 which was necessary to determine eligibility for waiver,
13

An individual’s assets must exceed a resource base of $3,000.00 for an individual or $5,000.00 for an
individual with a spouse or one dependent plus $600.00 for each additional dependent. This base includes all of the
individual’s assets not exempt from recoupment. See Robert F. Kenney, 42 ECAB 297 (1991).
14

See Sherry A. Hunt, 49 ECAB 467, 473 (1998).

15

20 C.F.R. § 10.437.

16

Id. at § 10.438.

17

See 20 C.F.R. § 10.438 (in requesting waiver, the overpaid individual has the responsibility for providing
financial information).
18

20 C.F.R. § 10.438.

5

OWCP properly denied waiver of recovery of the overpayment.19 Inasmuch as appellant has not
shown that recovery of the overpayment would defeat the purpose of FECA or would be against
equity and good conscience, the Board finds that OWCP properly denied waiver of recovery of
the overpayment of compensation in the amount of $487.37.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.20 Section
10.441(a) of the regulations21 provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”22
ANALYSIS -- ISSUE 3
The record reflects that appellant continues to receive wage-loss compensation under
FECA. When, as in this case, an individual fails to provide requested information on income,23
expenses and assets, OWCP should follow minimum collection guidelines, which state in general
that government claims should be collected in full and that, if an installment plan is accepted, the
installments should be large enough to collect the debt promptly.24 Appellant, as noted, did not
provide any information for OWCP to consider in determining the amount to be withheld from
his continuing compensation and the Board finds that OWCP did not abuse its discretion in
determining that the overpayment sum of $487.37 would be recovered by deducting $100.00
from appellant’s continuing compensation benefits every month.
On appeal appellant asserts that he was not at fault in the creation of the overpayment.
He indicated that he was unable to submit the overpayment questionnaire within 30 days of the
preliminary overpayment decision and requested additional time to submit the supporting
documents. Appellant asserts that he has a severe financial hardship and was unable to repay the
overpayment of compensation. The Board notes that on May 15, 2014, OWCP requested that
appellant provide necessary financial information by completing an overpayment recovery
19

D.C., Docket No. 09-1460 (issued April 19, 2010).

20

Lorenzo Rodriguez, 51 ECAB 295 (2000); Albert Pineiro, 51 ECAB 310 (2000).

21

20 C.F.R. § 10.441(a).

22

Id.

23

See 20 C.F.R. § 10.438(a) (notes that the overpaid individual has the responsibility to provide financial
information used to determine any repayment schedule).
24

Gail M. Roe, 47 ECAB 268 (1995); Robin D. Calhoun, Docket No. 00-1756 (issued May 21, 2001).

6

questionnaire, OWCP-20, if he desired waiver of the overpayment in question. Appellant did not
submit a completed OWCP-20 form or otherwise submit financial information supporting his
income and expenses. As a result, OWCP did not have the necessary financial information to
determine whether recovery of the overpayment would defeat the purpose of FECA or if
recovery would be against equity and good conscience and therefore properly denied waiver of
the overpayment.25
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation during the period April 6, 2010 to February 9, 2013 in the amount of $487.37
for under withholding of life insurance premiums, that he was not entitled to waiver of the
overpayment, and required repayment from appellant’s continuing monthly compensation
payments.26
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 22, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

25

See 20 C.F.R. § 10.438 (in requesting waiver, the overpaid individual has the responsibility for providing
financial information).
26

With his appeal appellant submitted financial information. However, the Board may not consider new evidence
on appeal; see 20 C.F.R. § 501.2(c).

7