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

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Appearances:
Joanne Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0977
Issued: January 26, 2021

Case Submitted on the Record

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

JURISDICTION
On April 2, 2020 appellant, through her representative, filed a timely appeal from a
January 17, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

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

The record also contains a February 26, 2020 OWCP decision finding that appellant received an overpayment of
wage-loss compensation in the amount of $48,649.60 and denying waiver of recovery of the overpayment. She has
filed a separate appeal from this decision, which will be considered under Docket No. 20-0976.

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.4
ISSUES
The issues are: (1) whether appellant received an overpayment of wage-loss compensation
in the amount of $11,747.43 from February 4, 2018 through June 22, 2019 for which she was
without fault because she concurrently received FECA wage-loss compensation and Social
Security Administration (SSA) age-related retirement benefits 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 $25.00 every 28 days from
appellant’s continuing compensation payments.
FACTUAL HISTORY
This case has previously been before the Board.5 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 23, 1994 appellant, then a 48-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained stress, anxiety, and depression causally related to
factors of her federal employment. She stopped work on June 24, 1994. OWCP accepted
appellant’s claim for post-traumatic stress disorder (PTSD) and a single episode of moderate-tosevere major depression.6 OWCP paid her wage-loss compensation for total disability.
By decision dated September 30, 1999, OWCP reduced appellant’s wage-loss
compensation as her actual earnings as a modified mail handler, effective March 1, 1999, fairly
and reasonably represented her wage-earning capacity.7 The employing establishment
subsequently withdrew appellant’s modified position under the National Reassessment Program
(NRP). On April 18, 2011 OWCP modified the September 30, 1999 decision and paid her wageloss compensation for total disability on the periodic rolls beginning April 10, 2011.
3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the January 17, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
5

Docket No. 19-1082 (issued October 29, 2019).

6
By decision dated November 3, 1994, OWCP denied appellant’s claim as she had not established an injury in the
performance of duty. By decision dated December 12, 1995, an OWCP hearing representative found that appellant
had established compensation employment factors. He vacated the November 3, 1994 decision and remanded the case
for development of the medical evidence.
7
By decisions dated 1999 and 2000, OWCP denied appellant’s claims for intermittent wage-loss compensation for
various periods.

2

On March 28, 2017 SSA provided OWCP with a Federal Employees Retirement System
(FERS)/SSA dual benefit calculation form. The form set forth appellant’s SSA benefit rates with
and without FERS for the period January 2012 to January 2016.
By decision dated November 23, 2018, OWCP’s hearing representative found that
appellant had received a $48,649.60 overpayment of compensation as she received wage-loss
compensation from OWCP from January 1, 2012 through February 3, 2018 without an appropriate
offset. She further found that she was at fault in the creation of the overpayment and, thus,
precluded from waiver of recovery of the overpayment. The hearing representative determined
that the overpayment would be recovered by withholding $450.00 every 28 days from appellant’s
continuing compensation payments.
On April 17, 2019 appellant appealed the November 23, 2018 overpayment decision to the
Board.
On June 6, 2019 SSA provided OWCP with a FERS/SSA dual benefit calculation form.
The form indicated that, with FERS, appellant was entitled to a monthly payment of $1,503.20,
effective December 2017 and $1,545.20 effective December 2018. Without her federal service
contributions, she was entitled to a monthly payment rate of $815.00 effective December 2017 and
$837.80 effective December 2018.
OWCP completed a FERS offset calculation form on July 11, 2019. It calculated the
amount that it should have offset from appellant’s wage-loss compensation from February 3, 2018
through June 22, 2019. OWCP found that, effective December 1, 2017, the monthly offset was
$687.90 ($1,503.20-$815.300), or $634.98 every 28 days and effective December 1, 2018, the
monthly offset was $707.40 ($1,545.20-$837.80), or $652.98 every 28 days. It divided the 28-day
offset amount to find the daily amount, which it multiplied by the number of days in each period
from February 3, 2018 through June 22, 2019 to find the amount that it had overpaid appellant for
each period. OWCP added the amounts for each period and determined that it should have offset
$11,583.65 from her wage-loss compensation.
In a preliminary overpayment determination dated July 11, 2019, OWCP notified appellant
that she had received an overpayment of compensation in the amount of $11,770.11 because it had
failed to reduce her wage-loss compensation benefits for the period February 4, 2018 through
June 22, 2019 by the portion of her SSA benefits that were attributable to federal service. It
included the calculations from its July 11, 2019 calculation form showing an overpayment of
compensation in the amount of $11,583.65. OWCP further advised appellant of its preliminary
determination that she was without fault in the creation of the overpayment of compensation. It
provided her with an overpayment action request form and an overpayment recovery questionnaire
(Form OWCP-20). Additionally, OWCP notified appellant that, within 30 days of the date of the
letter, she could request a telephone conference, a final decision based on the written evidence, or
a prerecoupment hearing.
On July 29, 2019 appellant requested a telephonic prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review. She noted that her disability benefits
from SSA had stopped when she had turned 65 and that she had consistently reported her income
from SSA to OWCP. In a Form OWCP-20, appellant advised that she had monthly income of

3

$3,052.56 and assets of $564.18. She listed monthly expenses of $1,226.44 for mortgage, $400.00
for food, $25.00 for clothing, $493.99 for utilities, and $533.83 for other expenses. Appellant
advised that she had monthly credit card expenses totaling $522.00. She also listed expenses of
$387.00 monthly for pet care. Appellant submitted supporting financial documentation.
By decision dated October 29, 2019, the Board affirmed, in part and set aside in part, the
November 23, 2018 overpayment decision.8 It found that appellant had received an overpayment
of compensation in the amount of $48,649.00 from January 1, 2012 through February 3, 2018
because she concurrently received wage-loss compensation and SSA age-related retirement
benefits without the appropriate offset. The Board found, however, that appellant was without
fault in the creation of the overpayment and remanded the case for OWCP to consider waiver of
recovery of the overpayment.
On November 4, 2019 appellant submitted a note indicating that she owed a private
individual $850.00 and statements showing that she owed minimum monthly payments totaling
$58.00. She also submitted documentation showing that she paid $16.00 for a yearly membership
renewal and had received two checks for $300.00 and $500.00 from an individual, L.B. L.B.
submitted a statement confirming that she had loaned appellant $800.00.
A telephonic hearing was held on November 5, 2019. Appellant related that she paid about
$550.00 a month for utilities and had more than $533.83 a month in miscellaneous expenses. She
asserted that she paid $50.00 to $60.00 a month for vitamins.
On December 2, 2019 appellant’s representative advised that her SSA benefits were being
reduced by $144.60 a month and that she had a line of credit for car repairs of $1,461.54. She had
also borrowed $50.00 to pay for an exhaust repair and had delayed dental work, an eye
examination, and glasses due to a lack of money.
By decision dated January 17, 2020, OWCP’s hearing representative modified the July 11,
2019 preliminary determination of overpayment to find that appellant had received an $11,747.43
overpayment of compensation for the period February 4, 2018 through June 22, 2019 because she
received wage-loss compensation for OWCP and age-related retirement benefits from SSA
without an appropriate offset. He noted that OWCP had previously determined that she received
an overpayment of wage-loss compensation from January 1, 2012 through February 3, 2018 and,
thus, modified the period of the overpayment to begin February 4, 2018 and reduced the amount
of the overpayment from $11,770.11 to $11,747.43. OWCP’s hearing representative determined
that appellant was without fault in the creation of the overpayment, but denied waiver of recovery
of the overpayment as her income exceeded her ordinary and necessary living expenses by more
than the allowed amount. He found that she received $1,497.11 every 28 days, or $1,621.87 a
month from OWCP and $1,545.00 from SSA, for total monthly income of $3,166.87. The hearing
representative determined that appellant had documented expenses of $2,861.43 per month.9 He
8

Supra note 4.

9

OWCP’s hearing representative determined that appellant had substantiated that she paid $1,226.44 for a
mortgage, $400.00 for food, $533.85 for utilities, and a total of $2,861.43 for credit card debt. The hearing
representative added $50.00 for gasoline and vehicle maintenance and then subtracted these expenses from $3,166.87
to find discretionary income of $255.44.

4

added $50.00 per month for gasoline and vehicle maintenance, which left discretionary income of
$255.44 per month. The hearing representative determined that the bills for appellant’s newspaper,
veterinary expenses, and membership failed to constitute ordinary and necessary living expenses
and further indicated that she had not submitted documentation of all financial expenses. He found
that the overpayment would be recovered by deducting $25.00 every 28 days from appellant’s
continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.10 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.11
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.12 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.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for the period February 4, 2018 through June 22, 2019 because she concurrently
received FECA wage-loss compensation and SSA age-related retirement benefits,
OWCP paid appellant wage-loss compensation for total disability following her injury. It
subsequently paid her wage-loss compensation for partial disability based on her loss of wageearning capacity, effective March 1, 1999, and again for total disability beginning April 10, 2011.
Beginning January 1, 2012, appellant received SSA age-related retirement benefits. As noted, a
claimant cannot receive compensation for wage-loss compensation and SSA age-related retirement
benefits attributable to federal service for the same period.14 The information provided by SSA
indicated that a portion of appellant’s SSA age-related retirement benefits were attributable to her
federal service. As OWCP neglected to offset her FECA benefits for the period February 4, 2018

10

5 U.S.C. § 8102

11

Id. at § 8116.

12

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

13

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

14

Supra note 12; A.C., Docket No. 18-1550 (issued February 21, 2019).

5

through June 22, 2019, she received an overpayment of wage-loss compensation.15 Therefore, fact
of overpayment is established.16
The Board further finds, however, that the case is not in posture for decision regarding the
amount of the overpayment.
Based on the rates provided by SSA, OWCP calculated the overpayment of compensation
by determining the portion of SSA benefits that were attributable to appellant’s federal service.
SSA provided appellant’s SSA benefit rates with FERS and without FERS beginning
January 1, 2012. After calculating the amount that it should have offset for each relevant period
based on the SSA worksheet and adding these amounts together, OWCP concluded that she had
received an overpayment of compensation in the amount of $11,583.54. It then found, however,
without explanation, that the amount of the overpayment was $11,770.11. OWCP’s hearing
representative modified the preliminary overpayment determination after finding that it should
have begun on February 4, 2018 rather than February 3, 2018. He subtracted the daily offset
amount for one day to find an overpayment of compensation in the amount of $11,747.43 rather
than $11,770.11. The hearing representative did not, however, address the issue of why OWCP
had found the initial amount of the overpayment of compensation to be $11,770.11 rather than
$11,583.54. A claimant is entitled to an overpayment decision that clearly explains how the
amount was calculated.17 The Board will, therefore, remand the case for OWCP to explain its
calculation of the amount of the overpayment.
On remand OWCP shall determine the exact amount of the overpayment of compensation.
It shall then issue a new preliminary overpayment determination, with an overpayment action
request form, a Form OWCP-20, and instructions for appellant to provide supporting financial
information.18 After this and other such further development as deemed necessary, it shall issue a
de novo decision.19
CONCLUSION
The Board finds that appellant received an overpayment of wage-loss compensation from
February 4, 2018 through June 22, 2019 for which she was without fault, because she concurrently
received FECA wage-loss compensation and SSA age-related retirement benefits without an
appropriate offset. The Board further finds, however, that the case is not in posture for decision
regarding the amount of the overpayment.

15

Id.

16

See K.H., Docket No. 18-0171 (issued August 2, 2018).

17

R.B., Docket No. 20-0022 (issued October 28, 2020); O.R., 59 ECAB 432 (2008).

18

See L.K., Docket No. 29-0416 (issued November 12, 2020).

19
In light of the Board’s disposition regarding the period and amount of the overpayment, the issues of waiver and
recovery of the overpayment are moot.

6

ORDER
IT IS HEREBY ORDERED THAT the January 17, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded
for further proceedings consistent with this decision of the Board.20
Issued: January 26, 2021
Washington, DC

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

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

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

20

In light of the Board’s disposition of Issue 1, Issues 2 and 3 are rendered moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sioux Falls, SD, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1418
Issued: November 4, 2013

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 28, 2013 appellant, through his attorney, filed a timely appeal from a May 22,
2013 merit decision of the Office of Workers’ Compensation Programs denying his claim for an
increased schedule award. 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 has more than a 12 percent permanent impairment of the
right hand.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated February 13, 2013,
the Board set aside an April 19, 2012 OWCP decision denying appellant’s claim for an

1

5 U.S.C. § 8101 et seq.

additional schedule award.2 The Board noted that Dr. Colin W. Fennell, a Board-certified
orthopedic surgeon and OWCP referral physician, determined that appellant had a 24 percent
permanent impairment of the right hand due to loss of motion of the fingers. He found no
impairment due to carpal tunnel syndrome. An OWCP medical adviser, however, opined that
the loss of finger motion resulted from nonemployment-related arthritis. He also stated that
appellant could receive an impairment rating for carpal tunnel syndrome if diagnostic studies
were positive but noted that any impairment due to carpal tunnel syndrome could be less than
that previously awarded. The Board remanded the case for Dr. Fennell to address whether
appellant’s loss of finger motion of the right hand was employment related and to evaluate any
impairment due to carpal tunnel syndrome based on diagnostic studies. The facts and
circumstances as set forth in the prior decision are hereby incorporated by reference.
By letter dated March 5, 2013, OWCP requested that Dr. Fennell discuss whether
appellant’s November 30, 1990 work injury caused loss of motion in his right hand. It further
instructed him to evaluate any impairment due to carpal tunnel syndrome based on diagnostic
studies.
On March 21, 2013 appellant’s attorney questioned why OWCP had not informed
Dr. Fennell that an impairment due to preexisting or employment-related arthritis should be
included in the impairment rating. In an April 19, 2013 response, OWCP advised counsel that
the Board had not instructed it to include information about preexisting conditions.
In a supplemental report dated April 22, 2013, Dr. Fennell stated, “[Appellant’s] loss of
range of motion of his wrists does not result from the November 30, 1990 employment injury.
The loss of range of motion is secondary to the scapholunate advanced collapse of both wrists
which in this circumstance is nonwork related.” Dr. Fennell found no impairment due to carpal
tunnel syndrome based on the lack of sensory or motor loss.
By decision dated May 22, 2013, OWCP denied appellant’s claim for an increased
schedule award. It determined that Dr. Fennell opined that appellant had no loss of wrist motion
due to his accepted work injury or impairment due to his carpal tunnel syndrome.
On appeal appellant’s attorney contends that OWCP failed to follow the Board’s
instructions on remand and noted that preexisting conditions are to be included in calculating
impairment ratings. He further contends that Dr. Fennell’s report was not reasoned and failed to
utilize diagnostic studies in considering any impairment due to carpal tunnel syndrome.

2

Docket No. 12-1390 (issued February 13, 2013). OWCP had accepted that on November 30, 1990 appellant,
then a 47-year-old maintenance technician, sustained right finger sprain and instability of the metacarpal joints of
four fingers of the right hand under file number xxxxxx547. It further accepted his 1997 occupational disease claim
for bilateral carpal tunnel syndrome, assigned file number xxxxxx554. Appellant retired on August 1, 1998. He
received a schedule award for a one percent permanent impairment of the right hand. On July 20, 1998 OWCP
granted appellant a schedule award for an additional 11 percent permanent right hand impairment.

2

LEGAL PRECEDENT
The schedule award provision of FECA,3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the American Medical Association, Guides to the Evaluation of Permanent Impairment as the
uniform standard applicable to all claimants.5 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards.6
Proceedings under OWCP are not adversarial in nature, nor is OWCP a disinterested
arbiter.7 While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.8 Accordingly, once OWCP undertakes to develop the medical evidence further,
it has the responsibility to do so in the proper manner.9
ANALYSIS
On prior appeal, the Board remanded the case for OWCP to obtain a supplemental report
from Dr. Fennell addressing whether appellant’s loss of motion of the fingers of the right hand
was employment related and whether he had an impairment due to carpal tunnel syndrome based
on diagnostic studies. In a report dated April 22, 2013, Dr. Fennell advised that the loss of range
of motion of appellant’s wrists was not due to his November 30, 1990 employment injury. The
issue, however, is the cause of the loss of motion of appellant’s right fingers.
The Board has held that, once OWCP starts to procure a medical opinion, it must do a
complete job. OWCP has the responsibility to obtain from its referral physician an evaluation
that will resolve the issues in the case.10 Dr. Fennell’s opinion is insufficient to establish whether
appellant has more than a 12 percent impairment of the right hand. He did not address the
relevant issue of range of motion of the fingers. Dr. Fennell further found no impairment due to
carpal tunnel syndrome based on normal sensory and motor strength but did not adequately
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

See Vanessa Young, 55 ECAB 575 (2004).

8

See Richard E. Simpson, 55 ECAB 490 (2004); Phillip L. Barnes, 55 ECAB 426 (2004).

9

Melvin James, 55 ECAB 406 (2004).

10

See A.R., Docket No. 11-692 (issued November 18, 2011); Richard F. Williams, 55 ECAB 343 (2004).

3

address whether diagnostic studies revealed any impairment or review any diagnostic testing to
determine whether it documented carpal tunnel syndrome. The case will be remanded for
OWCP to refer appellant to an appropriate specialist to secure a reasoned medical opinion
regarding the extent of any right hand or upper extremity impairment. OWCP should advise the
referral physician that preexisting impairments are included in determining an impairment
rating.11 Following such further development as deemed necessary, it shall issue a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 22, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: November 4, 2013
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

11

See R.P., 59 ECAB 127 (2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, St. Louis, MO, Employer
__________________________________________

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

Docket No. 16-1393
Issued: March 14, 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 June 20, 2016 appellant filed a timely appeal from a December 22, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,441.50 for the period June 1, 2013 to March 3, 2015 as she received retirement
benefits concurrently with FECA compensation benefits; and (2) whether OWCP properly found
her at fault in creation of the overpayment.
1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested oral argument before the Board. By order dated December 19, 2016, the Board
exercised its discretion and denied the request, finding that the issue could be adequately adjudicated based on a
review of the case record. Order Denying Oral Argument, Docket No. 16-1393 (issued December 19, 2016).

FACTUAL HISTORY
OWCP accepted that on June 9, 2005 appellant, then a 54-year-old nurse, twisted her
back as a falling patient grabbed her to steady himself, causing a lumbosacral sprain/strain and
an aggravated L4-5 herniated disc with lumbar myelopathy. She stopped work on June 9, 2005
and returned to full-time light-duty work on June 13, 2005. As of July 10, 2006, appellant
worked as a staff nurse (discharge planner) at retained pay. The job required sedentary clerical
duties within her physical restrictions.
By decision issued September 22, 2006, OWCP determined that appellant’s actual
earnings in the discharge planner position fairly and reasonably represented her wage-earning
capacity. It calculated that appellant had two percent loss of wage-earning capacity, entitling her
to $52.83 every four weeks in wage-loss compensation. The first compensation check covered
the period July 9 to September 30, 2006. OWCP included a Form EN1049, which stated, “you
may not receive OWCP benefits for loss of wage-earning capacity for the same time period as
receiving OPM benefits. If you receive any benefits from OPM, you should advise this office
immediately. You will be asked to make an election between the two benefits.”
Appellant worked as a discharge planner at the employing establishment through
June 26, 2008. She received wage-loss compensation under the wage-earning capacity
determination and for periodic medical appointments.3 On April 13, 2009 appellant was
reassigned as a nurse performing clerical duties, at the same rate of pay as the discharge planner
position.
The record establishes that appellant retired on May 31, 2013. Beginning June 1, 2013
appellant received retirement benefits through the Office of Personnel Management (OPM).
In a March 19, 2015 letter, OWCP notified appellant that she was entitled to wage-loss
compensation beginning June 1, 2013. It instructed her to elect either FECA benefits or OPM
retirement payments to avoid a prohibited dual benefit.
On July 7, 2015 an OPM official confirmed that appellant was receiving monthly OPM
retirement benefits from June 1, 2013 onward.
On July 28, 2015 appellant elected to receive OPM benefits, effective July 16, 2015. She
telephoned OWCP on August 4, 2015, stating that she was unsure if she had chosen the proper
election date. OWCP sent appellant a new election form to submit should she wish to change her
date of election. On August 10, 2015 appellant elected to receive OPM retirement benefits with
an effective date of June 1, 2013.

3

Appellant stopped work on June 26, 2008. She underwent right hip arthroplasty on an unspecified date.
Appellant filed a claim for a recurrence of disability (Form CA-2a) on July 18, 2008. OWCP developed the claim as
a request for modification of the September 22, 2006 wage-earning capacity determination. By decision dated
September 3, 2008, it denied modification of the wage-earning capacity determination. In a June 23, 2009 letter,
appellant requested reconsideration, contending that the accepted June 9, 2005 incident also caused a right hip
injury. By decision dated September 2, 2009, OWCP denied modification of its prior decision, finding that
appellant had not established a material worsening of the accepted injury.

2

In an August 18, 2015 memorandum and accompanying August 4, 2015 worksheet,
OWCP calculated that from June 1, 2013 to March 7, 2015, appellant was paid $1,441.50 in
FECA wage-loss compensation benefits on the supplemental rolls, during which time she also
received OPM retirement benefits.
By notice dated September 3, 2015, OWCP advised appellant that it made a preliminary
finding of an overpayment of compensation in the amount of $1,441.50 for the period June 1,
2013 to March 3, 2015, as she had received OPM retirement benefits and FECA payments
concurrently. It made the preliminary finding that appellant was at fault in creating the
overpayment, as she accepted compensation payments that she knew or reasonably should have
known were incorrect. OWCP afforded appellant 30 days to submit information regarding her
income, assets, and expenses, request a prerecoupment hearing, or request a conference. It
enclosed an overpayment recovery questionnaire (Form OWCP-20).
Appellant did not respond to the preliminary notice of overpayment.4
By decision dated December 22, 2015, OWCP finalized the $1,441.50 overpayment for
the period June 1, 2013 to March 3, 2015. It found that appellant had received FECA benefits
concurrently with OPM retirement benefits for this period, a prohibited dual benefit. OWCP
found appellant at fault in creating the overpayment as she had accepted FECA payments while
in simultaneous receipt of OPM retirement payments. It further found that, as appellant was at
fault in creating the overpayment, it was not subject to waiver. OWCP directed recovery of the
overpayment by a single payment of $1,441.50.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.5 FECA, however, also places limitations on an employee’s right to receive
compensation benefits. Section 8116 provides that, while an employee is receiving benefits, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.6
A FECA beneficiary may not receive wage-loss compensation concurrently with a
federal retirement annuity.7 When a claimant is entitled to disability benefits under FECA and
annuity benefits from OPM under either CSRS or FERS, the employee must make an election of
benefits.8 The employee has the right to elect the monetary benefits that are most advantageous.9
4

Appellant submitted May 29, 2015 chart notes, received by OWCP on November 30, 2015. These documents
do not address the overpayment issue.
5

5 U.S.C. § 8102(a).

6

Id. at § 8116(a).

7

Id.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4a (February 1995).

9

Id.

3

The election, once made, is revocable.10 Concurrent wage-loss compensation and OPM benefits
constitute a prohibited dual benefit.11
ANALYSIS -- ISSUE 1
Appellant began receiving wage-loss compensation under FECA on July 9, 2006
pursuant to a September 22, 2006 wage-earning capacity determination. Her continuing payment
every four weeks began at a net amount of $52.83. On August 10, 2015 appellant elected to
receive OPM benefits effective June 1, 2013.
The evidence reflects that appellant received $1.441.50 in compensation benefits from
June 1, 2013 to March 7, 2015, and that she also received OPM retirement benefits for this
period. This is based on OWCP’s August 18, 2015 memorandum and accompanying August 4,
2015 worksheet. However, the period of overpayment OWCP used in its September 3, 2015
preliminary notice and December 22, 2015 decision ran from June 1, 2013 to March 3, 2015,
four days less than the period for which OWCP provided a complete calculation. It did not
explain why it changed the end date of the overpayment period from March 7, 2015 to
March 3, 2015. Therefore, the Board finds that it is not clear as to whether the amount of the
overpayment remains accurate.
As such, the Board thus affirms in part the December 22, 2015 decision as to fact of
overpayment, but remands for further development regarding the amount of the overpayment.
After such further development as necessary, OWCP shall issue an appropriate decision as to the
amount of the overpayment.
As the case is not in posture for a decision regarding the amount of the overpayment, it is
premature for the Board to address the issue of fault.
The Board’s jurisdiction is limited to reviewing those cases where OWCP seeks recovery
from continuing compensation under FECA.12 Appellant is not in receipt of continuing
compensation under FECA.
On appeal, appellant asserts that she contacted OWCP some months after retiring and
“requested to return check,” but that an OWCP claims examiner instructed her not to. The Board
notes that the record does not confirm this conversation.
CONCLUSION
The Board finds that OWCP has established fact of overpayment. The Board further
finds that the case is not in posture for decision regarding the amount of overpayment or the
issue of fault.

10

20 C.F.R. § 10.421(a).

11

5 U.S.C. § 8116(a).

12

Judith A. Cariddo, 55 ECAB 348 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 22, 2015 is affirmed in part regarding fact of
overpayment and set aside in part regarding the amount of the overpayment. The case is
remanded to OWCP for additional development consistent with this opinion.
Issued: March 14, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POTAL SERVICE, POST OFFICE,
Corpus Christi, TX, Employer
__________________________________________

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Appearances:
Douglas Sughrue, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1374
Issued: November 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 29, 2014 appellant, through his attorney, filed a timely appeal from a
December 4, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) denying
his claim for a recurrence of disability commencing October 10, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has established a recurrence of disability commencing
October 10, 2008 causally related to accepted right elbow and shoulder conditions.
On appeal, counsel asserts that under Board precedent, clinical judgment combines both
art and science1 that medical conclusions need only be sound and rational2 and that appellant was
not required to demonstrate that work factors were the sole or primary cause of the claimed
1

T.T., Docket No. 08-30 (issued April 8, 2008).

2

Robert P. Bourgeois, 45 ECAB 745 (1994).

recurrence of disability.3 He contends that the reports of Dr. Melissa Y. Macias, an attending
neurosurgeon, were sufficient to demonstrate that appellant sustained a recurrence of disability
beginning on October 10, 2008 causally related to a right elbow contusion and calcific tendinitis
of the right shoulder sustained in a May 5, 2008 motor vehicle collision.
FACTUAL HISTORY
This case has previously been before the Board. By order issued May 13, 2013 under
File No. xxxxxx098,4 the Board remanded the case to OWCP to double File No. xxxxxx613,
with the current file. The facts of the case as set forth in the Board’s prior order are hereby
incorporated by reference. The relevant history is set forth.
OWCP accepted that on May 5, 2008 appellant, then a 52-year-old maintenance
mechanic, sustained a right elbow contusion and calcific tendinitis of the right shoulder when he
struck his arm on a steering wheel during a front end collision that occurred in the performance
of duty. Dr. Guy Racette, an attending Board-certified family practitioner, diagnosed a right
elbow contusion due to the May 5, 2008 collision. X-rays were negative for fracture.
Dr. Racette released appellant to full duty as of May 5, 2008. In a May 16, 2008 follow-up
report, he diagnosed right lateral epicondylitis caused by the May 5, 2008 contusion. Dr. Racette
released appellant to full duty. He found that appellant attained maximum medical improvement
as of June 4, 2008.
On January 26, 2010 under File No. xxxxxx613, appellant claimed a recurrence of
disability (Form CA-2a) commencing October 10, 2008, when he began to experience numbness
in both hands, with severe left upper arm pain beginning in January 2010. Imaging studies in
August 2009 showed “damage to spine not present in x-rays taken on February 1, 2008 -- four
months before accident.” Appellant missed work on January 22, 2010 due to his symptoms but
did not otherwise stop work. He submitted additional medical evidence.
In a February 5, 2008 report, Dr. Joshua T. Woody, an attending Board-certified
orthopedic surgeon, noted that appellant had been involved in a motor vehicle accident while in
military service. He opined that appellant had a normal cervical and thoracolumbar spine based
on clinical findings and x-rays.
In a July 9, 2009 report, Dr. Juan E. Bahamon, an attending Board-certified neurologist,
found diminished pinprick sensation in a stocking-glove distribution in all extremities, confirmed
by nerve conduction velocity testing of the lower extremities. He diagnosed systemic peripheral
neuropathy of unknown etiology. Dr. Bahamon noted in an August 3, 2009 report that
laboratory testing revealed a mild decrease in hemoglobin but no other abnormalities. In an
August 25, 2009 report, he diagnosed bilateral carpal tunnel syndrome demonstrated by
August 3, 2009 electrodiagnostic studies. An August 4, 2009 magnetic resonance imaging scan
revealed mild discogenic disease at C6-7 with a left-sided disc bulge and left-sided

3

Beth P. Chaput, 37 ECAB 158 (1985).

4

Docket No. 13-09 (issued May 13, 2013).

2

neuroforaminal narrowing. Dr. Bahamon opined that appellant’s upper extremity paresthesias
were caused by a combination of C6-7 disc disease and carpal tunnel syndrome.
On March 5, 2010 OWCP noted that it would develop appellant’s claim for a recurrence
of disability as a new occupational disease claim. It assigned the new claim File No. xxxxxx098.
In a March 29, 2010 letter, OWCP advised appellant of the additional evidence needed to
establish his claim, including a factual statement regarding the circumstances of the recurrence
and medical evidence addressing the causal relationship between the accepted May 5, 2008
injury and his condition on and after October 10, 2008. Appellant was afforded 30 days in which
to submit such evidence.
In response, appellant submitted an April 21, 2010 statement asserting that the
May 5, 2008 motor vehicle collision aggravated a preexisting cervical spine condition, causing
radiculopathy into the left arm beginning in October 2009.
By decision dated April 29, 2010, OWCP denied appellant’s claim for a bilateral upper
extremity condition on the grounds that causal relationship was not established.5
In a June 20, 2012 letter and brief, counsel requested reconsideration. He asserted that
new medical reports from Dr. Macias were sufficient to establish appellant’s claim of a new
occupational injury.
In a July 30, 2010 report, Dr. Macias opined that appellant’s peripheral neuropathy in all
extremities, as well as the damage repaired by surgery on May 27, 2008, was consistent with
damage caused by the May 5, 2008 motor vehicle accident. In an August 7, 2011 letter, she
noted performing an anterior cervical decompression and fusion on May 27, 2010, which
resolved his neck and upper extremity pain. Regarding causal relationship, Dr. Macias opined
that, while “an underlying condition may have been present, [appellant] clearly states that he
developed pain and progression of the above symptoms six months after involvement in the
motor vehicle collision.” Although she could not state with certainty that the motor vehicle
collision caused his cervical pathology in its entirety, the trauma may have aggravated an
underlying degenerative condition leading to an exacerbation of neck pain and discomfort for
which he sought treatment.
By decision dated June 25, 2012, OWCP found that Dr. Macias’ opinion was insufficient
to meet appellant’s burden of proof to establish a new occupational condition.
Counsel filed an appeal with the Board, resulting in the issuance of the May 13, 2013
order remanding the case to double File No. xxxxxx098 with File No. xxxxxx613 and issuance
of a de novo decision regarding the claimed recurrence of disability.
In an October 1, 2013 letter, OWCP advised appellant of the evidence needed to establish
his claim for recurrence of disability, including a factual statement regarding the circumstances
of the recurrence and medical evidence addressing the causal relationship between the accepted
5

On May 26, 2010 counsel requested an oral hearing. He withdrew the request on August 16, 2010 to pursue
reconsideration.

3

right elbow and shoulder injuries and his condition on or after October 10, 2008. Appellant was
afforded 30 days in which to submit such evidence.
In an October 30, 2013 letter, counsel contended that, based on the Board’s May 13, 2013
order, appellant “should not have to provide any new factual or medical evidence.”
By decision dated December 4, 2013, OWCP denied appellant’s claim for a recurrence of
disability finding that causal relationship was not established as Dr. Macias did not provide
adequate medical reasoning supporting that the accepted right elbow and shoulder conditions
disabled appellant for work commencing October 10, 2008. It further found that Dr. Macias did
not explain how appellant’s cervical spine condition or upper extremity paresthesias were related
to the accepted right elbow contusion or right shoulder tendinitis due to the May 5, 2008 motor
vehicle accident.
LEGAL PRECEDENT
OWCP 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 has resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.”6 When an appellant claims a
recurrence of disability due to an accepted employment-related injury, he or she has the burden of
establishing by the weight of reliable, probative and substantial evidence that the recurrence of
disability is causally related to the original injury. This burden includes the necessity of furnishing
evidence from a qualified 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.
Moreover, sound medical reasoning must support the physician’s conclusion.7 An award of
compensation may not be based on surmise, conjecture or speculation or on appellant’s
unsupported belief of causal relation.8
ANALYSIS
OWCP accepted that appellant sustained a right elbow contusion and calcific tendinitis of
the right shoulder in a May 5, 2008 motor vehicle collision. Dr. Racette, an attending Boardcertified family practitioner, released appellant to full duty as of the date of the accident. He
opined that appellant had reached maximum medical improvement as of June 4, 2008. On
January 26, 2010 appellant claimed a recurrence of disability commencing October 10, 2008,
asserting that the May 5, 2008 accident had aggravated his preexisting cervical spine condition
and upper extremity paresthesias. OWCP developed his recurrence claim as a new occupational
disease claim. It denied the occupational disease claim on April 29, 2010, affirmed on
June 25, 2012. Pursuant to the prior appeal, the Board remanded the claim to OWCP to
6

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004).
7

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

8

Alfredo Rodriguez, 47 ECAB 437 (1996).

4

adjudicate the recurrence issue. The December 4, 2013 OWCP’s decision denied appellant’s
claim for recurrence of disability.
Appellant has the burden of providing sufficient evidence, including rationalized medical
evidence, to establish the causal relationship asserted between the accepted right elbow
contusion and right shoulder tendinitis and her condition on and after October 10, 2008.9 She
submitted reports from several attending physicians. The opinions of Dr. Racette and
Dr. Woody, a Board-certified orthopedic surgeon, and Dr. Bahamon, a Board-certified
neurologist, do not sufficiently address appellant’s disability on or after October 10, 2008 and are
of diminished probative value.
Appellant also submitted reports from Dr. Macias, an attending neurosurgeon, who
performed an anterior cervical discectomy and fusion on May 27, 2010. Dr. Macias opined on
July 30, 2010 that the May 5, 2008 motor vehicle accident could have caused peripheral
neuropathy and unspecified pathologies of the cervical spine. On August 7, 2011 she noted that
the May 5, 2008 accident “may have aggravated an underlying degenerative condition leading to
an exacerbation of neck pain and discomfort for which [appellant] sought treatment.”
Dr. Macias speculated that the May 5, 2008 accident may have caused other injuries. She did not
opine, however, that the accepted right elbow contusion and calcific tendinitis worsened as of
October 10, 2008. Dr. Macias did not address the accepted conditions. Her opinion is therefore
insufficient to meet appellant’s burden of proof.
OWCP advised appellant in an October 1, 2013 letter of evidence needed to establish his
claim for a recurrence of disability, including medical evidence addressing how and why the
accepted right shoulder condition and right elbow injuries had worsened as of October 10, 2008.
As appellant did not submit such evidence, it properly issued its December 4, 2013 decision
denying his recurrence claim.
On appeal, counsel notes that, according to Board precedent, clinical judgment combines
both art and science10 that medical conclusions need only be sound and rational11 and that
appellant was not required to demonstrate that work factors were the sole or primary cause of the
claimed recurrence of disability.12 He contends that, under these principles, Dr. Macias’ opinion
is sufficient to meet appellant’s burden of proof in establishing his recurrence claim. However,
as stated above, Dr. Macias did not opine that the accepted right elbow contusion and right
shoulder tendinitis worsened on or after October 10, 2008. Instead, she attributed appellant’s
condition to cervical disc disease. Dr. Macias’ opinion therefore does not establish that he
sustained a recurrence of disability.

9

Supra note 7.

10

T.T., Docket No. 08-30 (issued April 8, 2008).

11

Robert P. Bourgeois, 45 ECAB 745 (1994).

12

Beth P. Chaput, 37 ECAB 158 (1985).

5

CONCLUSION
The Board finds that appellant has not established a recurrence of disability on or after
October 10, 2008 causally related to an accepted right elbow contusion and calcific tendinitis of
the right shoulder.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 4, 2013 is affirmed.
Issued: November 13, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Fort Lauderdale, FL,
Employer
__________________________________________

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Appearances:
Capp Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1606
Issued: November 19, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 15, 2014 appellant, through his attorney, filed a timely appeal from a
January 17, 2014 Office of Workers’ Compensation Programs’ (OWCP) decision which denied
his reconsideration request on the grounds that it was untimely filed and failed to present clear
evidence of error. Because more than 180 days elapsed from the most recent OWCP merit
decision dated August 6, 2010 to the filing of this appeal, the Board lacks jurisdiction to review
the merits of appellant’s claim pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 4, 2007 appellant, then a 51-year-old transportation security officer, sustained an
injury while performing a bag check. He tripped on a loose rope and fell injuring his right knee,
shoulder and ribs. Appellant returned to a limited-duty position on May 24, 2007. On
July 31, 2007 OWCP accepted his claim for postconcussion syndrome, right shoulder sprain and
strain and a right knee contusion.
A May 29, 2007 magnetic resonance imaging (MRI) scan of the right shoulder revealed
mild rotator cuff tendinopathy without a tear, prior subacromial decompression and
acromioplasty with postsurgical change and no labral tear. Appellant came under the treatment
of Dr. Mayur C. Maniar, a Board-certified neurologist, from May 31, 2007 to March 27, 2008.
Dr. Maniar reported daily left-sided frontotemporal and parietal headaches, difficulty with
concentration and memory and right shoulder pain. An MRI scan of the brain dated July 2, 2007
revealed no abnormalities. Dr. Maniar noted that appellant remained symptomatic with visual
problems, dizziness and headaches.
Appellant was also treated by Dr. Keith A. Skolnick, a Board-certified ophthalmologist,
on December 2, 2007, for postconcussion syndrome causing visual disturbances and blurry
vision. Dr. Skolnick opined that appellant’s eye complaints were related to the May 4, 2007
work injury. On April 17, 2008 appellant’s claim was accepted for visual disturbances. He
stopped work on November 24, 2008.
Appellant was treated by Dr. Ely Pelta, a Board-certified psychiatrist, from March 9
to July 7, 2010 for organic mood disorder and status postconcussion syndrome. In a work
capacity evaluation dated May 22, 2009, Dr. Pelta noted that appellant continued to have
cognitive and emotional deficits and could return to work in a desk job full time. Dr. Maniar
diagnosed status post work injury of May 4, 2007 with postconcussion syndrome with residual
traumatic headaches, mild memory dysfunction, emotional problems with anxiety and
depression. He released appellant to work full time without restrictions.
On April 13, 2010 OWCP referred appellant for a second opinion to Dr. Antonio
Defilippo, a Board-certified ophthalmologist. In a May 14, 2010 report, Dr. Defilippo diagnosed
mood disorder secondary to head injury in the resolution phase, a history of head injury with a
postconcussion syndrome and bilateral knee surgeries. He noted that the psychiatric part of the
mood disorder resulting from the postconcussion syndrome was well controlled with medication.
Dr. Defilippo opined that appellant reached maximum medical improvement and could return to
his regular duties as a screener.
On July 2, 2010 OWCP proposed to terminate appellant’s wage-loss compensation
benefits. It found that Dr. Defilippo’s report established that appellant was no longer disabled
from performing his date-of-injury job.
Appellant submitted a July 21, 2010 report from Dr. Maniar who noted he was stable
neurologically and released to work full time.

2

By decision dated August 6, 2010, OWCP terminated appellant’s wage-loss benefits
effective July 8, 2010. Appellant remained entitled to medical benefits.
On January 9, 2014 appellant requested reconsideration. Through counsel, he asserted
that his claim should be accepted chronic migraine syndrome and traumatically-induced organic
mood disorder. Counsel contended that these conditions should have been considered when
OWCP determined that he was able to return to work as a screener.
Appellant submitted an October 30, 2013 report from Dr. Michael K. Maraist, a Boardcertified neurologist, who noted a history of appellant’s May 4, 2007 injury and treatment for
memory loss and lack of focus, which were associated with his chronic migraine syndrome and
visual disturbances. Dr. Maraist diagnosed chronic migraine syndrome and traumaticallyinduced organic mood disorder. He stated to a reasonable degree of medical probability that the
conditions were causally related to the May 4, 2007 injury.
Appellant submitted reports from Dr. Maniar dated September 1 and 20, 2010.
Dr. Maniar noted that appellant was symptomatic with ongoing headaches, dizziness, trouble
concentrating and with memory. On September 20, 2010 he took appellant off work for three
weeks due to worsening symptoms. In Florida Workers’ Compensation forms dated
September 1 to December 13, 2010, Dr. Maniar diagnosed severe headaches and dizziness
flare-up and noted appellant was disabled from work.
In reports dated October 7
to December 14, 2010, he noted that on August 27, 2010 appellant developed significant stress at
work and his symptoms were exacerbated. Dr. Maniar diagnosed closed head injury with
postconcussion syndrome including headaches, difficulty with memory and concentration and
emotional liability. He found that appellant was totally disabled.
Appellant was treated by Dr. Pelta from November 9, 2010 to November 22, 2011, who
diagnosed organic mood disorder and opined that appellant’s head injury and new injury on
August 27, 2010 rendered him incapable of working as a screener as he was unable to make
rapid decisions and remained emotionally labile. On January 31 and February 18, 2011 appellant
was treated by Dr. Fred J. Petrilla, a clinical psychologist, for clinical depression. Dr. Petrilla
noted appellant’s short-term memory and concentration were less than satisfactory. Appellant
appeared to be tense, frustrated, anxious and depressed. An MRI scan of the head dated
August 16, 2011 revealed no abnormalities.
By decision dated January 17, 2014, OWCP denied appellant’s request for
reconsideration as it was untimely and did not establish clear evidence of error.

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LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”2
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.3 However, OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the
claimant’s application for review shows clear evidence of error on the part of OWCP in its most
recent merit decision. To establish clear evidence of error, a claimant must submit evidence
relevant to the issue that was decided by OWCP. The evidence must be positive, precise and
explicit and must be manifest on its face that OWCP committed an error.4
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.5
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.6 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.7 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.8 The Board makes an independent determination
as to whether a claimant has submitted clear evidence of error on the part of OWCP.9

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607(a).

4

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

5

Annie L Billingsley, 50 ECAB 210 (1998).

6

Jimmy L. Day, 48 ECAB 652 (1997).

7

Id.

8

Id.

9

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

4

ANALYSIS
The Board finds that appellant failed to file a timely application for review. As noted, an
application for reconsideration must be received within one year of the date of OWCP’s decision
for which review is sought.10 Appellant’s request for reconsideration was not received by
OWCP until January 15, 2014, more than three years after issuance of the August 6, 2010 merit
decision. It was untimely. Consequently, appellant must demonstrate clear evidence of error by
OWCP in its August 6, 2010 decision terminating wage-loss benefits.
The Board finds that appellant has not established clear evidence of error on the part of
OWCP. In his January 9, 2014 statement, counsel contended that the medical evidence
supported additional conditions should have been accepted by OWCP and considered when
determining appellant’s ability to return to work as a screener. While appellant addressed his
disagreement with OWCP’s termination of his wage-loss benefits, his general allegations do not
raise a substantial question as to the correctness of OWCP’s decision. In 2010, both Dr. Maraist
and Dr. Filippo found appellant able to return to work without restrictions.
Appellant submitted an October 30, 2013 report from Dr. Maraist who noted appellant’s
history and treatment. Dr. Maraist opined to a reasonable degree of medical probability that
appellant suffered from chronic migraine syndrome and traumatically-induced organic mood
disorder as a result of his injury May 4, 2007. He does not explain how appellant’s disability
was causally related to his accepted work injury. The Board notes that appellant’s wage-loss
benefits were terminated for the accepted conditions of postconcussion syndrome, right
shoulder/sprain and strain, right knee contusion and visual disturbances. Dr. Maraist did not
address continuing disability related to these conditions but attributed appellant’s disability to
conditions that were not accepted as work related. This evidence is insufficient to raise a
substantial question as to the correctness of OWCP’s decision. This evidence is not so positive,
precise or explicit that it manifests on its face that OWCP committed an error. The Board notes
that clear evidence of error is intended to represent a difficult standard. The submission of a
detailed well-rationalized medical report which, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.11
In reports dated September 1 to December 14, 2010, Dr. Maniar noted that on
August 27, 2010 appellant developed significant stress at work which exacerbated his symptoms.
He diagnosed closed head injury with postconcussion syndrome including headaches, difficulty
with memory and concentration and emotional liability. On September 20, 2010 Dr. Maniar
noted that appellant was totally disabled. In Florida Workers’ Compensation uniform reporting
forms dated September 1 to December 13, 2010, he diagnosed severe headaches and dizziness
flare-up and noted appellant was totally disabled. Dr. Maniar did not explain how appellant’s
disability was causally related to appellant’s employment. He released appellant to regular duty
in June 2010. Dr. Maniar failed to explain how appellant’s disability of September 20, 2010

10

20 C.F.R. § 10.607(a).

11

D.G., 59 ECAB 455 (2008).

5

related to the accepted conditions. These reports are not sufficient to establish clear evidence of
error.
Appellant was treated by Dr. Pelta from November 9, 2010 to November 22, 2011.
Dr. Pelta diagnosed organic mood disorder and opined that appellant’s head injury and a new
injury on August 27, 2010 rendered him incapable of working as a screener as he was unable to
make rapid decisions and remained emotionally labile. Appellant submitted reports from
Dr. Petrilla dated January 31 and February 18, 2011, who treated him for clinical depression.
Dr. Petrilla noted appellant’s short-term memory and concentration were less than satisfactory
and he appeared to be tense, frustrated, anxious and depressed. This evidence is not so positive,
precise and explicit that it manifests on its face that OWCP committed an error. As noted above,
even if these reports offered reasoned support for causal relationship, they would be insufficient
to establish clear evidence of error
Thus, appellant has not established clear evidence of error by OWCP in its
August 6, 2010 decision.
On appeal, appellant reiterated assertions that he made before OWCP indicating that the
termination of his benefits was improper and that the newly diagnosed conditions of chronic
migraine syndrome and traumatically-induced organic mood disorder should have been accepted
as related to the May 4, 2007 work injury and considered when terminating compensation
benefits. The Board does not have jurisdiction over the merits of the claim. As noted, appellant
has not established clear evidence of error by OWCP.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

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ORDER
IT IS HEREBY ORDERED THAT the January 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board

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M.S., Appellant
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U.S. POSTAL SERVICE, POST OFFICE,
Plymouth, MI, Employer
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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-412
Issued: May 21, 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 November 29, 2006 appellant filed a timely appeal from February 1 and
October 13, 2006 merit decisions denying her claim for recurrence of disability. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
appeal.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she
sustained a recurrence of disability on June 23, 2005 that was causally related to her
accepted injury.
FACTUAL HISTORY
On March 12, 2003 appellant, then a 38-year-old mail processor, filed an
occupational disease claim alleging that she developed carpal tunnel syndrome and

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myositis of the neck, back and arms as a result of her employment duties. Her claim was
eventually accepted on April 14, 2004 for temporary aggravation of cervical myositis.1

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The record reflects that appellant returned to limited duty on October 10, 2003. In
a September 27, 2004 disability certificate, Dr. William Penn, a Board-certified
osteopath, specializing in family practice, recommended that appellant be provided with a
chair for back support and that she be restricted from lifting more than five pounds.
Appellant was also prohibited from prolonged bending, lifting or stooping.

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On July 6, 2005 appellant filed a recurrence of disability claim as of June 23,
2005, when she stopped working. She alleged that she had all of the same symptoms
associated with her 2003 claim, “but now more severe.” Appellant described pain in the
left side of her neck and shoulder, the entire left arm all the way down to the fingertips,
and midway down her back on the left side. She stated her belief that “the injury [was
due] to lack of treatment from the initial claim being denied and [so] much time
elaps[ing] before being accepted and then denied again after several months.” Appellant
stated that, at the time of the alleged recurrence, she was working a bid job, which
required her to hand-case mail.

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In support of her claim, appellant submitted medical reports from St. Mary Mercy
Hospital, including an Emergency Department Preliminary Report, dated June 30, 2005,
from Dr. Andrew Muzychka, Board-certified in the area of emergency medicine, who
noted appellant’s complaints of pain in her left neck radiating down her left arm, which
she had been experiencing for about three weeks. Dr. Muzychka provided diagnoses of
cervical radiculopathy and disc herniation. The record also contains June 30, 2005
reports of a chest x-ray and magnetic resonance imaging (MRI) scan of the cervical
spine. In a July 2, 2005 report, Dr. Patel Trupti, a treating physician, stated that
appellant’s chief complaint was severe pain in the neck radiating to the left upper
extremity. Her recent myelogram and computerized tomography (CT) scan showed
bilateral neural foraminal encroachment, which was worse on the left side. Appellant
also submitted a July 15, 2005 order for physical therapy from Dr. Peter Bono, a treating
physician and July 12, 2005 laboratory test results.

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On July 27, 2005 the Office informed appellant that the information and evidence
submitted was insufficient to establish her claim. The Office advised appellant to submit,
within 30 days, a physician’s report containing a rationalized opinion explaining how her
work-related condition materially worsened without an intervening injury, to the point
that she was unable to perform the duties of her limited-duty job.

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On July 28, 2005 appellant submitted a claim for compensation for the period
June 23 through July 22, 2005. On August 23, 2005 she submitted a claim for
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The Office initially denied appellant’s claim by decision dated May 21, 2003. On March 2, 2004 an
Office hearing representative remanded the case for a second opinion examination and an opinion on causal
relationship. Based on the April 7, 2004 report of Dr. Mitchell Z. Pollak, a Board-certified orthopedic
surgeon, the Office accepted appellant’s claim for aggravation of cervical myositis. On May 3, 2004 the
Office clarified that appellant’s condition was considered to be temporary in nature.

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compensation for the period June 23 through August 22, 2005. Appellant also submitted
a time analysis sheet for the same periods. By letters dated August 10 and September 13,
2005, the Office informed appellant that it could not rule on her claims for compensation
until a decision had been made on her recurrence claim.2

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Appellant submitted a copy of an offer of modified assignment for “mail
processing clerk,” which she accepted on October 7, 2004. The duties included casing
mail. The “physical requirements” of the position included manually sorting letter mail
by placing letters in the appropriate pigeon hole on the manual letter case. Appellant was
to be provided with a chair for back support and was restricted from lifting in excess of
five pounds and from any prolonged bending, stooping or lifting.

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In a letter dated August 13, 2005, appellant contended that her condition
worsened when she returned to light duty in June 2003. She stated that at the end of
2003, when she began working regular duty as a mail processor, she began “to feel the
resumed acceleration of pain.” Appellant was placed back on light duty as of April 2004.
She indicated that her bid job involved hand-casing mail.

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Appellant submitted an August 9, 2005 report from Dr. Timothy A. Wright, a
Board-certified anesthesiologist, who related the history of injury, as reported by
appellant. She stated that she returned to work with restrictions four months after her
June 2003 injury. Appellant indicated that “things were going okay until June 23, 2005,
when the pain came back full force all at once while at work.” She complained of
constant left neck and arm pain, radiating down the arm through the forearm into the
hand. Appellant also complained of numbness, tingling and weakness in the left arm. A
June 30, 2005 CT scan of the cervical spine was significant for degenerative disc disease
and degenerative spurring in the cervical spine, most notably at C5-6, where there was a
right paramedian disc herniation and bone spurring. A July 1, 2005 myelogram and
postmyelogram CT scan of the cervical spine showed similar findings, with degenerative
changes in the cervical spine, with bilateral neural foraminal encroachment. Physical
examination of the neck showed full range of motion and no cervical lymphadenopathy.
There was provocative tenderness over the left cervical facet joints in the left cervical
paraspinous region. Dr. Wright found provocative tenderness over the left thoracic
paraspinous region, as well as over the left rhomboid musculature and left trapezius
musculature. He also found slightly decreased grip strength in the left hand. Dr. Wright
provided diagnoses of: neck and left arm pain; left cervical radiculopathy; degenerative
disc disease in the cervical spine, with disc intrusion most prominent at C5-6 with
encroachment of neural foramina bilaterally; and cervical spondylosis and facet
arthropathy with osteophytes noted especially at C5-6. In a September 28, 2005 report,
he reiterated his diagnoses.

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The Board notes that the record does not contain a final decision regarding appellant’s claims for
compensation for this period. Therefore, the Board does not have jurisdiction over the merits of the claim.
See 20 C.F.R. § 501.2(c) (the Board has jurisdiction to consider and decide appeals from final decisions;
there shall be no appeal with respect to any interlocutory matter disposed of during the pendency of the
case).

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Appellant submitted an August 11, 2005 attending physician’s report from
Dr. Edwin C. Blumberg, a treating physician, who provided diagnoses of pinched nerves,
bulging discs, bone spurs and cervical degeneration. Dr. Blumberg stated that appellant
was hospitalized from June 30 through July 5, 2005 and opined that she was disabled
from June 23 through August 3, 2005. In response to the form question as to whether he
believed appellant’s condition was caused or aggravated by employment, Dr. Blumberg
placed a check mark in the “yes” box and added the notation: “according to patient.”

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By decision dated February 1, 2006, the Office denied appellant’s claim for
recurrence of disability on the grounds that the medical evidence was insufficient to
establish that her claimed recurrence was causally related to her accepted injury.

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On January 29, 2006 appellant requested a schedule award. On February 4, 2006
appellant, through her counsel, requested an oral hearing.

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In a January 10, 2006 attending physician’s report, Dr. Penn provided a diagnosis
of “C/D myofasitis and indicated that appellant was disabled from June 23 through
September 1, 2005. In response to the form question as to whether appellant’s condition
was caused or aggravated by employment, Dr. Penn placed a check mark in the “yes”
box. In an accompanying work capacity evaluation, Dr. Penn stated that appellant was
able to work eight hours per day with restrictions. He indicated that she would need a
chair with support; that she could not lift more than five pounds or stand longer than four
hours; and that she could not reach, twist, bend, stoop, push, pull, squat, kneel or climb.

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The Office referred appellant, together with a statement of accepted facts and the
entire medical record, to Dr. Michael J. Geoghegan, a Board-certified orthopedic
surgeon, for an opinion as to the extent of appellant’s permanent disability. In a
March 30, 2006 report, Dr. Geoghegan related appellant’s complaints of chronic neck
pain radiating to her left shoulder and arm, which began in 2003 and was aggravated by
lifting trays of mail. His physical examination of appellant revealed pain with flexion
and extension of the cervical spine, pain with lateral rotation to the right and pain with
lateral bending to the right and left. Deep tendon reflexes were hypoactive in both upper
extremities. There was no weakness in either upper extremity. Appellant complained of
slightly decreased sensation to light tough involving the tips of the small and ring finger
on the left hand. Tinel’s sign and Phalen’s test were negative in both upper extremities.
June 27, 2005 x-rays of the dorsal spine revealed degenerative changes, but there was no
evidence of any ruptured intervertebral disc. The myelogram of the dorsal spine showed
no evidence of any ruptured disc or spinal stenosis. A cervical myelogram showed
degeneration at C6-7 and C5-6. A routine x-ray of the cervical spine showed evidence of
degenerative disc disease at C5-6 with slight narrowing of the left neural foramen at that
level. A June 3, 2005 MRI scan of the cervical spine showed evidence of a small
ruptured intervertebral disc at C5-6 level and protrusion causing some slight canal
stenosis at C5-6 on the left side. A June 30, 2005 CT scan of the cervical spine showed
evidence of some degenerative disc disease and degenerative spurring. Dr. Geoghegan
opined that appellant had “evidence of difficulty relative to her cervical spine.” He stated
that she had continued cervical myositis with nerve root irritation involving the left upper
extremity, as well as evidence of radiculopathy. Dr. Geoghegan recommended that she

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continue to work with restrictions, including lifting no more than five pounds. In his
work capacity evaluation, he indicated that appellant could work eight hours per day with
restrictions, including lifting no more than five pounds or standing for no longer than four
hours. Appellant should also be restricted from reaching, twisting, bending, stooping,
pushing, pulling, squatting, kneeling or climbing. Dr. Geoghegan also recommended that
she be provided a chair with back support. He opined that appellant had not reached
maximum medical improvement. In a May 12, 2006 addendum to his March 30, 2006
report, Dr. Geoghegan stated that the only objective finding on his physical examination
of appellant’s extremities was diminished sensation to light touch involving sensory ulnar
nerve distribution involvement in the right hand. He opined that appellant had a two
percent upper extremity impairment, pursuant to Table 16-15 at page 492 of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (5th
ed. 2001).

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An oral hearing was conducted on August 15, 2006. Appellant testified that she
applied for and was awarded a bid job in approximately March 2004, which required her
to sit in a chair and hand-case mail and to occasionally reach overhead. She further
expressed her belief that the duties of her job caused the recurrence of her pain.

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By decision dated October 13, 2006, the hearing representative affirmed the
denial of appellant’s claim, finding that the medical evidence did not establish that she
sustained a recurrence of disability causally related to her employment. The
representative found that there was no reasoned medical opinion describing a relationship
between appellant’s current condition and the accepted work injury.

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LEGAL PRECEDENT
Section 10.5(x) of the Office’s regulations defines “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.3

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Appellant has the burden of establishing that she sustained a recurrence of a
medical condition4 that is causally related to her accepted employment injury. To meet
her burden, she 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

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20 C.F.R. § 10.5(x) (2002). See Carlos A. Marrero, 50 ECAB 117 (1998).

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“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)
(2002).

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medical rationale.5 Were no such rationale is present, the medical evidence is of
diminished probative value.6

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When an employee, who is disabled from the job she held when injured on
account of employment-related residuals, returns to a light-duty position or the medical
evidence establishes that 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 she cannot perform such light duty. As part
of this burden, the employee must show a change in the nature and extent of the injuryrelated condition or a change in the nature and extent of the light-duty job requirements.7

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ANALYSIS
Appellant has not met her burden of proving that she sustained a recurrence of
disability beginning June 23, 2005. She alleges a worsening of her injury-related
condition and contends that the requirements of her limited-duty position changed such
that she no longer was physically able to perform the requirements of her light-duty job.
However, she has failed to submit any evidence of such a change in her requirements.
Moreover, she has failed to produce any rationalized medical opinion evidence
explaining how her present condition is causally related to the accepted employment
injury.

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The Office accepted appellant’s claim for temporary aggravation of cervical
myositis. Appellant returned to a light-duty position October 10, 2003 and filed a claim
for a recurrence of disability on July 6, 2005, alleging that she was unable to work as of
June 23, 2005. The Office advised appellant of the evidence needed to establish her
claim. However, appellant did not submit any medical reports from a physician who, on
the basis of a complete and accurate factual and medical history, concluded that she
sustained total disability as of June 23, 2005 due to residuals of her accepted injury. On
June 30, 2005 Dr. Muzychka provided diagnoses of cervical radiculopathy and disc
herniation. As his report does not contain an opinion as to whether appellant was
disabled during the period in question or address the cause of appellant’s condition, it is
of limited probative value. On July 2, 2005 Dr. Trupti noted appellant’s complaint of
severe pain in the neck radiating to the left upper extremity. On July 15, 2005 Dr. Peter
Bono prescribed physical therapy for appellant’s cervical condition. In that neither report
contains a diagnosis or addresses the relevant issue of total disability for work, they lack
probative value. In his August 9, 2005 report, Dr. Wright provided: diagnoses of neck
and left arm pain; left cervical radiculopathy; degenerative disc disease in the cervical
spine, with disc intrusion most prominent at C5-6 with encroachment of neural foramina
bilaterally; and cervical spondylosis and facet arthropathy with osteophytes noted
especially at C5-6. However, he provided no opinion as to the cause or whether she was
5

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

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

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Conard Hightower, 54 ECAB 796 (2003).

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disabled as a result, of her diagnosed conditions. Medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative
value.8 Moreover, as Dr. Wright did not address appellant’s disability, his report is
irrelevant to the issue at hand. Dr. Geoghegan found evidence of degenerative disc
disease, continued cervical myositis with nerve root irritation involving the left upper
extremity and radiculopathy. However, he provided no opinion as to whether appellant
was disabled during the period in question. Therefore, his report also lacks probative
value. The Board will not require the Office 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
her disability and entitlement to compensation.9

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The only medical evidence of record containing an opinion as to appellant’s
disability during the alleged period consists of the reports from Drs. Blumberg and Penn.
In his August 11, 2005 attending physician’s report, Dr. Blumberg provided: diagnoses
of pinched nerves; bulging discs; bone spurs; and cervical degeneration. He stated that
appellant was hospitalized from June 30 through July 5, 2005 and opined that she was
disabled from June 23 through August 3, 2005. In response to the form question as to
whether he believed appellant’s condition was caused or aggravated by employment,
Dr. Blumberg placed a check mark in the “yes” box and added the notation: “according
to patient.” In a January 10, 2006 attending physician’s report, Dr. Penn provided a
diagnosis of “C/D myofasitis and indicated that appellant was disabled from June 23,
2005 through September 1, 2006. In response to the form question as to whether her
condition was caused or aggravated by employment, Dr. Penn also placed a check mark
in the “yes” box. The Board has held that, when a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, without explanation or
rationale, that opinion is of diminished probative value and is insufficient to establish a
claim.10 Dr. Blumberg’s opinion is further compromised by its equivocal nature. As
neither physician provided any medical rationale explaining how appellant’s claimed
disabling condition was related to her accepted temporary aggravation of cervical
myositis condition, neither report is sufficient to establish that appellant sustained a
recurrence of disability during the period in question.11

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At the oral hearing, appellant testified that she applied for and was awarded, a bid
job in approximately March 2004, which required her to sit in a chair and hand-case mail
and to occasionally reach overhead. She further expressed her belief that the duties of her
job, which exceeded her medical restrictions, caused the recurrence of her pain.
8

Michael E. Smith, 50 ECAB 313 (1999).

9

Amelia S. Jefferson, 57 ECAB __ (Docket No. 04-568, issued October 26, 2005); Fereidoon Kharabi,
52 ECAB 291 (2001). The Board notes that appellant was referred to Dr. Geoghegan for the purpose of
obtaining an opinion as to the extent of her permanent impairment for schedule award purposes.
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Deborah L. Beatty, 54 ECAB 340 (2003).

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See Albert C. Brown, supra note 6; see also Terry R. Hedman, 38 ECAB 222 (1986).

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However, appellant’s belief alone, that her current condition was causally related to her
accepted injury, is insufficient to warrant an award of compensation. The Board notes
that the physical requirements of the modified mail processing clerk position, accepted by
appellant on October 7, 2004, were within the restrictions provided by Dr. Penn on
September 27, 2004. Appellant has provided no evidence that the Office required her to
work outside of those restrictions or that her condition worsened to the degree that she
was unable to perform the duties of the position.

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Appellant has failed to establish by the weight of the reliable, probative and
substantial evidence, a change in the nature and extent of the injury-related condition
resulting in her inability to perform the duties of her modified employment. She has
provided absolutely no rationalized opinion evidence establishing either that she was
disabled as of June 23, 2005 or that her current condition is related to her original
employment-related injury. As appellant has not submitted any medical evidence
showing that she sustained a recurrence of disability due to her accepted employment
injury, the Board finds that she has not met her burden of proof.

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CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing
that on June 23, 2005 she sustained a recurrence of disability that was causally related to
her accepted injury.

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ORDER
IT IS HEREBY ORDERED THAT the October 13 and February 1, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 21, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Portland, OR, Employer
__________________________________________

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Appearances:
John Eiler Goodwin, Esq., for the appellant
Miriam D. Ozur, for the Director

Docket No. 09-1816
Issued: March 17, 2010

Oral Argument September 9, 2009

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

JURISDICTION
On May 29, 2009 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated May 7, 2009, which found that the Office used the
correct rate of pay in awarding compensation. The Board also has jurisdiction over a May 11,
2009 wage-earning capacity decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this appeal.
ISSUES
The issues are: (1) whether the Office used the correct rate of pay in computing
appellant’s compensation; and (2) whether the Office properly determined appellant’s loss of
wage-earning capacity effective May 11, 2009.
FACTUAL HISTORY
This is the second appeal in the present case.1 In a decision dated December 23, 2008,
the Board set aside the Office decision dated May 3, 2007 and remanded the case for further
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Docket No. 08-224 (issued December 23, 2008).

development on appellant’s pay rate.2 The Board found that the Office did not use a correct pay
rate in computing appellant’s entitlement to compensation.
In a decision dated May 7, 2009, the Office reissued the May 3, 2007 pay rate
determination finding that appellant’s weekly pay rate for compensation purposes was $998.29.
By decision dated May 11, 2009, the Office found that appellant had been employed as a
full-time nurse with wages of $1,203.43 per week. It noted that this employment was effective
on January 6, 2009, and the position fairly and reasonably represented her wage-earning
capacity. The Office noted that appellant demonstrated the ability to perform the duties of this
job for two months or more and the position was considered suitable to her partially disabled
condition. It noted appellant’s compensation was reduced effective January 6, 2009.
On May 16, 2009 appellant through her attorney requested an oral hearing. On May 29,
2009 appellant appealed her case to the Board.
LEGAL PRECEDENT
The Board has final authority to determine questions of law and fact. Its
determinations are binding upon the Office and must, of necessity, be so accepted and acted
upon by the Director of the Office. Otherwise, there could be no finality of decisions and the
whole procedure would be nullified and questions would remain moot.3
Section 501.6(c)-(d) of the Office’s implementing federal regulations provides:
“The decisions and orders of the Board are final as to the subject matter appealed,
and such decisions and orders are not subject to review, except by the Board. The
decisions and orders of the Board will be final upon the expiration of 30 days
from the date of issuance unless the Board has fixed a different period of time
therein. Following the expiration of that time, the Board no longer retains
jurisdiction over the appeal unless a timely petition for reconsideration is
submitted and granted.”4
Section 501.7 of the Office’s implementing federal regulations provides:
“Appellant or the Director may file a petition for reconsideration of a decision or order
issued by the Board within 30 days of the date of issuance, unless another time period is
specified in the Board’s order.”5

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On August 24, 2003 appellant, a 40-year-old registered nurse, injured her right thumb while attempting to
restrain a patient. She was hired as a part-time temporary employee and began working on October 20, 2002. The
Office accepted that appellant sustained a right thumb sprain and authorized surgery on the first metacarpal of the
right hand, which was performed on February 19, 2004.
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See Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976); Anthony Greco, 3 ECAB 84, 85 (1949).

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20 C.F.R. § 501.6(c)-(d).

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Id. at § 501.7.

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ANALYSIS
A copy of the Board’s December 23, 2008 decision was sent to the parties, and the case
record returned to the Office.6 The decision set aside a May 3, 2007 Office determination of
appellant’s pay rate as it pertained to her wage-earning capacity and directed that further action
be taken. Under the Board’s Rules of Procedure, the decision became final as to the subject
matter appealed after the expiration of 30 days.7 The Board has the authority to reopen a
decision upon the filing of a petition for reconsideration within the applicable time period.8
As no petition for reconsideration was filed from the December 23, 2008 decision, it was
incumbent upon the Office to act on appellant’s pay rate as directed by the Board. The decision
became the law of the case. As stated in Anthony Greco:
“The Board has final authority to determine questions of law and fact. Its
determinations are binding upon the [Office] and must, of necessity, be so
accepted and acted upon by the Director. Otherwise there could be no finality of
decisions; the whole appeals procedure would be nullified and questions would
remain moot.”9
In a May 7, 2009 decision, the Office reissued the May 3, 2007 pay rate determination as
it pertained to appellant’s wage-earning capacity and did not follow the Board’s remand
instructions.10 In a May 11, 2009 decision, it used the pay rate determination of May 7, 2009 in
calculating appellant’s loss of wage-earning capacity. No new or material evidence was
submitted to the record. In such case, the December 23, 2008 determination of the Board was
final as to the subject matter appealed.
At oral argument in the present appeal, the Director of the Office contended that there
was error in the Board’s prior pay rate determination.11
As noted above, the Board has final authority to determine questions of law and fact. Its
determinations are binding upon the Office and must, of necessity, be so accepted and acted

6

Id. at § 501.6(a). See supra note 1.

7

Id. at § 501.6(d).

8

Id. at § 501.7(a). The Board retains authority to reopen a decision on its own motion within 30 days of the date
of the decision.
9

Supra note 3 at 85.

10

In an August 13, 2009 decision, an Office hearing representative found that the district Office did not adhere to
the Board’s instructions and remanded it for a redetermination of appellant’s wage-earning capacity. Subsequently,
in an August 28, 2009 decision, another hearing representative vacated the August 13, 2009 decision and affirmed
the May 11, 2009 Office decision. As appellant filed her appeal to the Board on May 29, 2009, the decisions of the
hearing representatives are null and void under the principles set forth in Douglas E. Billings, 41 ECAB 880 (1990).
11

Docket No. 08-224 (issued December 23, 2008).

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upon by the Director of the Office.12 The Board finds that the Office failed to undertake
development of appellant’s pay rate in accordance with the Board’s December 23, 2008 decision.
The case will be set aside and remanded to the Office for further development concerning
appellant’s pay rate in accordance with its December 23, 2008 decision. Following any such
further development as deemed necessary, it shall issue an appropriate decision in this case.13
CONCLUSION
The Board finds that case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 11 and 7, 2009 decisions of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further development
consistent with this decision.
Issued: March 17, 2010
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

12

See Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976), Anthony Greco, supra 3. See also Frank W. White,
42 ECAB 693 (1991) (Board’s order in a prior appeal imposed an obligation on the Director to take particular
actions as directed).
13

The Board finds that it is unnecessary to address whether the Office properly determined appellant’s loss of
wage-earning capacity on May 11, 2009 in view of the Board’s disposition of the first issue.

4