United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Willowick, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0715
Issued: September 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 19, 2019 appellant filed a timely appeal from a September 25, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 25, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability, commencing January 28, 2017, causally related to her accepted January 21, 2015
employment injury.
FACTUAL HISTORY
On January 23, 2015 appellant, then a 47-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a right ankle fracture when she slipped on ice
underneath snow while in the performance of duty. She stopped work on January 22, 2015 and
received continuation of pay beginning January 27, 2015. On the reverse side of the claim form,
the employing establishment indicated that appellant was in the performance of duty when injured,
that she had received medical treatment on January 22, 2015 and that she had not yet returned to
work.
On March 9, 2015 OWCP accepted her claim for right malleolus fracture. It subsequently
expanded acceptance of her claim to include right sacroiliitis. Appellant received wage-loss
compensation benefits for temporary total disability commencing March 8, 2015, and OWCP
placed her on the periodic compensation rolls effective May 1, 2016.
On August 10, 2015 appellant returned to part-time, limited-duty work for two hours per
day. She continued to receive wage-loss compensation for temporary partial disability for the
remaining hours.
3

On December 12, 2015 appellant stopped work completely because no work was available
within her restrictions. OWCP paid wage-loss compensation for total disability. On October 3,
2016 appellant accepted a part-time limited-duty position as a city carrier. The duties of the
position required casing mail up to four hours, driving up to one hour, and delivering express mail
up to one hour. The physical requirements of the position were simple grasping for four hours,
twisting for three hours, and pulling/pushing and bending/stooping for two hours.
On November 8, 2016 appellant stopped work again. She filed various claims for wageloss compensation (Form CA-7) for total disability.
Appellant continued to receive medical treatment. In a February 2, 2017 report, Dr. Tim
Nice, a Board-certified orthopedic surgeon, related that she was seen for severe pain in her right
sacroiliac joint. Appellant recounted that she was “unable to do her duties at work and can barely
get up and down from a chair.” Upon examination of her lumbar spine, Dr. Nice observed
exquisite tenderness over the right sacroiliac joint. He reported that they were going to take
appellant off work for two to four weeks.

3

In an August 7, 2015 report, Dr. Neal A. Marks, a podiatrist, authorized appellant to return to part-time work of
two hours per day for three weeks, four hours per day for three weeks, and then full-time status without restrictions
on September 22, 2015.

2

In progress notes dated February 24 and March 2, 2017, Dr. Nice continued to report that
appellant should remain off work due to her current OWCP injury.
On March 10, 2017 appellant filed a notice of recurrence (Form CA-2a) of disability
commencing January 28, 2017 due to her accepted January 21, 2015 employment. She described
that, since returning to work, she was always in pain and on pain medication. Appellant indicated
that the recurrence happened when she felt a sharp pain in her right sacroiliac joint, which was the
same accepted condition.
In a March 13, 2017 development letter, OWCP advised appellant that additional evidence
was needed to establish her recurrence claim, including an attending physician’s opinion supported
by medical rationale explaining how her claimed recurrence of disability occurred. It also
requested that she complete an attached questionnaire with various questions regarding why she
believed that she had sustained a recurrence of disability due to her accepted January 21, 2015
employment injury. OWCP afforded appellant 30 days to submit the necessary evidence.
In a March 20, 2017 narrative report, Dr. Nice related that appellant was receiving
treatment in his office for her current OWCP injury. He indicated that she was “off work from
January 28, 2017 and still is currently off work due to this OWCP injury. Appellant is off work
due to the constant pain she is having currently.”
On March 22, 2017 OWCP received appellant’s response to its development questionnaire.
Appellant described that the claimed recurrence occurred on January 27 when she was unable to
get out of bed and move for the whole day because of sharp pain in her right sacroiliac joint. She
explained that she could not use her right-side lower extremities because of pain in her right
sacroiliac joint.
By decision dated April 27, 2017, OWCP denied appellant’s claim for a recurrence of
disability finding that the medical evidence of record was insufficient to establish a recurrence of
disability due to her accepted January 21, 2015 employment injury.4
On May 4, 2017 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
In a June 13, 2017 narrative report, Dr. Nice noted that he disagreed with OWCP’s denial
decision and found that there were no satisfactory findings to substantiate that appellant had right
sacroiliitis. He recounted that on February 2, 2017 he reported that she was unable to perform her
duties at work. Dr. Nice related that in subsequent examinations he continued to observe
tenderness over the right sacroiliac joint and paraspinal muscle spasms on the right side. He opined
that appellant was not capable of returning to her original job and carrying a mailbag.
By decision dated August 30, 2017, a hearing representative from OWCP’s Branch of
Hearings and Review set aside the April 27, 2017 decision and remanded the case for OWCP to

4
OWCP noted that appellant had stopped work on November 18, 2016 due to a depression/panic disorder and had
filed an occupational disease claim (Form CA-2) under OWCP File No. xxxxxx781.

3

further develop the medical evidence regarding whether appellant was totally disabled from work,
commencing January 28, 2017, as a result of her accepted January 21, 2015 employment injury.
On August 31, 2017 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and record to Dr. Gerard Papp, a Board-certified orthopedic surgeon, for a second-opinion
examination. In an October 19, 2017 report, Dr. Papp noted his review of the SOAF and that her
claim had been accepted for right lateral malleolus fracture and right-sided sacroiliitis. He related
appellant’s complaints of right buttock and right sacroiliac pain and provided examination
findings. Dr. Papp opined that appellant had not suffered residuals of her right lateral malleolus
fracture. He further explained that, although her claim had been accepted for right sacroiliitis,
there was nothing to support the objective findings of sacroiliitis from her work injury. In response
to OWCP’s questions of whether appellant was totally disabled from work beginning January 28,
2017, Dr. Papp explained that appellant was totally disabled for six months following her accepted
right ankle fracture injury. He concluded that she no longer required treatment for her accepted
conditions and was able to work with temporary restrictions.
In a November 20, 2017 addendum report, Dr. Papp again noted that there was no medical
documentation to support the diagnosis of right sacroiliitis and that “[it] never should have been
allowed.” He further concluded that appellant was not totally disabled commencing January 28,
2017 due to her work-related injury.
OWCP determined that a conflict in the medical opinion evidence existed between
Dr. Papp and Dr. Nice regarding appellant’s disability status. It referred her to Dr. Nasimullah
Rehmayullah a Board-certified orthopedic surgeon, for an impartial medical examination. In a
December 11, 2017 report, Dr. Rehmayullah discussed the history of injury and the medical
reports of record. He noted the accepted conditions of right lateral malleolus fracture and right
sacroiliitis. Dr. Rehmayullah related that, after the January 21, 2015 employment injury, appellant
returned to part-time modified-duty working between one to four hours per day with job duties
consisting of up to four hours of casing mail, up to one hour of driving, and up to one hour of
delivering express mail. He noted that her current complaints included right ankle pain with
driving and right buttock and right sacroiliac pain and discomfort.
In response to OWCP’s questions, Dr. Rehmayullah opined that appellant continued to
have residuals of her accepted right lateral malleolus fracture and sacroiliitis conditions. He also
opined that she was not totally disabled for work commencing January 28, 2017 as a result of her
January 21, 2015 employment injury. Dr. Rehmayullah noted that Dr. Nice indicated in his
August 10, 2015 report that appellant had reached maximum medical improvement (MMI). He
also noted that she stopped work on November 18, 2016 due to the conditions of stress and
depression. Dr. Rehmayullah concluded that appellant was unable to work her original job, but
was able to work limited duty with restrictions.
Appellant continued to receive medical treatment from Dr. Nice. In notes dated
November 27, 2017 and January 2, 2018, Dr. Nice reported examination findings of tenderness
over the right sacroiliac joint. He indicated that appellant would not be able to return to her original
job, but explained that she was able to perform sedentary work. Dr. Nice also completed several
duty status reports indicating that appellant could work part-time, limited duty.

4

In a January 2, 2018 addendum report, Dr. Rehmayullah indicated that Dr. Papp’s
examination findings were erroneously included instead of his own examination findings. He
reported that appellant walked with a mild limp on the right and noted normal range of motion of
the hips and knees with pain in the right sacroiliac area. Dr. Rehmayullah also observed tenderness
over the sacroiliac joint and mild-to-moderate discomfort of the right sacroiliac joint with her
supine stressing. Examination of appellant’s right ankle demonstrated tenderness over the lateral
side and anterior talo-fibular ligament. Dr. Rehmayullah opined that she was not totally disabled
commencing January 28, 2017. He explained that appellant’s right ankle and sacroiliitis
conditions were stable, as her treating physician had previously documented that she had reached
MMI on August 10, 2015. Dr. Rehmayullah opined that she could work limited duty.
In a January 25, 2018 narrative report, Dr. Nice related that appellant had been off work
since February 2, 2017 due to “ongoing back symptoms, especially in the sacroiliac joint.” He
opined that she could perform more sedentary-type work, but not carrying a 40-pound mailbag.
By decision dated February 6, 2018, OWCP denied appellant’s recurrence of disability
claim finding that the medical evidence of record was insufficient to establish that she experienced
a material change or worsening of her accepted January 21, 2015 employment injury on
January 28, 2017. It found that the special weight of medical evidence rested with the
December 11, 2017 and January 2, 2018 reports of Dr. Rehmayullah, the impartial medical
examiner, who opined that she was not totally disabled, commencing January 28, 2017, due to her
accepted January 21, 2015 employment injury.
On February 13, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on July 13, 2018.
Dr. Nice continued to provide duty status reports and progress notes dated February 8 to
August 23, 2018, which related his treatment of appellant for continued right sacroiliac symptoms.
On March 30, 2018 appellant accepted a part-time limited-duty job offer as a city carrier.
By decision dated September 25, 2018, an OWCP hearing representative affirmed the
February 6, 2018 decision denying appellant’s recurrence claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence.6 For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.7 Whether a
particular injury causes an employee to become disabled from work, and the duration of that
5

Supra note 1.

6

See B.K., Docket No. 18-0386 (issued September 14, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005);
Nathaniel Milton, 37 ECAB 712 (1986).
7

See D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S. Jefferson, id.

5

disability, are medical issues that must be proven by a preponderance of probative and reliable
medical opinion evidence.8
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,
which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment.9 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties, or a reduction-in-force) or when the physical
requirements of such an assignment are altered such that they exceed the employee’s physical
limitations.10
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.11
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.12 This is called a referee examination and OWCP will select a physician
who is qualified in the appropriate specialty and who has no prior connection with the case.13 For
a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and
rationale.”14 Where OWCP has referred the case to an impartial medical examiner to resolve the
conflict in the medical evidence, the opinion of such a specialist, if sufficiently well reasoned and
based upon a proper factual background, must be given special weight.15
ANALYSIS
The Board finds that this case is not in posture for decision.

8

See K.C., Docket No. 17-1612 (issued October 16, 2018); William A. Archer, 55 ECAB 674 (2004).

9

20 C.F.R. § 10.5(x).

10

Id.

11

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, 52 ECAB 291 (2001).
12
5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
13

20 C.F.R. § 10.321.

14

R.P., Docket No. 17-0428 (issued April 19, 2018); Darlene R. Kennedy, 57 ECAB 414 (2006).

15

Gary R. Sieber, 57 ECAB 414, 416 (2006).

6

The Board finds that OWCP improperly determined that a conflict in medical opinion
evidence existed between Dr. Nice, appellant’s treating physician, and Dr. Papp, an OWCP
second-opinion examiner, regarding whether appellant was totally disabled from work,
commencing January 28, 2017, as a result of her January 21, 2015 employment injury.
In reports dated February 2 to June 13, 2017, Dr. Nice noted an exacerbation of appellant’s
sacroiliitis symptoms and recommended that she was unable to work beginning February 2, 2017.
In reports dated October 19 and November 20, 2017, Dr. Papp opined that she no longer suffered
residuals of her right ankle fracture. He also reported that he found no objective evidence or
medical document to support that appellant sustained sacroiliitis due to her work injury. Dr. Papp
further concluded that she was not totally disabled from work commencing January 28, 2017 as a
result of her work-related injury.
The Board finds that Dr. Papp’s October 19 and November 20, 2017 reports were not
sufficiently rationalized and, accordingly, were not of equal weight to Dr. Nice’s reports as OWCP
had determined. The SOAF clearly provided that OWCP had accepted, as work related,
appellant’s conditions of right lateral malleolus fracture and right-sided sacroiliitis. In his
October 29 and November 20, 2017 reports, however, Dr. Papp reported that appellant had not
sustained sacroiliitis as a result of her January 21, 2015 employment injury and that “[it] never
should have been allowed.” OWCP procedures provide that, when the DMA, second opinion
specialist, or referee physician renders a medical opinion based on a SOAF which is incomplete
or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, the
probative value of the opinion is seriously diminished or negated altogether.16 As Dr. Papp
disregarded the accepted conditions noted in the SOAF, his opinion lacked a proper factual
background, and thus, his report is of diminished probative value and is insufficient to create a
conflict in medical evidence with Dr. Nice.17 As there was no conflict in medical evidence
between Dr. Nice and Dr. Papp pursuant to 5 U.S.C. § 8123(a), the referral to Dr. Rehmayullah
shall be considered as a referral for a second opinion examination.18
In reports dated December 11, 2017 and January 2, 2018, Dr. Rehmayullah reviewed the
medical evidence of record and provided examination findings. He opined that appellant still had
residuals of her accepted right ankle and right sacroiliitis injury. Dr. Rehmayullah also reported
that she was not totally disabled, commencing January 28, 2017, as a result of her January 21,
2015 employment injury because her treating physician had previously documented that her
accepted conditions had reached MMI on August 10, 2015. The Board finds that there is now a
conflict in medical evidence between Dr. Nice and Dr. Rehmayullah regarding whether appellant
16
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements of Medical Reports, Chapter 3.0600.3
(October 1990).
17

M.C., Docket No. 18-1199 (issued April 5, 2019); E.W., Docket No. 17-0707 (issued September 18, 2017).

18

See B.T., Docket No. 16-1319 (issued April 25, 2017) (the Board found that at the time of the referral for a
permanent impairment rating there was no conflict in medical opinion evidence; therefore, the referral was for a second
opinion examination); see also Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (the Board found that, as there
was no conflict in medical opinion evidence, the report of the physician designated as the impartial medical examiner
was not afforded the special weight of the evidence, but was considered for its own intrinsic value as he was a second
opinion specialist).

7

sustained a recurrence of disability, commencing January 28, 2017, due to her January 21, 2015
employment injury.
Because there is an unresolved conflict in medical opinion the case shall be remanded to
OWCP for referral to an impartial medical examiner pursuant to section 8123(a) of FECA.19 After
this and such further development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 25, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for proceedings
consistent with this decision of the Board.
Issued: September 12, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

19

Supra notes 14 and 16.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
GENERAL SERVICES ADMINISTRATION,
Burlington, NJ, Employer
__________________________________________
Appearances:
Thomas Uliase, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 07-289
Issued: November 20, 2007

Oral Argument October 10, 2007

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

JURISDICTION
On November 13, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 26, 2006 affirming the termination of
compensation effective April 12, 2005. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly exercised its discretion with respect to
appellant’s request for a subpoena; and (2) whether the Office met its burden of proof to
terminate compensation for wage loss and medical benefits effective April 12, 2005.
FACTUAL HISTORY
The Office accepted that appellant sustained a lumbar sprain in the performance of duty
on August 15, 2002. Appellant stopped working on August 15, 2002 and began receiving
compensation for temporary total disability. By decision dated June 6, 2003, the Office
terminated compensation for wage loss, finding the weight of the evidence was represented by

Dr. Howard Zeidman, an orthopedic surgeon selected as a second opinion physician. This
decision was set aside by an Office hearing representative on December 29, 2003, on the grounds
that a conflict in the medical evidence existed pursuant to 5 U.S.C. § 8123(a).
Appellant was referred to Dr. Stanley Askin, a Board-certified orthopedic surgeon, to
resolve the conflict. In a report dated January 30, 2004, Dr. Askin opined that a lumbar strain
had resolved. By decision dated April 15, 2004, the Office terminated compensation for wageloss and medical benefits effective April 17, 2004. Appellant, through his representative,
requested a hearing before an Office hearing representative.
By letter to the Branch of Hearings and Review dated November 22, 2004, appellant
argued that Dr. Askin had been selected often as a referee physician and the selection process
was improper. He requested, pursuant to 20 C.F.R. § 10.619, a subpoena for records concerning
the selection of Dr. Askin.
By decision dated January 4, 2005, an Office hearing representative set aside the
termination decision. The hearing representative found Dr. Askin’s report to be insufficient to
terminate compensation, and also directed the Office to review the selection process to determine
whether the Physicians’ Directory System (PDS) was properly utilized in the selection of
Dr. Askin as a referee physician.
Dr. Askin submitted a supplemental report dated February 12, 2005. He again opined
that the accepted employment injury had resolved. The record also contains copies of computer
entries for physicians bypassed during the referee selection process. The entries provide a
notation as to the reason the physician was bypassed; most of the physicians have a notation “too
busy for exam[ination].”
In a letter to the Office dated March 21, 2005, appellant requested, under the Freedom of
Information Act (FOIA), a list of physicians selected as referee physicians from November 2003
to June 2004. By letter dated April 1, 2005, the Office stated that lists of medical providers are
generally not releasable to the public. By letter dated April 19, 2005, to the Solicitor of Labor,
appellant again requested, pursuant to the FOIA, a list of physicians selected as referee
physicians from November 2003 to June 2004.
In a decision dated April 12, 2005, the Office terminated compensation for wage-loss and
medical benefits. The Office found the weight of the evidence was represented by Dr. Askin.
Appellant requested a hearing before an Office hearing representative. In a letter dated
July 28, 2005 to the Branch of Hearings and Review, appellant made a request to subpoena
Office records concerning the selection of Dr. Askin from the PDS, specifically a list of
physicians selected for the three months before and after the selection of Dr. Askin on
January 20, 2004.
A hearing was held on February 23, 2006. In response to appellant’s inquiry as to the
subpoena request, the hearing representative initially indicated that she did not have access to the
information. She also stated that appellant did not show that Dr. Askin was chosen out of the
proper order. In addition, the hearing representative stated, with respect to the subpoena request,

2

she had “been told that because that is at the solicitor’s office, that it [i]s not something that [i]s
appropriate for me to respond to.”
By decision dated April 26, 2006, the hearing representative affirmed the April 12, 2005
decision. The hearing representative found the weight of the evidence was represented by
Dr. Askin. According to the hearing representative, appellant’s representative “was advised that
his request for additional documents related to other case files was in the [O]ffice of the Solicitor
of Labor, per his letter to that office dated April 19, 2005. His subpoena request was denied.” In
discussing the allegation that Dr. Askin was improperly selected, the hearing representative cited
Roger S. Wilcox.1
LEGAL PRECEDENT -- ISSUE 1
Section 8126 of the Act provides that the Secretary of Labor, on any matter within her
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.2 20 C.F.R. § 10.619(a) provides that a claimant may
request a subpoena only as a part of the hearings process and no subpoena will be issued under
any other part of the claims process. The hearing representative may issue subpoenas for the
attendance and testimony of witnesses and for the production of books, records, correspondence,
papers or other relevant documents.
The hearing representative retains discretion on whether to issue a subpoena. The
function of the Board on appeal is to determine whether there has been an abuse of discretion.3
Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment or actions taken which are clearly contrary to logic and probable deduction
from established facts.4
ANALYSIS -- ISSUE 1
Appellant filed a subpoena request pursuant to 20 C.F.R. § 10.619 for documents relating
to the selection of Dr. Askin as a referee physician. Specifically, appellant requested a list of
physicians chosen as referee physicians for the period November 2003 to June 2004. The
hearing representative does not provide an adequate decision with respect to the subpoena
request.
In the April 26, 2006 decision, the hearing representative referred appellant’s letter dated
April 19, 2005 to the solicitor’s office. The hearing representative then stated, “His subpoena
request was denied.” The April 19, 2005 letter was request for information under the FOIA. It is
not clear whether the hearing representative was referring the FOIA request when stating that the
subpoena request was denied. To the extent that the hearing representative was addressing the
1

45 ECAB 265 (1993).

2

5 U.S.C. § 8126(1).

3

See Gregorio E. Conde, 52 ECAB 410 (2001).

4

Claudio Vazquez, 52 ECAB 496 (2001).

3

pending subpoena request, she provided no reasons or additional explanation. The hearing
representative had not issued a written decision on the subpoena request prior to the February 23,
2006 oral hearing. While the subpoena request was discussed at the February 23, 2006 oral
hearing, a proper Office decision must contain findings of fact and a statement of reasons.5 The
Wilcox case noted by the hearing representative did not discuss a subpoena request or provide
relevant precedent on the subpoena issue.6
The Board cannot determine if the hearing representative adjudicated the request for a
subpoena. To the extent the April 26, 2006 decision was intended to represent a denial of the
subpoena request, the Board cannot determine if the hearing representative abused her discretion
because there is no indication as to how the hearing representative exercised her discretion.
Until the subpoena issue is properly adjudicated, the termination of compensation issue is not in
posture for decision. The case will be remanded to the Branch of Hearings and Review for a
proper decision with respect to the subpoena request and the termination of compensation.
CONCLUSION
The Office hearing representative did not issue a proper decision adjudicating the request
for a subpoena. The case will be remanded for an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 26, 2006 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: November 20, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
5

20 C.F.R. § 10.126 (1999).

6

In Roger S. Wilcox, supra note 1, the Board found the Office properly denied appellant’s request to participate
in the selection of a referee physician.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1642
Issued: September 21, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 20, 2008 appellant filed a timely appeal from an October 30, 2007 decision of
the Office of Workers’ Compensation Programs that found that she received an overpayment of
compensation and a March 12, 2008 decision that denied her request for a hearing. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for a
recoupment hearing; (2) whether appellant received an overpayment in compensation in the
amount of $11,477.54 for the period February 28, 1999 to June 9, 2007 because she improperly
received augmented benefits; (3) whether the Office properly determined that she was at fault in
accepting the overpayment and was therefore not entitled to waiver; and (4) whether the Office
properly required repayment at the rate of $200.00 per compensation period.

FACTUAL HISTORY
On September 6, 1988 appellant, then a 40-year-old distribution clerk, sustained
employment-related cervical and lumbar strains in the performance of her federal duties. On
May 10, 1993 she filed a Form CA-2, occupational disease claim, for bilateral pain, numbness
and swelling in her shoulders, arms and hands. On September 10, 1993 the claim was accepted
for bilateral carpal tunnel syndrome. Appellant underwent surgery for a right carpal tunnel
release in 1993 and a left release in 1994.1 She was placed on the periodic rolls at the 3/4
augmented rate effective November 9, 1993. Appellant advised that her daughter, whose date of
birth was August 16, 1974, was a full-time student. The Office subsequently accepted a cervical
herniated disc, cervical failed syndrome, lumbar herniated disc and spondylosis with
myelopathy. Appellant underwent authorized cervical discectomy and fusion in 1996. She
returned to modified duty for four hours a day in August 1998 and continued to receive wageloss compensation for four hours daily at the augmented rate.
Appellant stopped work on December 17, 1998 and returned on March 13, 1999. By
decision dated June 11, 1999, the Office denied her claim for total disability for the period
December 17, 1998 to March 8, 1999.
On June 11, 1999 it adjusted appellant’s compensation, based on her actual part-time
earnings. Appellant submitted an Office EN1032 form on July 2, 1999 and noted that she was
no longer claiming her daughter as a dependent as she had graduated in February 1999. She
continued to receive compensation at the augmented rate.
On August 18, 2000 appellant submitted a Form CA-2a claim, alleging that she sustained
a recurrence of disability on February 10, 2000 when she stopped work. On September 17, 2000
she filed a recurrence claim, alleging that she sustained a recurrence of disability on
November 1, 1999 when she stopped work. The employing establishment noted that she stopped
work on November 1, 1999.
By decision dated January 17, 2001, the Office denied appellant’s claim that she
sustained a recurrence of total disability on February 10, 2000. On May 10, 2004 appellant filed
a third CA-2a, stating that the recurrence occurred in December 1999.2 By decision dated
August 30, 2004, the Office denied that she sustained a recurrence of total disability. In merit
decisions dated January 10 and May 5, 2005, the Office denied modification of the prior

1

The 1988 traumatic injury claim was adjudicated under Office file number xxxxxx169 and the 1993
occupational disease claim under file number xxxxxx270. The claims were doubled, and the latter became the
master file.
2

On June 15, 2004 the Office issued a preliminary finding that an overpayment in compensation in the amount of
$1,586.56 had been created because basic life insurance deductions were not made. The record does not contain a
final overpayment decision.

2

decisions.
Appellant submitted EN1032 forms claiming no dependents and received
compensation for four hours a day at the augmented rate.3
On September 29, 2005 appellant underwent lumbar laminectomy and decompression
surgery. She began receiving compensation for total disability, effective that day. Appellant
continued to receive wage loss for total disability. On June 10, 2007 appellant’s compensation
rate was changed from 3/4 to 2/3.4
On September 26, 2007 the Office issued a preliminary determination that appellant had
received an overpayment of compensation in the amount of $11,477.54 from February 28, 1999
through June 9, 2007 as she received wage-loss compensation at the augmented 3/4 rate. It
found her to be at fault because she knew or should have known that she was not entitled to
compensation at the augmented rate. Appellant was given 30 days to respond and was provided
an overpayment action request form and an overpayment questionnaire. An Office overpayment
worksheet noted that, during this period, she received compensation at the 3/4 rate totaling
$151,915.08 and that compensation at the 2/3 rate would total $140,437.54, which resulted in an
overpayment of compensation in the amount of $11,477.54.5
By letter dated October 1, 2007, appellant requested copies of her EN1032 forms from
February 28, 1999 through June 9, 2007. She telephoned the Office on October 3, 2007 and was
instructed on how to proceed with the preliminary overpayment finding. Appellant again
contacted the Office on October 23, 2007, and was told that she would receive the requested
documentation when it became available and that an extension of time would be considered.
In an October 30, 2007 decision, the Office finalized the determination that she was at
fault in the creation of an overpayment in compensation in the amount of $11,477.54 because she
knew or should have known she was not entitled to receive wage-loss compensation at the
augmented 3/4 rate. It found that she had not responded to the preliminary notice of
overpayment. The Office determined that $200.00 would be deducted from her continuing
compensation each payment period to repay the overpayment.
In correspondence received by the Office Branch of Hearings and Review on January 30,
2008, appellant requested a prerecoupment hearing. She contended that she was told she would
have an extension of time to file a response to the preliminary overpayment notice and argued
that she was not at fault because she did not claim a dependent on her EN1032 forms. Appellant
also submitted an overpayment questionnaire.

3

On February 2, 2004 appellant filed a schedule award claim. By letter dated August 31, 2005, the Office
informed her that, as she had not reached maximum medical improvement, she was not as yet entitled to a schedule
award.
4

Appellant, who had previously received compensation payments by check, requested that they be directly
deposited on March 23, 2007. Direct deposits were begun on March 18, 2007.
5

Appellant received partial wage-loss compensation from February 28, 1999 through September 28, 2005 and
received total disability compensation from September 29, 2005 to June 9, 2007.

3

By decision dated March 12, 2008, the Office denied the request, noting that she did not
request a hearing of the preliminary overpayment determination and that the final overpayment
was not subject to the hearing provision found in section 8124(b) of the Federal Employees’
Compensation Act.
LEGAL PRECEDENT -- ISSUE 1
Office regulations provide that a claimant may request a prerecoupment hearing with
respect to an overpayment.6 Failure to request the prerecoupment hearing within 30 days shall
constitute a waiver of the right to a hearing.7 The only right to a review of a final overpayment
decision is with the Board.8 The hearing provisions of section 8124(b) of the Act9 do not apply
to final overpayment decisions.10
ANALYSIS -- ISSUE 1
The September 26, 2007 preliminary determination of overpayment provided appellant
with a right to request a prerecoupment hearing within 30 days. As noted, if a claimant does not
request a hearing within 30 days, it is considered a waiver of the right to a hearing.11 When the
final overpayment decision is issued, there is no right to a hearing or a review of the written
record, and the Office does not have discretion to grant such a request. The only right to appeal
is with the Board.12 In this case, appellant requested a prerecoupment hearing on January 30,
2008, four months after the preliminary overpayment finding. Once the Office issued the final
overpayment decision on October 30, 2007, her only appeal right was to the Board. The Board
finds that appellant’s January 30, 2008 request properly denied as she was not entitled to a
hearing with respect to a final overpayment decision.13
LEGAL PRECEDENT -- ISSUE 2
Section 8102 of the Act14 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.15 When an overpayment has been made to an individual because of an
6

20 C.F.R. § 10.432.

7

Id.

8

Id. at § 10.440(b).

9

5 U.S.C. §§ 8101-8193.

10

Supra note 8.

11

20 C.F.R. § 10.432.

12

Id. at § 10.440(b).

13

Id.

14

5 U.S.C. §§ 8101-8193.

15

Id. at § 8102(a).

4

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.16
The basic rate of compensation paid under the Act is 66 2/3 percent of the injured
employee’s monthly pay. Where the employee has one or more dependent as defined in the Act,
the employee is entitled to have his or her basic compensation augmented at the rate of 8 1/3
percent for a total of 75 percent of monthly pay.17 Section 8110(a)(3) of the Act provides that a
child is considered a dependent if he or she is under 18 years of age, is over 18 but is unmarried
and incapable of self-support because of a physical or mental disability or is an unmarried
student, as defined under section 8101(17).18 If a claimant receives augmented compensation
during a period where he or she has no eligible dependents, the difference between the
compensation to which he or she was entitled at the 2/3 compensation rate and the augmented
compensation received at the 3/4 rate constitutes an overpayment of compensation.19
ANALYSIS -- ISSUE 2
Appellant was placed on the periodic rolls in November 1993 at the 3/4 augmented rate.
In June 1994 she submitted an Office EN1032 form and identified her daughter, born August 16,
1974, as a dependent.
The daughter would therefore become 18 years of age on
August 16, 1992. The record contains no evidence that appellant’s daughter was disabled due to
a mental or physical condition. Appellant’s daughter would, therefore, not qualify as a
dependent after August 16, 1992 unless she was an unmarried student attending an approved
full-time course of study, had not completed four years of post high-school education, and had
not completed the academic semester in which she became 23 years old.20 On EN1032 forms
submitted by appellant in July 1995, June 1996, January 1998 and July 1998, she certified that
her daughter was a full-time college student. On an EN1032 form submitted by appellant in
July 1999, she reported that her daughter had graduated from college the previous February.
The record supports that appellant continued to receive compensation at the augmented
3/4 rate from February 28, 1999, when she no longer had an eligible dependent, to June 9, 2007.
For this period she received augmented compensation at the 3/4 rate totaling $151,915.08, when
she should have received compensation at the 2/3 rate of $140,437.54. Thus the $11,477.54

16

Id. at § 8129(a).

17

5 U.S.C. § 8110(b).

18

Id. at § 8110(a)(3). Id. at § 8101(17) defines a student as an individual under 23 years of age who has not
completed four years of education beyond the high school level and is currently pursuing a full-time course of study
at a qualifying college, university or training program.
19

5 U.S.C. § 8110(a)(3); see Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

20

Id.

5

difference constitutes an overpayment in compensation.21 The Board finds that Office properly
determined the fact and amount of overpaid compensation in this case.22
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”23
Section 10.433(a) of the Office’s regulations provide that the Office:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from [the Office] are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment:
(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. (This provision applies only to the overpaid individual).”24
Section 10.438(b) of Office regulations provides that failure to submit requested financial
information within 30 days shall result in denial of waiver and no further request for waiver shall
be considered until the requested information is furnished.25
ANALYSIS -- ISSUE 3
The record supports that appellant received augmented compensation following her
daughter’s graduation from college in February 1999. The Board finds however that appellant is
not at fault in the creation of the overpayment.
21

5 U.S.C. §§ 8101(17), 8110.

22

See Ralph P. Beachum, Sr., supra note 19. The Board notes that appellant’s daughter became 23 years of age
on August 16, 1997.
23

5 U.S.C. § 8129; see Joan Ross, 57 ECAB 694 (2006).

24

20 C.F.R. § 10.433 (1999); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

25

20 C.F.R. § 10.438(b); see John Skarbek, 53 ECAB 630 (2002).

6

Whether or not an individual is at fault with respect to the creation of an overpayment
depends on the circumstances surrounding the overpayment. The degree of care expected may
vary with the complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.26 In this case, on July 2, 1999 appellant notified the Office, on an
EN1032 form, that she no longer claimed her daughter as a dependent as she had graduated from
college the previous February. Appellant submitted additional EN1032 forms claiming no
dependents. The record establishes that appellant properly advised the Office as to the status of
her dependents. Furthermore, when amortized over an eight-year period, the difference between
augmented and nonaugmented compensation is approximately $110.00 a month, not an amount
that would necessarily put one on notice, given cost-of-living increases. The Board finds that
under the circumstances of this case appellant was not at fault in the creation of the overpayment.
The case will be remanded to the Office for consideration of the issue of waiver.27 In light of the
holding on this issue, the fourth issue is moot.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a hearing and that
she received an overpayment in compensation in the amount of $11,477.54 because she received
augmented compensation after her daughter was no longer an eligible dependent. The Board
further finds that appellant was not at fault in the creation of the overpayment.

26

Danny E. Haley, 56 ECAB 393 (2005).

27

See Otha J. Brown, 56 ECAB 228 (2004).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 12, 2008 and October 30, 2007 be affirmed in part and set
aside in part and the case remanded to the Office for proceedings consistent with this opinion of
the Board.
Issued: September 21, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF THE ARMY, NATIONAL
GUARD BUREAU, Fort Irwin, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-615
Issued: June 7, 2007

Case Submitted on the Record

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

JURISDICTION
On January 3, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 31, 2006 which denied his claim for a
schedule award. He also timely appealed the Office’s October 18, 2006 nonmerit decision
denying his request for an oral hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of appellant’s claim.1
ISSUES
The issues are: (1) whether appellant has a ratable hearing loss; and (2) whether the
Office properly denied appellant’s request for a hearing as untimely filed.

1

The record includes evidence received after the Office issued the October 18, 2006 decision. The Board cannot
consider new evidence for the first time on appeal. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On October 22, 2003 appellant, then a 40-year-old retired electronics mechanic, filed an
occupational disease claim for hearing loss caused by noise exposure in the course of his federal
employment. The Office accepted the claim for bilateral sensorineural hearing loss and bilateral
subjective tinnitus on July 7, 2004.
On March 1, 2006 appellant filed a Form CA-7 claim for compensation for a schedule
award. In response, the Office referred appellant to Dr. Henry Bikhazi, a Board-certified
otolaryngologist, for a second opinion examination. On April 4, 2006 an audiometric evaluation
was performed. The audiogram reflected testing at frequency levels including those of 500,
1,000, 2,000 and 3,000 cycles per second (cps) and revealed decibel losses on the left of 10, 10,
20 and 50 respectively and on the right of 10, 10, 10 and 40. Dr. Bikhazi opined, in his April 4,
2006 report, that appellant had bilateral high frequency noise-induced sensorineural hearing loss.
Appellant’s file was sent to the district medical adviser to determine if appellant’s
accepted hearing loss was sufficient to warrant a schedule award. In a report dated June 27,
2006, Dr. David Schindler, a Board-certified otolaryngologist, found that, based on the April 4,
2006 audiogram, appellant did not have a ratable hearing loss and that appellant did not report
tinnitus at the last examination. In a decision dated July 31, 2006, the Office denied appellant’s
claim for a schedule award. The Office explained that appellant’s accepted hearing loss was not
severe enough to be considered ratable.
On August 31, 2006 appellant requested an oral hearing. By decision dated October 18,
2006, the Office denied appellant’s request for an oral hearing on the grounds that appellant was
not entitled to a hearing as a matter of right as the request was made after 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.2 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.3 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).4

2

The Act provides that, for complete, or 100 percent loss of hearing in one ear, an employee shall receive 52
weeks’ compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks’
compensation. 5 U.S.C. § 8107(c)(13) (2000).
3

20 C.F.R. § 10.404 (2006).

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

2

Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are
added up and averaged.5 Then, the “fence” of 25 decibels is deducted because, as the A.M.A.,
Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.6 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.7 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, and then added to the greater loss and the total is divided by six to arrive at the amount
of the binaural hearing loss.8
ANALYSIS -- ISSUE 1
In reviewing appellant’s April 4, 2006 audiogram, the frequency levels recorded at 500,
1,000, 2,000 and 3,000 cps for the right ear reveal decibel losses of 10, 10, 10 and 40,
respectively, for a total of 70 decibels. This figure when divided by 4 results in an average
hearing loss of 17.5 decibels. The average loss of 17.5 when reduced by 25 decibels represents
no ratable monaural hearing loss for the right ear. Testing for the left ear at the frequency levels
of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 10, 10, 20 and 50 decibels
respectively, for a total of 90 decibels. This figure when divided by 4 results in an average
hearing loss of 22.5 decibels. The average loss of 22.5 when reduced by 25 decibels represents
no ratable monaural hearing loss for the left ear. Accordingly, appellant’s most recent
audiogram does not establish a ratable hearing loss for either ear.
Regarding appellant’s argument that he is entitled to an award for tinnitus, the A.M.A.
Guides states:
“Tinnitus in the presence of unilateral or bilateral hearing impairment may impair
speech discrimination. Therefore, add up to five percent for tinnitus in the
presence of measurable hearing loss if the tinnitus impacts the ability to perform
activities of daily living.”9
As appellant’s hearing loss is not ratable, he is not entitled to an additional award for
tinnitus.10
LEGAL PRECEDENT -- ISSUE 2
A claimant dissatisfied with a decision of the Office shall be afforded an opportunity for
an oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
5

A.M.A., Guides 250 (5th ed. 2001).

6

Id.

7

Id.

8

Id.

9

Id. at 246.

10

Juan A. Trevino, 54 ECAB 358 (2003).

3

hearing or a review of the written record must be submitted in writing, within 30 days of the date
of the decision for which a hearing is sought.11 If the request is not made within 30 days or if it
is made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.12 The Board has held that the Office, in its broad
discretionary authority in the administration of the Act,13 has the power to hold hearings in
certain circumstances where no legal provision was made for such hearings and that the Office
must exercise this discretionary authority in deciding whether to grant a hearing.14 The Office’s
procedures, which require the Office to exercise its discretion to grant or deny a hearing when
the request is untimely or made after reconsideration, are a proper interpretation of the Act and
Board precedent.15
ANALYSIS -- ISSUE 2
The Board finds that appellant did not timely request a hearing. In its October 17, 2006
decision, denying appellant’s request for a hearing, the Office stated correctly that, as the
decision was issued July 31, 2006 and appellant’s request was postmarked August 31, 2006,16 his
request for a hearing was untimely as it was not made within 30 days. The 30-day period in
which appellant could request a hearing as a matter of right commenced August 1, 2006.17 The
30th day fell on Wednesday, August 30, 2006. In computing a time period, the date of the event
from which the designated period of time begins to run shall not be included, while the last day
of the period shall be included, unless it is a Saturday, a Sunday, or a legal holiday.18
Appellant’s request for a hearing was postmarked on August 31, 2006 and not within the 30-day
period. Therefore, appellant was not entitled to a hearing before an Office hearing representative
as a matter of right. The Board finds the request for a hearing was not timely filed.
CONCLUSION
The Board finds that appellant does not have a ratable hearing loss and that the Office
properly denied his request for a hearing as untimely filed.
11

20 C.F.R. § 10.616(a) (2004).

12

Claudio Vazquez, 52 ECAB 496 (2001).

13

5 U.S.C. §§ 8101-8193.

14

Marilyn F. Wilson, 52 ECAB 347 (2001).

15

Claudio Vazquez, supra note 12.

16

Under the Office’s procedures, the timeliness of a request for a hearing is determined on the basis of the
postmark of the envelope, which contains the letter requesting a hearing. See 20 C.F.R. § 10.616(a) (2004); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(a)
(December 1995).
17

See Angel M. Lebron, Jr., 51 ECAB 488 (2000) (the date of the event from which the designated period of time
begins to run shall not be included when computing the time period).
18

See Marguerite J. Dvorak, 33 ECAB 1682 (1982).
(January 29, 1979).

4

See also FECA Program Memorandum No. 250

ORDER
IT IS HEREBY ORDERED THAT the October 18 and July 31, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Stanley R. Stein, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-266
Issued: October 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 16, 2012 appellant, through his representative, filed a timely appeal of a
May 30, 2012 decision of the Office of Workers’ Compensation Programs (OWCP), which
denied his claim for a recurrence of disability. 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 appellant met his burden of proof to establish a recurrence of total
disability beginning February 24, 2010, causally related to his employment-related conditions.
FACTUAL HISTORY
On February 23, 2009 appellant, then a 43-year-old part-time flexible clerk, was injured
when he bent over a hamper to retrieve a bundle of flats and felt pain through his lower back. He
stopped work on February 24, 2009 and returned with restrictions on February 25, 2009 for four
1

5 U.S.C. § 8101 et seq.

hours a day. On March 10, 2009 appellant was released to work up to eight hours a day with
work restrictions. OWCP accepted the claim for lumbar and thoracic sprains.
In a March 30, 2009 report, Dr. Stephen Altic, a Board-certified family practitioner and
osteopath, noted that on February 24, 2009 appellant bent over to pick up some magazines at
work and felt low and mid back pain. He diagnosed thoracic strain and sprain, lumbar strain and
sprain and provided work restrictions on lifting over 15 pounds and overhead reaching.
In an August 3, 2009 report, Dr. Gregory Z. Mavian, a Board-certified neurosurgeon and
osteopath, diagnosed lumbosacral myalgia without neurologic impairment or extreme pain. He
noted associated degenerative disc disease and protrusion and stenosis of the foramen at L4-5,
worse at L5-S1.
In a February 11, 2010 work restriction report, Dr. Altic noted appellant’s restrictions for
sedentary sitting work only. He precluded bending, twisting or turning, reaching below the
knees, pushing or pulling, squatting or kneeling, standing or walking. Appellant could lift up to
10 pounds occasionally and could sit continuously.
On February 12, 2010 appellant accepted a modified-duty assignment. The duties were
listed as verbally engage customers who were mailing letters and parcels at the automated postal
center (APC), a standalone kiosk. The position did not include any physical requirements other
than sitting. Appellant was assigned to sit in a chair for six hours a day and verbally assist the
postal customers in using the APC.
In a February 24, 2010 attending physician’s report, Dr. Altic diagnosed an L4-5 and L5S1 disc bulge. He checked the box “yes” that appellant’s condition was caused or aggravated by
his employment activities. Dr. Altic placed appellant off work from February 24 through
August 1, 2010. He noted that appellant’s condition was worsening.
On March 4, 2010 appellant filed a Form CA-7 requesting compensation for leave
without pay for the period February 24 to 26, 2010. He filed additional claims for compensation
from February 27 to March 12, 2010.
By letters dated March 8 and 22, 2010, OWCP informed appellant of the evidence needed
to support his claim. It requested that he submit such evidence within 30 days.
In a March 25, 2010 report, Dr. Altic placed appellant off work from February 24 through
May 31, 2010 due to worsening low back pain. He advised that appellant had significant painful
range of motion in the lumbar spine with positive straight leg raising on the right that was
worsening. Dr. Altic reiterated that appellant had an L4-5 and L5-S1 disc herniation.
In an April 16, 2010 decision, OWCP denied the claim finding that the evidence failed to
establish his total disability beginning February 24, 2010.
On March 22, 2010 OWCP referred appellant to Dr. James Rutherford, a Board-certified
orthopedic surgeon, for a second opinion. In a report dated April 19, 2010, Dr. Rutherford
reviewed appellant’s history of injury and treatment. On examination he determined that
appellant continued to have residuals of his injuries. Dr. Rutherford prescribed work limitations
2

and recommended an electromyography and nerve conduction study (EMG/NCS) to determine
whether he had any radicular clinical findings. He recommended follow-up with a neurosurgeon
based upon the results. Dr. Rutherford recommended physical therapy and a reevaluation if the
EMG was normal. He advised that appellant could work eight hours daily within restrictions.
Dr. Rutherford placed no restriction on sitting.
In a May 10, 2010 attending physician’s report, Dr. Altic diagnosed L4-5 and L5-S2 disc
bulge. He advised that appellant’s condition was worsening and placed him off work. Dr. Altic
continued to treat appellant and advised that he was unable to work.
In a May 19, 2010 decision, OWCP denied appellant’s claim for compensation beginning
February 27, 2010.
Appellant requested hearings from both the April 16 and May 19, 2010 decisions. The
hearings were combined on August 4, 2010.
An August 6, 2010 EMG read by Dr. Thomas Skeels, Board-certified in rehabilitative
medicine and an osteopath, revealed right S1 radiculopathy, lumbar paraspinal muscle guarding
and increased insertional activity in the L4-S1 areas. The examination revealed no denervation
and no motor unit loss. Dr. Skeels recommended a series of lumbar epidural steroid injections.
In a September 1, 2010 report, Dr. Altic noted that appellant continued to have low back
pain and radicular complaints that were greater on the right. He reiterated that the injury resulted
in L4-5 and L5-S1 disc bulge with foraminal stenosis. Dr. Altic noted that the updated MRI scan
from May 12, 2010 showed disc bulges at L4-5 and L5-S1 with foraminal stenosis. He stated
that the most recent EMG nerve conduction study revealed a right S1 radiculopathy consistent
with the L5-S1 disc bulge and foraminal stenosis, which was additional evidence of the injury
resulting in significant pathology. Dr. Altic explained that the right S1 radiculopathy was
“basically ‘nerve damage’ due to this injury and the disc pathology at L5-S1.” He opined that
the L4-5 and L5-S1 disc bulges, foraminal stenosis and right S1 radiculopathy were a result of
the industrial injury.
In a September 30, 2010 report, J. Nick Marzella, Ph.D., a clinical psychologist,
diagnosed dysthymic disorder. He opined that appellant’s condition was a result of his industrial
injury and its subsequent impact on his lifestyle.
In a November 3, 2010 attending physician’s report, Dr. Altic noted that appellant had no
history of concurrent or preexisting injury or disease or physical impairment. He checked the
box “yes” that the diagnosed condition was caused or aggravated by an employment activity.
Dr. Altic indicated that appellant was totally disabled since February 24, 2010.
By decision dated November 9, 2010, an OWCP hearing representative set aside the
April 16 and May 19, 2010 decisions and remanded the claim for further development. She
noted that Dr. Rutherford had recommended an EMG/NCS and, if it was positive for
radiculopathy, additional allowances might be considered. The hearing representative directed
that the job duties that appellant was performing at the time he stopped working on February 23,
2010, be added to the statement of accepted facts. She also directed development of the medical
evidence on whether the bulging discs and right radiculopathy were directly caused, aggravated
3

or accelerated as the result of the February 23, 2009 injury. The hearing representative also
directed medical development with regard to whether appellant’s condition prevented him from
working at modified duty as of February 23, 2010.
On December 30, 2010 the employing establishment controverted the claim. A copy of
appellant’s modified job duties as an APC host was provided. The modified assignment noted
that appellant was provided with a comfortable chair for support.
In a letter dated January 24, 2011, appellant’s counsel requested that OWCP allow the
additional condition of dysthymic disorders.
On April 11, 2011 OWCP referred appellant for a second opinion, together with a
statement of accepted facts, a set of questions and the medical record, to Dr. Edward G. Fisher, a
Board-certified orthopedic surgeon.
In a report dated May 9, 2011, Dr. Fisher reviewed appellant’s history of injury and
treatment, and the new statement of accepted facts. He examined appellant and noted that the
only objective findings were decreased range of back motion of flexion and lateral bending.
There were subjective complaints of pain over the low back area only when performing active
range of motion of the back. Dr. Fisher opined that appellant’s accepted work-related conditions
of lumbar sprain and thoracic sprain has resolved. They were soft tissue injuries which healed or
resolved in a matter of a few weeks, or up to two months following the injury. Dr. Fisher stated
that appellant’s preexisting degenerative disc disease over L4-5 and L5-S1 was aggravated by
the work injury. He described the aggravation as temporary, once appellant received definitive
appropriate treatment. Dr. Fisher found that appellant was capable of performing his preinjury
duties as a part-time flexible postal clerk.
In a decision dated June 3, 2011, OWCP denied appellant’s claim for total disability
commencing February 24, 2010. It found the medical evidence failed to establish that he was
disabled for work due to the work-related injury of February 23, 2009. On June 14, 2011
appellant’s counsel requested a hearing.
By decision dated September 7, 2011, an OWCP hearing representative set aside the
June 3, 2011 OWCP decision. She remanded the case for a supplemental opinion from
Dr. Fisher addressing whether the EMG reports and the medical evidence supported an
aggravation of appellant’s degenerative disease.
In an August 31, 2011 report, Dr. Altic noted that appellant continued to have low back
pain and right lower extremity radicular pain.
In a letter dated September 23, 2011, OWCP provided Dr. Fisher with an updated
statement of accepted facts, and the medical record, including EMG reports. It requested that he
further address his previous conclusions and whether appellant’s February 24, 2010 work
stoppage from his modified job was justified.
In an October 10, 2011 addendum, Dr. Fisher reviewed the diagnostic studies and
medical records. He noted that the EMG/NCV of the lower extremities performed in
December 2009 was normal with no evidence of radiculopathy. The EMG/NCV of August 2010
4

mentioned S1 radiculopathy on the right side but this was not supported by objective clinical
evidence. Dr. Fisher explained that appellant had objective findings of decreased range of back
motion of flexion of 25 degrees, extension of 5 degrees and laterally bending of 10 degrees with
complaints of pain only over the low back area. Neurological examination of the lower
extremities was entirely normal with the reflexes equal, the motor power 5/5, sensation intact and
no radicular signs or symptoms over the lower extremities. The Lasegue test and straight leg
raising were negative bilaterally. Dr. Fisher explained that during the examination, appellant
exhibited no radicular signs or symptoms over the lower extremities to confirm radiculopathy.
He found no clinical evidence that appellant sustained lumbar radiculopathy as a result of the
February 23, 2009 work injury. Dr. Fisher reiterated that, while the August 2010 EMG/NCV
mentioned S1 radiculopathy on the right, the clinical examination did not support this finding.
He explained the S1 radiculopathy was not supported on any clinical examination of record and
opined that appellant did not have lumbar radiculopathy as a result of his February 23, 2009
lumbar injury. Dr. Fisher explained that the degenerative disc disease was aggravated by the
work incident. He found that appellant was capable of working in the modified lobby director
position on February 24, 2010 and on May 5, 2011. Dr. Fisher explained that there were no
objective findings on examination to preclude appellant from working in such position.
In a November 2, 2011 decision, OWCP denied appellant’s claim for total disability
compensation commencing February 24, 2010. The evidence did not support total disability
causally related to the February 23, 2009 injury. In a separate November 2, 2011 decision, it
accepted the claim for displacement of lumbar intervertebral disc without myelopathy.
On November 15, 2011 appellant’s counsel requested a hearing, which was held on
March 14, 2012. In a letter dated December 15, 2011, he requested a copy of the physical
description for appellant’s modified position.
In an April 5, 2012 letter, Annette Clark, a health and resource management specialist
with the employer, controverted the claim. She noted that Dr. Altic’s February 11, 2010 work
restrictions allowed for sedentary sitting work. Ms. Clark explained that appellant was offered a
new job for six hours a day to “assist customers with APC.” The position allowed sitting for six
hours a day. Appellant accepted the job offer on February 12, 2010 and had a comfortable chair
for support. Ms. Clark noted that on February 24, 2010 appellant saw Dr. Altic, who commented
that the “condition was worsening” and advised that appellant was unable to work. She stated
that appellant stopped work on February 24, 2010 and did not return.
By decision dated May 30, 2012, OWCP’s hearing representative affirmed the
November 2, 2011 decision, finding that appellant had not established a recurrence of total
disability.2

2

The hearing representative also found that appellant provided prima facie medical evidence supportive of his
having developed a psychiatric condition due to his February 23, 2009 accepted work injury. On May 31, 2012
OWCP accepted that dysthymic disorder was work related.

5

LEGAL PRECEDENT
Section 10.5(x) of OWCP’s regulations define “recurrence of disability” as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which had resulted from a previous injury or illness, without an intervening injury or
new exposure to the work environment that caused the illness. This term also means an inability
to work that takes place when a light-duty assignment made specifically to accommodate an
employee’s physical limitations due to his or her work-related injury or illness is withdrawn
(except when such withdrawal occurs for reasons of misconduct, nonperformance of job duties
or a reduction-in-force) or when the physical requirements of such an assignment are altered so
that they exceed his or her established physical limitations.3
Appellant has the burden of establishing that he sustained a recurrence of a medical
condition4 that is causally related to his accepted employment injury. To meet his burden,
appellant must furnish medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the condition is causally related to the
employment injury and supports that conclusion with sound medical rationale.5 Where no such
rationale is present, the medical evidence is of diminished probative value.6
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that he or she can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.7
ANALYSIS
OWCP accepted the claim for lumbar and thoracic sprains as well as displacement of
lumbar intervertebral disc without myelopathy. On February 12, 2010 appellant accepted a
modified assignment that involved sitting for six hours daily. This assignment was based on the
February 11, 2010 restrictions of appellant’s physician, Dr. Altic, who advised that appellant
could occasionally lift up to 10 pounds and had no restrictions on sitting. Beginning
February 24, 2010, appellant claimed compensation asserting that he was totally disabled
3

20 C.F.R. § 10.5(x). See Carlos A. Marrero, 50 ECAB 117 (1998).

4

“Recurrence of medical condition” means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment
for the original condition or injury is not considered a need for further medical treatment after release from
treatment, nor is an examination without treatment. 20 C.F.R. § 10.5(y).
5

Ronald A. Eldridge, 53 ECAB 218 (2001).

6

Albert C. Brown, 52 ECAB 152 (2000).

7

Conard Hightower, 54 ECAB 796 (2003).

6

beginning that date. There is no evidence that the employing establishment withdrew this job or
changed its duties before appellant stopped work.
Thereafter, OWCP referred appellant to Dr. Fisher for a second opinion. In a May 6,
2011 report, Dr. Fisher noted appellant’s history, examined appellant and noted that the only
objective findings were decreased range of back motion. He opined that appellant no longer
suffered from the accepted work-related conditions of lumbar sprain and thoracic sprain, as they
were soft tissue injuries that healed within two months of the injury. Dr. Fisher noted that
preexisting degenerative disc disease over L4-5 and L5-S1 was temporarily aggravated by the
work injury. He indicated that appellant was capable of performing his preinjury duties. OWCP
thereafter sought clarification and also requested that he address appellant’s ability to perform
the modified job beginning February 24, 2010. In an October 10, 2011 addendum, Dr. Fisher
explained that the EMG/NCV of the lower extremities performed in December 2009 was normal
with no radiculopathy and that, while an August 2010 EMG/NCV of mentioned S1 radiculopathy
on the right side, this was not clinically supported with objective evidence. He explained the
neurological examination of the lower extremities was entirely normal and there were no
radicular signs or symptoms over the lower extremities. Dr. Fisher noted that none of the
examinations of appellant revealed radicular signs or symptoms over the lower extremities to
confirm radiculopathy. He concluded that there was no supportive clinical evidence that
appellant sustained lumbar radiculopathy as a result of the February 23, 2009 work injury.
Dr. Fisher indicated that, while degenerative disc disease was aggravated by the work injury,
appellant was capable of working as a modified lobby director position on February 24, 2010.
He explained that there were no objective findings on his examination to preclude appellant from
working as a modified lobby director.
In support of his claim, appellant provided reports from Dr. Altic. In a September 1,
2010 report, Dr. Altic noted that appellant continued to have low back pain and radicular
complaints and opined that the work injury resulted in L4-5 and L5-S1 disc bulge with foraminal
stenosis. He stated that an MRI scan from May 12, 2010 showed disc bulges at L4-5 and L5-S1
with foraminal stenosis and that a recent EMG was consistent with such diagnoses which were
due to the work injury. The Board notes that Dr. Altic did not clearly explain the reasons why
the conditions were caused or aggravated by the February 23, 2009 work injury.8 He also did not
offer a rationalized opinion to explain why appellant could no longer perform the duties of his
light-duty position beginning February 24, 2010, and why any such disability or continuing
condition would be due to the accepted conditions. Dr. Altic also offered several attending
physician’s reports finding appellant disabled and also diagnosing L4-5 and L5-S1 disc bulge
and checked a box “yes” to support that appellant’s condition was caused or aggravated by his
employment activities and placed appellant off work from February 24, 2010 through
February 28, 2011. The Board has held, however, that when a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, without explanation or rationale,
that opinion has little probative value and is insufficient to establish a claim.9 Thus, these reports
8

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or
approved by OWCP was due to an employment injury, he or she bears the burden of proof to establish that the
condition is causally related to the employment injury).
9

Deborah L. Beatty, 54 ECAB 340 (2003).

7

are insufficient to establish that appellant could no longer perform the duties of his light-duty
position due to his accepted conditions on or after February 24, 2010. Also, as noted, OWCP has
not accepted L4-5 and L5-S1 disc bulge as employment related. Other reports from Dr. Altic did
not specifically address the reasons why appellant’s accepted back conditions contributed to his
inability to perform the sitting duties of his modified position beginning February 24, 2010.
Thus, his reports are insufficient to establish appellant’s claim.10
Appellant also provided a report from Dr. Marzella, however, he did not provide an
opinion that appellant was disabled and unable to work on or after February 24, 2010 as a result
of his employment-related condition. Likewise, several diagnostic reports submitted by
appellant are insufficient to establish appellant’s claim as they did not address whether the
claimed disability commencing February 24, 2010 was causally related to appellant’s accepted
conditions.
In the instant case, none of the medical reports submitted by appellant contained a
rationalized opinion to explain why appellant could no longer perform the duties of his light-duty
position and why any such disability or continuing condition commencing February 24, 2010
would be due to the accepted condition. As appellant has not submitted any medical evidence
establishing that he sustained a recurrence of disability commencing February 24, 2010 which
was causally related to his accepted employment injury, he has not met his burden of proof.
On appeal, appellant’s counsel argued that Dr. Rutherford supported appellant’s inability
to work. While Dr. Rutherford opined that appellant could not perform the duties of his date-ofinjury position, he opined that appellant could work within restrictions for eight hours daily. As
noted, he placed no restrictions on sitting.11
Appellant may submit evidence or argument with a written request for reconsideration
within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of total disability beginning on or after February 24, 2010, causally related to his employmentrelated conditions.

10

See Michael E. Smith, 50 ECAB 313 (1999) (medical evidence which does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship).
11

Counsel also noted that appellant’s condition was accepted for a dysthymic disorder. See supra note 2.
However, OWCP has not issued a decision regarding any disability that may be due to this newly accepted
condition. Therefore, the Board is without jurisdiction to review this on appeal. 20 C.F.R. § 501.2(c).

8

ORDER
IT IS HEREBY ORDERED THAT the May 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 24, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9