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

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Appearances:
Debra Hauer, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1421
Issued: November 14, 2014

Case Submitted on the Record

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

JURISDICTION
On June 9, 2014 appellant, through his attorney, filed a timely appeal from April 16 and
May 7, 2014 merit decisions of the Office of Workers’ Compensation Programs (OWCP) which
denied her traumatic injury claim. 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 sustained an injury in the performance of duty on
November 25, 2011.
FACTUAL HISTORY
On February 15, 2012 appellant, then a 51-year-old temporary employee letter carrier,
filed a traumatic injury claim alleging that on November 25, 2011 he slipped while stepping into
1

5 U.S.C. § 8101 et seq.

his postal vehicle and sustained injuries to his right ankle, right knee and lower back. He did not
stop work.2
On the claim form, Roy Russell, appellant’s supervisor, checked “no” to the question of
whether appellant’s injury occurred in the performance of duty. He stated that appellant was
terminated from employment on January 17, 2012 and did not turn in a traumatic injury form
until February 27, 2012. Mr. Russell also noted that appellant did not submit any medical
evidence along with his claim. He submitted a termination letter dated January 17, 2012 which
indicated that appellant was terminated from employment due to “unacceptable work
performance.”
In a workers’ compensation history form dated January 23, 2012, appellant indicated that
the date of his present injury was January 17, 2012. He reported that he was delivering mail in
the afternoon when he “had accident when stepped off of curb.”
In reports dated January 23 to April 18, 2012, Dr. Mahe T. Nadeem, Board-certified in
physical medicine and rehabilitation, stated that he examined appellant for complaints of pain in
his right knee radiating down the right leg and in his lower back. He related that appellant was
out delivering mail on a new route when he stepped off the curb, missed a step and fell down.
Upon examination of the right knee, Dr. Nadeem observed mild and moderate tenderness on the
medial joint line and present crepitus. Examination of the lumbar spine demonstrated moderate
tenderness right L5-S1 and mild on the left L5-S1 on spinous processes. Dr. Nadeem provided
range of motion findings and reported no tenderness bilaterally of the sacroiliac joint, greater
trochanter and sciatic notch. Straight leg raise testing was positive on the right. Dr. Nadeem
reported that a January 24, 2012 x-ray of appellant’s right knee revealed no fracture and mild
decrease of the medial joint space. He diagnosed lumbar disc injury and right knee internal
derangement. Dr. Nadeem opined that the injuries sustained were directly related to appellant’s
employment.
In a February 17, 2012 statement, Mr. Russell stated that on February 17, 2012 appellant
entered his office and demanded that he sign CA-1 and CA-2 forms. He noted that appellant had
never reported any on-the-job injury from November 25, 2011 up to that date and pointed out
that appellant was terminated from employment on January 17, 2012. Mr. Russell also reported
that on January 25, 2012 he received a fax from a medical clinic about a CA-17 form for
appellant with a date of injury of January 17, 2012.
In a March 9, 2012 investigative report, Special Agent Krafels of the U.S. Office of the
Inspector General stated that on February 15, 2012 appellant filed a questionable on-the-job
injury claim for an injury to his right foot, ankle and knee, which allegedly occurred on
November 25, 2011. He reported that the investigation revealed that appellant was terminated
from employment on January 17, 2012 due to poor performance, changed the story of how the
2

The record reveals that on February 15, 2012 appellant also filed an occupational disease claim which indicated
that on November 25, 2011 he slipped on the step of his postal vehicle. He also noted that he was “always stepping
on holes and tripping.” The claim was assigned File No. xxxxxx557. On April 2, 2012 OWCP determined that File
No. xxxxxx557 was a duplicate filing of the traumatic injury claim and would be deleted from the records system.
All documentation in that file was incorporated into File No. xxxxxx321, traumatic injury claim.

2

alleged work injury happened when he reported it to the employing establishment and the
doctor’s office and reported two different dates of injury. Special Agent Krafels noted that he
spoke with the office manager where appellant received medical treatment. He was informed
that appellant was first treated on January 23, 2012 and had told Dr. Nadeem that he sustained
injuries to his right knee and lower back on January 17, 2012 when he stepped off the curb
wrong and fell down. Special Agent Krafels also described an interview he had with appellant
on March 2, 2012 and provided the memorandum of interview. He reported that it was apparent
that appellant’s injury did not happen as reported and was filed a month after he was terminated
for poor performance. Agent Krafels explained that throughout the investigation appellant
continually changed his story as to how and where the alleged injury happened. He requested
that appellant’s claim be denied based on the facts presented.
By letter dated March 13, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested additional factual evidence to demonstrate
that he actually experienced the incident at the time, place and in the manner alleged and
additional medical evidence to establish that he sustained a diagnosed condition as a result of the
employment incident.
Appellant submitted various reports by Dr. Nadeem dated March 21 to April 5, 2012,
which described a January 17, 2012 employment injury and the medical treatment appellant
received.
In a decision dated May 8, 2012, OWCP denied appellant’s claim finding that fact of
injury had not been established. It determined that the factual evidence did not demonstrate that
the November 25, 2011 incident occurred at the time, place and in the manner that appellant
alleged.
On May 24, 2012 OWCP received appellant’s request for a telephone hearing. On
September 18, 2012 a telephone hearing was held. Appellant was represented by his attorney,
Tim Egbuchunam. He alleged that the employing establishment never controverted appellant’s
claim but merely stated that more evidence was coming and that there were no inconsistencies
regarding the alleged November 25, 2011 employment incident. Mr. Egbuchunam also pointed
out that Dr. Nadeem corrected the earlier description of the November 25, 2011 incident, which
was now consistent with the facts. He stated that appellant’s claim was a simple traumatic injury
claim and that OWCP erred by not reviewing the evidence on its own merit.
In a May 15, 2012 report, Dr. Nadeem provided a “corrected history.” He stated that
appellant was examined for injuries sustained on the job when he was delivering mail and
attempted to step into the mail car but he missed the step and almost fell down. Although
appellant was able to catch his balance, he experienced sharp pain in his right knee and lower
back. Dr. Nadeem reviewed appellant’s history and conducted an examination. He provided
examination findings similar to his previous reports and diagnosed lumbar disc injury and right
knee internal derangement. Dr. Nadeem opined that the injuries appellant sustained were
directly related to his employment. Appellant also resubmitted Dr. Nadeem’s various other
reports.

3

In a May 15, 2012 letter, Dr. Nadeem stated that on November 25, 2011 appellant was
working as a postal worker when he slipped on the step of the postal vehicle and almost fell. He
noted that appellant recovered his balance but twisted his right knee and experienced low back
and right knee pain. Dr. Nadeem explained that appellant hyperextended his back and twisted
his right knee, resulting in an injury to the internal anatomy of the right knee and most likely a
slipped disc in his low back. He reviewed appellant’s history and noted that a January 24, 2012
x-ray of the right knee showed decreased medial joint line and arthritic changes. Dr. Nadeem
provided physical examination findings and diagnosed lumbar and right knee sprain. In
subsequent reports dated August 30 to September 14, 2012, he continued to provide medical
treatment for appellant for his alleged November 25, 2011 employment injury.
On May 23, 2012 appellant also underwent magnetic resonance imaging (MRI) scan
examinations of the lumbar spine and right knee. The examinations revealed a two-millimeter
broad-based annular bulge which touched and effaced the thecal sac and L4-5 of the lumbar
spine and evidence of a marginal tear within the posterior horn of the lateral meniscus and
posterior horn of the medial meniscus of the right knee.
By decision dated December 4, 2012, an OWCP hearing representative affirmed the
May 8, 2012 denial decision.
In letters received by OWCP on March 18 and April 12, 2013, appellant requested that
OWCP reconsider its decision. He stated that on November 25, 2011 he injured himself when
stepping into a vehicle and that on January 17, 2012 he sustained a reinjury of the November 25,
2011 injury. Appellant stated that he did not initially report the November 25, 2011 incident
because he feared he would lose his job and because he hoped that he would get better on his
own. He noted that on January 25, 2012 he sought medical treatment for his continued knee and
lower back pain and was advised to remain off work for a week. Appellant related the knee and
back pain he continued to experience and the stress he was under due to financial problems and
his father-in-law’s health problems. He further contended that the employing establishment and
Special Agent Krafels had acted maliciously and committed federal crimes in preventing him
from obtaining medical treatment. Appellant submitted another letter from Dr. Nadeem dated
May 14, 2013.
In a February 13, 2013 report, Dr. Jacqueline Le, a Board-certified family practitioner,
examined appellant for lumbago with lumbar radiculitis condition. She noted that appellant was
setting up the MRI scan study and would receive pain management specialist for his pain in the
meantime. Appellant underwent another MRI scan of the lumbar spine which revealed mild
spondylosis and disc desiccation of the L5-S1 and L4-5 and mild degenerative changes, most
pronounced at L4-5, acute stress reactive changes in right L5 pedicle and superior articular facet
and mild-to-moderate bilateral neuroforaminal stenosis.
By decision dated July 11, 2013, OWCP denied modification of the December 4, 2012
denial decision. It found that the new evidence submitted did not resolve the discrepancies in the
evidence of record and the initial differing explanations in appellant’s medical history.
In a letter received on January 24, 2014, appellant, through his attorney, requested
reconsideration. He alleged that Dr. Nadeem provided a comprehensive medical report based on

4

a detailed review of appellant’s medical history and physical assessment which provided the
necessary evidence for OWCP to accept appellant’s claim.
In a November 1, 2013 report, Dr. Don West, Board-certified in physical medicine and
rehabilitation, noted appellant’s complaints of severe pain in the lower back and both legs. He
related that appellant was injured on the job on July 25, 2011 and that an MRI scan of the lumbar
spine revealed bulging discs of the lower two levels with minimal nerve root irritation and facet
changes. Upon examination, Dr. West observed no lumbar tenderness and intact lower
extremities. Straight leg raise testing was negative bilaterally. Dr. West diagnosed discogenic
low back pain and bilateral lumbar radiculitis.
In a January 24, 2014 causation letter, Dr. Nadeem stated that on November 25, 2011
appellant was out delivering mail when he stepped into the mail car and missed a step. Although
appellant was able to recover his balance and not fall down he experienced sharp pain in his right
knee and lower back. He continued to deliver mail. Dr. Nadeem explained that, when a person
misses a step, the full weight of the body is supported by the upper leg, knee and lower leg
closest to the ground as the other leg is in the air. He noted that the phase of the gait, known as
the terminal stance, puts all of the weight of the body on the menisci of the knee and discs of the
low back. Dr. Nadeem reported that, when the body is unprepared, such as during a misstep, and
lands with the full weight of the body this traumatic impact could damage the menisci and discs
which are “shock” absorbers. When additional weight is added such as a load of mail, this
tremendous amount of stress could cause tears in the menisci of the knee and discs in the lumbar
region. Dr. Nadeem reported that appellant’s right knee meniscal tear and lumbar disc bulge
were causally related to the occupational injury occurring on November 25, 2011. He also
provided medical treatment for appellant in reports dated August 22, 2013 to March 20, 2014.
In a decision dated May 7, 2014, OWCP denied modification of the July 11, 2013 denial
decision. It determined that the factual evidence remained insufficient to resolve the
discrepancies in the factual element of his traumatic injury claim and to establish that the
employment incident occurred as he alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an employee with
the United States within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA, that an injury was sustained in the performance of
duty as alleged, and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.3 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated upon a traumatic
injury or an occupational disease.4

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1999).

5

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of probative medical
evidence, to establish that the employment incident caused a personal injury.6
An employee has the burden of establishing the occurrence of an injury at the time, place
and in the manner alleged, by a preponderance of the reliable, probative and substantial
evidence. An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, as alleged, but the employee’s
statements must be consistent with surrounding facts and circumstances and his or her
subsequent course of action.7 An employee has not met his or her burden of proof to establish
the occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient
doubt on an employee’s statement in determining whether a prima facie case has been
established. An employee’s statement alleging that an injury occurred at a given time and in a
given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.8
The employee must also submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.9 To establish a
causal relationship between the condition, as well as any attendant disability claimed and the
employment event, the employee must submit rationalized medical opinion evidence, based on a
complete factual and medical background, supporting such a causal relationship.10
ANALYSIS
Appellant alleges that on November 25, 2011 he sustained injuries to his right ankle, right
knee and lower back when he slipped while stepping into his mail vehicle. He did not stop work
and filed a traumatic injury claim on February 15, 2012. OWCP denied appellant’s claim
finding insufficient evidence to establish fact of injury. The Board finds that OWCP properly

5

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

6

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

7

Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
8

D.B., 58 ECAB 529 (2007); Robert A. Gregory, 40 ECAB 478 (1989); Thelma S. Buffington, 34 ECAB
104 (1982).
9

J.Z., 58 ECAB 529 (2007).

10

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

6

found that the factual evidence is insufficient to establish that the November 25, 2011
employment incident occurred at the time, place and in the manner alleged.
The Board finds that there are numerous and serious inconsistencies in the evidence as to
cast doubt upon the validity of appellant’s statement that he sustained an injury on November 25,
2011 in the performance of duty. In the February 15, 2012 claim form, appellant alleged that the
injury occurred on November 25, 2011. In a January 23, 2012 form, however, he reported the
date of his present injury as January 17, 2012 and explained that he “had accident when stepped
off of curb.” Appellant’s supervisor also stated that on January 25, 2012 he received a fax from
a medical clinic about a CA-17 form with a date of injury of January 17, 2012. In an interview
with Special Agent Krafels, appellant also provided varying accounts as to how and where the
alleged injury happened. The Board finds that these above-mentioned inconsistencies call into
serious question appellant’s account of the alleged November 25, 2011 incident.11
Appellant’s subsequent course of conduct also fails to support that the November 25,
2011 incident occurred as alleged. The record reflects that he delayed in filing a traumatic injury
claim for the alleged November 25, 2011 work injury until February 15, 2012. In various
statements, appellant explained that he did not initially report the November 25, 2011
employment incident because he was waiting to see if he improved on his own and because he
feared he would lose his job if he reported the injury. The Board notes, however, that in the
February 15, 2012 occupational disease claim form he explained that he did not file a claim
within 30 days because he was “always stepping on holes and tripping.” Doubt is further raised
by the fact that appellant waited until after he was no longer employed to file his claim and did
not promptly notify anyone of the November 25, 2011 employment incident. As previously
noted, late notification of injury, if otherwise unexplained, may cast doubt on an employee’s
statement that an injury occurred as alleged.12 The Board notes that appellant did not adequately
explain why he delayed so long in filing his claim.
Appellant also delayed in seeking medical attention and continued to work following the
alleged November 25, 2011 incident. The record reveals that he did not seek medical treatment
until January 23, 2012, more than two months after the alleged injury occurred. The earliest
medical report received is dated January 23, 2012 by Dr. Nadeem, who related that appellant
sustained an injury on January 17, 2012 when he stepped off the curb, missed a step and almost
fell down. The Board notes that although Dr. Nadeem provided a “corrected history” of
appellant’s alleged injury in later reports and described the November 25, 2011 incident as
appellant alleged, this correct description by only one person is insufficient to rebut the other
inconsistencies and evidence in the record. There is no other medical evidence in the record that
provides an accurate history of the alleged November 25, 2011 incident as appellant described.
On the other hand, in a November 1, 2013 report, Dr. West related that appellant was injured on
the job on July 25, 2011. Although appellant indicated that he was waiting to see if the injury
was permanent, the Board finds that he did not adequately explain why his delay in seeking
medical treatment was so long given the severity of the injuries that he claimed.

11

See R.M., Docket No. 13-173 (issued April 16, 2013); R.R., Docket No. 11-919 (issued December 19, 2011).

12

Supra note 8.

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Although an employee’s statement alleging that an injury occurred at a given time and in
a given manner is generally accorded great probative value, there is strong persuasive evidence
refuting appellant’s account of the events of November 25, 2011. The Board finds that appellant
has not established the occurrence of the November 25, 2011 work incident as alleged and
therefore has not established that he sustained an injury on November 25, 2011 in the
performance of duty.
On appeal, appellant’s attorney alleges that appellant has satisfied all five elements
necessary to establish his claim. She contended that appellant’s account of the injury should be
given great probative value because it was not refuted by strong or persuasive evidence. Counsel
explained that appellant never changed the account of what happened but his doctor erred in
providing an incorrect history. Despite these explanations, however, the Board finds that
appellant has still not provided a preponderance of the reliable, probative, and substantial
evidence that the November 25, 2011 incident occurred at the time, place and in the manner
alleged.
Appellant’s attorney also references the Board’s decision in C.C. v. Department of
Justice, Docket No. 10-2054 (issued July 8, 2011) in support of his claim. The Board finds,
however, that that case substantially differentiates from appellant’s present claim. In that case,
the Board set aside OWCP’s July 7, 2010 decision and found that the November 1, 2009
employment incident occurred as alleged. Unlike appellant’s present claim, the employee in that
case promptly sought medical treatment from the employee health unit and from the hospital
emergency room on the day of the alleged injury. In addition, the only inconsistencies in that
case record were from the employing establishment whereas in appellant’s present claim there
are inconsistencies in appellant’s statements themselves along with the medical record. The
Board finds that appellant did not submit evidence to establish that he actually experienced an
employment incident at the time, place and in the manner alleged. Accordingly, he failed to
establish fact of injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on November 25, 2011.

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ORDER
IT IS HEREBY ORDERED THAT the May 7 and April 16, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 14, 2014
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Devon, PA, Employer
)
__________________________________________ )
M.S., Appellant

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1246
Issued: December 7, 2010

Case Submitted on the Record

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

JURISDICTION
On April 1, 2010 appellant filed a timely appeal from the December 9, 2009 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has any impairment to her left lower extremity.
FACTUAL HISTORY
On October 1, 2001 appellant, then a 46-year-old mail handler, sprained her left ankle
while exiting her vehicle in the employing establishment parking lot. On April 8, 2009 she filed
a claim for a schedule award.
On October 1, 2001 Dr. Roy Stahlman noted that a left ankle x-ray revealed swelling but
no fracture. He diagnosed a left ankle sprain and placed appellant on sedentary work. An
October 9, 2001 magnetic resonance imaging (MRI) scan revealed a possible bone contusion

involving the inferior talar neck and head. On October 25, 2001 Dr. Craig A. Reigel, an
orthopedic specialist, provided findings on examination and noted that left ankle x-rays were
within normal limits and an MRI scan revealed increased uptake in the talar neck and also an
effusion. He diagnosed a left lateral ankle sprain. On November 13, 2001 Dr. Stahlman noted
that the left ankle sprain had resolved and the physical examination was normal. Appellant was
released to regular work without restrictions. A December 7, 2001 MRI scan of the left ankle
was normal. On December 10, 2001 Dr. Stahlman reported a normal examination and diagnosed
a resolved left ankle sprain. He returned appellant to regular work without restrictions and
discharged her from treatment.
In a February 19, 2009 report, Dr. Nicholas Diamond, an osteopathic physician, reviewed
the medical history and provided findings on physical examination. He noted that appellant
denied any ongoing left ankle pain. Appellant ambulated with a symmetrical gait and was able
to get on and off the examination table without difficulty. Calcaneal and equinus gait were
carried through within normal limits. Appellant had no gross effusion in her left ankle. There
was no tenderness over the medial malleolus, anterior talofibular ligament, subtalar joint or
common peroneal or posterior tibia. There was tenderness over the lateral malleolus and deltoid
ligament. Range of motion testing revealed dorsiflexion of 15/15 degrees, plantar flexion of
50/55 degrees, inversion of 35/35 degrees and eversion of 25/35 degrees. Anterior drawer sign
was negative. Single heel raise was negative. Manual muscle strength testing revealed
dorsiflexion, plantar flexion and eversion at 5/5/on the left. Inversion was graded at 4+/5 to 5/5
on the left. The gastrocnemius was 5/5. Sensory examination of the left lower extremity was
normal. Deep tendon reflexes were +2 and physiological. Gastrocnemius muscle (calf)
circumferential measurements were 35 centimeters (cm) on the right and 36.5 cm on the left.
Ankle joint circumferential measurements revealed 23.5 cm on the right and 24 cm on the left.
Dr. Diamond rated appellant’s left leg impairment at six percent for left calf atrophy, according
to Table 17.6 at page 530 of the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (the A.M.A., Guides).1
On April 20, 2009 Dr. Arnold T. Berman, an Office medical adviser, noted that appellant
reported no ongoing left ankle pain on examination by Dr. Diamond. He stated that left calf
atrophy was not consistent with normal functioning and noted a lack of pain for eight years after
the October 1, 2001 left ankle sprain. Dr. Berman found no left ankle impairment.
By decision dated April 30, 2009, the Office denied appellant’s claim for a schedule
award.
Appellant requested a hearing that was held on October 15, 2009.
By decision dated December 9, 2009, an Office hearing representative affirmed the
April 30, 2009 decision.

1

There is no medical evidence regarding appellant’s left ankle between December 2001 and February 2009.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 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, the Act 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 to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.4
ANALYSIS
Appellant sustained a left ankle sprain on October 1, 2001 while in the performance of
duty. A December 7, 2001 MRI scan of the left ankle was normal. On December 10, 2001
Dr. Stahlman reported a normal examination and diagnosed a resolved left ankle sprain. He
returned appellant to regular work without restrictions and discharged her from treatment. There
is no further medical evidence regarding her left ankle until 2009.
On February 19, 2009 Dr. Diamond noted that appellant denied any ongoing left ankle
pain. She ambulated with a symmetrical gait and was able to get on and off the examination
table without difficulty. Calcaneal and equinus gait were carried through within normal limits.
Appellant had no gross effusion in her left ankle. There was no tenderness over the medial
malleolus, anterior talofibular ligament, subtalar joint or common peroneal or posterior tibia.
There was tenderness over the lateral malleolus and deltoid ligament. Range of motion testing
revealed dorsiflexion of 15/15 degrees, plantar flexion of 50/55 degrees, inversion of 35/35
degrees and eversion of 25/35 degrees. Anterior drawer sign was negative. Single heel raise was
negative. Manual muscle strength testing revealed dorsiflexion, plantar flexion and eversion at
5/5/on the left. Inversion was graded at 4+/5 to 5/5 on the left. The gastrocnemius was 5/5.
Sensory examination of the left lower extremity was normal. Deep tendon reflexes were +2 and
physiological. Gastrocnemius circumferential measurements were 35 cm on the right and 36.5
cm on the left. Ankle joint circumferential measurements revealed 23.5 cm on the right and 24
cm on the left. Dr. Diamond rated appellant’s left ankle impairment at six percent for left calf
(gastrocnemius muscle) atrophy, according to Table 17.6 at page 530 of the fifth edition of the
A.M.A., Guides). However, the calf measurements taken by Dr. Diamond revealed that the
gastrocnemius muscle in the left leg was larger than the muscle in the uninjured right leg. This is
not consistent with atrophy of the left calf. An atrophied left calf would be smaller in
circumference compared to the right calf. An impairment rating based on left calf atrophy is not
fully explained based on Dr. Diamond’s physical examination of appellant’s left leg.

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id.

3

Dr. Berman noted that appellant reported no ongoing left ankle pain on examination by
Dr. Diamond. Left calf atrophy was not consistent with a history of normal functioning and the
lack of any history of pain for eight years after the October 1, 2001 left ankle sprain. Dr. Berman
found no left ankle impairment based on Dr. Diamond’s report and the medical evidence of
record.
On appeal appellant contends that there is a conflict between Dr. Diamond, who found
six percent left leg impairment, and Dr. Berman, who found no impairment.
As noted,
Dr. Diamond’s finding of left leg atrophy is not adequately explained in light of the physical
findings in his report. His opinion on the issue of impairment is of diminished probative value or
to create a conflict with Dr. Berman.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she had
left ankle permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the December 9, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2010
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Honolulu, HI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 12-1973
Issued: February 12, 2013

Case Submitted on the Record

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

On September 27, 2012 appellant, through her attorney, filed a timely appeal from a
September 5, 2012 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).
This case has been before the Board on a prior appeal. In a decision dated August 6,
2012 the Board found, in part, that OWCP had erroneously applied the clear evidence of error
standard of review to appellant’s June 27, 2011 timely request for reconsideration and remanded
that aspect of the case for an appropriate decision.1
On September 5, 2012 OWCP again denied appellant’s June 27, 2011 decision as
untimely and insufficient to establish clear evidence of error of its May 6, 2010 decision. It
noted the Board had “inadvertently referenced a separate reconsideration request that was
decided [by OWCP] on June 21, 2011.”
The requests for reconsideration in this case are premised on appellant’s wage loss claim
for disability from February 10 to March 6, 2010. Appellant’s claim was first denied in OWCP’s
1

Docket No. 12-338 (issued August 6, 2012).

decision of May 6, 2010. Thereafter, on December 13, 2010, the Branch of Hearings and
Review remanded the case to OWCP for acceptance of additional conditions. The district
OWCP was directed to review the medical evidence in light of the newly accepted conditions
and issue a merit decision on appellant’s claim of disability from February 10 to March 6, 2010.
After further review, OWCP issued a May 12, 2011 decision again denying appellant’s
claim.
On July 5, 2011 appellant submitted a form requesting further reconsideration, but he did
not utilize the appeal rights form attached to the May 12, 2011 decision. Rather, the record
reflects he utilized a copy of the appeal rights form attached to the May 6, 2010 decision, as that
is the preprinted date on the form. Appellant signed his request form on June 27, 2011.
In the August 6, 2012 decision, the Board found that appellant’s June 27, 2011 request
was for reconsideration of the May 12, 2011 merit decision, despite his use of the form attached
to the prior May 6, 2010 decision. As his request was timely, the case was remanded to OWCP
for application of proper legal standard.
By decision dated September 5, 2012, OWCP again denied appellant’s June 27, 2011
request as untimely and insufficient to establish clear evidence of error. It is apparent that
OWCP considered appellant’s request in relation to the May 6, 2010 decision rather than the
May 12, 2011 merit decision. OWCP’s procedure manual states that when reviewing requests
for reconsideration, it “should review the file to determine whether the application for
reconsideration was received within one year of a merit decision.”2 As the May 12, 2011 merit
decision adjudicated the same issue as that of the May 6, 2010 decision, the May 6, 2010
decision was not the last merit decision on that issue. As a one year period of review is attached
to the last merit decision of May 12, 2011,3 appellant’s June 27, 2011 request is not untimely, as
the Board previously found.
The case is again remanded to OWCP to issue a decision under the proper standard of
review for timely requests for reconsideration.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602(4)(b) (June 1997).

3

Id. at Chapter 2.1602(4)(a) (June 1997).

2

IT IS HEREBY ORDERED THAT the September 5, 2012 Office of Workers’
Compensation Programs’ decision is set aside. The case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: February 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRASPORTATION SECURITY
ADMINISTRATION, Dallas, TX, Employer
__________________________________________

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

Docket No. 09-1597
Issued: February 4, 2010

Case Submitted on the Record

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

JURISDICTION
On June 8, 2009 appellant filed a timely appeal from a February 17, 2009 merit decision
of the Office of Workers’ Compensation Programs suspending her compensation. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly suspended appellant’s compensation pursuant to
5 U.S.C. § 8123(d).
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated November 4, 2008,
the Board affirmed a May 25, 2007 Office decision denying compensation for the periods

September 2 to 4, 2006 and September 14, 2006 to January 4, 2007.1 The history of the case as
provided in the Board’s prior decision is incorporated herein by reference.
The Office referred appellant for examination by Dr. Donald Mauldin, an orthopedic
surgeon, for a second opinion regarding her current medical condition and disability for work. In
a report dated December 23, 2008, Dr. Mauldin indicated that appellant was examined on
December 18, 2008 and he reported that a functional capacity evaluation (FCE) would be
performed. Based on the results, he would complete an OWCP-5 work restriction evaluation
form.
In a letter dated December 24, 2008, QTC Medical Services reported that, while
Dr. Mauldin had recommended an FCE on December 18, 2008, appellant had cancelled because
“her treating physician told her she cannot do it.” On December 29, 2008 the Office received a
December 18, 2008 report from Dr. Anthony Hicks, an attending physician who stated that an
FCE was contraindicated because “no additional clinically useful (i.e., new information) could
be obtained” by such an examination. Dr. Hicks stated that there were significant risks
associated with an FCE, including worsening of complaints and creation of new unrelated
physical complaints. He stated that it was common practice to ask the treating physician if a
recommended intervention should be completed and a willingness to act on other physician’s
recommendations was inappropriate.
By letter dated January 9, 2009, the Office advised appellant of a scheduled examination
with Dr. William Osborne on January 21, 2009 for an FCE. Appellant did not attend the
scheduled examination. In a letter dated January 30, 2009, the Office advised her that it
proposed to suspend her compensation for her failure to attend the scheduled FCE examination.
Appellant was provided 14 days to submit written reasons for her failure to attend and if good
cause was not shown her compensation would be suspended pursuant to 5 U.S.C. § 8123(d). The
record indicates that the Office also issued a January 30, 2009 letter to appellant notifying her the
examination with Dr. Osborne had been rescheduled for February 10, 2009. Appellant did not
attend the February 10, 2009 examination.
On February 11, 2009 appellant resubmitted the December 18, 2008 report from
Dr. Hicks. In a February 5, 2009 letter, she reiterated that she did not attend the FCE on the
advice of her physician.
By decision dated February 17, 2009, the Office suspended appellant’s entitlement to
compensation effective February 15, 2009.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act at 5 U.S.C. § 8123(d), “If an employee
refuses to submit to or obstructs an examination, [her] right to compensation under this
subchapter is suspended until the refusal or obstruction stops.” With regard to physical
examinations, 5 U.S.C. § 8123(a) provides that “an employee shall submit to examination by a
medical officer of the United States or by a physician designated or approved by the Secretary of
1

C.S., Docket No. 08-539 (issued November 4, 2008).

2

Labor, after the injury and as frequently and at the times and places as may be reasonably
required.” The regulations governing the administration of the Act also provide that “the
employee must submit to an examination by a qualified physician as often and at such times and
places as [the Office] considers reasonably necessary.”2
To invoke 5 U.S.C. § 8123(d), the Office must ensure that the claimant has been properly
notified of his or her responsibilities with respect to the medical examination scheduled. Either
the claims examiner or the medical management assistant may contact the physician directly and
make an appointment for examination. The claimant and representative, if any, must be notified
in writing of the name and address of the physician to whom he or she is being referred as well
as the date and time of the appointment. The notification of the appointment must contain a
warning that benefits may be suspended under 5 U.S.C. § 8123(d) for failure to report for
examination. The claimant must have a chance to present any objections to the Office’s choice
of physician or any reasons for failure to appear for the examination, before the Office acts to
suspend compensation.3
If the claimant does not report for a scheduled appointment, he or she should be asked in
writing to provide an explanation within 14 days. If good cause is not established, entitlement to
compensation is suspended in accordance with 5 U.S.C. § 8123(d) until the date on which the
claimant agrees to attend the examination.4
ANALYSIS
In this case, appellant was initially scheduled for an FCE on December 18, 2008, at the
request of the second opinion physician who examined her that day. After she cancelled the
appointment, the Office advised her that the FCE had been rescheduled for January 21, 2009.
Appellant was properly notified of the scheduled examination with Dr. Osborne by letter dated
January 9, 2009. When she did not appear for this scheduled examination, she was advised of
the provisions of 5 U.S.C. § 8123(d) and offered 14 days to provide good cause for her failure to
attend.5 The Board finds the Office properly notified appellant of the scheduled examination,
provided a warning that her benefits could be suspended and gave her an opportunity to respond.
The reason offered by appellant for her failure to attend the scheduled FCE was that her
attending physician advised her not to attend. In a December 18, 2008 report, Dr. Hicks opined
that no useful information could be obtained from the FCE. He does not, however, have the
authority to make such a determination under the Act. It is well established that the need for an
examination, the type of examination, choice of locale and choice of examiner are within the

2

20 C.F.R. § 10.320.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14 (July 2000).
4

Id.

5

In addition, the Office offered appellant another opportunity to attend as it scheduled an appointment for
February 10, 2009.

3

province and discretion of the Office.6 The only limitation is one of reasonableness.7 In this
case, the medical issue involves appellant’s current disability for work. Dr. Mauldin
recommended that an FCE be obtained to properly determine appellant’s work restrictions.
Dr. Hicks’ opinion that no useful information could be obtained by such testing is not well
rationalized. There is no evidence to establish that the FCE recommended by Dr. Mauldin was
unreasonable under the circumstances of the case.
Dr. Hicks also reported that an FCE was contraindicated because there were general risks
in such an examination of aggravation or additional injury. The record indicates appellant had
attended a prior FCE in 2006 and no evidence of any undue risk to her was presented. The
purpose of an FCE is to determine functional capacity. Dr. Hicks provided no explanation as to
why her capacity could not be evaluated in this case.8
The Board finds that appellant did not provide good cause for her refusal to submit to an
FCE. Pursuant to 5 U.S.C. § 8123(d), her compensation is properly suspended.
CONCLUSION
The Board finds the Office properly suspended compensation for refusal to submit to an
examination.

6

Dana D. Hudson, 57 ECAB 298, 304 (2006).

7

Scott R. Walsh, 56 ECAB 353 (2005); Donald E. Ewals, 51 ECAB 428 (2000).

8

The Board has held that the possibility of future injury does not form a basis for compensation. See F.R.,
58 ECAB 607 (2007); Andy J. Paloukos, 54 ECAB 712 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 17, 2009 is affirmed.
Issued: February 4, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 18-0692
Issued: June 5, 2020

Case Submitted on the Record

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

JURISDICTION
On February 13, 2018 appellant, through counsel, filed a timely appeal from an August 18,
2017 merit decision and a January 3, 2018 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the January 3, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant met his burden of proof to establish total disability
for the period November 14, 2015 to January 22, 2016 causally related to his accepted March 2,
2015 employment injury; and (2) whether OWCP properly denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 2, 2015 appellant, then a 60-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on that date he injured his right knee, right elbow, and right
hip when he fell on ice while loading packages while in the performance of duty. He did not stop
work.
By decision dated April 20, 2015, OWCP indicated that it had administratively approved
the payment of a limited amount of medical expenses because appellant appeared to have sustained
a minor injury that resulted in minimal or no lost time from work and the employing establishment
did not controvert continuation of pay or challenge the case. It noted that it had reopened the claim
for formal consideration of the merits and had accepted the conditions of right knee contusion,
right elbow contusion, right hip contusion, neck strain, and right shoulder strain as work related.
OWCP authorized appellant’s right shoulder surgery, which was performed by Dr. Luke S. Choi,
a Board-certified orthopedic surgeon, on June 23, 2015.4 Appellant stopped work in connection
with his surgery, returned to work on September 29, 2015 without restrictions, and then stopped
work again on November 14, 2015. He received wage-loss compensation for intermittent periods
of disability.
Appellant filed claims for wage-loss compensation (Form CA-7) for the period
November 14, 2015 to January 22, 2016.
Appellant submitted a November 16, 2015 report from Dr. Choi who advised that appellant
complained of diffuse pain in his right shoulder, both knees, and lower back. Dr. Choi noted that,
upon examination, appellant’s right shoulder exhibited good range of motion and good strength
without signs of an infectious process. He diagnosed status post right shoulder arthroscopy with
distal clavicle resection/biceps tenodesis and opined that appellant had reached maximum medical
improvement (MMI) at that time. Dr. Choi cleared appellant to return to work that day without
restrictions. In a November 16, 2015 work status report, he released appellant to return to fullduty work that day with no restrictions and no further treatment.
In reports dated November 18, 19, and 25 and December 3, 2015, Art McAlister, a physical
therapist, described the therapy sessions performed on those dates. Appellant also submitted
reports from attending physicians, which preceded his claimed period of disability, including
March 3 and April 29, 2015 reports by Dr. Charles Keefe, a Board-certified family practitioner.
In a December 8, 2015 development letter, OWCP advised appellant of the deficiencies of
his wage-loss claim and afforded him 30 days to submit additional evidence. It requested that his
physician submit a comprehensive narrative report which explained, with objective findings, how
4

The procedures performed included subacromial decompression with acromioplasty, labral debridement, open
subpectoral biceps tenodesis, distal clavicle resection, and rotator cuff debridement.

2

his work-related conditions had worsened such that he was no longer able to perform the duties of
the position he held when he stopped work on November 14, 2015.
In response, appellant submitted a December 2, 2015 report from Dr. John Ellena, a Boardcertified internist, who opined that appellant had permanent injury to his right shoulder, right wrist,
and right knee which occurred on the job. Dr. Ellena determined that appellant had reached MMI.
In an unsigned December 30, 2015 report, an unidentified care provider indicated that
appellant had suffered an injury at work, which required surgical repair. The care provider opined
that appellant was capable of returning to work on March 1, 2016 with restrictions.
Appellant also submitted numerous reports dated between June 2011 and October 2015
from attending physicians, including Dr. William Feinstein and Dr. Mitchell Rotman, Boardcertified orthopedic surgeons, and Dr. Bakul Dave, a Board-certified anesthesiologist. The reports
provided examination findings for multiple conditions involving appellant’s back and extremities.
By decision dated February 12, 2016, OWCP denied appellant’s wage-loss claim for the
period November 14, 2015 to January 22, 2016 because the medical evidence of record was
insufficient to establish disability due to the accepted March 2, 2015 employment injury.
Appellant subsequently submitted December 28, 2015 x-rays of the right hip which were
read as normal and cervical spine x-rays of even date, which revealed multi-segment cervical
degenerative disc disease, facet osteoarthritis, uncovertebral osteoarthritis with degenerative
olistheses, moderate lower cervical spine central canal stenosis, and moderate-to-severe bilateral
foraminal stenosis.
On January 4, 2017 appellant, through counsel, requested reconsideration of the
February 12, 2016 decision and submitted additional medical evidence.
In a January 18, 2016 report, Dr. James M. Goldring, a Board-certified neurologist,
indicated that appellant underwent right shoulder surgery in the summer of 2015 necessitated by a
fall-related injury, followed by a subsequent injury while doing exercises and physical therapy in
mid-November 2015. In the diagnosis portion of the report, he indicated that appellant had
continuing mild headaches, blurry vision, and shakiness which he identified as “likely all part of a
post-concussive syndrome,” as well as symptoms of neck pain radiating into the left arm which he
believed “could represent a cervical radiculopathy.” Dr. Goldring recommended that appellant
undergo physical therapy.
On March 1, 2016 Dr. Ellena indicated that appellant had reached MMI and could not
perform his current job duties. In a December 22, 2016 report, he discussed appellant’s neck
surgery on an unspecified date and right eye infection problems which followed the surgery.
Appellant also submitted physical therapy reports of Mr. McAlister dated January 20 and
22, 2016. He submitted additional reports from attending physicians dated between 2013 and
2015.
By decision dated August 18, 2017, OWCP denied modification of its February 2, 2016
decision.

3

On October 13, 2017 appellant, through counsel, requested reconsideration of the
August 18, 2017 decision and submitted an undated report from Dr. Prabakar K. Rao, a Boardcertified ophthalmologist, who noted that appellant was in a work accident on March 2, 2015 and
required surgery on his shoulder and neck. Dr. Rao indicated that appellant underwent neck
surgery in August 2016 and two weeks post operation developed a neck abscess. He noted that,
while appellant was in the hospital, he complained that he could no longer see and that he was
diagnosed with endophthalmitis and retinal detachment in the right eye. Dr. Rao indicated that in
September 2016 he performed right eye surgery to treat these conditions and opined that
appellant’s right eye injuries occurred due to his previous “neck surgery from his neck abscess.”5
By decision dated January 3, 2018, OWCP found that the evidence appellant submitted in
support of reconsideration was irrelevant to his claim for disability compensation for the period
November 14, 2015 to January 22, 2016 and therefore denied a merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability or specific condition for which compensation is claimed is causally related
to the employment injury.6
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.7 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.8 An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.9 When, however, the medical evidence
establishes that the residuals or sequelae of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for loss of wages.10
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must

5
Appellant also submitted a report of the September 6, 2016 right eye surgery, which included para plana
vitrectomy, vitreous biopsy, endolaser, intravitreal antibiotic injection, ﬂuid/air exchange, and insertion of
octafluoropropane gas in the right eye.
6

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

7

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

8

See L.W., Docket No. 17-1685 (issued October 9, 2018).

9

See D.G., Docket No. 18-0597 (issued October 3, 2018).

10

See D.R., Docket No. 18-0323 (issued October 2, 2018).

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be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the claimed disability and the accepted employment injury.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish total disability
from work for the period November 14, 2015 to January 22, 2016 causally related to his accepted
March 2, 2015 employment injury.
Appellant submitted a November 16, 2015 report from Dr. Choi who diagnosed status post
right shoulder arthroscopy with distal clavicle resection/biceps tenodesis, opined that appellant had
reached MMI, and released him to full-duty work effective November 16, 2015. In a December 2,
2015 report, Dr. Ellena indicated that appellant had a permanent injury that occurred on the job,
which included the right shoulder, wrist, and knee, and he opined that appellant had reached MMI.
On January 18, 2016 Dr. Goldring noted that appellant had continuing mild headaches, blurry
vision, and shakiness which he identified as “likely all part of a post concussive syndrome,” as
well as symptoms, which could represent a cervical radiculopathy. The Board notes, however,
that these reports have no probative value with respect to the underlying issue of this case because
they do not contain an opinion that appellant had disability from November 14, 2015 to January 22,
2016 due to the accepted March 2, 2015 employment injury. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition or disability
is of no probative value on the issue of causal relationship.12 Consequently, these reports are
insufficient to satisfy appellant’s burden of proof. Appellant submitted reports dated between June
2011 and October 2015 from Dr. Keefe, Dr. Feinstein, Dr. Rotman, and Dr. Dave. Moreover, he
also submitted a February 23, 2016 report of Dr. Choi, and March 1 and December 22, 2016
reports of Dr. Ellena. The Board notes that these reports do not address appellant’s medical
condition during the claimed period of disability, November 14, 2015 to January 22, 2016, and do
not contain an opinion on disability during that period. Therefore, they also have no probative
value on the underlying issue of this case.13
Appellant also submitted physical therapy reports of Mr. McAlister dated November 18,
2015 through January 22, 2016 in support of his claim. These documents do not constitute
competent medical evidence because a physical therapist is not a “physician” as defined under
FECA.14 Consequently, their medical findings and/or opinions will not suffice for purposes of
establishing entitlement to compensation benefits.15
Appellant submitted an unsigned
December 30, 2015 report in which an unidentified individual indicated that appellant underwent
surgery due to a work-related condition. However, this report has no probative value with respect
to the underlying issue of this case as the Board has held that unsigned reports cannot be considered

11

V.A., Docket No. 19-1123 (issued October 29, 2019).

12

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13

See id.

14

5 U.S.C. § 8101(2); S.T., Docket No. 17-0913 (issued June 23, 2017) (a physical therapist is not a physician under
FECA).
15

Id.

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probative medical evidence because they lack proper identification.16 The Board finds appellant’s
treating physicians have not provided rationalized medical opinion evidence establishing that he
was disabled during the period November 14, 2015 to January 22, 2016 causally related to the
accepted March 2, 2015 employment injury. Thus, appellant has not met his burden of proof to
establish that he is entitled to compensation for total disability.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.17
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.18
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.19 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.20 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.21

16

R.C., Docket No. 18-1639 (issued February 26, 2019). Appellant submitted diagnostic testing results from
December 2015. However, diagnostic studies lack probative value as they do not address whether employment factors
caused the diagnosed condition/disability. C.S., Docket No. 19-1279 (issued December 30, 2019).
17

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); V.P., Docket No. 17-1287 (issued
October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
18
20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
19

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
20

Id. at § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).

21

20 C.F.R. § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).

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ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s October 13, 2017 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. He also failed to advance a
relevant legal argument not previously considered by OWCP. For these reasons, the Board finds
that appellant is not entitled to further review of the merits of his claim based on the first and
second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
Additionally, the Board finds that appellant did not submit relevant and pertinent new
evidence not previously considered by OWCP. On reconsideration, appellant submitted an
undated report from Dr. Rao who indicated that appellant underwent neck surgery in August 2016
and two weeks postsurgery developed a neck abscess. While appellant was in the hospital, he
complained that he could no longer see and he was diagnosed with endophthalmitis and retinal
detachment in the right eye. Dr. Rao indicated that he had performed right eye surgery in
September 2016 and opined that appellant’s right eye injuries occurred due to his previous neck
surgery and resultant neck abscess. Appellant also submitted a report of the September 6, 2016
right eye surgery. The Board finds that submission of these reports does not require reopening
appellant’s case for merit review because they are not relevant to the underlying issue of the case,
i.e., whether appellant established disability from November 14, 2015 to January 22, 2016 causally
related to the accepted March 2, 2015 employment injury. Dr. Rao’s undated report and the
September 6, 2016 surgery report relate to appellant’s medical condition after the claimed period
of disability and Dr. Rao did not provide an opinion on the cause of disability during that period.
The Board further notes that OWCP has not accepted a neck abscess or right eye condition in this
case. Therefore, these reports do not constitute relevant and pertinent new evidence and are
insufficient to require OWCP to reopen appellant’s claim for consideration of the merits in
accordance with the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).22
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish total disability
for the period November 14, 2015 to January 22, 2016 causally related to his accepted March 2,
2015 employment injury. The Board further finds that OWCP properly denied appellant’s request
for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

22

See supra notes 18 and 21.

7

ORDER
IT IS HEREBY ORDERED THAT the January 3, 2018 and August 18, 2017 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 5, 2020
Washington, DC

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

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

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

8


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

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)
)
)
)
)
)
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)

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

Docket No. 18-0248
Issued: August 14, 2018

Case Submitted on the Record

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

JURISDICTION
On November 15, 2017 appellant filed a timely appeal from an August 3, 2017 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.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $20,237.63 for the period June 8, 2008 to March 5, 2016, for which she was not at fault;
(2) whether OWCP abused its discretion by refusing to waive recovery of the overpayment; and

1

5 U.S.C. § 8101 et seq.

(3) whether OWCP properly required recovery of the overpayment by deducting $900.00 from
appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On March 1, 2001 OWCP accepted (under OWCP File No. xxxxxx548) that appellant,
then a 39-year-old legal instrument examiner, sustained an occupational disease (Form CA-2) in
the form of bilateral carpal tunnel syndrome due to the repetitious duties of her job.2 Appellant
underwent several OWCP-approved surgeries, including right carpal tunnel release on
November 4, 1999, left carpal tunnel release on March 5, 2001, and anterior cervical
fusion/foraminal decompression at C5-6 on July 7, 2015.
Appellant stopped work on March 12, 2001 and OWCP paid her disability compensation
beginning March 12, 2001 based on a pay rate of $691.52 per week. She returned to part-time
work (four hours per day) for the employing establishment on September 4, 2007 and stopped
work on September 20, 2007. Beginning June 8, 2008, OWCP paid appellant disability
compensation based on a weekly pay rate of $868.63.3
By decision dated September 29, 2016, OWCP granted appellant a schedule award for nine
percent permanent impairment of her left upper extremity due to spinal nerve impairment. The
award ran for 28.08 weeks from August 16, 2016 to February 28, 2017. OWCP indicated that
appellant had a weekly pay rate of $691.52, effective September 20, 2007.4
In a December 20, 2016 memorandum, OWCP indicated that an overpayment of
compensation in the amount of $20,237.63 occurred during the period June 8, 2008 to March 5,
2016 because appellant was paid compensation based on an improper weekly pay rate during that
period. It provided detailed calculations regarding the actual compensation that she received for
the period June 8, 2008 to March 5, 2016 and the compensation she should have received for the

2

OWCP previously accepted that on April 19, 1999 appellant sustained a traumatic injury due to reaching for a file
in a file rack. It accepted that claim (under OWCP File No. xxxxxx385) for intervertebral cervical disc disorder with
myelopathy, cervical sprain, myalgia/myositis (unspecified), brachial neuritis/radiculitis, and right shoulder/arm
sprain. OWCP administratively combined OWCP File Nos. xxxxxx548 and xxxxxx385, with xxxxxx548 serving as
the master file.
3

Between September 20, 2007 and June 7, 2008, OWCP paid appellant a lesser amount of compensation based on
her loss of wage-earning capacity as calculated relative to her ability to earn wages in a constructed position. This
period of compensation is not part of the $20,237.63 overpayment of compensation in the present case.
By decision dated December 5, 2016, OWCP indicated that it was issuing a “corrected schedule award decision”
and it noted that March 12, 2001 (rather than September 20, 2007) was the effective date of the weekly pay rate of
$691.52.
4

2

period June 8, 2008 to March 5, 2016 if the proper weekly pay rate was used.5 OWCP noted, in
relevant part:
“The overpayment occurred because-‘The incorrect pay rate was used to pay compensation for wage loss during
the above period [i.e., June 8, 2008 to March 5, 2016]. For wage loss
beginning on June 8, 2008 [OWCP] paid compensation for total disability
using the pay rate of $868.63 per week with an effective date of
September 20, 2007, the date of the claimant’s most recent recurrence of
disability. However, when the recurrence of disability occurred on
September 20, 2007, the claimant was working four hours per day, five days
per week. [The] $868.63 figure is the weekly salary of a full[-]time
employee, working [eight] hours per day, five days per week. The correct
pay rate that the claimant was earning at the time of the September 20, 2007
recurrence is $434.32 per week. [Appellant] returned to work on
September 4, 2007 at a salary of $45,169 per year. However, her job was
for four hours per day, 20 hours per week. Therefore, her weekly salary as
of September 20, 2007 was $434.32 ($45,169/52 [=] $868.63/2 [=]
$434.32).
‘Our records show that, prior to the September 20, 2007 work stoppage, the
claimant last worked on March 11, 2001. She stopped work on March 12,
2001 and began receiving compensation based on her pay rate at that time,
which was $17.23 per hour, $691.52 per week ($17.23 x 2087 hours [=]
35,959.01/52 [=] $691.52).
‘OWCP procedures indicate that where a claimant’s pay rate for a
recurrence of disability is lower than the prior compensation pay rate then
the higher compensation pay rate should be used for payment of
compensation. Therefore, the correct compensation pay rate for this case
following the September 20, 2007 recurrence is $691.52 per week with the
effective pay rate date of March 12, 2001 since that is higher than the
$434.32 weekly pay rate of September 20, 2007.’”
In a January 4, 2017 notice, OWCP advised appellant of its preliminary determination that
she received an overpayment of compensation in the amount of $20,237.63 for the period June 8,
2008 to March 5, 2016 because she received compensation during this period which was paid at
an incorrect pay rate. It explained that, beginning June 8, 2008, it paid her compensation for total
disability using the weekly pay rate of $868.63 per week with an effective date of September 20,
5
OWCP provided calculations showing that appellant received $237,590.11 in compensation for the period June 8,
2008 to March 5, 2016 when she was only entitled to receive $217,352.48 for this period given the error in the pay
rate for compensation purposes. The difference between $237,590.11 and $217,352.48 is $20,237.63. The record
contains payment documents supporting that appellant received $237,590.11 in compensation for the period June 8,
2008 to March 5, 2016.

3

2007, the date of her most recent recurrence of disability. OWCP noted, however, that when
appellant’s recurrence of disability occurred on September 20, 2007 she was only working four
hours per day, five days per week. The weekly pay rate of $868.63 was the weekly salary of a
full-time employee who worked eight hours per day, five days per week. OWCP indicated that
appellant’s actual weekly pay rate as of September 20, 2007 was $434.32.6 It further noted that,
prior to the September 20, 2007 recurrence of disability, her last recurrence of disability had
occurred on March 12, 2001. On March 11, 2001 appellant’s last workday before the recurrence,
she was earning $17.23 per hour or $691.52 per week ($17.23 times 2,087 hours equals $35,959.01
and $35,959.01 divided by 52 weeks equals $691.52 per week). OWCP further advised that
OWCP procedures provide that, where a claimant’s pay rate for a recurrence of disability is lower
than the prior compensation pay rate, than the higher compensation pay rate should be used for
payment of compensation. Therefore, the correct compensation appellant should have received on
and after June 8, 2008 was the weekly pay rate of $691.52 per week since that weekly pay rate is
higher than the weekly pay rate of $434.32.
OWCP also advised appellant of its preliminary determination that she was not at fault in
the creation of the overpayment because she could not have been expected to know that she was
paid at an incorrect pay rate. It advised her that she could submit evidence challenging the fact,
amount, or finding of fault, and that she could request waiver of recovery of the overpayment.
OWCP informed appellant that she could submit additional evidence in writing or at a
prerecoupment hearing, but that a prerecoupment hearing must be requested within 30 days of the
date of the written notice of overpayment. It requested that she complete and return an enclosed
overpayment recovery questionnaire (Form OWCP-20) within 30 days even if she was not
requesting waiver of recovery of the overpayment.
Appellant submitted an overpayment recovery questionnaire, completed on January 25,
2017, in which she challenged the finding of overpayment and requested a telephonic
prerecoupment hearing with a representative of OWCP’s Branch of Hearings and Review. During
the hearing held on June 28, 2017, she testified that she had monthly income of $3,265.50 and
monthly expenses of $1,906.00.7
By decision dated August 3, 2017, OWCP’s hearing representative determined that
appellant received an overpayment of compensation in the amount of $20,237.63 because she was
paid compensation at an improper pay rate from June 8, 2008 to March 5, 2016. The hearing
representative found that she was not at fault in the creation of the overpayment, but that the
overpayment was not subject to waiver of recovery because her monthly income of $3,265.50

6

OWCP noted that appellant returned to work on September 4, 2007 at a salary of $45,169.00 per year. However,
because appellant’s job was for 20 hours per week, her weekly salary as of September 20, 2007 was $434.32
($45,169.00 divided by 52 weeks equals $868.63 and $868.63 divided in half equals the weekly pay rate of $434.32).
7

Appellant testified that she received $1,879.50 in FECA benefits and $1,386.00 in Social Security Administration
(SSA) benefits each month. Her monthly expenses were comprised of rent ($1,027.00), clothing ($300.00), utilities
($350.00), credit union payments ($139.00), and miscellaneous expenses ($90.00).

4

exceeded her monthly expenses of $1,906.00 by more than $50.00.8 Therefore, appellant did not
establish that recovery of the overpayment would defeat the purpose of FECA. The hearing
representative discussed her financial circumstances and required recovery of the overpayment by
deducting $900.00 from her continuing compensation payments every 28 days.
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.9 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”10
Section 8105(a) of FECA provides: “If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his
monthly pay, which is known as his basic compensation for total disability.”11 Section 8101(4) of
FECA defines “monthly pay” for purposes of computing compensation benefits as follows: “[T]he
monthly pay at the time of injury, or the monthly pay at the time disability begins, or the monthly
pay at the time compensable disability recurs, if the recurrence begins more than six months after
the injured employee resumes regular full-time employment with the United States, whichever is
greater....”12 OWCP’s regulations define “disability” as “the incapacity, because of an
employment injury, to earn the wages the employee was receiving at the time of injury.”13
OWCP procedures provide that a recurrent pay rate may be lower than the pay rate in effect
on the date of injury, date disability began, or previous date of recurrence. This can happen when
the claimant is originally injured in full-time employment, and the recurrence occurs when the
8

Appellant discussed her financial situation in the overpayment recovery questionnaire completed on January 25,
2017, but the hearing representative used the more recent financial information provided in the June 28, 2017
prerecoupment hearing.
9

5 U.S.C. § 8102(a).

10

Id. at § 8129(a).

11

Id. at § 8105(a). Section 8110(b) of FECA provides that total disability compensation will equal three fourths of
an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).
12

Id. at § 8101(4). In an occupational disease claim, the date of injury is the date of last exposure to the employment
factors which caused or aggravated the claimed condition. Patricia K. Cummings, 53 ECAB 623, 626 (2002). The
Board has held that, if an employee has one recurrence of disability which meets the requirements of 8101(4), any
subsequent recurrence would also meet such requirements and would entitle the employee to a new recurrence pay
rate. Carolyn E. Sellers, 50 ECAB 393 (1999).
13

20 C.F.R. § 10.5(f).

5

claimant is working part time or has been rated for loss of wage-earning capacity. Even if the
employing establishment reports a higher hourly pay rate for a date of recurrence, the recurrent
pay rate should be considered the actual weekly amount the claimant earned. In such cases, the
pay rate on the date of injury, date disability began, or previous date of recurrence, with the
applicable effective date, would be used because it was higher.14
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$20,237.63 for the period June 8, 2008 to March 5, 2016, because she received compensation
based on a weekly pay rate of $868.63 rather than the proper weekly pay rate of $691.52.
Beginning June 8, 2008, OWCP paid her compensation for total disability using the weekly pay
rate of $868.63 per week with an effective date of September 20, 2007, the date of her most recent
recurrence of disability. When appellant’s recurrence of disability occurred on September 20,
2007 she was only working four hours per day, five days per week. The weekly pay rate of $868.63
was the weekly salary of a full-time employee who worked eight hours per day, five days per week.
Appellant returned to work on September 4, 2007 at a salary of $45,169.00 per year. However,
because her job was for 20 hours per week, her weekly salary as of September 20, 2007 was
$434.32.15 OWCP further noted that, prior to the September 20, 2007 recurrence of disability,
appellant’s last recurrence of disability had occurred on March 12, 2001. On March 11, 2001
appellant’s last workday before the recurrence, she was earning $17.23 per hour or $691.52 per
week ($17.23 times 2,087 hours equals $35,959.01 and $35,959.01 divided by 52 weeks equals
$691.52 per week). OWCP properly noted that OWCP procedures provide that, where a claimant’s
pay rate for a recurrence of disability is lower than the prior compensation pay rate, than the higher
compensation pay rate should be used for payment of compensation.16 Therefore, it correctly
determined that the compensation appellant received on and after June 8, 2008 should have been
based on the weekly pay rate of $691.52 since that weekly pay rate is higher than the weekly pay
rate of $434.32.
The Board further notes that the record contains evidence which shows that, given the
above-noted payments at an improper pay rate, appellant received $237,590.11 in compensation
for the period June 8, 2008 to March 5, 2016 when she was only entitled to receive $217,352.48.
Therefore, OWCP properly determined that she received a $20,237.63 overpayment of
compensation.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, 2.900.5a(6) (September 2011).

15

OWCP noted that $45,169.00 divided by 52 weeks equals $868.63 and $868.63 divided in half equals the weekly
pay rate of $434.32.
16

See supra note 14.

6

LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that
rests within OWCP’s discretion pursuant to statutory guidelines.17 These statutory guidelines are
found in section 8129(b) of FECA which provide: “Adjustment or recovery [of an overpayment]
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this subchapter
or would be against equity and good conscience.”18 If OWCP finds a claimant to be without fault
in the matter of an overpayment, then, in accordance with section 8129(b), OWCP may only
recover the overpayment if it determined that recovery of the overpayment would neither defeat
the purpose of FECA, nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.19 According to 20 C.F.R. § 10.437,
recovery of an overpayment is considered to be against equity and good conscience when an
individual who received an overpayment would experience severe financial hardship attempting
to repay the debt and when an individual, in reliance on such payments or on notice that such
payments would be made, gives up a valuable right or changes his or her position for the worse.20
To establish that a valuable right has been relinquished, it must be shown that the right was in fact
valuable, that it cannot be regained, and that the action was based chiefly or solely in reliance on
the payments or on the notice of payment.21
ANALYSIS -- ISSUE 2
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because she has not shown that she needs substantially all of her current income to meet
ordinary and necessary living expenses. As noted above, her monthly income exceeds her monthly
ordinary and necessary expenses by approximately $1,360.00. As appellant’s current income
exceeds her current ordinary and necessary living expenses by more than $50.00 she has not shown
that she needs substantially all of her current income to meet current ordinary and necessary living
17

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

18

5 U.S.C. § 8129(b).

19

20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet current and
ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Assets must not
exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual with a spouse or dependent plus
$960.00 for each additional dependent. See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.6(a) (October 2004); B.F., Docket No. 13-0785 (issued September 20, 2013).
20

20 C.F.R. § 10.437(a), (b).

21

Id. at § 10.437(b)(1).

7

expenses.22 Because she has not met the first prong of the two-prong test of whether recovery of
the overpayment would defeat the purpose of FECA, it is not necessary for OWCP to consider the
second prong of the test, i.e., whether her assets do not exceed the allowable resource base.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she would
experience severe financial hardship in attempting to repay the debt or that she relinquished a
valuable right or changed her position for the worse in reliance on the payment which created the
overpayment.23
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, the Board finds that she has failed
to show that OWCP abused its discretion by refusing to waive recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of Title 20 of the Code of Federal Regulations provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”24
ANALYSIS -- ISSUE 3
The record supports that, in requiring recovery of the overpayment by deducting $900.00
from appellant’s continuing compensation payments every 28 days, OWCP took into consideration
the financial information submitted by her as well as the factors set forth in section 10.441 and
found that this method of recovery would minimize any resulting hardship on her. Therefore, it
properly required recovery of the overpayment by deducting $900.00 from her continuing
compensation payments every 28 days.
CONCLUSION
The Board finds that appellant received a $20,237.63 overpayment of compensation for the
period June 8, 2008 to March 5, 2016, for which she was not at fault. The Board further finds that
OWCP did not abuse its discretion by refusing to waive recovery of the overpayment and that
22

See supra note 19.

23

See William J. Murphy, 41 ECAB 569, 571-72 (1989).

24

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

8

OWCP properly required repayment of the overpayment by deducting $900.00 from appellant’s
continuing compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the August 3, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2018
Washington, DC

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

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

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

9