United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.V., Appellant
and
U.S. POSTAL SERVICE, ROSSLAND POST
OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 10-2051
Issued: May 20, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 10, 2010 appellant filed a timely appeal from a June 18, 2010 decision of the
Office of Workers’ Compensation Programs denying his request for reconsideration as untimely
filed and failing to demonstrate clear evidence of error. Because more than 180 days has elapsed
from the last merit decision dated April 29, 2009 to the filing of this appeal, the Board lacks
jurisdiction to review the merits of his claim pursuant to the Federal Employees’ Compensation
Act1 and 20 C.F.R. §§ 501.2(c) and 501.3. The only decision properly before the Board is the
June 18, 2010 nonmerit decision denying his request for reconsideration.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.
On appeal, appellant argued that the Office did not consider the evidence submitted in
support of his reconsideration request.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 17, 2006 appellant, then a 38-year-old letter carrier, filed an occupational
disease claim alleging that he developed lower back pain due to handling heavy packages, trays
of letters and bundles of magazines aggravated his herniated disc and pinched nerve. He stated
that he first became aware of his condition on October 19, 2004 and first attributed the condition
to his employment duties on October 13, 2005. Appellant submitted a magnetic resonance
imaging (MRI) scan dated October 19, 2004, which demonstrated a disc herniation at L5-S1. By
decision dated April 24, 2007, the Office accepted his claim for aggravation of displacement of
lumbar intervertebral disc without myelopathy.
Appellant filed a claim for compensation requesting wage-loss compensation
intermittently from January 8, 2005 through December 20, 2007 on July 7, 2008. In support of
his claim, he submitted a series of notes from Dr. Jerome Anthony, an internist, indicating that
appellant was totally disabled due to lumbar radiculopathy beginning January 2005 and
intermittently through December 10, 2006. Dr. Anthony further found that appellant was
disabled intermittent from January 26 through December 11, 2007.
In a letter dated January 13, 2009, the Office requested that appellant obtain additional
medical evidence addressing his disability noting that his date of injury was October 13, 2005.
In a report dated March 9, 2009, Dr. Harold Pye, a physician specializing in occupational
medicine, stated that he first examined appellant in November 2005 for complaints of severe
thoracic/lumbar pain. He noted appellant’s history of employment duties resulting in the 2005
occupational disease claim and stated that appellant had a prior claim for lumbar injury in 2004,
which the Office accepted for lumbar sprain, despite MRI scan evidence of a herniated disc at
L5-S1 dated October 19, 2004. Dr. Pye stated that in November 2005 he placed appellant on
work restrictions due to the disc herniation and that he found that appellant was totally disabled
from November through December 2005 for participation in aggressive physical therapy. He
stated, “[Appellant] has continued to experience episodic flare-ups of radicular pain that has
resulted in temporary total incapacity several times a year…. I have treated each episode with
medications, therapy, work restrictions or complete removal from work for several days to weeks
based on the severity of his symptoms.” Dr. Pye diagnosed herniated disc at L5-S1, myalgia,
sciatica, right knee internal derangement, right ankle lesion and right medial formal condyle
lesion. He concluded:
“In my medical and surgical opinion [appellant’s] lumbar herniated disc is being
directly aggravated and exacerbated by performing the numerous tasks outlined
above including driving postal vehicles. Despite working on restrictions at the
current time he currently continues to require significant amounts of narcotic
analgesics in order to obtain some pain relief.”
By decision dated April 29, 2009, the Office denied appellant’s claim for disability from
January 8, 2005 through December 20, 2007 for a total of 1,682 hours as a result of his accepted
employment injury.
Appellant requested reconsideration of the Office’s April 29, 2009 decision on
May 28, 2010. Dr. Pye submitted a work release note dated February 27, 2008 stating that

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appellant was treated from August 14, 2006 and could work with restrictions. Appellant
submitted several work release notes dated from August 14, 2006 through March 31, 2010
supporting intermittent periods of disability. He submitted MRI scans dated October 19, 2004
demonstrating a herniated disc at L5-S1, February 15, 2007 demonstrating L5-S1 disc herniation,
February 24, 2009 which demonstrated a severely degenerated disc at L5-S1 and January 7, 2010
which demonstrated L5-S1 severely degenerated disc and osteophyte complex as well as
posterior disc protrusion at L4-5.
On October 4, 2008 Dr. Pye stated that appellant was totally disabled from August 20,
through September 7, 2007 due to osteochondral defects in his right knee and ankle.
In reports dated February 27, 2007 and April 30, 2010, Dr. Pye stated that he first
examined appellant on August 14, 2006 due to severe back pain. He noted appellant’s prior back
claim in 2004 and stated that appellant’s intermittent periods of disability were due to his chronic
lumbar condition. Dr. Pye opined that appellant’s underlying condition was aggravated and
exacerbated by having to perform a variety of repetitive tasks such as walking, climbing stairs
and sitting. He also attributed the aggravation of appellant’s underlying condition to job
requirements of twisting, bending, kneeling, pushing, pulling and carrying up to 60 pounds as
well as driving. Dr. Pye repeated his statement that appellant’s herniated disc was aggravated by
work activities and driving. He noted that appellant continued to require work restrictions to
limit kneeling, stooping, squatting and twisting, pushing, pulling, lifting and carrying to 15
pounds as well as prolonged walking, stair climbing and standing. Appellant also submitted
medical evidence relating to his right knee.
By decision dated June 18, 2010, the Office declined to reopen appellant’s claim for
consideration of the merits on the grounds that his request was not timely filed and the evidence
submitted was not sufficient to establish clear evidence of error on the part of the Office. It
noted that he had submitted multiple pieces of medical evidence and that the evidence submitted
did not establish that his condition was severe enough to warrant disability from work on the
dates alleged.
LEGAL PRECEDENT
Under section 8128(a) of the Act2 the Office has the discretion to reopen a case for review
on the merits, on its own motion or on application by the claimant. It must exercise this discretion
in accordance with section 10.607 of the implementing federal regulations. Section 10.607
provides that “An application for reconsideration must be sent within one year of the date of the
[Office] decision for which review is sought.”3 In Leon D. Faidley, Jr.,4 the Board held that the
imposition of the one-year time limitation for filing an application for review was not an abuse of
the discretionary authority granted the Office under section 8128(a) of the Act. The one-year time
limitation period set forth in 20 C.F.R. § 10.607 does not restrict the Office from performing a
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607.

4

41 ECAB 104, 111 (1989).

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limited review of any evidence submitted by a claimant with an untimely application for
reconsideration. The Office is required to perform a limited review of the evidence submitted with
an untimely application for review to determine whether a claimant has submitted clear evidence
of error on the part of the Office thereby requiring merit review of the claimant’s case.
Thus, if the request for reconsideration is made after more than one year has elapsed from
the issuance of the decision, the claimant may only obtain a merit review if the application for
review demonstrates “clear evidence of error” on the part of the Office.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.6 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.7 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.9 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.10 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create a
conflict in medical opinion or establish a clear procedural error, but must be of sufficient probative
value to prima facie shift the weight of the evidence in favor of the claimant and raise a
fundamental question as to the correctness of the Office decision.11 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the part
of the Office such that the Office abused its discretion in denying merit review in the face of such
evidence.12
ANALYSIS
The Board finds that the June 18, 2010 refusal of the Office to reopen appellant’s claim for
further consideration on the merits of the claim under 5 U.S.C. § 8128(a) on the basis that his
request for reconsideration was not timely filed within the one-year time limitation period set forth
in 20 C.F.R. § 10.607 is appropriate. As more than one year elapsed between the April 29, 2009
merit decision and the May 28, 2010 request for reconsideration appellant’s request for
reconsideration was untimely.
5

20 C.F.R. § 10.607; Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

6

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

7

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

8

See Jesus D. Sanchez, supra note 5.

9

See Leona N. Travis, supra note 7.

10

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

11

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

12

Gregory Griffin, 41 ECAB 458, 466 (1990).

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The Board must evaluate whether appellant submitted clear evidence of error in the
Office’s decision denying his claim for intermittent periods of disability due to his accepted
condition of aggravation of displacement of lumbar intervertebral disc without myelopathy. The
term disability is defined as the incapacity because of an employment injury to earn the wages
the employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss
of wage-earning capacity.13 Whether a particular injury causes an employee to be disabled for
employment and the duration of that disability are medical issues which must be proved by a
preponderance of the reliable, probative and substantial medical evidence.14 Findings on
examination are generally needed to support a physician’s opinion that an employee is disabled
for work. When a physician’s statements regarding an employee’s ability to work consist only of
repetition of the employee’s complaints that she hurt too much to work, without objective
findings of disability being shown, the physician has not presented a medical opinion on the
issue of disability or a basis for payment of compensation.15 The Board will not require the
Office to pay compensation for disability in the absence of any medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow employees to self-certify their disability and entitlement to compensation.16
The evidence submitted in support of appellant’s request for reconsideration consists
largely of a series of notes indicating that he was disabled for work for a specified period of time.
These notes do not provide any findings or other evidence supporting that the periods of
disability alleged are due to an aggravation of his underlying back condition as accepted by the
Office. Without medical evidence regarding the specific reason that appellant was unable to
work these notes do not raise a substantial question concerning the correctness of the Office’s
decision and are insufficient to establish clear evidence of error.
Appellant also submitted several MRI scans demonstrating his preexisting condition of
herniated disc. These reports do not provide evidence of a specific period of disability and do
not offer any medical reasoning explaining why appellant was disabled for work during the
periods claimed. As such the MRI scans are not sufficient to establish clear evidence of error on
the part of the Office.
Appellant submitted reports from Dr. Pye regarding the onset of his condition and
alleging that his employment duties aggravated his underlying disc herniation. While this
evidence does provide some indication that appellant’s employment activities contributed to his
periodic intermittent disability for work, Dr. Pye did not provide specific dates of disability in
these reports. Without comprehensive medical evidence establishing specific periods of
disability and relating that disability to the condition accepted by the Office, these reports are not
of sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant
and raise a fundamental question as to the correctness of the Office decision.
13

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
14

See Fereidoon Kharabi, 52 ECAB 291 (2001).

15

Id.

16

Id.

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The Board finds that appellant has not submitted the necessary evidence to establish clear
evidence of error and that therefore the Office properly declined to reopen his claim. The Board
further finds that, contrary to his argument on appeal, the Office adequately considered the medical
evidence he submitted with his request for reconsideration and properly determined that this
evidence was not sufficient to meet his burden of proving clear evidence of error.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely and did not
establish clear evidence of error therefore not warranting further consideration of his claim.
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 20, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, Rio Grande, PR,
Employer
__________________________________________

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

Docket No. 16-1877
Issued: March 7, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 23, 2016 appellant filed a timely appeal from a July 25, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since January 27, 2016, the date of the most recent OWCP merit decision, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for a review of the
written record.

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2

5 U.S.C. § 8101 et seq.

The Board’s jurisdiction is limited to the evidence that was before OWCP at the time it issued its final decision.
Therefore, the Board is unable to review evidence submitted by appellant on appeal; see 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On August 31, 2009 appellant, then a 41-year-old wildlife biologist, filed a traumatic
injury claim (Form CA-1) alleging that on August 27, 2009 he fell and injured his right knee
while conducting a parrot survey. He stopped work on August 28, 2009. OWCP accepted
appellant’s claim for right knee medial meniscal tear and authorized arthroscopic surgery on
December 14, 2009 and August 27, 2012.
Appellant was treated by Dr. Javier Delgado-Candelario, a Board-certified orthopedic
surgeon, from August 28 to December 14, 2009, for the right knee injury. Dr. DelgadoCandelario noted appellant’s history was significant for anterior cruciate ligament (ACL)
reconstruction in 1996. Appellant reported a blunt trauma to the right knee while performing his
work duties. Dr. Delgado-Candelario noted an October 27, 2009 magnetic resonance imaging
(MRI) scan revealed a meniscal tear and possible retear of the reconstructed ACL. On
December 14, 2009 he performed a partial medial and lateral meniscectomy, debridement, and
chondroplasty and diagnosed right knee medial and lateral meniscal tears and chondromalacia.
Dr. Delgado-Candelario noted that appellant was disabled for six to eight weeks and could return
to work with a knee brace.
Dr. Delgado-Candelario noted that appellant continued to experience pain, inflammation,
and dysfunction of the right knee and on August 27, 2012 performed an arthroscopic partial
medial meniscectomy, micro fracture, debridement, and chondroplasty of the right knee. He
diagnosed right knee medial meniscal tear and patellofemoral chondromalacia.
On July 23, 2015 appellant filed a recurrence of disability claim (Form CA-2a) alleging
that he never fully recovered from his right knee injury. He indicated that he had constant pain
and inflammation which limited his right knee function.
By letter dated December 17, 2015, OWCP advised appellant of the type of factual and
medical evidence needed to establish his recurrence claim. No further evidence was received.
In a decision dated January 27, 2016, OWCP denied appellant’s claim for a recurrence of
disability as he failed to establish a basis for his recurrence claim.
In a letter to OWCP dated February 3, 2016 and received on February 16, 2016, appellant
indicated that he had requested a comprehensive narrative report from Dr. Delgado-Candelario.
Appellant indicated that Dr. Delgado-Candelario would submit a report which addressed
objective findings, diagnostic studies, diagnosis codes and a rationalized opinion explaining the
relationship of his current condition to the original injury.
OWCP received reports from Dr. Delgado-Candelario dated October 27, 2009 to
October 8, 2013 which noted appellant’s treatment for chronic right knee inflammation and pain.
Appellant also submitted June 21, 2012 and September 20, 2013 MRI scans of the right knee
which revealed ACL dysfunction, truncated medial meniscus, and grade 3 chondromalacia of the
medial joint compartment.
In a letter dated February 29, 2016, OWCP acknowledged having received appellant’s
February 3, 2016 letter on February 26, 2016. However, it advised appellant that the letter did
not state which specific appeal right he was requesting. OWCP instructed him to refer to the
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appeal rights that were provided with the decision rendered in his claim and choose a specific
appeal in writing.
On March 1, 2016 OWCP received an appeal request form dated February 3, 2016 in
which appellant requested a review of the written record. The record included a record of
mailing on February 26, 2016. Appellant submitted notes from Dr. Delgado-Candelario dated
October 27, 2009 to May 12, 2015.
Also submitted were prescription notes from
Dr. Delgado-Candelario dated September 11, 2012 to September 17, 2013.
In a decision dated July 25, 2016, OWCP denied appellant’s request for a review of the
written record. It found that his request was untimely filed. Appellant was informed that his
case had been considered in relation to the issues involved and that the request was further
denied as it could equally be addressed by requesting reconsideration from OWCP and
submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied
with a decision of the Secretary ... is entitled, on request made within 30 days after the date of
the issuance of the decision, to a hearing on his claim before a representative of the Secretary.”3
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provides that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.4 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.5 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.6
ANALYSIS
Appellant requested a review of the written record in an appeal request form dated
February 3, 2016 and received on March 1, 2016. Section 10.616 of the federal regulations
provides: “The hearing request must be sent within 30 days (as determined by postmark or other
carrier’s date marking) of the date of the decision for which a hearing is sought.”7 The case
record contains a packing slip from the carrier reflecting that appellant’s request was sent on
February 26, 2016, which is 30 days from issuance of the January 27, 2016 decision. The
packing slip further reflects receipt on April 29, 2016. The 30-day time period for determining
the timeliness of appellant’s request commences on the first day following the issuance of
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a).

6

Delmont L. Thompson, 51 ECAB 155 (1999); Eddie Franklin, 51 ECAB 223 (1999).

7

Supra note 5.

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OWCP’s decision.8 As OWCP’s decision was issued on January 27, 2016, the 30-day period for
requesting a hearing began to run on January 28, 2016 and the last or 30th day was
February 26, 2016. Since appellant’s request for a review of the written record was sent on
February 26, 2016, it was timely as it fell on the 30th day after the issuance of OWCP’s decision.
Accordingly, he is entitled to a review of the written record as a matter of right.
On remand OWCP should treat as timely appellant’s February 26, 2016 request for a
review of the written record. It should conduct a review of the written record as requested.9
Following this and such other development as necessary, OWCP shall issue an appropriate merit
decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for review of the
written record of the January 27, 2016 decision.
ORDER
IT IS HEREBY ORDERED THAT the July 25, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further proceedings consistent
with this decision of the Board.
Issued: March 7, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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9

See Donna A. Christley, 41 ECAB 90, 91 (1989). See also John B. Montoya, 43 ECAB 1148, 1151-52 (1992).
20 C.F.R. § 10.618.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 17-1407
Issued: January 19, 2018

Case Submitted on the Record

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

JURISDICTION
On June 14, 2017 appellant, through counsel, filed a timely appeal from an April 25,
2017 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 to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish right shoulder
conditions causally related to the accepted factors of her federal employment.
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
This case has previously been before the Board.3 The facts of the case as presented in the
Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On October 3, 2014 appellant, then a 51-year-old custodian, filed an occupational disease
claim (Form CA-2) alleging that she developed a right shoulder “flare-up” as a result of factors
of her federal employment. The claim was assigned OWCP File No. xxxxxx069. Appellant
noted that she was unable to work from July 9 through 17, 2014. She explained that she had
delayed filing the claim because she thought that she should file a claim for recurrence of
disability arising from her previously accepted August 17, 2011 occupational disease claim.4
Appellant’s supervisor noted on the claim form that appellant had been on limited duty since she
returned to work following her previous injury.
In an October 13, 2014 progress note, Dr. Kimberly Togliatti-Trickett, Board-certified in
physical medicine and rehabilitation, diagnosed rotator cuff strain/shoulder and shoulder
sprain/strain. She noted that appellant was going to file a new claim for her right shoulder
condition because it was aggravated by her new job as a custodian. Dr. Togliatti-Trickett noted
that appellant had reached maximum medical improvement on January 1, 2013 following her
initial right shoulder injury, but had continued having occasional exacerbation of pain in her
right shoulder. She related that appellant reaggravated her right shoulder on May 8, 2014.
In an October 14, 2014 attending physician’s report (Form CA-20), Dr. Togliatti-Trickett
diagnosed appellant’s conditions as right shoulder strain/sprain and right rotator cuff strain. She
checked a box marked “yes” indicating that she believed that appellant’s conditions were caused
or aggravated by her employment. Dr. Togliatti-Trickett related that appellant was totally
disabled from work July 9 through 17, 2014, and partially disabled from work July 17 to
October 13, 2014.
On October 21, 2014 appellant submitted a claim for compensation (Form CA-7) for
wage loss from July 9 to 17, 2014.
By letter dated November 10, 2014, OWCP informed appellant that further factual and
medical evidence was necessary to support her claim. Appellant was afforded 30 days to submit
the necessary evidence. In response, she submitted additional evidence.

3

Order Remanding Case, Docket No. 16-0225 (issued May 4, 2016).

4

Appellant had previously filed an occupational disease claim on August 17, 2011 wherein she alleged an injury
to her right shoulder as a result of constant lifting and handling of trays and buckets on the automatic induction flats
sorting machine. OWCP assigned the claim OWCP File No. xxxxxx153 and on July 25, 2011 accepted the claim
for strain and sprain of her shoulder and upper arm. Appellant subsequently filed a claim for a recurrence of
disability (Form CA-2a) as of July 9, 2014. On September 25, 2014 OWCP denied her claim for recurrence as she
had not established that she was further disabled due to a material change/worsening of her accepted
employment-related condition, and after review of the written record, this decision was affirmed by the hearing
representative in a July 7, 2015 decision.

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In a November 11, 2013 magnetic resonance imaging (MRI) scan of the right shoulder
report, Dr. Braxton McClung, a Board-certified radiologist, found stable rim rent tear at the
footplate of the middle fibers of the supraspinatus, partial articular surface tearing of the mid
fibers of the infraspinatus, mild acromioclavicular joint osteoarthritis and subacromial bursitis,
degenerative tearing of the superior and posterior/superior labrum, and nonspecific bone marrow
reconversion.
In a progress note dated July 9, 2014, Dr. Togliatti-Trickett noted that appellant had
experienced increased pain in her right shoulder during the last week. She noted that appellant
had been working custodial work, but had been off work for the past week and had been resting
her right arm and taking Celebrex daily for pain. Dr. Togliatti-Trickett again listed appellant’s
diagnoses as rotator cuff strain/shoulder and shoulder sprain/strain. She noted that appellant was
limited in the use of her right shoulder due to pain, and that she was to continue to avoid
overhead activities and remain off work for one week and then return with restrictions.
In a December 4, 2014 response to OWCP’s request for additional information, appellant
stated that the work of shoveling snow between December 2013 and February 2014, and
unsuccessful attempts at starting a gas grass trimmer in May 2014, contributed to her right
shoulder conditions.
By decision dated February 2, 2015, OWCP denied appellant’s occupational disease
claim as the medical evidence of record was insufficient to establish that her diagnosed right
shoulder conditions were causally related to the accepted factors of her federal employment.
On February 9, 2015 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
In a February 25, 2015 letter to OWCP, Dr. Togliatti-Trickett noted that appellant worked
as a custodian for the employing establishment, and that she had a prior work injury from June 1,
2011 which resulted in a sprain of the right shoulder and arm and a right rotator cuff sprain. She
noted that appellant was able to continue with work activities until she developed an increase in
pain to the right shoulder because of her work activities. Dr. Togliatti-Trickett opined within a
reasonable degree of medical certainty that appellant’s action on May 8, 2014 of pulling string to
start a grass trimmer was a direct and proximate cause of a reaggravation of her June 17, 2011
right shoulder injury.
In a March 26, 2015 letter, Dr. Andre F. Wolanin, an orthopedic surgeon, indicated that
documentation through physical examinations and MRI scans revealed a progression of an
intrasubstance tear now becoming a full-thickness tear of the supraspinatus and spreading to the
infraspinatus. He opined that there was a direct link between the May 8, 2014 event, which
caused a partial thickness tear, and the full-thickness tear. Dr. Wolanin further indicated that
appellant would benefit from arthroscopic rotator cuff repair in order to not develop further
complications such as cuff arthropathy in the future.
During the hearing, held on August 11, 2015, appellant testified that on May 8, 2014 she
injured her right shoulder while pulling the string to start a gas grass trimmer. She noted that she
did not seek medical treatment for this injury until July 8, 2014. Appellant further testified that

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she did not report the injury in May 2014 because she already had a regularly scheduled medical
appointment in July. She noted that she initially felt a sharp pain and then had a flare-up a
couple of days later. Appellant stated that she wrote her supervisor a note at the time of the
injury, but did not file a formal claim at that point.
By decision dated October 23, 2015, OWCP’s hearing representative affirmed the
February 2, 2015 decision. She found that appellant had not provided sufficient medical
evidence to establish causal relationship between her right shoulder conditions and the accepted
factors of her federal employment.
On December 28, 2015 appellant, through counsel, appealed to the Board. Counsel
argued that appellant sustained a recurrence of disability and that she should never have been
advised to file a claim for a new injury. He contended that she never stopped having problems
relating to her previously accepted right shoulder injury and intermittently sought medical
treatment for that injury.
By order dated May 4, 2016, the Board remanded the case to OWCP. The Board found
that as appellant’s claim for a new injury dealt with the same bodily member accepted under
OWCP File No. xxxxxx153, and as she was arguing that OWCP mischaracterized her condition
as a new injury rather than a recurrence, medical evidence relating to the earlier accepted
occupational disease claim was necessary for the adjudication of the present claim. Accordingly,
the Board determined that the case was not in posture for decision. The case was remanded for
OWCP to combine the case files and reconstruct the case record, to be followed by the issuance
of an appropriate decision.5
By decision dated July 6, 2016, OWCP reviewed the history of the claim in OWCP File
No. xxxxxx153. With regard to the present occupational disease claim, OWCP File No.
xxxxxx869, it noted that the evidence of record was insufficient to establish that the diagnosed
medical conditions were causally related to the accepted employment factors.
On July 18, 2016 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative. During the hearing held on February 13, 2017, counsel contended that
appellant’s employment duties did not cause a new injury, but rather a worsening of her
previously accepted right shoulder rotator cuff condition.
By decision dated April 25, 2017, the hearing representative affirmed the February 2,
2015 decision as appellant had not submitted any rationalized medical evidence to support that
the claimed right shoulder conditions were due to factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
5

Supra note 3.

6

Supra note 2.

4

United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that the injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is 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 an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence must include a physician’s rationalized opinion on the issue of whether
there is 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.9
ANALYSIS
Appellant filed an occupational disease claim alleging that she sustained a “flare-up” of a
previously accepted injury to her right shoulder. She filed a claim for wage-loss compensation
for the period July 9 through 17, 2014. Appellant testified that this aggravation occurred as a
result of pulling the string to start a gas grass trimmer on May 6, 2014, and shoveling snow from
December 2013 through February 2014. OWCP denied her claim, noting that she had not
established causal relationship between the accepted factors of her federal employment and her
diagnosed right shoulder conditions.
Initially, the Board finds that OWCP properly adjudicated the claim as a claim for a new
injury, rather than a recurrence of her prior claim under OWCP File No. xxxxxx153. A
recurrence of disability means an inability to work after an employee has returned to work
caused by a spontaneous change in a medical condition resulting from a previous injury or illness
without a new or intervening injury.10 Appellant returned to work following her August 2011
employment injury, which was accepted for strain and sprain of her right shoulder and arm. She
then alleged that new work activities, specifically shoveling snow and attempting to start a grass
trimmer, caused an aggravation of her previously accepted right shoulder condition.
Accordingly, as properly determined by OWCP, appellant’s claim was not for a recurrence of
7

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

8

See Irene St. John, 50 ECAB 521 (1999).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

10

Mary A. Ceglia, 55 ECAB 626 (2004); see also J.F., Docket No 12-1751 (issued February 5, 2013).

5

disability of a previously accepted employment injury. As appellant has alleged an injury over
the course of more than one workday or shift, following her return to work, her claim is for a
new occupational disease.11
The Board finds that appellant failed to establish causal relationship between the accepted
factors of her federal employment and her diagnosed right shoulder conditions.
In a progress note dated July 9, 2014, Dr. Toglatti-Trickett noted that appellant had been
performing custodial duties for the past week, and had an increase of pain in her shoulder. In an
October 13, 2014 progress note, she noted that appellant reaggravated her prior right shoulder
injury on July 8, 2014. Dr. Toglatti-Trickett further noted that appellant’s right shoulder injury
was aggravated by her new job as a custodian. However, she did not explain how the specific
employment duties identified by appellant caused a diagnosed medical condition. Dr. ToglattiTrickett failed to provide a well-rationalized opinion explaining the cause of appellant’s right
shoulder condition and she only generally repeated her allegations pertaining to appellant’s
employment factors. Such generalized statements do not establish causal relationship because
they merely repeat appellant’s allegations and are unsupported by adequate medical rationale
explaining how or why specific physical activity actually caused the diagnosed condition.12 In
her October 14, 2014 Form CA-20 report, Dr. Toglatti-Trickett checked a box marked “yes”
indicating that appellant’s diagnosed conditions were caused or aggravated by her employment
activities. The Board has held that when a physician’s opinion on causal relationship consists
only of checking a box marked “yes” to a form question, without explanation or rationale, that
opinion is of diminished probative value and is insufficient to establish a claim.13
In a February 25, 2015 letter to OWCP, Dr. Togliatti-Trickett opined within a reasonable
degree of medical certainty that appellant’s aggravation of the right shoulder condition was due
to work activity from May 8, 2014 when she pulled the string of a gas grass trimmer. The Board
finds that Dr. Toglatti-Trickett’s opinion on causal relationship in her February 25, 2015 letter
lacks rationale. Dr. Toglatti-Trickett saw appellant on July 9, 2014, but simply attributed
appellant’s injury to generic custodial duties. The first mention that appellant’s right shoulder
conditions were caused while trying to start a gas grass trimmer on May 6, 2014 was not until
February 25, 2015, nine months after the alleged occurrence. Furthermore, appellant did not
seek any medical treatment until July 9, 2014, which was two months after the alleged injury.
Dr. Toglatti-Trickett offered no explanation for these discrepancies. Furthermore, she did not
explain how, physiologically, the accepted factors of appellant’s employment, including
shoveling snow and pulling the string to start a gas grass trimmer, caused the diagnosed
conditions. Medical conclusions unsupported by rationale are of little probative value.14

11
A claim for an injury over more than one workday or shift is properly considered an occupational disease or
illness rather than a traumatic injury. See 20 C.F.R. § 10.5(a) and (ee).
12

See J.S., Docket No. 17-0967 (issued August 23, 2017).

13

See S.F., Docket No. 17-0463 (issued September 8, 2017).

14

Id.

6

Dr. Wolanin indicated that the May 8, 2014 incident caused the progression of an
intrasubstance tear to become a full thickness tear of the supraspinatus and infraspinatus.
However, he never described how, medically, any of appellant’s accepted employment factors
caused the progression of the shoulder tear. As such, Dr. Wolanin’s conclusion is of limited
probative value.15
The other medical evidence of record is also insufficient to establish causal relationship.
Dr. McClung interpreted a right shoulder MRI scan, but he offered no opinion on causal
relationship. The Board has found that diagnostic studies are of limited probative medical value
as they do not specifically address whether the diagnosed conditions are attributable to accepted
employment factors.16 Accordingly, Dr. McClung’s MRI scan study is of limited probative
value.17
An award of compensation may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of causal relationship.18 Appellant’s belief that the duties of her
federal employment caused her injury, however sincerely held, does not constitute medical
evidence sufficient to establish causal relationship.19
The Board thus finds that appellant failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish right shoulder conditions causally
related to the accepted factors of her federal employment.

15

Supra note 9.

16

See J.P., Docket No. 16-0510 (issued April 22, 2016).

17

Id.

18

D.D., 57 ECAB 734 (2006).

19

P.S., Docket No. 17-0598 (issued June 23, 2017).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 25, 2017 is affirmed.
Issued: January 19, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.Y., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, New York, NY,
Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1032
Issued: November 21, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 10, 2017 appellant, through counsel, filed a timely appeal from a January 25,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to
the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.
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

Following the January 25, 2017 decision, OWCP received additional evidence. However, the Board may only
review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1);
M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007);
Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
schedule award benefits effective February 7, 2016 because he refused suitable work under
5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On May 5, 2006 appellant, then a 37-year-old special agent, filed a traumatic injury claim
(Form CA-1) alleging that he injured his lower back and left leg during tactical shooting
maneuvers on April 25, 2006. He stopped work on May 4, 2006 and has not returned. OWCP
accepted the claim for closed lumbar vertebra dislocation and lumbar intervertebral disc disorder
with myelopathy. Appellant received wage-loss compensation and medical benefits on the
periodic rolls commencing August 6, 2006.
OWCP received reports from Dr. Mathew Lefkowitz, a treating Board-certified
anesthesiologist and pain medicine physician, from 2006 to 2016 providing results on
examination and diagnosed lower back pain, lumbar radiculopathy, lumbago, sciatica, and
lumbosacral lesion secondary to disc disease. In a May 25, 2006 report, Dr. Lefkowitz noted a
past medical history of primary sclerosing cholangitis. He continued to opine over the course of
15 years that appellant was totally disabled from work. In a May 25, 2016 report, Dr. Lefkowitz
reiterated a past medical history of primary sclerosing cholangitis.
On February 6, 2015 OWCP prepared a statement of accepted facts (SOAF). The SOAF
noted the accepted conditions, but failed to identify any preexisting or subsequently acquired
conditions.
By letter dated March 4, 2015, OWCP referred appellant for a second opinion evaluation
with Dr. Christopher B. Geary, a Board-certified orthopedic surgeon, for an opinion on whether
appellant continued to have residuals or disability due to his accepted work conditions.
In a report dated March 16, 2015, Dr. Geary, based upon a review of the medical
evidence, and the SOAF, the results on physical examination noted that appellant had been
diagnosed with lumbar intervertebral disc disorder with left leg myelopathy. A physical
examination revealed mild antalgic gait, normal cervical and thoracic spine and bilateral
extremity examination, L4-5 midline tenderness on palpation and paraspinal muscle spasm,
decreased low back range of motion due to pain, full right leg range of motion, negative right
straight leg raising, some obvious left leg muscular atrophy, markedly decreased left leg raise,
and L4-S1 decreased sensation or subjective numbness, negative left Babinski testing, and absent
left Achilles and patellar reflexes. Dr. Geary opined that appellant continued to have residuals of
his accepted work-related injury but was capable of working full time with restrictions. The
restrictions included up to one hour of walking and standing, up to one hour of operating a motor
vehicle at work, up to one hour of driving to and from work, no pushing, pulling, lifting,
squatting or kneeling, up to one hour of climbing, and a 10-minute break every hour. Dr. Geary
also noted that there were no preexisting conditions.

2

In an attached work capacity evaluation form (OWCP-5c), he indicated that appellant had
permanent work restrictions, but was capable of working a sedentary position with significant
restrictions.
On August 3, 2015 the employing establishment offered appellant a job as an operational
management specialist, which was based on the work restrictions assigned by Dr. Geary. The
duties of the position required appellant to work in an office environment and perform
management of operational/administrative programs. The physical requirements for the position
were listed as no walking or standing more than one hour per day, no bending, stooping, or
twisting, and no operating a motor vehicle to and from work or at work for more than one hour
per day. Appellant refused the offered position on August 14, 2015.
In a letter dated September 3, 2015, OWCP advised appellant that it found the offered
operational management specialist position dated August 3, 2015 to be suitable as it was in
accordance with his medical restrictions as provided by Dr. Geary, an OWCP referral physician.
It noted that the offered position was still available and allowed him 30 days to accept the
offered position or provide his reasons for refusal. OWCP further advised appellant that if he
refused a suitable work position he would forfeit any further compensation for wage loss or
entitlement to a schedule award. Appellant did not respond.
By letter dated October 8, 2015, OWCP advised appellant that he had 15 days to accept
the position or his compensation would be terminated.
In an October 19, 2015 report, Dr. Lefkowitz diagnosed sciatica, lumbosacral
radiculopathy, and low back pain due to left paracentral disc herniation. He provided work
restrictions which included standing, walking, and operating a motor vehicle as tolerated and no
bending, lifting, pulling, squatting, kneeling, climbing, stooping, or pushing. Dr. Lefkowitz
opined that no offered position could accommodate appellant’s work restrictions.
In an October 20, 2015 letter, appellant argued that the medical evidence and record
established that he was totally disabled and that his restrictions were permanent and lifelong.
By decision dated January 20, 2016, OWCP found that appellant had refused suitable
work. It determined his compensation for wage loss was terminated effective February 7, 2016
pursuant to 5 U.S.C. § 8106(c)(2).
In a letter dated November 29, 2016, appellant, through counsel, requested
reconsideration. Counsel argued that the offered position was not suitable and failed to consider
all of his medical conditions. In support of his request, he submitted a July 1, 2016 report by
Dr. Lefkowitz.
Dr. Lefkowitz, in the July 1, 2016 report, provided a history of appellant’s work injury,
treatment provided before and after the accepted April 25, 2006 work injury, and examination
findings. He noted that prior to appellant’s work injury he had suffered for 17 years with
primary sclerosing cholangitis, abdominal pain due to the sclerosing cholangitis, and that he had
undergone various surgeries. Appellant’s past medical history included surgeries for choledoco
jejunostomy, biliary liver resection, intestinal resection from Crohn’s disease complications, and
severe percutaneous transheptatic cholangiogram, dilations, and stent placements. Dr. Lefkowitz
3

opined that appellant’s pain was unmanageable despite various conservative therapies and
interventional procedures. He provided work restrictions which included standing, walking, and
operating a motor vehicle as tolerated and no bending, lifting, pulling, squatting, kneeling,
climbing, stooping, or pushing. Dr. Lefkowitz concluded that appellant’s congenital hepatic and
intestinal conditions, his low back pain, and his high narcotic dosage rendered him disabled from
performing the offered position.
By decision dated January 25, 2017, OWCP denied modification of the decision
terminating appellant’s compensation benefits pursuant to section 8106(c).
It found
Dr. Lefkowitz failed to provide a rationalized opinion explaining why appellant was disabled due
to his preexisting and nonwork-related conditions.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA provides that a partially disabled employee who refuses to
seek suitable work or refuses or neglects to work after suitable work is offered to, procured by,
or secured for him is not entitled to compensation.4 Once OWCP accepts a claim, it has the
burden of justifying termination or modification of compensation benefits under section 8106(c)
for refusing to accept or neglecting to perform suitable work.5 The Board has recognized that
section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future
compensation and, for this reason, will be narrowly construed.6
To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of his refusal to accept such employment.7
According to OWCP’s procedure, a job offer must be in writing and contain a description of the
duties to be performed and the specific physical requirements of the position.8 Section 10.516 of
the Code of Federal Regulations9 provides that an employee who refuses or neglects to work
after suitable work has been offered or secured for the employee has the burden of showing that
such refusal or failure to work was reasonable or justified, and shall be provided with the
opportunity to make such showing before a determination is made with respect to termination of
entitlement to compensation.10

4

5 U.S.C. § 8106(c)(2).

5

Howard Y. Miyashiro, 51 ECAB 253 (1999).

6

H. Adrian Osborne, 48 ECAB 556 (1997).

7

T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4(a)
(June 2013).
9

20 C.F.R. § 10.516.

10

See Camillo R. DeArcangelis, 42 ECAB 941 (1991).

4

The determination of whether an employee is capable of performing modified duty is a
medical question that must be resolved by probative medical opinion evidence.11 All medical
conditions, whether work related or not, must be considered in assessing the suitability of an
offered position.12
ANALYSIS
The Board finds that OWCP failed to meet its burden of proof to establish that the
modified operational management specialist offered by the employing establishment was suitable
and therefore its termination of appellant’s compensation for refusing such employment was
improper.
The Board finds that OWCP failed to establish that appellant was capable of performing
the position of operational management specialist given all of his preexisting medical conditions.
OWCP failed to adequately consider whether appellant’s preexisting diagnosed medical
conditions impacted his ability to work in the position offered by the employing establishment.
As previously noted, the Board has held that all conditions, whether work related or not, must be
considered in assessing the suitability of an offered position.13 In this case, OWCP did not
adequately consider whether appellant’s diagnosed primary sclerosing cholangitis, Crohn’s
disease, and medication taken for pain management affected his ability to perform the
operational management specialist position. Appellant submitted medical evidence from
Dr. Lefkowitz, a treating Board-certified anesthesiologist and pain medicine physician, opining
that he was disabled from performing the offered position due to the prescribed narcotic pain
medication, congenital hepatic and intestinal conditions, as well as his low back pain. While
hepatic and intestinal conditions have not been accepted by OWCP as work related, they must be
considered when determining the suitability of the operational management specialist position.14
On February 6, 2015 OWCP prepared a SOAF which listed appellant’s accepted
conditions, but it failed to note appellant’s concurrent conditions. Its procedures, however,
provide that the SOAF should include a complete record of all pertinent facts related to the injury
or medical condition. The omission of a critical fact diminishes the validity of a medical opinion
or decision as much as an incorrect statement.15 Concurrent medical conditions, as potentially
relevant to the claim, must be included in the SOAF as necessary.16

11

See Gloria J. Godfrey, 52 ECAB 486 (2001); Robert Dickerson, 46 ECAB 1002 (1995).

12

See Mary E. Woodward, 57 ECAB 211 (2005).

13

Id.

14

Id.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.4(a)
(September 2009).
16

Id. at Chapter 2.809.6(a)(4).

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OWCP had referred appellant for a second opinion evaluation with Dr. Geary, who
examined appellant and noted that appellant had no preexisting medical conditions. It is well
established that it must consider preexisting and subsequently acquired conditions in evaluating
the suitability of an offered position.17 Based on his examination Dr. Geary found that appellant
could return to work with restrictions. The employing establishment offered appellant an
operational management specialist consistent with Dr. Geary’s March 16, 2015 report, which
OWCP deemed suitable on September 3, 2015. Dr. Smith based his restrictions on the
conditions of lumbar intervertebral disc disorder with left leg myelopathy.
Dr. Geary’s report did not consider appellant’s preexisting condition of primary
sclerosing cholangitis in assigning appellant’s work restrictions. OWCP accorded determinative
weight to Dr. Geary’s March 16, 2015 report, which failed to consider whether appellant had any
work restrictions due to his preexisting condition; rather he specifically found no history of a
preexisting condition.
The Board has held that for OWCP to meet its burden of proof in a suitable work
termination, the medical evidence should be clear and unequivocal that the claimant could
perform the offered position.18 As a penalty provision, section 8106(c)(2) must be narrowly
construed.19 In this case the medical evidence was not clear on the issue. OWCP did not secure
a medical report that reviewed the job offer and provided a reasoned opinion as to its suitability
for appellant, considering all existing and relevant conditions.20
Under the circumstances of this case, OWCP failed to establish that appellant refused
suitable work. The Board will reverse the January 25, 2017 decision.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to establish that appellant
refused an offer of suitable work, pursuant to 5 U.S.C. § 8106(c).

17

E.G., Docket No. 12-1011 (issued November 28, 2012).

18

Annette Quimby, 49 ECAB 304 (1998).

19

See Stephen A. Pasquale, 57 ECAB 396 (2006).

20

Cf. B.P., Docket No. 15-1096 (issued January 20, 2016) (second opinion physician reviewed the offered
position and provided a reasoned opinion that the position was suitable).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 25, 2017 is reversed.
Issued: November 21, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 13-1788
Issued: May 28, 2014

Case Submitted on the Record

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

JURISDICTION
On July 25, 2013 appellant filed a timely appeal from a June 25, 2013 overpayment
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the overpayment issue of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that she received an
overpayment in the amount of $15,048.09 for the period December 8, 2012 to May 4, 2013; and
(2) whether OWCP properly found that she was at fault in the creation of the overpayment and
not entitled to waiver of recovery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 8, 1999 appellant, then a 30-year-old city mail carrier, filed an
occupational disease claim alleging that she sustained heel spurs as a result of walking five to
seven hours a day at work. She first became aware of her condition and realized that it resulted
from her employment on August 7, 1999. Appellant stopped work on August 27, 1999 and
returned to limited duty as of September 7, 1999. OWCP accepted her claim for bilateral heel
spurs. Appellant received compensation for intermittent disability and medical treatment. On
June 20, 2011 she signed up for direct deposit.
In a letter dated September 27, 2011, OWCP noted that appellant had been placed on the
periodic rolls effective September 25, 2011. It outlined her entitlement to compensation benefits
and her responsibility to return to work in connection with the accepted injury. The letter
provided:
“In order to avoid an overpayment of compensation, NOTIFY THIS OFFICE
IMMEDIATELY WHEN YOU RETURN TO WORK. Each payment made
through this [OWCP’s] automated system will include the period for which
payment is made. If you have worked for any portion of this period, you must
return the check to this [OWCP]. Otherwise, an overpayment of compensation
may result.”
By letter dated May 10, 2013, the employing establishment informed OWCP that
appellant returned to full-time limited duty on December 8, 2012 but was paid on the periodic
rolls through May 4, 2013.
An OWCP overpayment worksheet dated May 10, 2013 determined that appellant was
overpaid 148 days for a total of $15,042.51.2
On May 22, 2013 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $15,048.09 from December 8, 2012 to May 4,
2013 because she received wage loss for total disability after she returned to work at full salary.
It calculated that from December 8, 2012 to February 28, 2013 she received daily compensation
of $100.86 for 83 days, which resulted in an overpayment of $8,371.38. From March 1 to
May 4, 2013 appellant was overpaid 65 days at a daily rate of $102.71, which resulted in an
overpayment of $6,676.71. The total amount of overpayment was $15,048.09. OWCP found
that appellant was at fault in the creation of the overpayment because she accepted payments that
she knew or reasonably should have known to be incorrect. It informed her of her appellate
options and instructed her to complete an enclosed overpayment recovery form and submit
supporting financial documentation.

2

The worksheet listed that from December 8 to 15, 2012 appellant was paid $806.88; from December 16, 2012 to
January 12, 2013 she was paid $2,824.08; from January 13 to February 9, 2013 she received $2,820.76; from
February 10 to March 9, 2013 she was paid $2,820.76; from March 1 to 9, 2013 she was also paid $17.79; from
March 10 to April 6, 2013 she received $2,876.12; and from April 7 to May 4, 2013 she was paid $2,876.12 for a
total of $15,042.51.

2

In a statement dated June 20, 2013, appellant contested the overpayment and requested
waiver, contending that the overpayment did not occur through any fault of her own. She stated
that the employing establishment informed her that it had notified OWCP that she was back in
pay status and she believed that the payments received from OWCP was for back pay. Appellant
further reported that having to repay the overpayment would cause her to suffer severe financial
hardship.
By decision dated June 25, 2013, OWCP finalized the overpayment in the amount of
$15,048.09. It found that appellant was at fault in the creation of the overpayment because she
accepted payments that she knew or reasonably should have known to be incorrect. As appellant
was no longer receiving compensation, OWCP found the amount of $15,048.09 due and payable.
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 duty.3
Section 8116 of FECA defines the limitations on the right to receive compensation benefits.
This section provides that, while an employee is receiving such compensation, he or she may not
receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.4 Compensation for wage loss due to disability is available only for any periods
during which an employee’s work-related medical condition prevents him or her from earning
the wages earned before the work-related injury.5 A claimant is not entitled to receive temporary
total disability and actual earnings for the same period.6 An overpayment of compensation
occurs when a claimant returns to work and has earnings but continues to receive wage-loss
compensation.7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in the amount of $15,048.09.
The record reflects that she returned to full-time work on December 8, 2012 but she continued to
receive wage-loss compensation benefits for total disability until May 4, 2013. OWCP
determined that appellant was overpaid for 148 days and calculated that the amount of
compensation she received for that period totaled $15,048.09. Appellant received her regular
full-time wages from the employing establishment from December 8, 2012 through May 4, 2013.
The Board finds that she was not entitled to wage-loss compensation from OWCP for the same
period. Accordingly, the Board finds that appellant’s receipt of dual payments created an
overpayment of compensation. There is no contrary evidence nor does she contest the amount
and period of overpayment. The Board finds that OWCP properly determined that appellant
3

5 U.S.C. § 8102(a).

4

Id. at § 8116; R.H., Docket No. 09-1981 (issued June 11, 2010).

5

20 C.F.R. § 10.500.

6

W.B., Docket No. 09-1440 (issued April 12, 2010).

7

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

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received an overpayment in the amount of $15,048.09 for the period December 8, 2012 through
May 4, 2013.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or be against equity and good conscience.8 No waiver of
payment is possible if appellant is with fault in helping to create the overpayment.9
In determining whether an individual is not without fault or alternatively, with fault,
section 10.433(a) of OWCP’s regulations provide in relevant part:
“An individual is with fault in the creation of an overpayment who-(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect.”10
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment because
she accepted payments that she knew or should have known to be incorrect. The Board finds,
however, that OWCP failed to establish that, at the time she accepted the initial payment of
compensation, she knew or should have known the payments were incorrect.
The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit which involve a series of payments over several
months with clear knowledge that the payments were incorrect.11 An employee who receives
payments from OWCP in the form of a direct deposit, however, may not be at fault for the first
incorrect deposit into his or her account since the acceptance of the overpayment, at the time of
receipt of the direct deposit, lacks the requisite knowledge.12 Because fault is defined by what
8

5 U.S.C. § 8129(b).

9

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

10

20 C.F.R. § 10.433(a).

11

See Karen K. Dixon, 56 ECAB 145 (2004).

12

See Tammy Craven, 57 ECAB 589 (2006); see also George A. Hirsch, 47 ECAB 520 (1996).

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the claimant knew or should have known at the time of acceptance, one of the consequences of
electronic fund transfers is that the claimant lacks the requisite knowledge at the time of the first
incorrect payment.13 In cases where a claimant receives compensation through direct deposit,
OWCP must establish that at the time a claimant received the direct deposit in question that she
knew or should have known that the payment was incorrect.14 It is not appropriate to make a
finding that a claimant has accepted an overpayment by direct deposit until such time as a
reasonable person would have been aware that this overpayment had occurred. This awareness
could be established either through documentation such as a bank statement or notification from
OWCP or where a reasonable period of time has passed during which a claimant could have
reviewed independent confirmation of the incorrect payment.15
The record establishes that appellant received compensation by direct deposit every 28
days from December 8, 2012 to May 4, 2013. It does not establish, however, that at the time of
the first direct deposit of compensation, after she returned to work on December 8, 2012, she
knew or should have known that she was accepting a direct deposit to which she was entitled.
The record does not contain any documentation or other evidence to demonstrate that appellant
had clear knowledge at the time of the initial direct deposit for the period December 8 to 15,
2012 that the payment was incorrect or that a reasonable period of time passed during which she
could have reviewed bank statements or been informed of the incorrect payment. The Board
finds, therefore, that, when the initial December 15, 2012 direct deposit was made, she had no
knowledge that this direct deposit was incorrect. Accordingly, appellant was not at fault in the
acceptance of the initial December 15, 2012 direct deposit.
In cases involving a series of incorrect payments, knowledge is established by
documentation from OWCP or simply with the passage of time and opportunity for discovery
and the claimant will be at fault for accepting the payments subsequently deposited.16 The Board
finds that at the time of the second payment dated January 12, 2013 appellant knew or should
have known that the continued payment of compensation was incorrect. Appellant had returned
to work on December 8, 2012 and could have taken further steps to prevent issuance of further
payments. The Board will affirm the finding of fault for the remaining January 12 to May 4,
2013 period of overpayment.
On appeal, appellant contended that her supervisor informed her that he had notified
OWCP that she had returned to work and she believed that the payments she received were due
to her. She also contended that it would be a financial hardship to repay the overpayment. The
Board notes that, even if an overpayment resulted from negligence on the part of OWCP, this
does not excuse the beneficiary from accepting payments, which appellant knew or should have
known to be incorrect.17 The September 27, 2011 letter clearly advised her that in order to avoid
13

Id.

14

See C.K., Docket No. 12-746 (issued May 1, 2012).

15

See K.H., Docket No. 06-191 (issued October 20, 2006).

16

See J.W., Docket No. 10-271 (issued February 3, 2011); Karen K. Dixon, supra note 11.

17

See Russell E. Wageneck, 46 ECAB 653 (1995).

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an overpayment of compensation she must notify OWCP immediately when she returned to
work and that each payment made through OWCP’s automated system would include the period
for which payment is made. Appellant was put on notice of the payments made and the amount
of each payment.18
The Board finds that the case is not in posture for decision regarding the issue of waiver
for the initial direct deposit on December 15, 2012. The Board will set aside the June 25, 2013
decision regarding the issue of fault as to the initial December 15, 2012 direct deposit. The case
is remanded for OWCP to determine whether appellant is entitled to waiver of recovery for the
direct deposit of compensation covering the period December 8 to 15, 2012.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
in the amount of $15,048.09 for the period December 8, 2012 to May 4, 2013. The June 25,
2013 decision is set aside in part and remanded to OWCP regarding the issue of waiver of
recovery of the overpayment for the period December 8 to 15, 2012.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed, in part and set aside, in part. The case is
remanded for further action consistent with this decision of the Board.19
Issued: May 28, 2014
Washington, DC

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

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

18

J.R., Docket No. 08-1107 (issued June 15, 2009). 20 C.F.R. § 10.430.

19

Richard J. Daschbach, Chief Judge, who participated in the preparation of the decision, was no longer a
member of the Board after May 16, 2014.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
DEPARTMENT OF DEFENSE, EDUCATION
ACTIVITY, Fort Buchannan, Puerto Rico,
Employer
__________________________________________

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

Docket No. 12-959
Issued: September 24, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 26, 2012 appellant filed a timely appeal from a March 12, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate compensation for wageloss and medical benefits effective August 18, 2010.
FACTUAL HISTORY
On November 3, 2008 appellant, then a 60-year-old education technician, completed a
traumatic injury claim (Form CA-1) alleging that on that date he sustained injuries when he
1

5 U.S.C. § 8101 et seq.

slipped and fell on his buttocks while trying to get a student off playground equipment. The
reverse of the claim form indicated that he stopped working on November 5, 2008. In an
April 8, 2009 statement, appellant indicated that in May 2007 he had a fall that caused a fracture
of his T11 vertebra. He stated that he had returned to work after the May 2007 injury and
continued to use pain medication. Appellant submitted an April 6, 2009 report from Dr. Oscar
Baez, a neurologist, stating that the November 2008 fall had “deteriorated” the previous
condition and caused debilitating pain in the lumbar area, which was not the area primarily
affected by the May 2007 fall.
On May 11, 2009 OWCP accepted the claim for lumbago and aggravation of sciatica.
Appellant began receiving compensation for wage loss as of January 26, 2009.
By letter dated July 14, 2009, OWCP advised appellant that he was being referred for a
second opinion examination by Dr. Fernando Rojas, a Board-certified orthopedic surgeon. In a
report dated July 31, 2009, Dr. Rojas provided a history and reviewed medical evidence. He
provided results on examination and diagnosed a lumbar sprain with mild aggravation, noting
that appellant had preexisting fractures of the T11 and L1 vertebrae. Dr. Rojas opined that the
aggravation of the previous lumbar injury was minor and should have resolved, and that
appellant currently had a normal examination of the lumbar spine. He further opined that
appellant did not have a current disability causally related to the November 3, 2008 employment
injury, and his only recommendation would be physical therapy and/or oral medications, with a
back strengthening program.
In a report dated August 3, 2009, Dr. Baez stated that appellant had been unable to work
since January 26, 2009 due to the trauma to the back. He stated that appellant had undergone
physical therapy and chiropractic treatment but continued to have back pain. Dr. Baez stated that
he believed appellant had a permanent disability.
By letter dated October 23, 2009, OWCP requested an additional report from Dr. Rojas.
It noted that while he indicated that appellant had no disability, he also referred to the need for
physical therapy and strengthening. In a report dated January 15, 2010, Dr. Rojas stated that
while appellant may have painful episodes that could be treated by medications or strengthening,
appellant did not need any further specialized care for the accepted conditions. He stated that
appellant had reached maximum medical improvement.
In a letter dated July 14, 2010, OWCP notified appellant that it proposed to terminate
compensation for wage-loss and medical benefits. It found the weight of the evidence was
represented by Dr. Rojas. Appellant was advised that he had 30 days to submit relevant
evidence.
By decision dated August 18, 2010, OWCP terminated compensation for wage-loss and
medical benefits.
On September 14, 2010 appellant requested an oral hearing before an OWCP hearing
representative. A telephonic hearing was held on March 28, 2011. Appellant submitted an
April 21, 2010 report from Dr. Luis Sanchez Longo, a neurologist, who provided a history that
appellant had been involved in two falls. Dr. Longo did not specifically discuss the November 3,

2

2008 incident. He provided results on examination and the diagnoses included degenerative
changes in the cervical and lumbar spine, depression and “many pains that limit him quite a bit.”
By decision dated May 23, 2011, OWCP’s hearing representative affirmed the
termination of compensation. The hearing representative found the weight of the evidence was
represented by Dr. Rojas.
On June 7, 2011 appellant requested reconsideration of his claim. He submitted a
May 30, 2011 report from Dr. Angelica Cano, a pediatrician,2 who stated that appellant came to
her house in May 2007 after a fall, and he was driven to the hospital. According to Dr. Cano, on
November 3, 2008 appellant had “another accident at work”3 Appellant’s back got worse.
Dr. Cano stated that he had been living in her house since May 2007, and stated that a
February 21, 2011 MRI scan showed multilevel degenerative changes of the spine.
By decision dated November 23, 2011, OWCP reviewed the case on its merits and denied
modification. Appellant again requested reconsideration on December 13, 2011. He submitted a
December 5, 2011 report from Dr. Cano, who stated that after the “second fall” appellant had
debilitating back pain. Dr. Cano stated that results of diagnostic tests radiologist “explain well
enough [appellant’s] condition and the delicate situation in his back condition.” She stated the
second fall worsened what was an already delicate and serious condition resulting in total
disability, “[a]nd this condition still persists to this day.” Dr. Cano concluded that appellant’s
present back condition was not improving and is endangering appellant’s overall health.
By decision dated March 12, 2012, OWCP again reviewed the merits of the claim and
denied modification.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.4 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.
To terminate authorization for medical treatment, OWCP must establish that appellant no longer
has residuals of an employment-related condition which require further medical treatment.5
To be of probative value, a medical report must provide an opinion on the issue presented
that is supported by medical rationale. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
2

The physician’s name on the report is also referred to as Angelica Cano Montoya.

3

Dr. Cano described the May 2007 incident as occurring at the military post store at the employing establishment.
There is no indication that appellant filed a claim under FECA with respect to the May 2007 incident.
4

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

5

Furman G. Peake, 41 ECAB 361 (1990).

3

supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.6
ANALYSIS
In the present case, OWCP terminated compensation for wage-loss and medical benefits
effective August 18, 2010, based on the reports of Dr. Rojas, the second opinion physician, who
did provide a detailed medical report with a history of injury, review of medical records and
results on examination. Dr. Rojas found in his July 31, 2009 report that appellant no longer had
any residuals of the November 3, 2008 employment injury. He indicated that appellant had a
normal physical examination and no employment-related disability. In a January 15, 2010
report, Dr. Rojas explained that appellant did not have any continuing need for treatment for an
employment-related condition.
The medical evidence submitted by appellant does not contain a report of similar
probative value to the issue presented. In his August 3, 2009 report, Dr. Baez does not provide a
complete history and notes only that appellant continued to have back pain. He does not provide
a rationalized medical opinion with respect to a continuing condition or disability causally
related to the November 3, 2008 employment injury. Dr. Longo also did not provide a complete
factual and medical history, as he failed to specifically discuss the November 3, 2008
employment incident. He did not provide a rationalized medical opinion with respect to a
continuing employment-related disability or condition.
Appellant also submitted reports from Dr. Cano. In this regard, the Board notes that
Dr. Cano is a pediatrician who did not appear to be an attending physician that had examined
appellant. The history of the November 3, 2008 incident is very briefly described as a second
fall, without further discussion. The reports do not provide a complete factual and medical
history. There are no results on examination or other detail. Moreover, there is no rationalized
medical opinion with respect to a continuing employment-related condition. Dr. Cano states that
appellant continued to have pain, without providing medical rationale to explain why appellant’s
condition or disability as of August 18, 2010 was causally related to the November 3, 2008
injuries.
The Board accordingly finds that the weight of the medical evidence in this case was
represented by Dr. Rojas, who provided a rationalized medical opinion that appellant did not
have a continuing employment-related disability or condition. OWCP therefore met its burden
of proof to terminate compensation for wage-loss and medical benefits as of August 18, 2010.
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.
6

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

4

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate compensation for wageloss and medical benefits as of August 18, 2010.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 12, 2012 and November 23, 2011 are affirmed.
Issued: September 24, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5