United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
O’Fallon, MO, Employer
__________________________________________

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

Docket No. 08-2331
Issued: March 3, 2009

Case Submitted on the Record

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

JURISDICTION
On August 25, 2008 appellant filed a timely appeal of a May 29, 2008 merit decision of
an Office of Workers’ Compensation Programs’ hearing representative who affirmed a
November 24, 2007 decision denying continuation of pay from December 7 through 17, 2006.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant established entitlement to continuation of pay from
December 7 through 17, 2006.
FACTUAL HISTORY
On December 5, 2006 appellant, then a 48-year-old letter carrier, filed a traumatic injury
claim alleging that she sustained injuries to her neck and back on that date when she slipped on
ice and fell while in the performance of her federal duties. On January 15, 2007 the Office
accepted her claim for strain of the back, lumbar and thoracic region and sprain of the neck.

Appellant stopped work on the date of injury and returned to limited duty on December 18, 2006.
She requested continuation of pay for the time that she missed work.
Appellant sought medical treatment from Dr. Ronald Pearson, Board-certified in
emergency and occupational medicine. In a December 5, 2006 report, Dr. Pearson noted that
appellant slipped and fell on ice and was experiencing neck and back pain. He advised that
appellant was ambulating slowly and rather stiffly and was guarded in her spontaneous
movements. X-rays of the thoracic and lumbar spine showed mild degenerative changes and a
marked scoliosis. No evidence of acute fracture or vertebral body subluxation was seen.
Dr. Pearson diagnosed acute cervical strain and thoracolumbar strain. Appellant was to follow
up in 48 hours and, if no improvement was demonstrated, a course of physical therapy would be
offered. In a December 5, 2006 duty status report, Form CA-17, Dr. Pearson indicated that
appellant was unable to perform light duty. The CA-17 form indicated “limited duty is available
and will be provided within your recommendations.”
On December 7, 2006 Dr. Pearson advised that there was no improvement and that
appellant’s back pain seemed somewhat worse. He indicated that she was tolerating her
medication satisfactorily. Appellant reported that driving to the appointment caused her marked
pain from sitting in her car. Mild spasm in the cervical spine was noted along with a reduction in
range of motion by approximately 25 percent. Tenderness was noted in the thoracic and lumbar
regions with active range of motion severely restricted in all planes, especially with flexion and
extension. Dr. Pearson opined that appellant was unable to perform any work. He referred her
to physical therapy and told her to continue her medication. In a December 7, 2006 CA-17 form,
Dr. Pearson was informed limited duty was available; however, he advised that appellant was
unable to perform light duty.
Appellant began a course of physical therapy on
December 7, 2006.
In a December 15, 2006 report, Dr. Pearson noted that appellant had completed five
sessions of physical therapy and a marked overall improvement in her neck (75 percent better)
and in her lower back (60 percent better) since her last visit. Examination of the cervical and
thoracic spine revealed mild tenderness with no acute spasms. Active range of motion of the
cervical spine was almost completely full. The lumbar spine was noted to have right
paravertebral muscle tenderness with some slight spasm. Active range of motion had improved
considerably with a 25 percent reduction in all planes secondary to pain. Dr. Pearson diagnosed
improving cervical strain and improving thoracolumbar strain. He advised that appellant was
unable to perform any work December 15 through 17, 2006, but could begin limited duty on
December 18, 2006 with restrictions. Appellant returned to limited duty on December 18, 2006.
In a December 22, 2006 report, Dr. Pearson provided examination findings and assessed
resolving cervical and thoracolumbar strain. He discharged appellant from medical treatment
and physical therapy, but noted that she should continue with a home exercise program.
Dr. Pearson advised that she could return to regular duty, eight hours per day on December 26,
2006 and could return to unrestricted duty on January 15, 2007. In a CA-17 dated December 22,
2006, he reported that appellant could work a limited work shift of eight hours per day until
January 15, 2007.

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The employing establishment’s inspection service conducted an investigation of
appellant’s activities following her December 5, 2006 injury. It provided evidence that appellant
was seen, and admitted to, driving herself from point to point, shopping, running personal
errands, playing with her dog and getting her hair done at a local beauty salon while she was off
work. Investigating agents conducted multiple surveillance operations, some of which included
video documentation, during the period December 6 through 26, 2006. On December 12, 2006
appellant was observed in her back yard “repeatedly walking, kneeling and turning all while
playing with a large breed canine.” She was also observed climbing approximately two to three
stairs. On December 13, 2006 appellant was observed entering and exiting the residence, while
traversing the stairs from the back yard. She was seen bending and crouching while playing with
her dog, and observed carrying multiple bags from a grocery store and opening her vehicles left
rear door without any apparent difficulty. Appellant was also observed entering a hair salon and
sitting in a chair getting her hair colored and cut.
Appellant was interviewed by the inspectors on January 4, 2007. She stated that she “did
all my normal things except come to work.” Those activities included going to therapy, taking
her children places, hair appointments, laundry and light house work, which she claimed “were
all OK with the doctor to do.” Appellant was aware that the employing establishment had
limited-duty assignments for claimants with documented disabilities or injuries. She confirmed
that she could have performed some type of limited-duty assignment from December 7, 2006,
but did not inform Dr. Pearson that she felt she could perform work. Appellant did not advise
supervisory personnel at the employing establishment of her current condition. She admitted to
calling local law enforcement authorities with regard to the federal law enforcement agents and
attempted to evade surveillance following a two-hour hair appointment by having an individual
pull her motor vehicle to the rear of the shopping facility and departing through the rear entrance.
Appellant maintained that she was following the instructions of Dr. Pearson.
On January 4, 2007 postal inspectors interviewed Dr. Pearson, who advised that appellant
did not tell him that the employing establishment had limited duty available. On December 7,
2006 he prescribed physical therapy for appellant and kept her off work because she was still
guarded in her movements, complained of discomfort and stated that she felt worse than she did
on the date of her injury. Dr. Pearson denied telling appellant that she could continue “normal”
activities with the exception of work. He advised that, when he restricts a patient, they were
restricted at both home and work. Dr. Pearson stated, “I wanted her to rest and stay on her meds
and I told her that.” He commented that appellant should not have been operating a motor
vehicle under the influence of her medication. Dr. Pearson would not have allowed appellant to
drive up to 20 miles at a time, power shop for two to three hours at a time or get her hair done for
a period of two to three hours during the period December 5 through 15, 2006. He noted that
appellant did not inform him that she was participating in such activities and did not consider
these activities normal for a person under a doctor’s care for a neck and back injury. After being
shown surveillance videotape footage of appellant from December 12, 2006, Dr. Pearson noted
that she engaged in activities which were inconsistent with the way she presented herself to him.
On January 4, 2007 Dr. Pearson completed a questionnaire provided by the employing
establishment. He stated that, “beginning approximately December 13, 2006,” it was “true” that
“after meeting with these agents and viewing the videotaped activities of [appellant], it appears
that [appellant] is physically capable of performing the duties of a mail carrier, such as limited

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lifting, walking, operating a motor vehicle, standing and sitting.” Dr. Pearson responded “false”
to the next question which stated “It also appears that [appellant] may have misrepresented her
symptoms and capabilities to me.” He stated that, “during the initial phase of treatment, I
expected [appellant] to rest, take her medication as directed and go to physical therapy. I would
not have recommended that she perform extended driving, shopping, or visits to the hairdresser.”
On September 12, 2007 the Office informed appellant that the employing establishment
controverted her claim for continuation of pay from December 6 to 26, 2006. It requested that
appellant provide a written explanation as to how she was able to continue performing her dayto-day activities but not work at any job. The Office also requested that she provide additional
medical evidence establishing that she was totally disabled from her federal employment from
December 6 to 26, 2006. A copy of the investigative report was provided to appellant.
On September 26, 2007 appellant maintained that Dr. Pearson told her not to work and
rest, take medication and attend physical therapy. She stated that “at no time did we discuss
whether I could or could not perform any essential life functions but only to continue to attend
therapy which would facilitate continued improvement of my condition.” Appellant contended
that the employing establishment never offered her limited duty or contacted Dr. Pearson. She
stated that she was in a great deal of pain from December 5 to 7, 2006. However, after the first
two physical therapy sessions, appellant had improved to the point where she could perform light
housework, feed her dog, pick up her children from school, do light grocery shopping and keep a
hairdresser’s appointment. She opined that those functions complied with Dr. Pearson’s
restrictions “at least with my limited conversation with him.”
By decision dated November 14, 2007, the Office denied appellant’s claim for
continuation of pay from December 6 through 25, 2006. It found that the medical evidence did
not support that she was totally disabled.
Appellant disagreed with the Office’s decision and a telephonic hearing was held before
an Office hearing representative on March 12, 2008. The issue was her entitlement to
continuation of pay from December 6 through 17, 2006, as she returned to limited-duty work on
December 18, 2006. After the hearing, appellant submitted excerpts from the employing
establishment’s Employee and Labor Relations Manual.
By decision dated May 29, 2008, the Office hearing representative affirmed the
November 14, 2007 decision, as modified, to find that appellant was not entitled to continuation
of pay from December 7 through 17, 2006.
LEGAL PRECEDENT
In order to establish entitlement to continuation of pay, an employee must establish, on
the basis of reliable, probative and substantial evidence, that she was disabled as a result of a
traumatic employment injury. As part of this burden, she must furnish medical evidence from a
qualified physician who, based on a complete and accurate history, concludes that the

4

employee’s disability for specific periods was causally related to such injury.1 As used in the
Federal Employees’ Compensation Act, the term disability means incapacity because of an
injury in employment to earn wages the employee was receiving at the time of the injury.2 In
other words, if an employee is unable to perform the required duties of the job in which she was
employed when injured, the employee is disabled.3
The Office procedures under Chapter 2.807.7(c) further state that “[w]here the agency
has advised that it is willing to accommodate the employee’s work limitations, the employee
must so advise the attending physician and ask him or her to specify the limitations imposed by
the injury … [and] the employee must provide the agency with a copy of the physician’s
response.”4
ANALYSIS
The Office accepted that on December 5, 2006 appellant sustained sprains of the lumbar
thoracic and cervical spine. Appellant claimed continuation of pay. The Office found that she
was not entitled to continuation of pay from December 7 through 17, 20065 as she did not submit
medical evidence establishing that she was disabled for this period.
The Board finds that appellant did not submit medical evidence establishing that she was
disabled from December 7 through 17, 2006. In a December 7, 2006 report, Dr. Pearson advised
that appellant reported no improvement and that her back pain seemed somewhat worse. He
referred her to physical therapy, told her to continue her medications and stated that she could
not perform any work. In a December 7, 2006 CA-17 form, Dr. Pearson advised that appellant
was unable to perform light duty. On December 15, 2006 he noted that appellant’s back strains
were improving following physical therapy. Dr. Pearson released her to perform limited duty as
of December 18, 2006 with restrictions.
However, Dr. Pearson was presented with evidence of appellant’s activities during the
period December 7 through 15, 2006. This included driving up to 20 miles at a time, shopping
for two to three hours and getting her hair done for two to three hours. Dr. Pearson did not
consider such activities normal for a person under a doctor’s care for a neck and back injury. In
a January 4, 2007 interview with the employing establishment inspectors, he stated that “during
the initial phase of treatment, I expected [appellant] to rest, take her medication as directed and
go to physical therapy. I would not have recommended that she perform extended driving,
1

Carol A. Dixon, 43 ECAB 1065 (1992); Virginia Mary Dunkle, 34 ECAB 1310 (1983). See Carol A. Lyles, 57
ECAB 265 (2005); 20 C.F.R. § 10.205(a) (to be eligible for continuation of pay, a person must: (1) have a traumatic
injury which is job related and the cause of the disability, and/or the cause of lost time due to the need for medical
examination and treatment; (2) file Form CA-1 within 30 days of the date of the injury; and (3) begin losing time
from work due to the traumatic injury within 45 days of the injury).
2

Marvin T. Schwartz, 48 ECAB 521 (1997).

3

Id.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Payments, Chapter
2.807.7(c) (March 2004).
5

Appellant returned to limited-duty work December 18, 2006.

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shopping, or visits to the hairdresser.” Dr. Pearson was not ever aware that appellant was
participating in such activities. He also denied telling appellant that she could continue “normal”
activities with the exception of work. After viewing a surveillance videotape of appellant from
December 12, 2006, Dr. Pearson agreed that, based on the way appellant presented herself on
examination, she should not have been able to perform the activities depicted on the surveillance
footage. He further indicated that “beginning approximately December 13, 2006,” appellant
appeared to be physically capable of performing the duties of a mail carrier, such as limited
lifting, walking, operating a motor vehicle, standing, and sitting.”
While Dr. Pearson had held appellant off work with orders to rest, she was seen and
acknowledged going shopping, running errands, getting her hair done, and playing with her pet
while she was off work. Appellant indicated in a January 4, 2007 interview with postal
inspectors that, while she was aware the employing establishment provided limited duty to
assignments to injured employees she did not inform Dr. Pearson. She provided the Form
CA-17 duty status report to Dr. Pearson, which clearly indicated that limited duty was available.
Appellant had a responsibility to advise Dr. Pearson of the activities in which she was engaging
and let the physician accurately determine her work status.6 She failed to advise Dr. Pearson that
she felt capable of performing limited duty as of December 7, 2006 or that she had been
performing what she considered to be normal activities despite his instructions for her to rest.
Appellant had the responsibility to ask Dr. Pearson to provide work restrictions, which she failed
to do.
Appellant did not submit sufficient medical evidence based on an accurate factual
background establishing that she was totally disabled from December 7 through 17, 2006.
Therefore, the Office properly found that she was not entitled to continuation of pay from
December 7 through 17, 2006.
CONCLUSION
The Board finds that appellant is not entitled to continuation of pay for the period
December 7 through 17, 2006.

6

See 20 C.F.R. § 10.210(e).

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ORDER
IT IS HEREBY ORDERED THAT the May 29, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 13-396
Issued: May 6, 2013

Case Submitted on the Record

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

JURISDICTION
On December 10, 2012 appellant filed a timely appeal of a November 8, 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 the case.2
ISSUE
The issue is whether appellant met his burden of proof to establish an occupational
disease while in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

Appellant originally requested oral argument. The Clerk of the Board mailed him a letter dated December 31,
2012 asking him to confirm a continuing desire for an oral argument held in Washington, DC. Since no written
response was received, the Board has in its discretion, decided the appeal on the record.

FACTUAL HISTORY
On January 6, 2012 appellant, then a 60-year-old rural carrier, filed a Form CA-2 alleging
that he aggravated a right ankle condition while in the performance of duty. He became aware of
his condition on February 7, 2011 and realized its connection to his federal employment on
June 23, 2011. Appellant stopped work on June 22, 2011 and did not return.
OWCP informed appellant in a February 9, 2012 letter that additional evidence was
needed to establish his occupational disease claim. It gave him 30 days to submit a factual
statement detailing the job activities that resulted in his condition and a report from a qualified
physician explaining how his federal employment caused or contributed to a diagnosed injury.
In a February 17, 2012 letter, the employing establishment controverted appellant’s claim
on the grounds that he was on sick leave since June 23, 2011. It also asserted that he previously
filed a Form CA-1 for a traumatic injury arising on June 24, 2011.3
Appellant specified in a March 6, 2012 statement that he became symptomatic on
February 7, 2011. He continued to work, but experienced right ankle pain and swelling. On
June 22, 2011 appellant stepped out of his postal vehicle and twisted his right foot. He reported
the injury to his supervisor while off duty on June 24, 2011 and was advised to file a Form CA-1.
Appellant subsequently visited his attending physician, learned that his right ankle condition was
due to repetitive strain and filed a Form CA-2.
A February 7, 2011 note from Dr. Vijay A. Koli, a Board-certified internist, diagnosed
maxillary sinusitis, hypertension, diabetes mellitus type 2 and osteoarthrosis.4 A July 1, 2011
right ankle magnetic resonance imaging (MRI) scan requested by Dr. Eddie Davis, a podiatrist,
exhibited severe tibiotalar and subtalar synovitis and degeneration, lateral talar dome instability
and Achilles tendinopathy.5
Dr. Luis F. Bieler, a Board-certified internist, related in a February 24, 2012 report that
appellant’s job duties were repetitive in nature and involved pushing and pulling carts of mail,
lifting heavy trays and buckets, climbing, standing, bending, squatting and walking on uneven
surfaces such as broken sidewalks. Although he was symptomatic since February 7, 2011,
appellant continued to work until he twisted his right foot as he exited his postal vehicle on
June 22, 2011. Dr. Bieler examined appellant’s right ankle and observed significant swelling,
pain and tenderness. Following a review of the medical file, he diagnosed tibiotalar and subtalar
erosive synovitis, internal derangement and Achilles tendinopathy. Dr. Bieler opined that
3

OWCP File No. xxxxxx768. Subsequent letters from the employing establishment dated September 5 and 28,
2012 pointed out that appellant complained of right ankle problems before February 7, 2011 and suggested that his
symptoms were due to nonwork-related hypertension, arthritic gout and/or coronary condition. It referred to a Form
WH-380-F dated November 10, 2009 from Dr. James E. Williams, a Board-certified family practitioner. This
document is in the case record.
4

The case record also contains Dr. Koli’s notes dated January 31, 2011, May 15 and 22, 2012 briefly addressing
right ankle symptoms.
5

In a Form WH-380-F dated July 21, 2011, Dr. Davis recommended possible ankle joint replacement and custom
ankle foot orthosis.

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appellant’s right foot “gave out on him” on June 22, 2011 due to ongoing ankle weakness and
that his diagnosed injuries were “a direct result of his repetitive duties, not a traumatic injury....”
By decision dated March 12, 2012, OWCP denied appellant’s claim, finding the factual
evidence insufficient to establish the alleged contributory employment factors.
Appellant requested reconsideration on March 23, 2012 and submitted copies of his
March 6, 2012 statement, the July 1, 2011 right ankle MRI scan report and Dr. Bieler’s
February 24, 2012 report.
On March 29, 2012 OWCP denied modification of the March 12, 2012 decision.
Appellant requested reconsideration on August 6, 2012. He clarified that he was loading
a truck sometime in February 2011 when he twisted his right ankle, but continued to work
because he believed that the condition would improve overtime. Appellant reiterated that he
initially filed a Form CA-1 due to the erroneous advice of his former supervisor. Because he had
a “preexisting injury” that worsened as a result of his employment, he filed a Form CA-2.
In an October 5, 2012 report, Dr. Donald F. Dutra, Jr., a Board-certified physiatrist,
related that appellant was involved in a work-related accident on February 7, 2011. He
explained that the “forceful twisting and inversion of the right ankle” was consistent with ankle
sprain, peroneal tendon tearing and aggravation of degenerative changes. Dr. Dutra opined that
the employment incident on February 7, 2011 worsened appellant’s preexisting condition
because he was previously asymptomatic, adding that degeneration increased the likelihood of an
acute joint injury. He ruled out hypertension, arthritic gout or a coronary condition as a
contributing factor based on the objective findings, namely the July 1, 2011 MRI scan.6
On November 8, 2012 OWCP denied modification of the March 29, 2012 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are 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 upon a traumatic injury or an occupational disease.8
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.9 To establish fact of injury in an
6

Dr. Dutra remarked that appellant underwent surgery on June 27, 2012.

7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

Victor J. Woodhams, 41 ECAB 345 (1989).

9

S.P., 59 ECAB 184, 188 (2007).

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occupational disease claim, 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.10
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.11
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action. An employee has not met his or her burden in establishing the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may, if otherwise unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.12
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.13
ANALYSIS
The Board finds that the factual evidence does not sufficiently establish the work factors
that aggravated appellant’s preexisting right ankle condition.
Appellant alleged in a Form CA-2 dated January 6, 2012 that he aggravated his right
ankle while in the performance of duty. OWCP informed him that additional evidence was
needed to establish his occupational disease claim and afforded him opportunities to submit
statements clarifying the job activities that resulted in the injury. In response, appellant detailed
that he twisted his right ankle while loading a truck on February 7, 2011, his symptoms worsened
as he continued to work and he twisted his foot again on June 22, 2011 when he exited a postal
vehicle. He also submitted various medical reports.
Although appellant provided an approximate time frame of injury, his account lacked
specificity regarding the manner in which he aggravated a preexisting right ankle condition at

10

R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

11

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

12

Betty J. Smith, 54 ECAB 174 (2002).

13

I.J., 59 ECAB 408 (2008); supra note 8.

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work over a period of time.14 Furthermore, the inconsistent medical histories cast serious doubt
upon the validity of his claim. In a February 24, 2012 report, Dr. Bieler opined that appellant’s
diagnosed tibiotalar and subtalar erosive synovitis, internal derangement and Achilles
tendinopathy were the direct result of repetitive job duties rather than a traumatic event. On the
other hand, Dr. Dutra stated in an October 5, 2012 report that “forceful twisting and inversion of
the right ankle” in a work-related accident on February 7, 2011 caused an acute joint injury. In
view of these factual deficiencies, the Board finds that appellant failed to establish a claim.15
Appellant contends on appeal that he submitted medical evidence. As explained, he did
not provide sufficient factual evidence establishing the work factors that aggravated a preexisting
right ankle condition. Consequently, the Board does not need to consider the medical evidence
with respect to causal relationship.16 Appellant may submit new evidence or argument as part of
a formal written request for reconsideration to OWCP within one year of this merit decision,
pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained an occupational disease
while in the performance of duty.

14

See M.F., Docket No. 10-1514 (issued March 11, 2011); Bonnie A. Contreras, 57 ECAB 364, 367 (2006). The
Board notes that appellant’s account is more consistent with a claim for traumatic injury than one for occupational
disease: he indicated that he twisted his right ankle on two separate and distinct workdays. See 20 C.F.R. § 10.5(q)
and (ee).
15

O.W., Docket No. 09-2110 (issued April 22, 2010).

16

D.F., Docket No. 10-1774 (issued April 18, 2011).

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ORDER
IT IS HEREBY ORDERED THAT the November 8, 2012 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: May 6, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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Docket No. 12-460
Issued: November 29, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On December 29, 2011 appellant filed an application for review of a November 25, 2011
decision of the Office of Workers’ Compensation Programs (OWCP). By that decision, OWCP
denied a merit review of OWCP’s December 27, 2010 decision, as no new evidence had been
submitted. OWCP affirmed the denial of appellant’s claim for a permanent impairment to any
upper extremity due to her accepted employment injury.1
The Board, having duly considered the matter, concludes that the case is not in posture
for decision. OWCP explained in its November 25, 2011 decision that, although appellant
referred to an updated medical report from Dr. Phillip O’Donnell, a Board-certified neurologist,
following her November 9, 2010 examination and the results of a magnetic resonance imaging
(MRI) taken on October 14, 2010 and electromyogram/nerve conduction velocity (EMG/NCV)
testing of September 22, 2010, these reports were not of record.
The Board notes that appellant provided evidence of receipt of these documents by
OWCP.
1

OWCP accepted appellant’s occupational disease claim for thoracic outlet syndrome sustained in the
performance of duty in her capacity as a letter carrier. On prior appeal the Board affirmed a July 7, 2004 OWCP
decision, finding that appellant had not met her burden of proof to establish a recurrence of disability causally
related to the accepted employment injury. Docket No. 05-78 (issued June 2, 2005).

The record reveals that on November 17, 2010 appellant sent a mailing to OWCP to
“Office of Workers’ Comp, P.O. Box 8300” in London, KY 40742-8300 to the attention of “Jan
Miller,” containing medical evidence consisting of the report from Dr. O’Donnell as well as the
results of an MRI and EMG/NCV testing. The return receipt (hereinafter the green card) was
stamped as received by “Philip Schuler” on November 23, 2010. Additionally, the recipient of
the package wrote appellant’s OWCP file number on the green card. As appellant has
established receipt by OWCP of these documents, the case will be remanded for OWCP to
conduct any necessary further development, including obtaining copies of the missing medical
evidence OWCP received on November 23, 2010, to be followed by an appropriate merit
decision on appellant’s claim for a schedule award.2 Accordingly,
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 25, 2011 is set aside; the case is remanded for further
proceedings consistent with this order of the Board.3
Issued: November 29, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

The Board notes that on appeal appellant submitted copies of the medical evidence she referenced in her several
correspondences to OWCP. Appellant also submitted the results of an additional MRI dated October 21, 2010. As
OWCP has not reviewed this evidence, the Board is precluded from doing so for the first time on appeal. See 20
C.F.R. § 501.2(c)(1).
3

Appellant requested and confirmed her request for oral argument before the Board. Due to the disposition of the
case, the Board in its discretion denies the oral argument as it would only serve to delay the adjudication of this
appeal.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DALLAS VA MEDICAL CENTER, Dallas, TX,
Employer
__________________________________________

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

Docket No. 21-0492
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On February 12, 2021 appellant filed a timely appeal from a January 4, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $74,899.31, compromised to $48,961.60, for
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 4, 2021 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.

which he was without fault, because he concurrently received FECA wage-loss compensation and
Social Security Administration (SSA) age-related retirement benefits for the period June 1, 2006
through July 18, 2020, without an appropriate offset; (2) whether OWCP properly denied waiver
of recovery of the overpayment; and (3) whether OWCP properly required recovery of the
overpayment by deducting $475.00 from appellant’s continuing compensation payments every 28
days.
FACTUAL HISTORY
On December 13, 2005 appellant, then a 63-year-old program support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on November 30, 2005 he injured his lower back
when lifting boxes while in the performance of duty. He stopped work on December 1, 2005 and
returned to work on December 12, 2005. OWCP accepted the claim for lumbar sprain/strain,
lumbosacral spondylosis without myelopathy, and degeneration of lumbosacral intervertebral disc.
A February 5, 2006 notification of personnel action (PS Form 50) noted appellant’s retirement
plan as “K” Federal Employees Retirement System (FERS) and Federal Insurance Contributions
Act (FICA). OWCP paid him wage-loss compensation on its supplemental rolls from February 5,
2006 through August 30, 2008 and on its periodic compensation rolls as of August 31, 2008.
On November 7, 2019 OWCP forwarded a FERS/SSA benefits calculation worksheet to
the SSA to obtain information necessary for a determination of whether an offset of compensation
benefits was required.
On November 21, 2019 OWCP received from SSA a November 13, 2019 FERS/SSA dual
benefits calculation form, which indicated that appellant had been in receipt of SSA age-related
retirement benefits since June 2006. The form showed appellant’s SSA benefit rates with and
without a FERS offset as follows: beginning June 2006, the SSA rate with FERS was $1,166.00
and without FERS was $788.60; beginning December 2006, the SSA rate with FERS was
$1,205.00 and without FERS was $814.60; beginning December 2007, the SSA rate with FERS
was $1,232.00 and without FERS was $833.20; beginning December 2008, December 2009, and
December 2010, the SSA rate with FERS was $1,304.00 and without FERS was $881.60;
beginning December 2011, the SSA rate with FERS was $1,351.00 and without FERS was
$913.20; beginning December 2012, the SSA rate with FERS was $1,373.00 and without FERS
was $928.70; beginning December 2013, the SSA rate with FERS was $1,394.00 and without
FERS was $942.60; beginning December 2014 and December 2015, the SSA rate with FERS was
$1,418.00 and without FERS was $958.60; beginning December 2016, the SSA rate with FERS
was $1,422.00 and without FERS was $961.50; beginning December 2017, the SSA rate with
FERS was $1,450.00 and without FERS was $980.70; and beginning December 2018, the SSA
with FERS was $1,491.00 and without FERS was $1,008.10.
On December 19, 2019 OWCP again forwarded a FERS/SSA benefits calculation
worksheet to SSA. On January 17, 2020 it received from SSA a January 10, 2020 FERS/SSA dual
benefits calculation form, which indicated that, beginning December 2019, appellant’s SSA rate
with FERS was $1,515.20 and without FERS was $1,024.20.
OWCP completed a FERS offset calculation worksheet on July 29, 2020. It calculated the
overpayment amount by determining the daily FERS offset amount and multiplying th at amount

2

by the number of days in each period June 1, 2006 through July 18, 2020, resulting in a total
overpayment of $74,899.31. The form indicated that: from June 1 through November 30, 2006,
appellant received an overpayment in the amount of $2,276.84; from December 1, 2006 through
November 30, 2007, appellant received an overpayment in the amount of $4,697.67; from
December 1, 2007 through November 30, 2008, appellant received an overpayment in the amount
of $4,807.07; from December 1, 2008 through November 30, 2011, appellant received an
overpayment in the amount of $15,248.18; from December 1, 2011 through November 30, 2012,
appellant received an overpayment in the amount of $5,282.47; from December 1, 2012 through
November 30, 2013, appellant received an overpayment in the amount of $5,346.25; from
December 1, 2013 through November 30, 2014, appellant received an overpayment in the amount
of $5,431.68; from December 1, 2014 through November 30, 2016, appellant received an
overpayment in the amount of $11,071.04; from December 1, 2016 through November 30, 2017,
appellant received an overpayment in the amount of $5,541.18; from December 1, 2017 through
November 30, 2018, appellant received an overpayment in the amount of $5,647.07; from
December 1, 2018 through November 30, 2019, appellant received an overpayment in the amount
of $5,810.72; and from December 1, 2019 through July 18, 2020, appellant received an
overpayment in the amount of $3,739.15.
On August 20, 2020 OWCP issued a preliminary overpayment determination, finding that
an overpayment of compensation in the amount of $74,899.31 had been created because it had
failed to reduce appellant’s wage-loss compensation payments for the period June 1, 2006 through
July 18, 2020 to offset his SSA age-related retirement benefits that were attributable to federal
service. It also determined that he was without fault in the creation of the overpayment. OWCP
requested that appellant submit a completed overpayment recovery q uestionnaire (Form OWCP20) to determine a reasonable repayment method and advised him that he could request a waiver
of the overpayment. It further requested that he provide supporting financial documentation,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. Additionally, OWCP further provided an overpayment
action request form and notified appellant that, within 30 days of the date of the letter, he could
request a telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing. Appellant did not respond.
By decision dated January 4, 2021, OWCP finalized the August 20, 2020 preliminary
overpayment determination for the period June 1, 2006 through July 18, 2020.3 It found that
appellant had received an overpayment of compensation in the amount of $74,899.31, which was
reduced to $48,961.60 by compromise. OWCP further found that he was not at fault in the creation
of the overpayment, but denied waiver of recovery of the overpayment as he had not submitted
evidence to substantiate that adjustment or recovery of the overpayment would defeat the purpose
of FECA or be against equity and good conscience. It required recovery by deducting $475.00
every 28 days from appellant’s continuing compensation payments.

3

OWCP erroneously noted the overpayment period as June 1, 2006 through July 19, 2020. The overpayment was
calculated through July 18, 2020, as noted in the preliminary overpayment determination.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment. 4 Section 8116 limits the right of an employee to receive compensation.
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.5 When an overpayment of compensation 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.6
Section 10.421(d) of FECA implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA age-based benefits that are attributable to federal
service of the employee. 7 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit. 8
The determination that the debt has been compromised does not carry the right to a hearing
or to review by the Board. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $74,899.31, compromised to $48,961.60, for which he was
without fault, because he concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits for the period June 1, 2006 through July 18, 2020, without an
appropriate offset.
The evidence of record indicates that, while appellant was receiving wage -loss
compensation benefits under FECA, he also was receiving SSA age-related retirement benefits
based upon his federal service. A claimant cannot receive both compensation for wage-loss
compensation benefits under FECA and SSA age-related retirement benefits attributable to federal
service for the same period. 10 The information provided by SSA established that appellant
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); L.J., 59 ECAB 264 (2007).

8

FECA Bulletin No. 97-09 (issued February 3, 1997); see M.S., Docket No. 20-0068 (issued May 14, 2021).

9

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.6
(September 2020).
10

Id.

4

received SSA age-related retirement benefits that were attributable to federal service during the
period June 1, 2006 through July 18, 2020. Consequently, the fact of overpayment has been
established. 11
To determine the amount of the overpayment, the portion of SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amounts of SSA age-related retirement benefits that were attributable to
federal service. SSA provided its benefit rates with FERS and without FERS for specific periods
June 2006 through December 2019. OWCP provided its calculations for each relevant period
based on the SSA worksheet and properly determined that appellant received an overpayment of
compensation in the amount of $74,899.31, compromised to $48,961.60.
The Board, thus, finds that appellant received an overpayment of compensation in the
amount of $74,899.31, compromised to $48,961.60, for the period Ju ne 1, 2006 through
July 18, 2020.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 12
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. 13
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 14 Additionally, 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 in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 15

11

P.B., Docket No. 20-0862 (issued November 25, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020);
A.F., Docket No. 19-0054 (issued June 12, 2019).
12

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see M.C., Docket No. 19-0699 (issued
February 12, 2020).
13

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

14

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Supra note 9 at Chapter 6.400.4a(2) (September 2020).
15

Id. at § 10.437(a)(b).

5

OWCP’s 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 of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 16 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and n o further request
for waiver shall be considered until the requested information is furnished. 17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 18
In its preliminary overpayment determination dated August 20, 2020, OWCP explained the
importance of providing the completed overpayment questionnaire and supporting financial
documentation, including copies of income tax returns, bank account statements, bills, pay slips,
and any other records to support income, expenses, and assets. Appellant, however, did not
respond and failed to provide any financial information. As he did not submit the information
required under section 10.438 of OWCP’s regulations, which was necessary to determine his
eligibility for waiver, OWCP properly denied waiver of recovery of the overpayment. 19 Appellant
did not establish that adjustment or recovery of the overpayment would defeat the purpose of
FECA or be against equity and good conscience20 Therefore, the Board finds that OWCP properly
denied waiver of recovery of the overpayment.
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. 21

16

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

17

Id. at § 10.438(b).

18

Id. § 10.436.

19

Supra note 9 M.S.; D.C., Docket No. 19-0118 (issued January 15, 2020); see S.B., Docket No. 16-1795 (issued
March 2, 2017).
20

Id.

21

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

6

Section 10.441(a) of OWCP s regulations 22 provides in pertinent part:
“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.”23
Under OWCP’s procedures, the compromise of all or part of the overpayment and any
charges may be made depending upon the individual claimant’s financial circumstances in order
to set a repayment schedule. Such a determination is made at the time the repayment schedule is
established. 24 Compromise is a matter which rests in the discretion of OWCP and is not subject
to review by the Board. 25
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$475.00 every 28 days from appellant’s continuing compensation payments.
OWCP gave due regard to the financial information submitted, as well as the f actors set
forth in 20 C.F.R. § 10.441, including the compromised overpayment amount, and found that this
method of recovery would minimize resulting hardship. 26 When, as in this case, no response is
received to the preliminary overpayment determination, OWCP should set the rate of repayment
at 25 percent of the 28 days net compensation amount. 27 The record reflects that appellant was
earning $1,902.77 for 28 days of net compensation benefits. OWCP calculated that 25 percent of
the 28-day net compensation amount equates to $475.69. The Board finds that OWCP properly
required recovery of the overpayment by deducting $475.00 every 28 days from appellant’s
continuing compensation benefits.
On appeal appellant requests debt forgiveness be considered. As he did not provide a
completed Form OWCP-20 overpayment recovery questionnaire and supporting financial

22

Id. at § 10.441(a).

23

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

24

Supra note 9 at Chapter 6.500.6 (September 2020).

25

Id.; see supra note 9; M.S., Docket No. 20-0068 (issued May 14, 2021).

26

M.S., id.; M.B., Docket No. 20-1578 (issued March 25, 2021).

27

Supra note 9 at Chapter 6.500.8(c)(1) (September 2018); see D.C., Docket No. 19-0118 (issued
January 15, 2020).

7

documentation as requested in OWCP’s August 20, 2020 letter, OWCP properly denied waiver of
recovery of the overpayment. 28
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $74,899.31, compromised to $48,961.60, for which he was
without fault, because he concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits for the period June 1, 2006 through July 18, 2020, without an
appropriate offset, and that OWCP properly denied waiver of recovery of the overpayment. The
Board further finds that OWCP properly required recovery of the ov erpayment by deducting
$475.00 from his continuing compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 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

28

See 20 C.F.R. § 10.438 (in requesting waiver, the overpaid individual has the responsibility for providing
financial information); see also L.K., Docket No. 17-1393 (issued March 20, 2018).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
U.S. POSTAL SERVICE, POSTAL SECURITY
FORCE, Boston, MA, Employer
__________________________________________

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Appearances:
Jacqueline Shanahan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0687
Issued: December 21, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 6, 2017 appellant, through counsel, filed a timely appeal from August 18,
2016 and January 6, 2017 merit decisions 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 OWCP properly determined that appellant’s court-ordered
restitution did not constitute a global settlement.
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 and circumstances outlined in
the Board’s prior decision are incorporated herein by reference. The facts relevant to this appeal
are set forth below.
On April 4, 1988 appellant, then a 41-year-old police supervisor, filed an occupational
disease claim (Form CA-2) alleging that he sustained acute anxiety and somatic problems
causally related to factors of his federal employment. OWCP accepted the claim for a temporary
adjustment disorder with anxious mood. It paid appellant wage-loss compensation for total
disability beginning December 1988 on the periodic rolls.
As a requirement of remaining on the periodic rolls, compensationers must provide a
financial overview of their income each year by completing a Form EN1032. Appellant signed
EN1032 forms on September 7, 1990, September 7, 1991, and August 20, 1992. On these forms
he certified that he was neither employed nor self-employed during the covered previous 15month period.
On August 3, 1993 appellant was indicted on 28 counts of mail fraud and three counts of
filing false statements in violation of 18 U.S.C. §§ 1341 and 1001 respectively. The indictment
specified that he knowingly and willfully made false statements on three signed EN1032 forms
because, during the time he indicated that he was unemployed, he operated and managed a
business called PGA Ammunition.
On December 16, 1993 appellant was convicted of all 31 counts after a four-day jury
trial. In a March 24, 1994 judgment in a criminal case, a U.S. District Judge in the District of
Massachusetts sentenced him to a term of five months in prison followed by three years of
supervised release. The judge further found that appellant should pay restitution not to exceed
$35,778.61 to the U.S. Department of Labor (DOL).
On January 18, 1994 OWCP notified appellant that it was terminating his compensation,
effective December 16, 1993, based on his fraud conviction pursuant to section 102 of Public
Law 103-112, 107 Stat. 1089 (October 21, 1993). Appellant timely requested an oral hearing
before an OWCP hearing representative on the issue of termination. The hearing was scheduled
for September 13, 1994.
By decision dated February 22, 1994, OWCP also determined that appellant forfeited his
entitlement to compensation from September 8, 1989 through August 20, 1992 under section
8106(b) because he had concealed his earnings during this period.
OWCP, on February 22, 1994, informed appellant of its preliminary determination that
he was at fault in the creation of an overpayment in the amount of $88,438.22 because he had
failed to disclose his earnings as required. It further advised him of its preliminary determination
that he was at fault in creating the overpayment. OWCP requested that appellant complete an
enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
3

Docket No. 95-1024 (issued June 6, 1997).

2

documentation. Additionally, it notified him that, within 30 days of the date of the letter, he
could request a telephone conference, a final decision based on the written evidence or a
prerecoupment hearing. No further information was received by OWCP from appellant.
Following the September 13, 1994 oral hearing, by decision dated September 28, 1994,
OWCP’s hearing representative affirmed the termination of appellant’s compensation as the
applicable statute mandated such a result in the case of a claimant convicted of felony fraud
relating to his benefits under FECA. He found that appellant’s arguments that he had appealed
his conviction and that he was totally disabled were not relevant to the termination of his
compensation.
By decision dated December 16, 1994, OWCP finalized the overpayment of
compensation in the amount of $88,438.22 and its finding that he was at fault in the creation of
the overpayment. Appellant was advised to submit a check for the entire amount as repayment.
Appellant appealed to the Board. By decision dated June 6, 1997, the Board affirmed the
February 22, September 28, and December 16, 1994 OWCP decisions.4 The Board found that
appellant had forfeited his entitlement to compensation from September 8, 1989 through
August 20, 1992 because he knowingly failed to report earnings from self-employment and,
consequently, received an overpayment for that period of $88,438.22 for which he was at fault in
the creation. The Board further determined that OWCP had properly terminated his
compensation as he had been convicted of fraud. The Board also noted that appellant’s
sentencing required him to pay restitution of $36,778.61.5
In an October 14, 1999 memorandum to the file, OWCP indicated that it had erroneously
applied interest to the entire overpayment amount of $88,438.22 as the court order did not apply
interest to the restitution amount of $35,778.61. It separated the overpayment amounts into two
separate debts, $35,778.61 for the court-ordered amount and a balance of $52,659.61 to which it
assessed interest.
By letter dated April 7, 2014, a U.S. Attorney for the District of Massachusetts advised
counsel that appellant’s criminal restitution debt had expired as it was more than 20 years from
the judgment date of March 23, 1994. It instructed him to cease restitution payments and
released a lien on his property.
OWCP, on April 16, 2015, advised appellant that the March 1994 restitution order was
separate from the overpayment affirmed by the Board on June 6, 1997.
Appellant’s U.S. Senator contacted OWCP regarding his overpayment.
In a
November 20, 2015 response, OWCP advised that the debt due to the court-ordered restitution of
4

Docket No. 95-1024 (issued June 6, 1997). On October 28, 1998 the Board granted the Director’s Petition for
Correction to specify that forfeiture was warranted for any felony fraud conviction related to the receipt of benefits
under FECA. Order Granting Petition, Docket No. 95-1024 (issued October 28, 1998). On May 3, 1999 the Board
granted another Petition for Correction from the Director and clarified its discussion of 5 U.S.C. § 8148. Order
Granting Petition for Correction, Docket No. 95-1024 (issued May 3, 1999).
5

This appears to be a typographical error as court documents, infra, indicate that the amount is $35,778.61.

3

$35,778.61 had been discharged due to the expiration of the statute of limitations, but that the
other debt due to appellant’s forfeiture of compensation under FECA as a result of his fraud
conviction was a separate debt from the criminal sentencing provisions and had no statute of
limitations.
Counsel, on December 22, 2015, asserted that the court-ordered restitution was not to
exceed $35,778.61 paid to DOL. She contended that it constituted a global settlement for full
satisfaction of the debt.
OWCP, in a response dated January 25, 2016, informed counsel that appellant had an
outstanding balance on the debt from his forfeiture of compensation in the amount of
$66,856.34, which was being recouped by a garnishment from an annuity through the Office of
Personnel Management. It noted that there was no evidence of record supporting that the court
issued a global settlement, but instead imposed restitution as a financial penalty. OWCP further
indicated that the Board had discussed the restitution order in its 1997 decision without finding
that it was a global settlement. It advised that appellant was responsible for the outstanding
balance on the debt.
By letter dated February 11, 2016, counsel contended that the Board did not directly
address the issue of whether the decision constituted a global settlement in its 1997 decision.
She argued that the finding by the criminal court judge that the restitution should not exceed a set
amount constituted a global settlement.
In a June 13, 2016 response, OWCP reiterated that the Board had addressed the issue of
restitution in its 1997 decision and failed to find that the March 1994 sentencing order was a
global settlement. It advised that the U.S. Attorney’s instructions to stop paying restitution
addressed the criminal proceeding rather than OWCP’s administrative proceeding.
Counsel, on June 20, 2016, requested a formal decision with appeal rights.
By decision dated August 18, 2016, OWCP found that the March 23, 1994 judgment
from the U.S. District Court of Massachusetts ordering appellant to pay restitution did not
constitute a global settlement. It thus found that he still owed the remainder of the balance on his
debt following credit for the restitution paid under the court order.
On September 6, 2016 counsel identified the issue as whether the judge’s instructions that
the restitution was “not to exceed” the specified amount constituted a global settlement. She
maintained that the Board had not yet decided the matter. On September 13, 2016 counsel
requested an oral hearing.
On October 25, 2016 counsel requested a review of the written record in lieu of an oral
hearing. She contended that the judge found that he should pay restitution not to exceed
$35,778.61 to OWCP, which constituted a global settlement. Counsel additionally maintained
that the judge discussed how he reached the amount of restitution in the trial transcript. She
advised that in the transcript the judge noted that appellant was entitled to disability retirement at
40 percent of his salary, but instead received 75 percent of his salary from OWCP. The judge
found that the government could collect the difference between the 40 percent and 75 percent of
his salary, noting that appellant was entitled to some of the money.
4

Counsel submitted a March 23, 1994 transcript of the disposition from the proceedings
before the U.S. District Court. The judge in that case found that appellant should pay some
restitution, but also found that he was entitled to a portion of the compensation. He utilized the
difference between the 40 percent of his salary appellant could have received from disability
retirement and the 75 percent of his salary that he received from OWCP to find restitution of
$35,778.61.
By decision dated January 6, 2017, OWCP’s hearing representative affirmed the
August 18, 2016 decision. She found that the August 18, 2016 court order that appellant make
restitution of $35,778.61 did not clearly indicate that it represented a global settlement or full
satisfaction of debt owed to the government.
On appeal counsel contends that the amount of restitution ordered by the U.S. District
Court constituted a global settlement as it found that the amount paid was “not to exceed”
$35,778.61. She maintains that the transcript demonstrated the judge’s intent for the amount to
represent full satisfaction of the debt as he did not agree that more was due OWCP.
LEGAL PRECEDENT
Regarding court-ordered restitution in fraud cases, OWCP’s procedures provide:
“When a debtor has been convicted in court of filing a false claim which resulted
in an overpayment/debt due the government, the court often orders the defendant
to make restitution to the United States as a condition of probation. The amount
of restitution may or may not be the full amount of the debt owed to OWCP.”
“a. If the Court Order states that the restitution amount will be in full satisfaction
of the debt owed the United States (a ‘Global Settlement’), the Court Order takes
precedence over [OWCP’s] administrative debt collection process. In such cases,
if the restitution amount is less than the outstanding debt principal balance, the
principal balance must be reduced to the restitution amount set by the court. Also,
interest may not be applied to such debts unless stipulated in the Court Order.
However, if the probation period ends and the debtor fails to make full restitution
of the amount ordered by the court, OWCP may pursue collection of the full
original debt amount. Before pursuing this matter, OWCP may wish to request
SOL assistance in contacting the Department of Justice to ascertain the status of
the restitution.”
“b. If the Court Order does not represent a ‘Global Settlement,’ OWCP should
continue to pursue collection of the full amount of the debt, taking credit for any
restitution amounts received. Unless assessment of interest is stipulated in the
Court Order, interest may not be applied to the restitution amount and any
restitution payments received should be applied directly to the debt principal.”6

6

Ronald E. Ogden, 56 ECAB 278 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt
Liquidation, Chapter 6.300.18 (May 2004); see also K.S., Docket No. 18-0639 (issued April 22, 2009).

5

ANALYSIS
On prior appeal, the Board affirmed OWCP decisions finding that appellant forfeited his
entitlement to compensation from September 8, 1989 through August 20, 1992 and that he
received an overpayment of compensation for which he was at fault during that period in the
amount of $88,438.22. The Board noted that he was required to pay court-ordered restitution of
$36,778.61.7 Issues addressed and resolved by the Board in a final decision are res judicata and
not subject to further review by the Board absent further review by OWCP.8 In this case, as
OWCP reviewed new legal arguments raised by counsel and issued a new merit decision
regarding the contentions, the matter is not barred for review by the Board under res judicata.9
The Board finds that the court-ordered restitution in this case was not intended to
constitute a global settlement. There is no specific language in the District Court order providing
that the $35,778.61 payment was to be in full satisfaction of the debt due the United States. For
this reason, OWCP is not precluded from continuing to pursue recovery of appellant’s
overpayment debt.10 As to the method of recovery, the Board does not have jurisdiction over this
issue as appellant was not entitled to continuing compensation benefits.11
On appeal counsel contends that the restitution amount constituted a global settlement as
the judge found that the amount he should pay was “not to exceed” $35,778.61. The judge,
however, was referring to the amount of restitution that he found that appellant should pay as
part of his criminal sentencing, which also included a prison term and supervised release. He did
not specifically determine that the amount was in full satisfaction of the debt.12
Counsel also asserts that the transcript by the judge demonstrated that he intended the
amount to represent full satisfaction of the debt. In the March 23, 1994 transcript, the judge
found that appellant could have received 40 percent of his salary if on disability retirement, but
instead received 75 percent of his salary from OWCP, and determined that the restitution amount
should be the difference between these amounts. Section 8106(b) of FECA, however, provides
that an employee who “fails to make an affidavit or report when required or knowingly omits or
understates any part of his earnings, forfeits his right to compensation with respect to any period
for which the affidavit or report was required.13

7

As noted, the amount of court ordered restitution was actually $35,778.61.

8

See David E. Newman, 48 ECAB 305 (1997).

9

See R.M., Docket No. 15-0538 (issued September 23, 2016).

10

See K.S., Docket No. 08-0639 (issued April 22, 2009).

11

See Robert Ringo, 53 ECAB 258 (2001).

12

See Joseph M. Popp, 48 ECAB 624 (1997).

13

5 U.S.C. § 8106(b).

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CONCLUSION
The Board finds that OWCP properly determined that appellant’s court-ordered
restitution did not constitute a global settlement.
ORDER
IT IS HEREBY ORDERED THAT the January 6, 2017 and August 18, 2016 merit
decisions of the Office of Workers’ Compensation Programs are affirmed.14
Issued: December 21, 2017
Washington, DC

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

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

14

Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, CAPITAL
PERFORMANCE CLUSTER, Washington, DC,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-1501
Issued: February 27, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On June 14, 2011 appellant filed an application for review of a January 10, 2011 decision
of the Office of Workers’ Compensation Programs (OWCP), claim number xxxxxx731, which
denied modification of a March 17, 2010 decision for wage-loss compensation. The appeal was
docketed as number 11-1501.
The record indicates that OWCP accepted an August 4, 1993 injury for a broken tooth
under claim number xxxxxx138. On May 29, 2009 appellant claimed a recurrence of total
disability from December 26, 1995 until April 27, 1996, which OWCP developed as a new injury
under claim number xxxxxx731.
OWCP determined that the date of injury was
December 23, 1995. By decision dated November 23, 2009, it accepted a recurrence of
November 29, 2006.1
On December 3, 2009 appellant filed CA-7 claims for wage-loss compensation for the
periods August 4, 1993 to December 26, 1995, July 7, 1988 to June 30, 2006 and November 1,
2006 to August 1, 2008. In denying her claim for wage-loss compensation for such periods,
OWCP, in a January 10, 2011 decision, addressed evidence which was not of record. This
1

OWCP found appellant started receiving medical treatment for the alleged recurrence June 2006.

included a second report dated July 12, 2010 from Patrick L. Bryant, D.D.S, which OWCP stated
that it received on July 23, 2010.
The Board has duly considered the matter and notes that the case is not in posture for a
decision. The claim before the Board, file number xxxxxx731, involves appellant’s claim for
wage-loss compensation for the periods August 4, 1993 to December 26, 1995, July 7, 1988 to
June 30, 2006 and November 1, 2006 to August 1, 2008. In the January 10, 2011 decision,
OWCP noted reviewing evidence not of record in reaching its decision. This evidence must be
part of the record. The record also indicates that file number xxxxxx138 may have evidence
germane to claim number xxxxxx731 as it would include medical reports from the date of injury,
August 4, 1993, onwards which may be relevant to the early periods of wage loss claimed.
Pursuant to OWCP procedures, OWCP has determined that cases should be combined where
correct adjudication depends on cross-referencing between files. In the instant appeal, it appears
that, for a full and fair adjudication, appellant’s claims pertaining to wage-loss compensation
commencing August 4, 1993 onwards should be combined pursuant to OWCP procedures.2 This
will allow OWCP to consider all relevant claim files in developing appellant’s wage-loss claim.
Moreover, to consider appellant’s appeal at this stage would involve a piecemeal adjudication of
the issues in this case and raise the possibility of inconsistent results. It is the Board’s policy to
avoid such an outcome.3
The case will be remanded to OWCP to combine case files numbers xxxxxx138 and
xxxxxx731. Following this and such other development as deemed necessary, OWCP shall issue
an appropriate merit decision on appellant’s claim.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
3

See William T. McCracken, 33 ECAB 1197 (1982).

2

IT IS HEREBY ORDERED THAT the January 10, 2011 decision be set aside and the
matter remanded to OWCP for further proceedings consistent with this order.
Issued: February 27, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FEDERAL MEDICAL
CENTER DEVENS, Ayer, MA, Employer
__________________________________________

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

Docket No. 21-0204
Issued: November 29, 2021

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 November 20, 2020 appellant filed a timely appeal from a June 30, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated January 27, 2020, 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.
ISSUE
The issue is whether OWCP properly determined that appellant abandoned his request for
an oral hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 12, 2019 appellant, then a 40-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that on November 22, 2019 he sustained injury when he struck
his left elbow and was forced to the ground when attempting to restrain a combative inmate while
in the performance of duty. He did not stop work.
In a December 23, 2019 development letter, OWCP notified appellant of the def iciencies
of his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond.
In response, appellant submitted reports from health care providers, including: two
December 20, 2019 narrative reports and an undated form report from Allison S. Betts, a physician
assistant; a December 26, 2019 narrative report and an undated form report from William S. King,
a physician assistant; and December 26, 2019 cervical spine x-ray findings.
OWCP also received a January 14, 2020 letter in which a safety compliance specialist for
the employing establishment described appellant’s reporting of his claimed injury.
By decision dated January 27, 2020, OWCP accepted that on November 22, 2019 appellant
was engaged in a struggle at work with a combative inmate, as alleged. However, it denied
appellant’s traumatic injury claim, finding that the evidence of record was insufficient to establish
the medical component of fact of injury. OWCP concluded that the requirements had not been
met for establishing an injury as defined by FECA.
By appeal form dated February 25, 2020,2 appellant requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
In a May 12, 2020 letter, OWCP’s hearing representative notified appellant that a
telephonic hearing was scheduled for June 16, 2020 at 2:15 p.m. Eastern Standard Time (EST).
The notice included a toll-free number to call and provided the appropriate passcode. OWCP’s
hearing representative mailed the notice to appellant’s last known address of record. Appellant
did not appear for the hearing and no request for postponement was made.
By decision dated June 30, 2020, OWCP determined that appellant had abandoned his
request for an oral hearing. It further found that there was no indication in the case record that
appellant had contacted the Branch of Hearings and Review either prior to or subsequent to the
scheduled hearing to explain his failure to appear.
LEGAL PRECEDENT
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for which

2

The case record does not contain the envelope in which the appeal form was mailed.

2

a hearing is sought. 3 Unless otherwise directed in writing by the claimant, OWCP’s hearing
representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date. 4 OWCP has the burden of proving that
it properly mailed to a claimant and any representative of record a notice of a scheduled hearing. 5
A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing. 6
ANALYSIS
The Board finds that OWCP properly determined that appellant abandoned his request for
an oral hearing.
Following OWCP’s January 27, 2020 decision, appellant filed a timely request for an oral
hearing before a representative of OWCP’s Branch of Hearings and Review. In a May 12, 2020
letter, OWCP’s hearing representative notified appellant that OWCP’s Branch of Hearings and
Review had scheduled a telephonic hearing for June 16, 2020 at 2:15 p.m. EST. The hearing
representative properly mailed the hearing notice to appellant’s last known address of record 7 and
provided instructions on how to participate. There is no evidence of non delivery of the hearing
notice. However, appellant failed to appear for the scheduled hearing and he did not request a
postponement or provide an explanation to OWCP for his failure to appear within 10 days of the
scheduled hearing. 8 The Board thus finds that OWCP properly determined that he abandoned his
request for an oral hearing.9
CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned his request for
an oral hearing.
3

20 C.F.R. § 10.616(a).

4

Id. at § 10.617(b).

5

T.R., Docket No. 19-1952 (issued April 24, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019); T.P.,
Docket No. 15-0806 (issued September 11, 2015); Michelle R. Littlejohn, 42 ECAB 463 (1991).
6
20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written
Record, Chapter 2.1601.6(g) (September 2020); A.J., Docket No. 18-0830 (issued January 10, 2019); L.B., Docket
No. 18-0533 (issued August 27, 2018).
7

E.S., Docket No. 19-0567 (issued August 5, 2019).

8

See A.J., supra note 6.

9

See E.S., supra note 7.

3

ORDER
IT IS HEREBY ORDERED THAT the June 30, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 29, 2021
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, TINKER AIR FORCE
BASE, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0775
Issued: January 16, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On February 25, 2019 appellant filed a timely appeal from an October 18, 2018 decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 19-0775.
On October 6, 2011 appellant, then a 45-year-old management analyst, filed a traumatic
injury claim (Form CA-1) alleging that on September 16, 2011 she developed left arm, elbow, and
shoulder soreness when she and a coworker moved a file cabinet. She did not stop work. On
January 20, 2012 OWCP accepted the claim for left shoulder and upper arm sprain. Appellant
underwent an authorized left rotator cuff repair on July 31, 2012. On August 26, 2013 OWCP
granted her a schedule award for 12 percent permanent impairment of the left upper extremity.
In a report dated April 13, 2018, Dr. Terrell Phillips, a Board-certified anesthesiologist,
noted that appellant required continuing medical maintenance for her September 16, 2011
employment injuries.
On July 16, 2018 appellant filed a recurrence claim (Form CA-2a) for medical treatment
beginning April 13, 2018.

In a development letter dated September 6, 2018, OWCP advised appellant that the
evidence of record was insufficient to establish her claim for recurrence of the need for further
medical treatment. It advised her of the type of medical evidence required to support her claim.1
Appellant was afforded 30 days to provide the information requested.
Appellant subsequently submitted an August 31, 2018 progress note from Dr. Phillips
detailing medical management treatment, which he related was for the accepted September 16,
2011 employment injury.
By decision dated October 18, 2018, OWCP denied appellant’s October 6, 2011 traumatic
injury claim finding the medical evidence of record was insufficient to establish that her diagnosed
left shoulder primary osteoarthritis and other cervical disc displacement were caused or aggravated
by factors of her federal employment.
The Board, having duly considered the matter, finds that the case is not in posture for
decision.
On January 20, 2012 OWCP accepted appellant’s October 6, 2011 traumatic injury claim
for left shoulder and upper arm sprain. Appellant filed a claim for a recurrence of medical
treatment beginning April 13, 2018. In its October 18, 2018 decision, however, OWCP failed to
adjudicate her claim for recurrence for medical treatment.2 FECA provides that OWCP shall
determine and make findings of fact in making an award for or against payment of compensation
after considering the claim presented by the employee and after completing such investigation as
it considers necessary with respect to the claim.3 OWCP did not discuss whether the evidence
submitted was sufficient to establish appellant’s recurrence claim.
Furthermore, in its October 18, 2018 decision, OWCP did not make sufficient findings as
to whether acceptance of the claim should be expanded to include additional medical conditions.
Appellant bears the burden of proof to establish that the additional diagnosed conditions were
causally related to the accepted employment injury.4 She sought to expand the acceptance of her
claim to include left shoulder primary osteoarthritis and other cervical disc displacement. This
issue has not been properly adjudicated.
Thus, the case must be returned to OWCP for a proper determination which includes
findings of fact as to whether appellant has established a recurrence of medical treatment causally
related to her accepted employment conditions and whether the acceptance of the claim should be
1

The Board notes that OWCP has not issued a decision in this case terminating appellant’s right to medical
treatment for her accepted conditions.
2

5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or
against payment of compensation. 20 C.F.R. § 10.126 provides that its final decision shall contain findings of fact
and a statement of reasons. See also H.O., Docket No. 19-0198, Order Remanding Case (issued July 3, 2019).
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013). See
also H.O., id.; R.B., Docket No. 17-0912 (issued January 23, 2018); L.R., Docket No. 15-0235 (issued December 21,
2015); Patrick Michael Duffy, 43 ECAB 280 (1991).
4

M.M., Docket No. 19-0951 (issued October 24, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).

2

expanded to include the additional diagnosed conditions. Following this and such further
development as OWCP deems necessary, it shall issue a de novo decision.5
IT IS HEREBY ORDERED THAT the October 18, 2018 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: January 16, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

5
The Board notes that upon return of the case record OWCP shall administratively combine the current file with
appellant’s claim in File No. xxxxxx938.

3