United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT AGENCY,
West Point, NY, Employer
__________________________________________

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

Docket No. 12-139
Issued: June 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 19, 2011 appellant filed a timely appeal from the June 2, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) terminating her compensation.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective March 2, 2010 on the grounds that she had no disability due to her
February 28, 2007 work injury after that date.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on February 28, 2007 appellant, then a 50-year-old food service
worker, sustained a right ankle fracture, right ankle synovitis, right wrist sprain and right
shoulder contusion in a fall at work. She stopped work after her February 28, 2007 injury and
returned to limited-duty work on a full-time basis on September 10, 2007. Appellant stopped
work on November 2, 2007 and OWCP accepted that she sustained a recurrence of disability.
From November 2, 2007 to November 4, 2008, she received compensation for total disability.
On May 22, 2008 Dr. Wen Shen, an attending Board-certified orthopedic surgeon,
performed a right ankle arthroscopy with extensive debridement, medial malleolar tibial
osteotomy, curettage of talus bone cyst and local autograft. The procedures were authorized by
OWCP. On November 5, 2008 appellant returned to work at the employing establishment in a
limited-duty job for four hours per day. In a December 10, 2008 report, Dr. Harvey L. Seigel, a
Board-certified orthopedic surgeon, opined that appellant had recovered from the accepted
conditions from the February 28, 2007 injury and that she was able to perform her date-of-injury
job as a food service worker full time. In contrast, Dr. Shen stated in several reports dated
between late 2008 and early 2009 that she continued to be partially disabled due to her
February 28, 2007 work injury. On January 16, 2009 appellant returned to work performing
limited-duty work on a full-time basis.
Due to the lack of current medical evidence regarding appellant’s capacity to work,
OWCP scheduled her for a second opinion examination with Dr. Seigel, a Board-certified
orthopedic surgeon. In a December 10, 2008 report, Dr. Seigel provided a description of her
factual and medical history. He opined that appellant had recovered from the accepted
conditions resulted from the February 28, 2007 injury and that she was able to perform her dateof-injury job as a food service worker full time.
In reports dated between late 2008 and early 2009, Dr. Shen provided an opinion that
appellant continued to be partially disabled due to her February 28, 2007 work injury and he
recommended work restrictions such as no lifting more than 15 pounds and no standing more
than four hours per day. He noted that she reported diffuse right ankle pain and that examination
showed some right ankle swelling.
OWCP determined that a conflict in medical opinion arose between Dr. Seigel and
Dr. Shen regarding whether appellant continued to have residuals of her February 28, 2007 work
injury and her capacity for work. It referred her to Dr. Louis D. Nunez, a Board-certified
orthopedic surgeon, for an impartial medical examination and opinion on the matter.
In a September 8, 2009 report, Dr. Nunez reviewed appellant’s factual and medical
history, including the findings upon physical examination and diagnostic testing since her
February 28, 2007 work injury. Physical examination of her right ankle revealed dorsiflexion to
15 degrees, plantar flexion to 40 degrees, inversion to 30 degrees and eversion to 15 degrees.
There was a well-healed eight-centimeter incision along the anteromedial aspect of the right
ankle and there was no swelling or tenderness to palpation of the anterior middle or posterior
calcaneofibular ligaments. Dr. Nunez found no draw sign in the right ankle and that there was
no tenderness to palpation of the peroneal tendon sheath. There was no pain on percussion of the

2

posterior tibial nerve and there was no atrophy of the right calf musculature as compared to the
left leg. Dr. Nunez stated that there were no complaints of pain in the right shoulder or right
wrist.
Dr. Nunez stated that appellant was status post twisting injury of the right ankle with a
posterior tibial malleolar fracture and proximal fibular and status post arthroscopy of the right
ankle, malleolar osteotomy, curettage of talus bone cyst and packing with local bone graft.2 He
concluded that the conditions accepted in connection with the February 28, 2007 work injury
were not active or causing objective symptoms. Dr. Nunez stated, “In my opinion, [appellant],
based upon my examination and the objective findings found at this examination[,] is fully
capable of returning to the full duties as a food service worker on a full-time basis.” He
completed a work restriction form, without any physical restrictions.
On September 21, 2009 Dr. Shen requested authorization for optional right ankle surgery
with removal of hardware and intraoperative cultures; but on November 02, 2009 he advised that
appellant wanted to hold off on any surgery.
Based upon Dr. Shen’s recommendation for surgery, OWCP asked Dr. Nunez if the
proposed surgery altered his medical opinion that appellant was fit for duty in her regular work
on a full-time basis.
In a January 12, 2010 report, Dr. Nunez stated that the surgery for removal of the
hardware was appropriate and causally related to the February 28, 2007 work injury. He stated,
“In my opinion, [appellant] could still work full time, full duty even if she decides not to have
the surgery to remove her hardware. Therefore, my opinion regarding her status remains
unchanged.”
In a January 22, 2010 letter, OWCP advised appellant that it proposed to terminate her
wage-loss compensation and medical benefits on the grounds that she ceased to have residuals of
her February 28, 2007 work injury. It found that the weight of the medical evidence regarding
termination rested with the well-rationalized opinion of Dr. Nunez.
Appellant submitted a February 5, 2010 report, from Dr. Shen, who stated that on
physical examination she had full right ankle and hindfoot range of motion. Swelling of her
right ankle was minimal and she had tenderness on the proximal portion of the surgical incision,
which was in the supramalleolar region of the ankle on the medial side. Dr. Shen noted that
there was no clear tenderness at the tip of the medial malleolus, provided a diagnosis of right
ankle pain and stated, “I explained to [appellant] that to medically remove hardware is optional
but at this point she does not appear to be tender at the area of the hardware. There is no
guarantee that … removal of hardware will improve her pain level.”
In a March 2, 2010 decision, OWCP terminated appellant’s wage-loss compensation and
medical benefits effective March 2, 2010 on the grounds that she had no residuals of her
February 28, 2007 work injury after that date. It found that the weight of the medical evidence
regarding termination continued to rest with the opinion of Dr. Nunez.
2

Dr. Nunez stated that appellant aggravated a preexisting talar dome cyst and distal tibial bone cyst.

3

Appellant submitted several reports, dated from March to August 2010, in which
Dr. John Uhorchak, an attending Board-certified orthopedic surgeon, recommended work
restrictions due to her February 28, 2007 injury. She also submitted reports dated between late
2010 and early 2011, from a treating physician who indicated that she continued to have right
ankle symptoms.
In a June 2, 2011 decision, OWCP affirmed its March 2, 2010 decision in part and
modified it in part to reflect that, while OWCP had shown that appellant had no wage loss after
March 2, 2010 due to her February 28, 2007 work injury, it had not established that she had no
residuals or need for medical benefits due to her February 28, 2007 work injury.3 It also found
that the medical evidence submitted by her after the termination of her compensation did not
create a new conflict in the medical evidence.
LEGAL PRECEDENT
Once OWCP has accepted a claim it has the burden of justifying termination or
modification of compensation benefits.4 It may not terminate compensation without establishing
that the disability ceased or that it was no longer related to the employment.5 OWCP’s burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.6 After termination or modification of compensation
benefits, clearly warranted on the basis of the evidence, the burden for reinstating compensation
benefits shifts to appellant. In order to prevail, appellant must establish by the weight of the
reliable, probative and substantial evidence that he or she had an employment-related disability
which continued after termination of compensation benefits.7
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”8 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.9

3

The Board notes that OWCP reinstated appellant’s entitlement to medical benefits related to the February 28,
2007 work injury and this matter is not currently before the Board.
4

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

5

Id.

6

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

8

5 U.S.C. § 8123(a).

9

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

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ANALYSIS
OWCP accepted that on February 28, 2007 appellant, then a 50-year-old food service
worker, sustained a right ankle fracture, right ankle synovitis, right wrist sprain and right
shoulder contusion due to a fall at work. It terminated her wage-loss compensation effective
March 2, 2010 based on the opinion of Dr. Nunez, a Board-certified orthopedic surgeon serving
as an impartial medical specialist.
OWCP properly determined that a conflict arose in the medical opinion between
Dr. Shen, an attending Board-certified orthopedic surgeon, and Dr. Seigel, a Board-certified
orthopedic surgeon acting as an OWCP referral physician, on the issue of whether appellant
continued to have residuals and disability from her February 28, 2007 work injury. In order to
resolve the conflict, it properly referred her, pursuant to section 8123(a) of FECA, to Dr. Nunez
for an impartial medical examination and an opinion on the matter.10
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Nunez, the impartial medical specialist selected to resolve the
conflict in the medical opinion.11 The September 8, 2009 and January 12, 2010 reports of
Dr. Nunez establish that appellant had no disability due to her February 28, 2007 work injury
after March 2, 2010.
In his September 8, 2009 report, Dr. Nunez indicated that physical examination of
appellant’s right ankle revealed a well-healed eight-centimeter incision along the anteromedial
aspect of the right ankle and that there was no swelling or tenderness to palpation of the anterior
middle or posterior calcaneofibular ligaments. He indicated that there was no draw sign in the
right ankle and that there was no tenderness to palpation of the peroneal tendon sheath. There
was no pain on percussion of the posterior tibial nerve and there was no atrophy of the right calf
musculature as compared to the left leg. Dr. Nunez stated that there were no complaints of pain
in the right shoulder or right wrist. He concluded that appellant had no disability due to her
February 28, 2007 work injury and did not recommend any work restrictions. Dr. Nunez stated,
“In my opinion, [appellant], based upon my examination and the objective findings found at this
examination[,] is fully capable of returning to the full duties as a food service worker on a fulltime basis.” After Dr. Shen indicated that appellant had the option of removing surgical
hardware from her right ankle but declined such optional surgery, Dr. Nunez produced a
January 12, 2010 report, in which he stated that this circumstance did not change his opinion that
she ceased to have disability due to her February 28, 2007 work injury.
The Board has carefully reviewed the opinion of Dr. Nunez and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Nunez provided a thorough factual and medical history
and accurately summarized the relevant medical evidence.12 He provided medical rationale for
10

See supra note 8.

11

See supra note 9.

12

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

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his opinion by explaining that there were no medical findings that the conditions accepted in
connection with the February 28, 2007 work injury were still active or causing objective
symptoms.13
After OWCP’s March 2, 2010 decision terminating appellant’s wage-loss compensation,
effective that date, she submitted additional medical evidence which she felt showed that she was
entitled to wage-loss compensation after March 2, 2010 due to residuals of her February 28,
2007 work injury. Given that the Board has found that OWCP properly relied on the opinion of
the impartial medical examiner, Dr. Nunez, in terminating her compensation, effective March 2,
2010, the burden shifts to appellant to establish that she is entitled to compensation, after that
date.14 The Board has reviewed the additional evidence submitted by appellant and notes that it
is not of sufficient probative value to establish that she had residuals of her February 28, 2007
work injury after March 2, 2010. Several physicians indicated that she continued to have workrelated work restrictions but they did not provide adequate medical rationale in support of their
opinions.
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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective March 2, 2010 on the grounds that she had no wage loss due to her
February 28, 2007 work injury after that date.

13

Appellant submitted a February 5, 2010 report in which Dr. Shen provided findings which were similar to those
he provided in previous reports. However, as Dr. Shen was on one side of the conflict, his additional report is
essentially duplicative of his stated opinion and is insufficient to give rise to a new conflict. See Richard O’Brien,
53 ECAB 234 (2001). On appeal, appellant asserted that Dr. Nunez’ opinion was not thorough or well rationalized.
However, Dr. Nunez carried out a comprehensive evaluation and provided reasons for his conclusions.
14

See K.E., Docket No. 08-1461 (issued December 17, 2008) (where OWCP meets its burden of proof to justify
the termination of compensation benefits, the burden is on the claimant to establish that any subsequent disability is
causally related to the accepted employment injury).

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ORDER
IT IS HEREBY ORDERED THAT the June 2, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 6, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE NAVY, CAMP
LEGEUNE MARINE CORPS BASE,
Camp LeJeune, NC, Employer
__________________________________________

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

Docket No. 08-684
Issued: September 11, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 31, 2007 appellant filed a timely appeal of the decision of the Office of
Workers’ Compensation Programs dated March 7, 2007 terminating his compensation benefits
on the grounds that he refused to accept suitable work and the December 13, 2007 decision
denying modification of this decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2) the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits on
the grounds that he refused to accept suitable work, pursuant to 5 U.S.C. § 8106(c).
FACTUAL HISTORY
On April 30, 2003 appellant, then a 46-year-old plumber, filed a traumatic injury claim
alleging that on April 29, 2003, while rodding a drain with the sewer machine, the cable kinked
around his left hand causing a wrist sprain. By letter dated August 11, 2003, the Office accepted

appellant’s claim for left wrist sprain. It later accepted appellant’s claim for left radial styloid
tenosynovitis, contracture of upper joint (left shoulder) and lesion of ulnar nerve (left elbow).
In an April 16, 2004 progress note, Dr. Richard S. Moore, appellant’s treating Boardcertified orthopedic surgeon, listed his impressions as status post left olecranon bursectomy,
status post left ulnar nerve submuscular transposition, status post left ulnar and median nerve
decompression at the wrist and subacromial bursitis.
By letter dated June 25, 2004, the Office referred appellant to Dr. Noel Rogers, a Boardcertified orthopedic surgeon, for a second opinion. In a report dated July 12, 2004, Dr. Rogers
diagnosed appellant with sprain of the left wrist, work related; status post ulnar nerve
transposition left elbow, work related; carpal tunnel syndrome status post release left; and
bilateral Dupuytren’s contracture. He opined that appellant was unable to return to his position
as a plumber due to limited motion of the wrist and bilateral Dupuytren’s contracture.
Dr. Rogers further noted that appellant had residuals from the ulnar nerve transfer in that he has
residual discomfort along the ulnar border of the forearm due to the elbow problem. He noted
that appellant had reached maximum medical improvement. Dr. Rogers noted that appellant
needed treatment for other conditions that were not accepted work conditions. Also on July 12,
2004, he completed a work capacity form indicating that appellant could reach above his
shoulder limited to 2 to 4 hours. Dr. Rogers limited appellant to 1 to 2 hours each for operating a
motor vehicle at work; operating a motor vehicle to and from work; repetitive motions of wrists
and elbows; and pushing, pulling and lifting of up to 15 pounds. Appellant was prohibited from
climbing. Dr. Rogers noted that these limitations were based on appellant’s wrist and elbow
problem only and that since he had other nonwork-related conditions he was probably
permanently restricted from returning to work.
By letter dated February 1, 2005, the Office sent Dr. Roger’s report to Dr. Moore and
asked if he concurred with Dr. Roger’s evaluation and work tolerance report. In a response dated
March 7, 2005, Dr. Moore indicated that he reviewed the report and that he thought “the
responses and restrictions are appropriate.”
On June 29, 2006 the Office received a duplicate of the July 12, 2004 work capacity
evaluation. The only difference from the prior evaluation was that the date June 22, 2006 was
added near the diagnosis of left ulnar and left wrist sprain. However, this addition was not
signed or initialed.
In a September 26, 2006 report, Dr. Moore indicated that appellant was status post right
shoulder arthroscopy, subacromial decompression and arthroscopic rotator cuff repair, left
submuscular ulnar nerve transposition/olecranon bursectomy and left median and ulnar nerve
decompression at the wrist. He opined that appellant would be unable to tolerate a job in which
pushing and pulling were a significant component and further noted that this restriction was
permanent.

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On November 8, 2006 the employing establishment offered appellant a position as a desk
clerk. The Office indicated the location of the position, the rate of pay, hours of work and
supervisor. On November 15, 2005 appellant declined this position.
1

By letter dated January 5, 2007, the Office found the position of desk clerk suitable and
advised appellant that he had 30 days from the date of the letter to either accept the position or
provide an explanation of the reasons for refusing it. By letter dated January 11, 2007, appellant
declined the job offer. He noted that he elected to exercise his option of retiring on regular
retirement.
On February 12, 2007 the Office verified that the position was still available.
By letter dated February 12, 2007, the Office informed appellant that the reason given for
refusing the position was unacceptable and gave him 15 additional days to accept the position.
In a form dated February 20, 2007, appellant accepted the position of desk clerk. However, he
did not report for work.
By decision dated March 7, 2007, the Office terminated appellant’s compensation
benefits effective that date, but retained appellant’s entitlement to medical expenses for treatment
of the accepted condition.
By letter dated October 11, 2007 appellant, through his representative, requested
reconsideration. His representative argued that the November 8, 2006 job offer failed to meet
the regulatory requirements of 5 U.S.C. § 8106 as it did not contain the specific physical
requirements of the position and any special demands of the workload or working conditions.
She further argued that a copy of the job offer was not sent to his treating physician for approval.
Finally, appellant’s representative argued that he was not sent a certified letter from the
employing establishment stating the date and time he should report to work.
By decision dated December 13, 2007, the Office denied modification of the prior
decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 Under section 8106(c)(2) of the Federal Employees’
Compensation Act, the Office may terminate the compensation of a partially disabled employee
who refuses or neglects to work after suitable work is offered to, procured by or secured for the
employee.3 To justify termination, it must show that the work offered was suitable and must
1

The duties of this position included receiving and controlling all incident complaint reports submitted by
military policeman, retrieving case control numbers from the Consolidated Law Enforcement Center; completing
morning blotter report; inspecting and preparing traffic citations and receiving and controlling all identification
cards seized by the military police; and handling and screening telephone calls.
2

Linda D. Guerrero, 54 ECAB 556 (2003).

3

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

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inform appellant of the consequences of refusal to accept such employment.4 Section
8106(c)(2) will be narrowly construed as it serves as a penalty provision, which may bar an
employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.5
Office regulations provide that, in determining what constitutes suitable work for a
particular disabled employee, the Office should consider the employee’s current physical
limitations, whether the work is available within the employee’s demonstrated commuting area,
the employee’s qualifications to perform such work and other relevant factors.6 It is well
established that the Office must consider preexisting and subsequently acquired conditions in the
evaluation of suitability of an offered position.7 The issue of whether an employee has the
physical ability to perform a modified position offered by the employing establishment is
primarily a medical question that must be resolved by the medical evidence.8
Office procedures state that acceptable reasons for refusing an offered position include
the withdrawal of the offer, medical evidence of inability to do the work or travel to the job or
the claimant found other work which fairly and reasonably represents his or her earning capacity
(in which case compensation would be adjusted or terminated based on actual earnings).
Furthermore, if medical reports document a condition which has arisen since the compensable
injury and the condition disables the employee, the job will be considered unsuitable.9
Section 10.516 of the Code of Federal Regulations states that the Office will advise the
employee that the work offered is suitable and provide 30 days for the employee to accept the
job or present any reasons to counter the Office’s finding of suitability.10 Thus, before
terminating compensation, the Office must review the employee’s proffered reasons for refusing
or neglecting to work.11 If the employee presents such reasons and the Office finds them
unreasonable, the Office will offer the employee an additional 15 days to accept the job without
penalty.12

4

Ronald M. Jones, 52 ECAB 190 (2000).

5

Joan F. Burke, 54 ECAB 406 (2003).

6

20 C.F.R. § 10.500(b).

7

Richard P. Cortes, 56 ECAB 200 (2004).

8

Id.; Bryant F. Blackmon, 56 ECAB 752 (2005).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(b)(4) (July 1997).
10

20 C.F.R. § 10.516.

11

See Sandra K. Cummings, 54 ECAB 493 (2003); see also Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on
recon., 43 ECAB 818 (1992) and 20 C.F.R. § 10.516 which codifies the procedures set forth in Moore.
12

Id.

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ANALYSIS
The Office accepted that appellant sustained the following conditions as a result of his
April 29, 2003 employment injury: left wrist sprain, left radial styloid tenosynovitis, contracture
of the upper joint (left shoulder) and lesion of the ulnar nerve (left elbow). It determined that the
position offered to appellant of desk clerk, was suitable, and that appellant did not report to work
and therefore refused to accept a suitable position. However, a review of the evidence in the
record indicates that there is insufficient evidence to support a finding that the offered position
constituted suitable work.
Before compensation can be terminated, the Office has the burden of demonstrating that
the employee can work; setting forth the specific restrictions, if any, on the employee’s ability to
work; and has the burden of establishing that a position has been offered within the employee’s
work restrictions, setting forth the specific job requirements of the position.13 In other words, to
justify termination of compensation, the Office has the burden of showing that the work offered
to and refused by appellant was suitable.14
In making the offer of employment, the employing establishment indicated the specific
duties of the job. However, in order for the offer to be valid, the Office’s regulations indicate
that the offer must list “[t]he specific physical requirements of the position and any special
demands on the workload or unusual working conditions.”15 The Board finds that the job offer
did not include a list of the physical demands of the position of desk clerk. Accordingly, the
offer was deficient and cannot constitute an offer of suitable employment.
Furthermore, when determining if a job offer constitutes suitable employment, all of
appellant’s medical conditions, whether work related or not, must be considered in assessing the
suitability of the position.16 In finding that appellant rejected suitable employment, the Office
found that the position was within the work limitation provided by the second opinion physician,
Dr. Rogers and agreed upon by appellant’s treating physician, Dr. Moore. However, Dr. Rogers
clearly indicated, in completing the work capacity evaluation upon which the Office based its
opinion, that the limitations were based on appellant’s wrist and elbow problem only and that
since he had other nonwork-related conditions he was probably permanently restricted from
returning to work.” Accordingly, Dr. Roger’s opinion, as well as Dr. Moore’s note that he
agreed with this opinion, are not sufficient to establish appellant’s limitations because they do
not include all of appellant’s medical conditions.

13

Linda Hilton, 52 ECAB 476, 481 (2001).

14

Id.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(a)(1)(b).
16

Id.; Chapter 2.814.4(b)(4).

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As it is the Office’s burden of proof to establish that appellant refused a suitable position,
the Office did not meet its burden of proof in this case to terminate appellant’s compensation
benefits pursuant to 5 U.S.C. § 8106.17
CONCLUSION
The Board finds the Office did not properly terminate appellant’s compensation benefits
on the grounds that he refused to accept suitable work.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 31 and March 7, 2007 are reversed.
Issued: September 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

Barbara R. Bryant, 47 ECAB 715 (1996).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alexander, AR, Employer
__________________________________________

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

Docket No. 13-1106
Issued: August 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 4, 2013 appellant filed a timely appeal of a March 14, 2013 Office of Workers’
Compensation Programs’ (OWCP) merit decision regarding an overpayment. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $405.14 for the period October 8 through
December 14, 2012, and if so, (2) whether appellant is not without fault in the creation of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 20, 2001 appellant, then a 56-year-old modified rural carrier filed a traumatic
injury claim alleging that a coworker assaulted her in the performance of duty. OWCP accepted
her claim for strain of right shoulder and upper arm on September 17, 2001. Appellant began
filing claims for compensation due to the National Reassessment Process on July 30, 2010.
These claims provided:
“Any person who knowingly makes any false statement,
misrepresentation, concealment of fact or any other act of fraud, to obtain compensation as
provided by FECA or who knowingly accepts compensation to which that person is no entitled is
subject to civil or administrative remedies as well as felony criminal prosecution and may, under
appropriate criminal prosecution, be punished by a fine or imprisonment or both.”
In a letter dated November 22, 2010, OWCP noted that appellant’s formal loss of wageearning capacity determination should be modified and that her claims for compensation would
be authorized. The record indicates that appellant received compensation at the 75 percent
augmented rate. Appellant received compensation from October 5 through December 14, 2012
at the augmented rate. On October 18, 2012 she filed a claim for compensation for the period
October 8 through 19, 2012 which indicated that there was no change in her dependents but did
not list her husband. Appellant completed a similar form on November 2, 2012 for the period
October 22 through November 2, 2012. On November 16, 2012 she completed a claim for
compensation for the period November 5 through 16, 2012 and indicated that there was no
change in her dependents but did not list her husband as a dependent. On a claim for
compensation dated December 14, 2012 appellant requested compensation from December 13
through 14, 2012 and indicated that there was no change in her dependents but did not list her
husband.
On January 25, 2013 the employing establishment indicated that appellant had no
dependents. Appellant’s supervisor indicated that appellant should be compensated at 66 2/3
percent as she had no dependents due to her divorce on October 8, 2012. The claims examiner
telephoned appellant on January 29, 2013 and confirmed verbally that she was divorced on
October 8, 2012.
OWCP calculated that appellant was paid incorrectly at the augmented rate for 169.25
hours for the period October 8 through December 14, 2012 resulting in an overpayment of
$405.14.
In a letter dated February 1, 2013, OWCP made a preliminary determination that
appellant received an overpayment of compensation in the amount of $405.14 during the period
October 8 through December 14, 2012 because there was a change in her dependent status. It
noted that she was at fault in the creation of the overpayment because she was “aware or should
have reasonably been aware that there should have been a reduction in compensation payments
since she no longer had a dependent, her husband, as of October 8, 2012.” OWCP provided
appellant with an overpayment action request allowing her 30 days to respond if she wished to
contest the overpayment. It also provided her with an overpayment recovery questionnaire.
Appellant submitted her divorce decree dated October 8, 2012 on February 4, 2013.

2

By decision dated March 14, 2013, OWCP determined that appellant was at fault in the
creation of an overpayment in the amount of $405.14 for the period October 8 through
December 14, 2012 as there was a change in her dependent status and OWCP was not
immediately notified. It stated that she was found with fault in the creation of the overpayment
because she failed to provide information which she knew or should have known to be material
and accepted payments that she knew or reasonably should have known were incorrect.
LEGAL PRECEDENT -- ISSUE 1
FECA pays compensation for the disability of an employee resulting from personal injury
sustained while in the performance of his or her duty.2 A disabled employee with one or more
dependents is entitled to have his or her basic compensation augmented from two-thirds to threefourths of her monthly pay.3 A dependent means a husband if: (a) he or she is a member of the
same household as the employee; (b) he or she is receiving regular contributions from the
employee for his support; or (c) the employee has been ordered by a court to contribute to his or
her support.4
ANALYSIS -- ISSUE 1
Appellant and her husband were granted a divorce on October 8, 2012. The record
confirms that she continued to receive compensation at the augmented rate for dependents
through December 14, 2012. An overpayment of compensation is therefore established. The
amount of compensation actually paid during this period ($3,647.34) less the compensation
appellant should have received at the correct pay rate ($3,242.20) establishes the amount of the
overpayment ($405.14). Compensation payment worksheets in the record confirm these figures.
The Board will therefore affirm OWCP’s March 14, 2013 decision on the issues of fact and
amount of overpayment.5
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA6 provides that, where an overpayment of compensation has
been made “because of an error or fact of law,” adjustment shall be made by decreasing later
payments to which an individual is entitled. The only exception to this requirement is a situation
which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery 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 FECA or would be

2

5 U.S.C. § 8102(a).

3

Id. at § 8110(b).

4

Id. at § 8110(a)(2).

5

M.C., Docket No. 13-150 (issued March 28, 2013).

6

5 U.S.C. §§ 8101-8193, 8129(a).

3

against equity and good conscience.”7 Accordingly, no waiver of an overpayment is possible if
the claimant is with fault in helping to create the overpayment.
In determining whether an individual is with fault, section 10.433 of OWCP’s
regulations8 provide a recipient will be found at fault who made an incorrect statement as to a
material fact which he or she knew or should have known to be incorrect; or failed to furnish
information which the individual knew or should have known to be material or accepted a
payment which the individual knew or should have been expected to know was incorrect.”
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in the creation of the overpayment applying the
second and third criteria. In the preliminary determination, it stated that she was “aware or
should have reasonably been aware that there should have been a reduction in compensation
payments since she no longer had a dependent, her husband, as of October 8, 2012.” In the
March 14, 2013 final decision, OWCP stated that appellant was at fault because she failed to
provide information which she knew or should have known to be material and accepted
payments that she knew or reasonably should have known were incorrect. With respect to
whether an individual is with fault, section 10.433(b) of OWCP’s regulations provide that
whether or not OWCP determines that an individual was with fault with respect to the creation of
the overpayment depends on the circumstances surrounding the overpayment. The degree of
care expected may vary with the complexity of the circumstances and the individual’s capacity to
realize that he or she is being overpaid.9
The Board finds that OWCP has not clearly explained the basis for appellant’s
understanding of the augmented compensation payments and how a divorce would impact her
benefits. Appellant’s initial acceptance decision did not include information about augmented
compensation or dependents. The claims for compensation completed by appellant requested
that she provide information regarding her dependents, but did not inform her of the possibility
of an overpayment. OWCP has submitted no basis for its determination that appellant was aware
that she was receiving augmented compensation due to her marriage which could result in an
overpayment on divorce and no basis for its determination that appellant should have known that
her divorce was a material fact.10
The Board finds that the case must be remanded for further development of the issue of
fault and for a clear statement of the basis of the decision by OWCP on this issue. Section
10.126 of OWCP’s regulations provide that an OWCP decision shall contain findings of fact and

7

Id. at § 8129(b).

8

20 C.F.R. § 10.433.

9

Id. at § 10.433(b); F.A., Docket No. 08-1519 (issued December 18, 2008); see also Otha J. Brown, 56 ECAB
228 (2004) (each recipient of compensation benefits is responsible for taking all reasonable measure to ensure that
payments he or she receives from OWCP are proper).
10

Compare K.Z., Docket No. 12-784 (issued August 27, 2012).

4

a statement of reasons. As the March 14, 2013 overpayment decision is deficient regarding the
basis for the finding of fault, the case is not in posture for a decision.
CONCLUSION
The Board finds that appellant has received an overpayment of compensation in the
amount of $405.14 for the period October 8 through December 14, 2012. However, the Board
further finds that OWCP did not offer a factual basis for its finding of fault.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further development consistent with this decision of the Board.
Issued: August 12, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
AMERICORPS, NATIONAL CIVILIAN
COMMUNITY CORPS, Denver, CO, Employer
__________________________________________

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

Docket No. 13-788
Issued: August 23, 2013

Case Submitted on the Record

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

JURISDICTION
On February 19, 2013 appellant filed a timely appeal of a November 14, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) denying her 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 was a federal employee within the meaning of FECA for
purposes of receiving compensation for a left knee injury she allegedly sustained on
May 3, 2012.
FACTUAL HISTORY
On May 4, 2012 appellant, then a 21-year-old corps member, filed a traumatic injury
claim alleging that on May 3, 2012 she injured her left knee while playing team flag football at
1

5 U.S.C. § 8101 et seq.

Colorado Heights University. She indicated that she worked for AmeriCorps, National Civilian
Community Corps, Southwest Region.
In an October 10, 2012 letter, OWCP advised appellant that as her claim now exceeded
$1,500.00, her claim was reopened for consideration. Appellant was advised as to requirements
for establishing a claim under FECA. OWCP noted that no evidence had been received and
advised her regarding the medical and factual evidence required to support her claim.
Specifically, it noted that, while at the time of the injury appellant was employed by the Federal
Judiciary in Denver, Colorado as an AmeriCorps Corp Member, the record was insufficient to
establish that she was a federal civil employee and eligible for FECA benefits.
In response to OWCP’s request, appellant submitted a May 17, 2012 magnetic resonance
imaging (MRI) scan which revealed joint effusion and an acute isolated complete anterior
cruciate ligament disruption with uncomplicated osteochondral contusions in the lateral femoral
condyle and posterolateral proximal tibia.
Appellant subsequently submitted a signed questionnaire dated November 4, 2012 from
OWCP. The questionnaire provided a definition of a federal civil employee and explained when
participants in the American Conservation and Youth Corps are within the scope as federal
employees and eligible for FECA benefits. It also contained three questions to which appellant
did not respond.
By decision dated November 14, 2012, OWCP denied appellant’s claim, finding that she
was not eligible for compensation under FECA as she had not submitted any evidence
establishing that she was an employee of the United States for the purpose of coverage under
FECA.
LEGAL PRECEDENT
An employee seeking compensation under FECA2 has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence,3 including that he or she is an employee within the meaning of FECA4 and that he or
she filed his or her claim within the applicable time limitation.5 The employee must also
establish that he or she sustained an injury in the performance of duty as alleged and that his or
her disability for work, if any, was causally related to the employment injury.6
Section 8102(a) of FECA provides that compensation can only be paid for the disability
or death of an employee resulting from personal injury sustained while in the performance of
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
5

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227 (1954); see 5 U.S.C. § 8122.

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143 (1989).

2

duty.7 For purposes of awarding compensation benefits under FECA, section 8101(1) defines
employee, in relevant part, as a civil officer or employee in any branch of the government of the
United States or as an individual rendering personal service to the United States similar to the
service of a civil officer or employee of the United States.8 In determining whether a claimant is
an employee for purposes of compensation, the Board will consider the particular facts and
circumstances surrounding his or her employment.9
Section 2.802 of OWCP’s Federal (FECA) Procedure Manual provides the following
regarding when AmeriCorps Members are considered Federal Civil Employees for FECA
benefits:
“The Commission on National and Community Service administers the American
Conservation and Youth Corps, which makes grants to states or other applicants
(nonprofit groups) to fund youth service corps. The participants are not generally
considered federal employees, even though some may work directly for federal agencies.
However, section 42 U.S.C. 12655n (b)(2) states in part that:
‘a participant or crew leader serving in a program that receives assistance
under this subtitle ... shall be considered an employee of the United States
... as defined in section 8101 of title 5, United States Code, and the
provision of that subchapter shall apply, except-‘(A) the term “performance of duty,” as used in such subchapter, shall not
include an act of a participant or crew leader while absent from the
assigned post of duty of such participant or crew leader, except while
participating in an activity authorized by or under the direction and
supervision of a program agency (including an activity while on pass or
during travel to or from such post of duty); and….’
“The CE should inquire whether the crew leader or participant was serving with a federal
agency, a nonprofit agency which received a grant directly from the Commission on
National and Community Service, or with a state program. Only in the first two instances
may the AmeriCorps member be considered a federal employee for purposes of coverage
under FECA.”10
ANALYSIS
OWCP denied appellant’s claim on the grounds that the evidence of record was
insufficient to establish that she was a federal civil employee eligible for FECA benefits. At the
7

5 U.S.C. § 8102(a).

8

Id. at § 8101(1).

9

Wendy S. Warner, 38 ECAB 103 (1986).

10

Federal (FECA) Procedure Manual, Part 2 -- Adjudication of Claims, Civil Employee, Chapter 2.802(30)
(June 1995).

3

time of appellant’s injury she was working for AmeriCorps. By letter dated October 10, 2012,
OWCP informed appellant as to the definition of a federal civil employee and advised her that
the evidence of record was insufficient to establish that she was a federal civil employee entitled
to FECA benefits. OWCP provided a questionnaire for appellant to sign, date, complete and
return. Appellant signed and dated the questionnaire, but did not respond to the questions posed.
The Board finds that appellant has not met her burden of proof to establish her status as
an employee of the United States within the meaning of FECA at the time of her injury on
May 3, 2012.
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 has failed to establish that she is a federal employee within
the meaning of FECA for purposes of receiving compensation for her alleged May 3, 2012
injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 14, 2012 is affirmed.
Issued: August 23, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

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

Docket No. 09-1444
Issued: April 6, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 20, 2009 appellant filed a timely appeal from the March 13, 2009 decision of the
Office of Workers’ Compensation Programs concerning an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are:
(1) whether appellant received a $1,141.01 overpayment of
compensation; and (2) whether the Office abused its discretion by refusing to waive recovery of
the overpayment.
FACTUAL HISTORY
The Office accepted that on April 21, 2003 appellant, then a 46-year-old custodian,
sustained several lumbar conditions at work. She received compensation from the Office for

periods of disability.1 In February 2007, appellant was working seven hours per day as a
custodian for the employing establishment and claiming wage loss for one hour per day. The
record contains documents in which the Office calculated her wage loss for the period beginning
February 19, 2007 based on her actual wages as a custodian. The record reflects that appellant
received $1,423.30 in compensation for the period February 19 to August 24, 2007.2
In a December 19, 2008 decision, the Office reduced appellant’s compensation to zero
effective August 23, 2007 based on its determination that her actual wages as a custodian for the
employing establishment fairly and reasonably represented her wage-earning capacity effective
that date. It determined that her actual earnings met or exceeded the current wages of the job she
held when injured and terminated her wage-loss compensation. Appellant remained entitled to
medical benefits related to her accepted injuries.
In a February 5, 2009 notice, the Office advised appellant of its preliminary
determination that she received a $1,141.01 overpayment of compensation for the period
February 19 to August 24, 2007 because “the Office used incorrect pay rate and effective pay
rate dates when adjusting for your actual earnings.” It also made a preliminary determination
that she was not at fault in the creation of the overpayment. Regarding the calculation of the
overpayment, the Office stated that for the period February 19 to August 24, 2007 appellant’s
pay rate had been improperly based on her date of disability (June 6, 2003) pay of $505.31 rather
than the higher pay she received on the date of injury (April 21, 2003) of $505.87, a figure which
included differential pay. It then recalculated her wage-earning capacity for the period
February 19 to August 24, 2007 using the proper amounts for her pay rate when injured, the
current pay rate for her date-of-injury job and her actual wages in the custodian position. It
confirmed that appellant’s actual earnings of $16,644.77 for the period February 19 to
August 24, 2007 exceeded the current wages of the job she held when injured and found that
therefore she had no wage loss. The Office indicated that she was paid a total of $1,423.30 for
the period February 19 to August 24, 2007 but that she was only entitled to receive $282.29 in
medical benefits for Office-scheduled medical appointments for this period.
The Office further advised appellant that she could submit evidence challenging the fact,
amount or finding of fault and request waiver of the overpayment. It informed her that she could
submit additional evidence in writing or at prerecoupment hearing, but that a prerecoupment
hearing must be requested within 30 days of the date of the notice of the preliminary
overpayment determination. The Office requested that appellant complete and return an
enclosed financial information questionnaire within 30 days of the date of the notice even if she
was not requesting waiver of the overpayment.

1

Appellant received continuation of pay from April 21 to June 5, 2003 and began receiving Office compensation
for wage loss effective June 6, 2003.
2

In December 2007, the Office indicated that appellant’s pay rate had been improperly based on her date of
disability (June 6, 2003) pay of $505.31 rather than the higher pay she received on the date of injury (April 21,
2003) of $505.87, a figure which included differential pay. The record contains documents from the employing
establishment confirming this amount of differential pay.

2

In a March 13, 2009 decision, the Office determined that appellant received a $1,141.01
overpayment of compensation. The Board found that she was not at fault in the creation of the
overpayment but that the overpayment was not subject to waiver.3
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act4 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of duty.5 Section 8129(a) of the Act 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.”6
Section 8116(a) of the Act provides that while an employee is receiving compensation or
if she has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.7
Section 8105(a) of the Act 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.”8 Section 8101(4) of
the Act 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....”9 The word “disability” is used in several sections of the Act. With the
exception of certain sections where the statutory context or the legislative history clearly shows
that a different meaning was intended, the word as used in the Act means “Incapacity because of
3

The Office indicated that no waiver was possible because appellant did not submit the requested financial
information within the allotted time.
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8116(a).

8

Id. at § 8105(a). Section 8110(b) of the Act 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).
9

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).

3

injury in employment to earn wages which the employee was receiving at the time of such
injury.” This meaning, for brevity, is expressed as “disability for work.”10
Section 8115(a) of the Act provides that the “wage-earning capacity of an employee is
determined by her actual earnings if her actual earnings fairly and reasonably represent her
wage-earning capacity.”11 The Board has stated, “Generally, wages actually earned are the best
measure of a wage-earning capacity and in the absence of evidence showing that they do not
fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.”12
ANALYSIS -- ISSUE 1
The Board finds that appellant received a $1,141.01 overpayment of compensation. In
the present case, appellant received $1,423.30 in compensation for the period February 19 to
August 24, 2007 but was only entitled to receive $282.29 in medical benefits for Officescheduled medical appointments for this period. The Office has supported its finding that she
was not entitled to any wage-loss compensation for this period. It correctly found that for the
period February 19 to August 24, 2007 appellant’s pay rate should be based on the date-of-injury
pay (April 21, 2003) of $505.87 because this pay was higher than the date of disability (June 6,
2003) pay of $505.31.13 The Office then conducted a proper wage-earning capacity
determination for the period February 19 to August 24, 2007 using various figures such as her
pay rate when injured, the current pay rate for her date-of-injury job and her actual wages in the
custodian position. It correctly determined that appellant’s actual earnings of $16,644.77 for the
period February 19 to August 24, 2007 exceeded the current wages of the job she held when
injured and found that therefore that she had no wage loss.14 Appellant has not submitted any
evidence showing that the Office’s reasoning and calculations were improper. Therefore, the
Office properly determined that she received a $1,141.01 overpayment.15

10

See Charles P. Mulholland, Jr., 48 ECAB 604, 606 (1997).

11

5 U.S.C. § 8115(a).

12

Floyd A. Gervais, 40 ECAB 1045, 1048 (1989); Clyde Price, 32 ECAB 1932, 1934 (1981). Disability is
defined in the implementing federal regulations as “the incapacity, because of an employment injury, to earn the
wages the employee was receiving at the time of injury.” (Emphasis added.) 20 C.F.R. § 10.5(f). Once it is
determined that the actual wages of a given position represent a employee’s wage-earning capacity, the Office
applies the principles enunciated in Albert C. Shadrick, 5 ECAB 376 (1953), in order to calculate the adjustment in
the employee’s compensation.
13

See supra note 9.

14

See supra notes 10 through 12.

15

As recovery from continuing compensation benefits under the Act is not involved in this case, the Board has no
jurisdiction over the amount the Office determined that appellant should repay each month. Levon H. Knight,
40 ECAB 658, 665 (1989).

4

LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.16 These statutory
guidelines are found in section 8129(b) of the Act which states: “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.”17 If the Office finds a claimant
to be without fault in the matter of an overpayment, then, in accordance with section 8129(b), the
Office may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of the Act nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of the Act if recovery would cause hardship because the beneficiary needs substantially all of 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
the Office from data provided by the Bureau of Labor Statistics.18 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 position for the
worse.19 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.20
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.21 These statutory
guidelines are found in section 8129(b) of the Act which states: “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.”22 Since the Office found
16

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

17

5 U.S.C. § 8129(b).

18

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
Desiderio Martinez, 55 ECAB 245 (2004). Office procedure provides that 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. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6(a) (October 2004).
19

20 C.F.R. § 10.437(a), (b).

20

Id. at § 10.437(b)(1).

21

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

22

5 U.S.C. § 8129(b).

5

appellant to be without fault in the matter of the overpayment, then, in accordance with section
8129(b), the Office may only recover the overpayment if it determined that recovery of the
overpayment would neither defeat the purpose of the Act nor be against equity and good
conscience.
Section 10.438 of the Office’s regulations provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [the Office]. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of the [Act] or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”23
ANALYSIS -- ISSUE 2
In the February 5, 2009 notice of the preliminary overpayment determination, the Office
requested that appellant complete and return an enclosed financial information questionnaire
within 30 days of the date of the notice even if she was not requesting waiver of the
overpayment. Appellant did not submit such information within the allotted time. Therefore, the
Office properly determined that she did not establish entitlement to waiver of the overpayment
under the above-described standards. Appellant did not provide financial information within the
appropriate time period to show that she was entitled to waiver of the overpayment.24
CONCLUSION
The Board finds that appellant received a $1,141.01 overpayment of compensation. The
Board further finds that the Office did not abuse its discretion by refusing to waive recovery of
the overpayment.

23

20 C.F.R. § 10.438.

24

On appeal, appellant argued that she could not afford to repay the overpayment, but she was provided an
opportunity to submit financial information supporting such inability to pay and failed to submit such information.
She argued that she did not realize that there was a time limit for submitting financial information, but the Office’s
February 5, 2009 notice clearly advised her that she had 30 days from the date of the notice to submit this
information.

6

ORDER
IT IS HEREBY ORDERED THAT the March 13, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 6, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.A., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
MEDICAL CENTER DEVENS, Ayer, MA,
Employer
__________________________________________

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

Docket No. 21-0582
Issued: December 14, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 3, 2021 appellant filed a timely appeal from a November 20, 2020 merit decision
and a February 19, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective November 20, 2020, due to his failure to attend a

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 19, 2021 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

scheduled medical examination; and (2) whether OWCP properly denied appellant’s request for a
review of the written record as untimely filed pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On January 19, 2005 appellant, then a 35-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that on January 17, 2005 he sustained a left tibial fracture when
he was assaulted by an inmate while in the performance of duty. He stopped work on the date of
injury. OWCP accepted the claim for left tibial fracture and authorized intramedullary rodding
with proximal and distal interlock left tibia surgery, which occurred on January 18, 2005. It paid
appellant on the supplemental rolls as of March 4, 2005 and on the periodic rolls from April 17,
2005 through June 9, 2007. On May 12, 2010 OWCP expanded acceptance of the claim to include
lumbar radiculopathy, low back strain, and L5-S1 herniated lumbar disc. Appellant again received
wage-loss compensation on the supplemental and periodic rolls from March 29 to July 3, 2010.
OWCP accepted a recurrence of disability in an August 16, 2019 decision. Appellant was paid
appropriate wage-loss compensation on the supplemental rolls as of March 29, 2019 and on the
periodic rolls as of September 15, 2019.
In a letter dated August 21, 2020, OWCP notified appellant that it had scheduled a
November 2, 2020 second opinion examination with Dr. Hyman Glick, a Board-certified
orthopedic surgeon, to determine appellant’s work capacity. It explained that appellant’s
entitlement to compensation could be suspended, pursuant to 5 U.S.C. § 8123(d), if he refused to
submit to or obstructed an examination.
In a memorandum of telephone call (Form CA-110) dated September 21, 2020, appellant
related that he planned to return to work on November 1, 2020 and would call to verify his return
to work. OWCP informed him that if he returned to work that his second opinion evaluation would
be cancelled.
In a letter dated September 29, 2020, the employing establishment requested that OWCP
retain appellant’s second opinion appointment until his return to work was verified by a Form
CA-3.
In a letter dated October 29, 2020 to the employing establishment, OWCP advised that it
would not cancel the second opinion appointment until it verified that appellant returned to work
in a Form CA-3.
In a November 3, 2020 memorandum, the medical scheduler notified OWCP that appellant
did not attend the scheduled November 2, 2020 appointment with Dr. Glick.
In a November 3, 2020 notice, OWCP proposed to suspend appellant’s wage-loss
compensation and medical benefits pursuant to 5 U.S.C. § 8123(d) as he failed to attend the
examination as directed by OWCP that was scheduled on November 2, 2020 with Dr. Glick. It
advised appellant to provide a written explanation of his reasons for failing to attend the scheduled
examination, with substantive corroborating evidence, within 14 days.

2

On November 10, 2020 OWCP received a report of work status (Form CA-3) indicating
that appellant had returned to part-time modified work on November 3, 2020. A note on the form
indicated that he had worked a half day and had then taken sick leave.
In a letter dated November 10, 2020, OWCP acknowledged appellant’s return to part-time
limited-duty work on November 3, 2020.
A compensation termination report dated November 10, 2020 indicated that appellant’s
wage-loss compensation would be terminated effective November 3, 2020 as he had returned to
work. OWCP’s records reflect that appellant received wage-loss compensation on the periodic
rolls through November 7, 2020.
On November 20, 2020 OWCP received an October 27, 2020 note from Dr. Andrew P.
White, a Board-certified orthopedic surgeon, releasing appellant to return to full-duty work on
November 3, 2020.
By decision dated November 20, 2020, OWCP suspended appellant’s wage-loss
compensation and medical benefits effective that day for failure to attend the November 2, 2020
examination with Dr. Glick. It noted that on November 3, 2020 appellant had been advised that
he had 14 days to provide written evidence justifying his fa ilure to attend the examination;
however, he had not provided an explanation of his failure to attend.
In a letter dated November 23, 2020, the employing establishment noted that the Form
CA-3 contained erroneous information as appellant had returned to full-duty work on November 3,
2020 not part time as noted on the form. It also noted that he worked four hours that day and then
went out on sick leave.
In letters dated December 11, 2020 and January 8, 2021, appellant stated that he returned
to full-duty work based on an October 27, 2020 report from Dr. White and following an approved
work hardening program. He stated that he communicated with OWCP regarding the scheduled
November 2, 2020 appointment and was advised that he was no longer required to attend as he
had been released to return to full duty on November 3, 2020.
On January 27, 2021 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
By decision dated February 19, 2021, OWCP denied appellant’s request for a review of the
written record, finding that the request was untimely filed. The request was dated January 27,
2021, more than 30 days following the November 20, 2020 decision. The hearing representative
informed appellant that his case had been considered in relation to the issues involved, and that
the issues could be equally addressed by requesting reconsideration and submitting evidence not
previously considered.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8123(a) of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary. 3 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP. 4
OWCP’s regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary.5 Section
8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit to or
obstructs a directed medical examination, his or her right to compensation is suspended until the
refusal or obstruction stops. 6 OWCP’s procedures provide that, before OWCP may invoke these
provisions, the employee is to be provided a period of 14 days within which to present in writing
his or her reasons for the refusal or obstruction.7 If good cause for the refusal or obstruction is not
established, entitlement to compensation is suspended in accordance with section 8123(d) of
FECA until the date on which the claimant agrees to attend the examination.
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly suspended appellant’s wage-loss compensation
and medical benefits pursuant to 5 U.S.C. § 8123(d).
On August 21, 2020 OWCP notified appellant that it had scheduled a November 2, 2020
second opinion examination with Dr. Glick a Board-certified orthopedic surgeon. It explained that
his entitlement to compensation could be suspended, pursuant to 5 U.S.C. § 8123(d), if he refused
to submit to or obstructed an examination. On September 21, 2020 appellant notified OWCP that
he planned to return to work on November 1, 2020 and would call to verify his return to work. On
October 29, 2020 OWCP informed the employing establishment that it would not cancel the
second opinion appointment until verification was received in a Form CA-3 that had returned to
work. In a November 3, 2020 memorandum, the medical scheduler notified OWCP that appellant
did not attend the scheduled November 2, 2020 appointment with Dr. Glick.
On November 3, 2020 OWCP informed appellant that it proposed to suspend his
compensation benefits pursuant to 5 U.S.C. § 8123. It requested that he provide an explanation
for his failure to attend the scheduled examination. On November 10, 2020 OWCP received a
Form CA-3 verifying appellant had returned to work on November 3, 2020. On November 10,
2020 it terminated his wage-loss compensation, noting that he had returned to full-duty work on
3

5 U.S.C. § 8123(a).

4

See R.L., Docket No. 20-0160 (issued October 30, 2020); M.T., Docket No. 18-1675 (issued March 8, 2019); L.B.,
Docket No. 17-1891 (issued December 11, 2018); J.T., 59 ECAB 293 (2008).
5

20 C.F.R. § 10.320; 5 U.S.C. § 8123(a); id. at § 10.323; R.L., id.; A.P., Docket No. 19-0328 (issued August 6,
2019); D.K., Docket No. 18-0217 (issued June 27, 2018).
6

Id. at § 8123(d); id. at § 10.323; R.L., id.; A.P., id.; D.K., id.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).

4

November 3, 2020. On November 20, 2020 OWCP received an October 27, 2020 note from
Dr. White, a Board-certified orthopedic surgeon, releasing appellant to return to full-duty work on
November 3, 2020. However, by decision dated November 20, 2020, it suspended his wage-loss
compensation and medical benefits effective that day, finding that he had not provided an
explanation for his failure to attend the scheduled second opinion examination on
November 2, 2020.
The Board thus finds that OWCP improperly suspended appellant’s compensation benefits
on November 20, 2020. OWCP had advised him that the scheduled second opinion evaluation
would be unnecessary if he was released to return to work on November 3, 2020 and he did in fact
return to work. It also advised the employing establishment that the scheduled examination would
be unnecessary if it received a CA-3 form that appellant had returned to work. OWCP received a
CA-3 form on November 10, 2020 verifying his return to work on November 3, 2020. The
evidence of record establishes that appellant had been released to full-duty work by his treating
physician, Dr. White, effective November 3, 2020 and that appellant returned to work that day.
The evidence of record also establishes that OWCP had terminated appellant’s wage-loss
compensation on November 10, 2020. In the decision dated November 20, 2020, OWCP found
that he had not explained his failure to attend the November 2, 2020 second opinion evaluation.
However, the record establishes that OWCP was given an explanation regarding appellant’s good
cause for not attending the scheduled second opinion examination with Dr. Glick on
November 2, 2020. The evidence of record establishes that appellant had been released to fullduty work by his treating physician, Dr. White, effective November 3, 2020 and that he returned
to work that day. Thus, as OWCP had previously informed appellant, a second opinion evaluation
to determine appellant’s work capability was unnecessary.
OWCP may only invoke the sanction provision of 5 U.S.C. § 8123(d) if good cause for the
refusal or obstruction is not established. As appellant established that he returned to full-duty work
on November 3, 2020, he has established good cause. Therefore, the Board finds that OWCP acted
unreasonably and therefore abused its discretion in suspending his wage -loss compensation and
medical benefits effective November 20, 2020.
CONCLUSION
The Board finds that OWCP improperly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d).8

8

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated November 20, 2020 is reversed. The February 19, 2021 nonmerit decision is set
aside as moot.
Issued: December 14, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Duluth, GA, Employer
__________________________________________

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

Docket No. 19-0529
Issued: September 4, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 2, 2019 appellant filed a timely appeal from a November 2, 2018 merit decision
and a December 19, 2018 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish right shoulder
conditions causally related to the accepted May 23, 2018 employment incident; and (2) whether

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the December 19, 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.

OWCP properly denied appellant’s request for review of the written record before an OWCP
hearing representative as untimely filed pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On June 17, 2018 appellant, then a 63-year-old specialized postal clerk, filed a traumatic
injury claim (Form CA-1) alleging that on May 23, 2018 he sustained a right shoulder sprain and
rotator cuff injury as a result of securing sacks with metal labels while in the performance of duty.
He did not stop work.
On the date of injury, the employing establishment issued a properly executed authorization
for examination and/or treatment (Form CA-16), which indicated that appellant was authorized to
seek medical treatment at Caduceus USA for his May 23, 2018 right shoulder injury. The
accompanying attending physician’s report, Part B of the Form CA-16, was completed on May 24,
2018 by a physician with an illegible signature noting treatment for right shoulder pain and
recommending minimizing repetitive use including pushing/pulling with the right hand.
In support of his claim, appellant submitted medical reports and progress notes from
Caduceus USA dated May 23 through September 11, 2018 documenting treatment for his right
shoulder condition. Initially, he was treated on May 23, 2018 by a nurse practitioner whose
findings were countersigned by a Dr. Stephen A. Dawkins, specializing in occupational medicine.
Dr. Dawkins noted a diagnosis of impingement and strain of the right shoulder. In an August 23,
2018 medical report, Dr. William Huey, a specialist in occupational medicine, reported that
appellant presented for follow up of his right shoulder injury. He reported that over the last several
months appellant noted increasing pain in the anterior right shoulder. Appellant reported his injury
on May 23, 2018 and was referred for an evaluation on that date. Dr. Huey reported that a
magnetic resonance imaging (MRI) scan of the right shoulder demonstrated a partial thickness
supraspinatus and labrum tear. He diagnosed right shoulder impingement syndrome, unspecified
sprain of right shoulder joint, and right shoulder synovitis and tenosynovitis. Dr. Huey opined that
appellant’s injury occurred over the last several months which he believed was due to repetitive
opening of sealed mailbags containing high value items. He noted that opening the seals on these
bags required “quite a bit” of force with the right arm and shoulder and that appellant performed
this task repetitively and often while working.
In a development letter dated September 18, 2018, OWCP noted that when appellant’s
claim was first received it appeared to be a minor injury that resulted in minimal or no lost time
from work. Based on this criteria, it had administratively approved payment of a limited amount
of medical expenses. However, the merits of his claim had not been formally considered and
OWCP advised appellant of the deficiencies of his claim. It requested additional factual and
medical evidence and provided a questionnaire for his completion. OWCP afforded appellant 30
days to respond.
OWCP received additional reports from Dr. Huey dated September 11 and 18, 2018
documenting treatment for appellant’s right shoulder condition, as well as physical therapy notes
dated August 30 through September 13, 2018.

2

By decision dated November 2, 2018, OWCP denied appellant’s claim finding that the
medical evidence of record failed to establish that his diagnosed right shoulder condition was
causally related to the accepted employment incident.
On December 8, 2018 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
By decision dated December 19, 2018, an OWCP hearing representative determined that
appellant was not entitled to a review of the written record as a matter of right because his request
was not made within 30 days of the issuance of its November 2, 2018 decision. It exercised its
discretion and determined that the issue in the case could equally well be addressed by requesting
reconsideration and submitting evidence not previously considered on the issue of causal
relationship.
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,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 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.5
In order to determine whether an employee actually sustained an injury in the performance
of duty in a traumatic injury claim, OWCP begins with an analysis of whether fact of injury has
been established.6 Fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee actually
experienced the employment incident which is alleged to have occurred.7 The second component
is whether the employment incident caused a personal injury and can only be established by
medical evidence.
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is a causal relationship
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

D.B., Docket No. 18-1348 (issued January 4, 2019).

7

J.M., Docket No. 17-0284 (issued February 7, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).

8

J.F., Docket No. 19-0456 (issued July 12, 2014); T.H., 59 ECAB 388, 393 (2008).

3

between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
specific employment incident.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish right shoulder
conditions causally related to the accepted May 23, 2018 employment incident.11
In support of his claim, appellant submitted medical documentation dated May 23 through
September 18, 2018 from Caduceus USA. The Board finds that the Caduceus USA physician
reports are not well rationalized and fail to establish appellant’s right shoulder claim.12 Amongst
these medical reports, Dr. Huey and Dr. Dawkins discussed treatment for appellant’s right
shoulder beginning on May 23, 2018. While the physicians provided firm diagnoses of right
shoulder impingement syndrome, unspecified sprain of right shoulder joint, and right shoulder
synovitis and tenosynovitis, they failed to provide a probative rationalized opinion regarding the
cause of appellant’s conditions.13 Dr. Huey reported that over the last several months appellant
had complained of increasing pain in the anterior right shoulder, causing him to report his injury
and seek medical treatment on May 23, 2018. He opined that appellant’s injury occurred over the
last several months due to repetitive opening of sealed mailbags containing high value items,
noting that opening the seals required quite a bit of force with the right arm and shoulder, and that
appellant performed this task repetitively and often while working. The Board notes, however,
that appellant alleged that his condition was causally related to a single incident on May 23, 2018.
If he believes that his employment duties aggravated his condition over a period of days or shifts,
this could be an occupational disease.14 The Board has found that a physician must provide a
narrative description of the identified employment incident and a reasoned opinion on whether the
employment incident described caused or contributed to appellant’s diagnosed medical
conditions.15 In this instance, Dr. Huey’s generalized statements do not establish causal
relationship because they are unsupported by adequate medical rationale explaining how the
physical activity on May 23, 2018 actually caused the diagnosed right shoulder conditions.16 He
did not provide a physiological explanation as to how appellant’s employment incident as alleged
9

M.V., Docket No. 18-0884 (issued December 28, 2018); Robert G. Morris, 48 ECAB 238 (1996).

10

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

T.S., Docket No. 17-1709 (issued May 7, 2018).

12

S.F., Docket No. 18-1030 (issued April 5, 2019).

13

J.C., Docket No. 19-0310 (issued June 18, 2019).

14

G.R., Docket No. 17-0669 (issued July 19, 2017).

15

See V.J., Docket No. 17-0358 (issued July 24, 2018); John W. Montoya, 54 ECAB 306 (2003).

16

T.W., Docket No. 18-1436 (issued April 10, 2019).

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on May 23, 2018 either caused or contributed to his diagnosed right shoulder conditions.17 Thus,
the Board finds that these reports are insufficient to establish appellant’s traumatic injury claim.
The remaining medical evidence is also insufficient to establish appellant’s claim. The
Caduceus USA physical therapy notes have no probative medical value in establishing his claim.
Physical therapists are not considered “physician[s]” as defined under FECA.18 Consequently,
their findings and/or opinions will not suffice for purposes of establishing entitlement to FECA
benefits.19
Additionally, the attending physician’s report, Part B of Form CA-16, was completed by a
health provider with an illegible signature. As such, this report has no probative value as it is not
established that the author is a physician.20
The Board finds that the record lacks rationalized medical evidence establishing a causal
relationship between the accepted employment incident of May 23, 2018 and appellant’s
diagnosed right shoulder conditions.21 Thus, appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.22
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that before review under section 8128(a) of this title,
a claimant for compensation not satisfied with a decision of the Secretary is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his or her claim

17

D.F., Docket No. 19-0067 (issued May 3, 2019).

5 U.S.C. § 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. S.J., Docket No. 17-0783, n.2 (issued April 9, 2018) (a nurse practitioner is not a physician under
FECA); J.L., Docket No. 17-1207 (issued December 8, 2017) (a physical therapist is not a physician under FECA);
David P. Sachiko, 57 ECAB 316, 320 n.11 (2006).
18

19

N.B., Docket No. 19-0221 (issued July 15, 2019).

20
See S.G., Docket No. 18-1076 (issued April 11, 2019); D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB
572, 575 (1988).
21

K.L., Docket No. 18-1029 (issued January 9, 2019).

22

The record contains a Form CA-16 signed by the employing establishment official on May 23, 2018. When the
employing establishment properly executes a Form CA-16 which authorizes medical treatment as a result of an
employee’s claim for an employment-related injury, the CA-16 Form creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the
claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance,
unless terminated earlier by OWCP. See 20 C.F.R. §§ 10.300 and 10.304; R.W., Docket No. 18-0894 (issued
December 4, 2018).

5

before a representative of the Secretary.23 Section 10.615 of the federal regulations implementing
this section of FECA provides that a claimant shall be afforded a choice of an oral hearing or a
review of the written record.24 OWCP regulations provide that the request must be sent within 30
days of the date of the decision for which a hearing is sought, as determined by postmark or other
carrier’s date marking, and also that the claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same decision.25
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA,26 has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and that OWCP must exercise this discretionary authority in deciding
whether to grant a hearing.27 OWCP procedures, which require OWCP to exercise its discretion
to grant or deny a hearing when the request is untimely or made after reconsideration, are a proper
interpretation of FECA and Board precedent.28
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s December 8, 2018 request for a
review of the written record before an OWCP hearing representative as untimely filed under 5
U.S.C. § 8124(b).
A request for a hearing must be made within 30 days after the date of the issuance of an
OWCP final decision. Appellant submitted an appeal request form dated December 8, 2018
requesting a review of the written record. As the request was submitted more than 30 days
following issuance of the November 2, 2018 merit decision, the Board finds that it was untimely
filed and appellant was not entitled to a review of the written record as a matter of right.29 Section
8124(b)(1) is unequivocal on the time limitation for requesting a hearing.30
The Board further finds that OWCP properly exercised its discretion in denying appellant’s
request for a review of the written record by determining that the issue in the case could equally
well be addressed by requesting reconsideration and submitting new evidence or argument relevant
to the issue of causal relationship. The Board has held that the only limitation on OWCP’s
authority is reasonableness, and an abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
23

5 U.S.C. § 8124(b)(1).

24

20 C.F.R. § 10.615.

25

Id. at § 10.616(a).

26

Supra note 1.

27

R.K., Docket No. 17-0151 (issued December 12, 2018); Marilyn F. Wilson, 52 ECAB 347 (2001).

28

D.W., Docket No. 17-1413 (issued December 18, 2018); Teresa M. Valle, 57 ECAB 542 (2006).

29

W.C., Docket No. 18-1651 (issued March 7, 2019).

30
5 U.S.C. § 8124(b)(1); see R.H., Docket No. 18-1602 (issued February 22, 2019); William F. Osborne, 46 ECAB
198 (1994).

6

both logic and probable deduction from established facts.31 Because reconsideration exists as an
alternative appeal right to address the issue raised by OWCP’s November 2, 2018 decision, the
Board finds that OWCP has not abused its discretion in denying appellant’s untimely request for
a review of the written record.32
Accordingly, the Board finds that OWCP properly denied appellant’s December 8, 2018
request for a review of the written record as untimely filed pursuant to 5 U.S.C. § 8124(b).33
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish right shoulder
conditions causally related to the accepted May 23, 2018 employment incident. The Board also
finds that OWCP did not abuse its discretion by denying appellant’s request for a review of the
written record before an OWCP hearing representative as untimely filed pursuant to 5 U.S.C.
§ 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the December 19 and November 2, 2018 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 4, 2019
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
31

M.K., Docket No. 19-0428 (issued July 15, 2019); Daniel J. Perea, 42 ECAB 214, 221 (1990).

32

See J.N., Docket No. 18-0646 (issued January 28, 2019).

33
R.P., Docket No. 16-0554 (issued May 17, 2016); D.P., Docket No. 14-308 (issued April 21, 2014); D.J., Docket
No. 12-1332 (issued June 21, 2013).

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