United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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Appearances:
Steve Burt, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1598
Issued: September 22, 2014

Case Submitted on the Record

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

JURISDICTION
On June 27, 2013 appellant, through her representative, filed a timely appeal from a
March 12, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish modification of
OWCP’s December 11, 1997 loss of wage-earning capacity determination.
FACTUAL HISTORY
In March 1997, OWCP accepted that appellant, then a 41-year-old letter carrier, sustained
bilateral aggravation of osteoarthritis of her knees due to the performance of her work duties

1

5 U.S.C. §§ 8101-8193.

over time.2 Appellant stopped work on December 28, 1995 in order to undergo left knee
arthroscopy with medial meniscus debridement on December 29, 1995 and she returned to
limited-duty work for the employing establishment on January 10, 1996.
In a May 5, 1997 report, Dr. William Higginbotham, an attending Board-certified
orthopedic surgeon, indicated that appellant had degenerative changes of her knees which were
worse in her left knee (including changes in the patellofemoral and medial joints). He
recommended that appellant alternate between sitting and standing during the workday and that
she not climb ladders, stand for prolonged periods, walk for long distances or walk on
unprotected heights.
On May 28, 1997 Dr. William Fitz, an attending Board-certified physical medicine and
rehabilitation physician, stated that appellant could return to work with restrictions, including
lifting, carrying, pushing and pulling no more than 15 pounds.
On June 28, 1997 the employing establishment offered appellant a full-time position
bearing the title “modified carrier.”3 Appellant accepted the position on July 10, 1997 and began
working in it on August 2, 1997. The modified carrier position allowed appellant to alternate
between sitting and standing at will while sorting mail into carrier cases and inputting data on a
keyboard for the delivery support information system and other programs.4 The physical
requirements of the position included alternating between sitting and standing and appellant was
not required to stoop, climb ladders, stand for prolonged periods, walk long distances or walk on
unprotected heights.
In a December 11, 1997 decision, OWCP determined that appellant’s actual wages as a
modified carrier fairly and reasonably represented her wage-earning capacity. It found that she
had no loss of wage-earning capacity and stated, “Since you returned as a modified carrier with
retained wages, your wages match the current salary of your date-of-injury job as a carrier.”5
OWCP indicated that appellant was vocationally and medically suited for the modified carrier
position.
In June 19, 2001 and October 10, 2002 duty status reports (CA-17 forms), Dr. Diane
Culik, an attending Board-certified family practitioner, indicated that appellant could work for
eight hours per day with restrictions including lifting up to 20 pounds, walking for up to two
hours per day and standing for up to one hour per day. Appellant could sit for eight hours daily
but she could not kneel, bend or stoop. In an April 26, 2005 duty status report, Dr. Culik
indicated that appellant could work for eight hours per day with restrictions including lifting up
2

Appellant filed an occupational disease claim in January 1997 indicating that she first became aware of her
claimed condition and its relationship to work factors on September 5, 1995 when she noticed that her left knee
became inflamed while performing her work duties. Her letter carrier position required her to case and sort mail for
two to three hours per day and to deliver mail for five hours per day.
3

The hours of the position were 8:00 a.m. to 4:40 p.m., five days per week.

4

The mail sorting task did not require using more than one hand at a time.

5

Appellant’s pay rate when her disability began was $702.90 per week and the current pay rate for the job she
held when injured was $708.90.

2

to 20 pounds, walking for up to four hours per day and standing for up to one hour per day.
Appellant could not engage in kneeling, bending or stooping.
On March 17, 2007 appellant began working in a full-time position which involved
casing mail, inputting data and working on undeliverable mail. The position required lifting up
to 20 pounds, walking for up to four hours per day, standing for up to one hour at a time,
occasional bending and reaching above the shoulder, and infrequent climbing.
In a June 21, 2007 duty status form report, Dr. Culik indicated that appellant could work
for eight hours per day with restrictions including lifting up to 20 pounds, walking for up to two
hours at a time and standing for up to two hours at a time. Appellant could occasionally bend
and reach above the shoulder and could climb on rare occasions. In a duty status report dated
June 23, 2009, Dr. Culik listed appellant’s restrictions as walking for up to two hours at a time
and standing for up to two hours at a time. Appellant could occasionally bend and reach above
the shoulder and could climb on rare occasions.6 On January 27, 2010 Dr. Culik found that
appellant could work for eight hours per day, with restrictions of lifting up to 20 pounds, walking
for up to 4½ hours per day and standing for up to 4½ hours per day. Appellant could bend,
stoop, twist, push and pull for up to three hours per day and could occasionally engage in
climbing.
Under the National Reassessment Process (NRP), the employing establishment offered
appellant a modified city carrier position on April 29, 2010, a position which reduced her work
hours from 8.0 to 5.5 hours per day for five days per week. The position involved delivering
mail for part of the day and required her to lift up to 20 pounds, walk for up to 4½ hours per day,
stand for up to 4½ hours per day, and bend, stoop, twist, push and pull for up to three hours per
day. Appellant accepted the position “with protest” on May 13, 2010.7
On June 25, 2010 appellant filed a claim (Form CA-2a) alleging that she sustained a
recurrence of disability on June 5, 2010 due to her accepted work injury. She indicated that her
bilateral knee pain lessened when she worked in a modified position that did not require carrying
mail but that the pain never completely went away. Appellant noted that on June 5, 2010 she
was reassigned to the Monroe Post Office and that she had to stop work early that day after
experiencing increased knee pain while attempting to deliver her mail route.8
Appellant submitted a June 23, 2010 duty status report in which Dr. Culik found that she
could work for eight hours per day, with restrictions of lifting up to 20 pounds, walking for up to
6

In a September 30, 2009 duty status report, Dr. Culik indicated that appellant could walk for one and a half
hours at a time.
7

On August 13, 2009 the employing establishment offered appellant a modified job for one and a half hours per
day under NRP. Appellant rejected the offered position and it does not appear that she worked in the position.
8

On December 27, 2010 appellant filed a Form CA-2a containing a similar claim that she sustained a recurrence
of disability on June 5, 2010 due to her accepted work injury. In this form, she indicated that she last worked on
June 23, 2010 and that the employing establishment told her that it did not have work within her work restrictions.
In a December 1, 2010 letter, appellant described the work duties she was performing in mid-2010, including
engaging in repetitive lifting and twisting while casing mail.

3

one hour per day and standing for up to two hours per day. Appellant could bend, stoop and
twist for up to one hour per day, push and pull for up to one half hour per day and occasionally
engage in climbing. On July 15 and September 8, 2010 Dr. Culik provided similar work
restrictions. On December 1, 2010 she indicated that appellant could engage in pushing and
pulling for up to eight hours per day.
In a report dated December 3, 2010, Dr. Culik indicated that appellant had been on work
restrictions due to severe osteoarthritis in her knees, especially in the left knee, noting that this
condition was related to chronic wear and tear from standing at work and injuries related to work
duty. She discussed appellant’s work duties between June and September 2010 and stated:
“I definitely feel [appellant] has pushed herself to continue working to the best of
her ability despite prolonged wear and tear and overuse of her knees and chronic
pain and continuing her recommended medical management, and cooperating
with the surgical and physical therapy recommendations of her orthopedic
surgeon. She has reached the point that she can no longer medically continue
with the required duties of her job position.”
In a February 1, 2011 duty status report, Dr. Culik stated that appellant could work for
eight hours per day, with restrictions of lifting up to 20 pounds, walking for up to one hour per
day and standing for up to two hours per day. Appellant could bend, stoop, twist, push and pull
for up to one hour per day and could occasionally engage in climbing.
In a March 28, 2011 letter, OWCP advised appellant that it considered her recurrence of
disability claim to be a request for modification of its December 11, 1997 wage-earning capacity
determination. It informed appellant of the criteria for modifying a wage-earning capacity
determination including showing that the original rating was in error, that her injury-related
medical condition had worsened such that she could not work in the rated position or that she
had been retrained or otherwise vocationally rehabilitated. In another March 28, 2011 letter,
OWCP asked the employing establishment to provide various documents, including copies of
position descriptions of jobs held by appellant. The employing establishment submitted copies
of position descriptions of jobs held by appellant, including the modified carrier position on
which the December 11, 1997 wage-earning capacity determination was based.
In an April 15, 2011 letter, appellant alleged that OWCP’s December 11, 1997 wageearning capacity determination was made in error because it was based on the modified carrier
position which did not fairly represent her “previous letter carrier duties.” She argued that much
of the work of the modified carrier position she began performing in 1997 was “make-work” and
“not core letter carrier work to begin with.” Appellant felt that the modified carrier position was
“nothing more than a collection of make-work duties and was never a valid, funded or titled
position.” She claimed that, if she left the modified carrier position, it would not represent the
type of position that could be bid upon by her coworkers.
In a February 22, 2012 duty status report, Dr. Culik recommended work restrictions
which were similar to those contained in her February 1, 2011 duty status report.

4

In a March 16, 2012 decision, OWCP found that appellant did not meet her burden of
proof to modify its December 11, 1997 wage-earning capacity determination. It indicated that
appellant had not shown that there was a material worsening of her injury-related condition such
that she was unable to earn wages as a modified carrier position, i.e., the position on which the
December 11, 1997 determination was based.
In a decision dated May 30, 2012, an OWCP hearing representative set aside OWCP’s
March 16, 2012 decision on the grounds that OWCP had not adequately considered appellant’s
argument that the December 11, 1997 wage-earning capacity determination should be modified
because the determination was erroneous at the time it was made. Appellant had argued that the
determination was erroneous because it was based on wages earned in a makeshift or odd-lot
position. The case was remanded to OWCP for consideration of this argument.
In an August 3, 2012 decision, OWCP denied appellant’s request for modification of its
December 11, 1997 wage-earning capacity determination. It found that appellant had not shown
that the December 11, 1997 determination was erroneous or that her injury-related condition
worsened such that she was unable to earn wages as a modified carrier. OWCP determined that
the modified carrier position was not a makeshift or odd-lot position.
Appellant requested a hearing with an OWCP hearing representative. During the
December 18, 2012 hearing, she testified that the 1997 job offer involved casing mail and
entering data into a computer keyboard. Appellant stated that other duties were later assigned,
including some express mail delivery and pickup, office supply clerk duties, Combined Federal
Campaign responsibilities and food drive assistance. She indicated that she cased mail from one
to three hours daily. Appellant continued with these activities until 2009 when her work hours
were diminished due to NRP. She stated that she was unable to continue working in June 2009
and that a manager sent her home because no work was available within her work restrictions.
Appellant’s representative asserted that OWCP’s December 11, 1997 wage-earning capacity
determination should be modified because the original rating was in error. He argued that the
1997 job offer was devised to meet appellant’s specific needs, that it had no formal job title or
position number, and that it could not have been found in the local job market. Appellant’s
representative discussed FECA Bulletin No. 09-05 and argued that the wage-earning capacity
determination was not based on a bona fide job offer, i.e., a classified position with a formal
position description. He also asserted that the evidence showed a change in the injury-related
condition such that appellant’s medical status actually improved prior to being offered a new job
in April 2010. For these reasons, OWCP should have modified its December 11, 1997 wageearning capacity determination.9
In a March 12, 2013 decision, an OWCP hearing representative affirmed OWCP’s
August 3, 2012 decision. He found that appellant had not shown that the December 11, 1997
determination was erroneous or that her injury-related condition worsened such that she was
unable to earn wages as a modified carrier.

9

Appellant’s representative submitted a copy of a Merit Systems Protection Board case which he believed
supported his argument that the modified carrier position represented makeshift of odd-lot work.

5

LEGAL PRECEDENT
Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity. Generally, wages actually earned are the best measure of 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.10 A determination
regarding whether actual earnings fairly and reasonably represents one’s wage-earning capacity
should be made only after an employee has worked in a given position for more than 60 days.11
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.12 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.13
OWCP procedure manual provides guidelines for determining wage-earning capacity
based on actual earnings. A job that is part-time (when the claimant was a full-time employee at
the time of injury), seasonal in an area where year-round employment is available, or temporary
(when the date-of-injury position was a permanent position) is generally not appropriate for a
wage-earning capacity determination.14
In addition, it is well established that a position that is considered an odd-lot or makeshift
position designed for a claimant’s particular needs is not appropriate for a wage-earning capacity
determination.15 The Board has discussed several factors that may support a finding that the
offered position was makeshift in nature. These factors include: (1) the position did not have an
official title or formal position description; (2) there were strict limitations, such as five-pound
lifting and no casing of mail, which indicated that the claimant would not be able to secure a
position in the community at large with such limited duties; (3) the claimant did not perform any
meaningful tasks in the position; and (4) the job appeared to be temporary in nature.16
FECA Bulletin No. 09-05 outlines OWCP procedures when limited-duty positions are
withdrawn pursuant to NRP. If a formal wage-earning capacity decision has been issued, OWCP

10

Dennis E. Maddy, 47 ECAB 259, 262 (1995).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (October 2009).
12

See Sharon C. Clement, 55 ECAB 552 (2004).

13

See T.M., Docket No. 08-975 (issued February 6, 2009).

14

Federal (FECA) Procedure Manual, supra note 11.

15

See A.J., Docket No. 10-619 (issued June 29, 2010).

16

Id.

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must develop the evidence to determine whether a modification of that decision is appropriate.17
When a loss of wage-earning capacity decision has been issued, FECA Bulletin No. 09-05
requires OWCP to develop the evidence to determine whether a modification of the decision is
appropriate.18 To this end, FECA Bulletin No. 09-05 asks OWCP to confirm that the file
contains documentary evidence supporting that the position was an actual bona fide position. It
requires OWCP to review whether a current medical report supports work-related disability and
establishes that the current need for limited duty or medical treatment is a result of injury-related
residuals, and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.19
ANALYSIS
OWCP accepted that appellant sustained bilateral aggravation of the osteoarthritis of her
knees due to the performance of her work duties over time. Appellant stopped work on
December 28, 1995 in order to undergo left knee surgery on December 29, 1995 and she returned
to limited-duty work for the employing establishment on January 10, 1996.
On June 28, 1997 the employing establishment offered appellant a full-time position
bearing the title “modified carrier.” Appellant began working in the position on August 2, 1997.
The modified carrier position allowed appellant to alternate between sitting and standing at will
while sorting mail into carrier cases and inputting data on a keyboard for the delivery support
information system and other programs. The physical requirements of the position included
alternating between sitting and standing and appellant was not required to stoop, climb ladders,
stand for prolonged periods, walk long distances or walk on unprotected heights. In a
December 11, 1997 decision, OWCP determined that appellant’s actual wages as a modified
carrier fairly and reasonably represented her wage-earning capacity. It indicated that appellant
was vocationally and medically suited for the modified carrier position and found that she had no
loss of wage-earning capacity. On April 29, 2010 OWCP offered appellant a modified position
under NRP. The modified carrier position reduced appellant’s work hours.
Appellant stopped work in June 2010 and requested that OWCP modify its December 11,
1997 wage-earning capacity determination.20 In several decisions, OWCP found that appellant
had not met her burden of proof to modify the December 11, 1997 determination.

17

FECA Bulletin No. 09-05 (issued August 18, 2009).

18

Id.

19

Id. at §§ I.A.1-2.

20

Appellant initially indicated that she was claiming a recurrence of work-related disability, but she later
indicated that she was requesting modification of OWCP’s December 11, 1997 wage-earning capacity
determination.

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The Board finds that appellant did not meet her burden of proof to modify OWCP’s
December 11, 1997 wage-earning determination under any of the three criteria discussed
above.21
Appellant and her representative alleged, both before OWCP and on appeal, that
OWCP’s original December 11, 1997 wage-earning capacity determination was, in fact,
erroneous. It was argued that the position upon which the rating was based, i.e., modified
carrier, was makeshift or odd-lot in nature and therefore could not be used to justify the wageearning capacity determination.
In the case of A.J.,22 the Board discussed several factors that may support a finding that
an offered position was makeshift or odd-lot in nature. These factors include: (1) the position
did not have an official title or formal position description; (2) there were strict limitations, such
as five-pound lifting and no casing of mail, which indicated that the claimant would not be able
to secure a position in the community at large with such limited duties; (3) the claimant did not
perform any meaningful tasks in the position; and (4) the job appeared to be temporary in
nature.23
The Board finds that the facts of the present case are distinguishable from those of the
case of A.J. and that the modified carrier position which served as the basis for OWCP’s
December 11, 1997 wage-earning capacity determination does not constitute a makeshift or oddlot position. Although the position that appellant began performing on August 2, 1997 was not
classified, it did have the title of modified carrier. The position description for the job listed
specific work duties and physical requirements. The limitations of the position were not unduly
strict as the job included the activities of sorting and casing mail and making entries on a
keyboard. These are meaningful tasks which had been a substantial part of appellant’s date-ofinjury job as a letter carrier. The position was not temporary in nature as appellant performed it
for a number of years. There was no evidence that the position was created specifically for
appellant. Thus, the modified carrier position was not makeshift or odd-lot in nature because it
had a detailed job description, was performed without overly strict physical restrictions and
involved meaningful tasks correlated to that of a letter carrier.24
The evidence further reveals that the modified carrier position was medically and
vocationally suitable for appellant. Appellant testified that other duties were added to the
modified carrier position. However, she did not establish that she was required to exceed her
21

See supra note 12.

22

Supra note 15.

23

See also V.H., Docket No. 13-2076 (issued March 5, 2014).

24

See K.A., Docket No. 13-1652 (issued January 6, 2014) (position serving as basis for wage-earning capacity
determination found to not be makeshift or odd-lot because it had a detailed job description, was performed without
overly strict physical restrictions and involved meaningful tasks). Appellant’s representative submitted a copy of a
Merit Systems Protection Board case which he believed supported his argument that the modified carrier position
represented makeshift of odd-lot work. However, he did not explain how the standards of another federal agency
were applicable to the present case decided under FECA.

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physical limitations or that her assignment was vocationally unsuitable.25 Actual earnings are
generally the best measure of wage-earning capacity and OWCP properly used appellant’s actual
wages in the modified carrier position to determine her wage-earning capacity.26 There was no
clear probative evidence that the December 11, 1997 wage-earning capacity finding was
erroneous.
Appellant and her representative also argued that she experienced a worsening of her
injury-related condition in June 2009 which prevented her from working in the modified carrier
job from that time forward. The Board finds that the medical evidence does not contain
probative medical evidence showing such a worsening of appellant’s injury-related condition.27
The Board notes that appellant’s medical restrictions remained fairly consistent over an
extended period of time. For example, in June 19, 2001 and October 10, 2002 duty status
reports, Dr. Culik, an attending Board-certified family practitioner, indicated that appellant could
work for eight hours per day with restrictions including lifting up to 20 pounds, walking for up to
two hours per day and standing for up to one hour per day. These restrictions would not have
prevented appellant from performing the modified carrier position as that position was primarily
a sedentary position which allowed appellant to alternate at will between sitting and standing.
Dr. Culik later gradually lessened appellant’s work restrictions over time, a circumstance which
suggests an improvement in her bilateral knee condition rather than a worsening. On January 27,
2010 she found that appellant could work for eight hours per day, with restrictions of lifting up to
20 pounds, walking for up to 4½ hours per day, and standing for up to 4½ hours per day.
Appellant could bend, stoop, twist, push and pull for up to three hours per day and could
occasionally engage in climbing.
While Dr. Culik did indicate in December 2010 that appellant could “no longer medically
continue with the required duties of her job position” she did not provide a clear indication that
she could not perform the duties of the modified carrier position which served as the basis for
OWCP’s December 11, 1997 wage-earning capacity determination. Moreover, although
Dr. Culik suggested that appellant’s accepted work injury from the mid-1990s contributed to her
inability to work in 2010, she did not provide a clear opinion on this matter. She did not provide
any significant discussion of appellant’s accepted bilateral knee condition or provide a
rationalized medical explanation of how it could have contributed to her capacity to work during
any period after she began working as a modified carrier. Therefore, appellant did not show that
a worsening of her injury-related condition prevented her from working as a modified carrier.
The Board further notes that, in denying appellant’s request for modification of the
December 11, 1997 wage-earning capacity evaluation, OWCP properly complied with the
requirements of FECA Bulletin No. 09-05. OWCP confirmed that the file contained
documentary evidence supporting that the modified carrier position was an actual bona fide
25

See H.S., Docket No. 11-1791 (issued March 23, 2012).

26

OWCP complied with its procedures by making its December 11, 1997 wage-earning capacity determination
after appellant worked in the modified carrier position for more than 60 days. See supra note 11.
27

In addition, appellant has not alleged or otherwise shown that OWCP’s December 11, 1997 determination
should be modified because she had been retrained or otherwise vocationally rehabilitated. See supra note 12.

9

position and reviewed the record to determine whether a current medical report supported workrelated disability with respect to the modified carrier position.28 For the above-described
reasons, appellant did not meet her burden of proof to establish that modification of OWCP’s
December 11, 1997 loss of wage-earning capacity determination is warranted.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that
modification of OWCP’s December 11, 1997 loss of wage-earning capacity determination is
warranted.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.29
Issued: September 22, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

28

See supra notes 17 through 19.

29

Richard J. Daschbach, Chief Judge, who participated in the preparation of the opinion, was no longer a member
of the Board after May 16, 2014.

10


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

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

Docket No. 16-0796
Issued: August 19, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 7, 2016 appellant filed a timely appeal from a September 11, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $41,597.88 overpayment of
compensation; (2) whether OWCP abused its discretion by refusing to waive recovery of the
overpayment; and (3) whether OWCP properly required repayment of the overpayment by
deducting $253.85 from appellant’s compensation payments every four weeks.
FACTUAL HISTORY
On August 1, 2009 appellant, then a 65-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that she sustained upper extremity conditions due to performing her
1

5 U.S.C. § 8101 et seq.

repetitive work duties over time, including hand stamping returned mail, sorting returned mail
into a modified case, culling waste mail, and counting mail. OWCP accepted bicipital
tenosynovitis and impingement of her right shoulder.2
Appellant did not stop work when she filed her claim, but she continued performing
modified-duty work until September 3, 2009 when the employing establishment could no longer
provide work to accommodate her. She received disability compensation on the daily rolls
beginning September 3, 2009 and on the periodic rolls beginning March 14, 2010.
In a memorandum dated August 21, 2014, the Social Security Administration (SSA)
advised OWCP that appellant had been in receipt of age-based retirement SSA benefits since
January 1, 2010 that were partially based upon work in civilian federal service. A form
completed by SSA showed the SSA rate with Federal Employees Retirement System (FERS) and
without FERS for the years 2010, 2011, 2012, 2013, and 2014. These figures were used to
calculate the amount that appellant’s FECA wage-loss compensation should have been offset
during the above-noted years. Other documents of record reveal that her FECA compensation
was adjusted to reflect the SSA offset of $701.08 effective September 21, 2014. This SSA offset
was to be deducted from her compensation check every 28 days. As of October 8, 2014,
appellant’s net 28-day compensation was $2,122.80.
A memorandum dated September 23, 2014 explains how OWCP used the figures
provided by the SSA to calculate FECA compensation offset for the period of the overpayment,
January 1, 2010 to September 20, 2014. The memorandum shows that the total amount of the
overpayment was $41,597.88.
In an October 8, 2014 notice, OWCP advised appellant of its preliminary determination
that she received a $41,597.88 overpayment of compensation for the period January 1, 2010 to
September 20, 2014 because she had received a prohibited dual benefit due to the fact that she
received SSA benefits based on age during this period while simultaneously receiving FECA
wage-loss compensation. It explained that it was required to institute an offset of FECA
compensation, reducing FECA compensation benefits by the amount of the SSA retirement
benefits attributed to her federal services. OWCP also made a preliminary determination that
appellant was not at fault in the creation of the overpayment because it was not considered
reasonable that she would have known about the offset requirements. It advised her that she
could submit evidence challenging the fact, amount, or finding of fault and request waiver of
recovery of the overpayment. OWCP informed appellant 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 written notice of overpayment. It requested that she
complete and return an enclosed financial information questionnaire (Form OWCP-20) within
30 days even if she was not requesting waiver of recovery of the overpayment.

2

Under a separate claim file, OWCP accepted in 2005 that appellant had sustained a strain and impingement of
her left shoulder due to performing her repetitive work duties over time. On March 23, 2006 appellant underwent
OWCP-authorized arthroscopic left shoulder surgery with debridement, subacromial decompression, and
acromioplasty. She stopped work on March 20, 2006 and returned to work in a modified-duty position on
July 28, 2006. The file for this claim has been doubled with the file for the present claim.

2

On November 7, 2014 OWCP received a partially completed Form OWCP-20 in which
appellant requested waiver of recovery of the overpayment, but the form did not contain
information about monthly income or expenses.
Appellant requested a telephonic prerecoupment hearing with an OWCP hearing
representative regarding the $41,597.88 overpayment of compensation. During the hearing held
on June 24, 2015 she testified that she had not been aware that she had been receiving incorrect
FECA benefits for such a long period. Appellant testified that she received $1,574.00 per month
in SSA benefits and $2,317.84 per month in FECA compensation for a total income of $3,891.84
per month. She provided extensive testimony at the hearing regarding her monthly expenses.3
Appellant claimed $932.00 for mobile home mortgage payments, $560.00 for mobile home
space rent (which included gas, electricity, and water), $400.00 for food, support group
expenses, and toiletries, $125.00 for water prescribed by a physician, $100.00 for clothing,
$75.00 for cellphone, $167.00 for cable, $90.00 for home phone, $124.00 for furniture loan
monthly repayment, $68.00 for automobile insurance monthly payment, $204.00 for Springleaf
loan monthly repayment, $220.00 for owed state and federal taxes monthly payment, $100.00 for
yard work monthly payment, $100.00 for housework monthly payment, $150.00 for
miscellaneous expenses, $22.00 for Experian credit reports, $250.00 for gas, $50.00 for out of
pocket medication monthly expenses, $8.45 for garbage collection, yearly total prorated for
monthly payment, $10.17 for yearly tax preparation fees, prorated for monthly payment, $75.00
for life insurance, and $47.00 for automobile repairs, yearly total pro-rated for monthly payment.
These figures add up to claimed monthly expenses of $3,877.62.
By decision dated September 11, 2015, OWCP’s hearing representative determined that
appellant received a $41,597.88 overpayment of compensation for the period January 1, 2010 to
September 20, 2014 due to a prohibited dual payment received because SSA benefits had not
been properly offset against FECA compensation for this period. He found that she was not at
fault in the creation of the overpayment, but that the overpayment was not subject to waiver.
The hearing representative reviewed the documentation of record and concluded that appellant
had $3,891.84 in monthly income and $3,530.62 in monthly expenses, and thereby her monthly
income exceeded her monthly ordinary and necessary expenses by $361.22.4 He required
repayment of the overpayment by deducting $253.85 from her compensation payments every
four weeks.
3

Appellant testified that she had no monthly payment related to credit cards. She indicated that she had no
significant assets in that she only had a little money in a checking account (about $14.00) and that she did not have a
401(k) plan, retirement fund, or Thrift Savings Plan account. After the hearing, appellant submitted a packet
containing financial documentation and an updated, completed Form OWCP-20 dated July 24, 2015. The Board
notes that some of the claimed expenses listed below reflect clarifications appellant made in these documents.
4

The hearing representative found that the documentation of record did not support some claimed expenses or
only supported portions of them. He found that appellant established the following monthly expenses: $932.00 for
mobile home mortgage payments, $560.00 for mobile home space rent (which included gas, electricity and water),
$300.00 for food, $125.00 for water prescribed by a physician, $50.00 for clothing, $75.00 for cellphone, $167.00
for cable, $90.00 for home phone, $124.00 for furniture loan monthly repayment, $68.00 for automobile insurance
monthly payment, $204.00 for Springleaf loan monthly repayment, $220.00 for owed state and federal taxes
monthly payment, $100.00 for yard work monthly payment, $100.00 for housework monthly payment, $50.00 for
miscellaneous expenses, $250.00 for gas, $50.00 for out of pocket medication monthly expenses, $8.45 for garbage
collection, yearly total prorated for monthly payment, $10.17 for yearly tax preparation fees, prorated for monthly
payment, and $47.00 for automobile repairs, yearly total prorated for monthly payment.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.5 Section 8116 limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay or
remuneration of any type from the United States.6 Section 10.421 of the implementing
regulations provides that an employee may not receive compensation for total disability
concurrently with separation pay.7 FECA Bulletin No. 97-9 states that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.8 When OWCP discovers concurrent
receipt of benefits, it must declare an overpayment in compensation and give the usual due
process rights.9
ANALYSIS -- ISSUE 1
The record supports that appellant received FECA wage-loss compensation beginning in
September 2009 and that she received SSA benefits beginning on January 1, 2010. The portion
of the SSA benefits she earned as a federal employee was part of her FERS retirement package,
and the receipt of benefits under FECA and federal retirement benefits concurrently is a
prohibited dual benefit.10
Appellant’s FECA compensation was not offset until
September 21, 2014. The SSA notified OWCP of the applicable SSA rates for that period and
their effective dates. Based on these rates, OWCP was able to calculate the dual benefit
appellant had received from January 1, 2010 to September 20, 2014, which yielded an
overpayment of compensation in the amount of $41,597.88. The record includes an
overpayment worksheet explaining the overpayment calculation.
The Board finds that OWCP properly determined that appellant had received a
$41,597.88 overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.11 These statutory
guidelines are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an
5

5 U.S.C. § 8102(a).

6

Id. at § 8116(a).

7

20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007).

8

FECA Bulletin No. 97-9 (issued February 3, 1997).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.17.d (4) (April 1996).

10

Supra note 8.

11

See Robert Atchison, 41 ECAB 87 (1989).

4

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.”12 If OWCP finds a claimant to
be without fault in the matter of an overpayment, then in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
or her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.13 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his or her position for
the worse.14 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.15
ANALYSIS -- ISSUE 2
The Board finds that the documentation of record supports that appellant had $3,891.84
in monthly income and $3,530.62 in monthly expenses, and thereby her monthly income
exceeded her monthly ordinary and necessary expenses by $361.22. The OWCP hearing
representative properly arrived at these figures by carefully reviewing the documentation and
determining that it did not support some claimed monthly expenses or only supported portions of
them.
The Board further finds that appellant has not established that recovery of the
overpayment would defeat the purpose of FECA because she has not shown both that she needs
substantially all of her current income to meet ordinary and necessary living expenses and that
her assets do not exceed the allowable resource base. As noted above, appellant’s monthly
income exceeds her monthly ordinary and necessary expenses by $361.22. As her current
income exceeds her current ordinary and necessary living expenses by more than $50.00 she has
not shown that she needs substantially all of her current income to meet current ordinary and

12

5 U.S.C. § 8129(b).

13

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his or her monthly income to meet
current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
Assets must not exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual with a spouse
or dependent plus $960.00 for each additional dependent. See supra note 9 at, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.6(a) (October 2004); B.F., Docket No. 13-785 (issued September 20, 2013).
14

Id. at § 10.437(a), (b).

15

Id. at § 10.437(b)(1).

5

necessary living expenses.16 Because appellant has not met the first prong of the two-prong test
of whether recovery of the overpayment would defeat the purpose of FECA, it is not necessary
for OWCP to consider the second prong of the test, i.e., whether her assets do not exceed the
allowable resource base.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she
would experience severe financial hardship in attempting to repay the debt or that she
relinquished a valuable right or changed her position for the worse in reliance on the payment
which created the overpayment.17
On appeal, appellant asserted that she should not have to repay the $41,597.88
overpayment of compensation because she did not make the mistake that created it. However,
she received $41,597.88 in monies to which she was not entitled. Whether appellant must repay
the overpayment is governed by the above-described procedures and, as noted, application of
these standards shows that waiver of recovery is not warranted in her case.
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, she has failed to show that
OWCP abused its discretion by refusing to waive the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of Title 20 of the Code of Federal Regulations provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”18
ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of the $41,597.88 overpayment of
compensation by deducting $253.85 from appellant’s compensation payments every 28 days,
OWCP took into consideration the financial information submitted by her as well as the factors
set forth in section 10.441 and found that this method of recovery would minimize any resulting
hardship on appellant. Therefore, OWCP properly required repayment of the overpayment by
deducting $253.85 from her compensation payments every 28 days.

16

See supra note 14.

17

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

18

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

6

CONCLUSION
The Board finds that appellant received a $41,597.88 overpayment of compensation. The
Board further finds that OWCP did not abuse its discretion by refusing to waive recovery of the
overpayment and OWCP properly required repayment of the overpayment by deducting $253.85
from her compensation payments every four weeks.
ORDER
IT IS HEREBY ORDERED THAT the September 11, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 19, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wichita, KS, Employer
__________________________________________

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Appearances:
Jim Lawing, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2121
Issued: May 13, 2011

Case Submitted on the Record

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

JURISDICTION
On August 19, 2010 appellant, through her attorney, filed a timely appeal from a
March 9, 2010 decision of the Office of Workers’ Compensation Programs denying her request
for further review of the merits of her claim.1 Pursuant to the Federal Employees’ Compensation
Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit
decision by the Office. The last merit decision of record was the Office’s October 7, 2009
decision. Because more than 180 days has elapsed between the last merit decision and the filing
of this appeal on August 19, 2010, the Board lacks jurisdiction to review the merits of this case.3

1

The day after the appeal was filed, the Office issued another nonmerit decision on August 20, 2010 which is not
before the Board. The Board has jurisdiction only over appeals from a final decision of the Office. The Board has
no jurisdiction where the Office has not issued such a decision. 20 C.F.R. § 501.2(c)(2).
2
3

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 20, 2009 appellant, then a 57-year-old retired mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed right knee pain when she
would stand for eight hours or sit where both feet could be held back bending at the knee. She
also stated that she had surgery on her right knee in 2000 and reinjured her right knee in 2005 at
work which resulted in a second surgery.4 Appellant reported that when she returned to work the
pain continued. She first became aware of her injury and realized it was employment related on
August 20, 2006. Appellant first notified her supervisor on August 21, 2009. She retired on
December 31, 2008. The employing establishment controverted the claim.
The employing establishment submitted an April 24, 2009 description of job and physical
requirements for appellant’s position as a mail processing clerk which noted that she would stand
for about six hours, sit for about two hours and walk for about one hour each day.
By letter dated May 1, 2009, the Office requested additional information from both
appellant and the employing establishment. Appellant was informed that the evidence received
failed to establish that she sustained an injury. She was advised of the medical and factual
evidence needed and was directed to submit it within 30 days.
By decision dated July 24, 2009, the Office denied appellant’s claim finding that she did
not establish fact of injury. It specifically noted that the evidence submitted was insufficient to
establish that the work activities occurred as alleged and that there was no clarification on which
knee was injured.
On August 3, 2009 appellant requested reconsideration of the Office decision. She did
not submit any additional evidence.
By decision dated August 11, 2009, the Office denied appellant’s request for
reconsideration finding that she did not raise a substantive legal question or included any new
and relevant evidence.
By letter dated August 11, 2009, appellant, through her attorney, requested
reconsideration of the Office decision. Counsel argued that she did not receive the Office’s
July 24, 2009 decision or a copy of the May 1, 2009 development letter until they contacted the
Office and requested that information be sent to them. He noted that there was information
which would be submitted in response to the May 1, 2009 letter and would like the case
reopened.
4

On February 17, 2005 appellant filed a traumatic injury claim Form CA-1 alleging that on February 16, 2005
she sustained a right knee injury when she was getting up and her foot did not clear the ledge. On December 3, 2005
the Office accepted the claim for right knee medial meniscus tear with surgical repair, claim File No. xxxxxx929.

2

By decision dated August 20, 2009, the Office denied appellant’s request for
reconsideration finding that she did not raise a substantive legal question or include any new and
relevant evidence. It noted that she filed a Form CA-2 for a left knee condition from specific
work factors but her claim was denied on July 24, 2009 because she did not provide sufficient
factual evidence describing the actual physical requirements of her clerk position. The Office
noted that evidence in the file showed that the July 24, 2009 decision was mailed to appellant
because she used the appeal request form when she exercised her appeal rights. It also noted that
there was no evidence in the file that she did not receive the May 1, 2009 letter.
On September 2, 2009 appellant requested reconsideration of the Office decision.
Counsel noted that there were two separate files for her knees and a careful review of both
claims would tie the February 2005 injury to the repetitive nature of her work, thereby qualifying
her for a schedule award for at least one of her two knee injuries and possibly both.
By decision dated October 7, 2009, the Office affirmed its July 24, 2009 decision finding
that the evidence submitted was insufficient to determine whether the claimed work injury
resulted in a diagnosed condition.
On December 4, 2009 appellant requested reconsideration of the Office decision. By
letter dated December 7, 2009, counsel stated that she had surgery on her right knee in 2000
from which she completely recovered. He noted that appellant’s 2005 injury occurred when she
moved a tray of mail to a nearby shelf and she caught her right foot, twisted it and reinjured her
right knee resulting in knee surgery in 2005.
By decision dated March 9, 2010, the Office denied appellant’s request for
reconsideration finding that she did not raise a substantive legal question or include any new and
relevant evidence.5
LEGAL PRECEDENT
To reopen a case for merit review under section 8128(a), the evidence or argument
submitted by a claimant must: (1) show that the Office erroneously applied or interpreted a
specific point of law; (2) advance a relevant legal argument not previously considered by the
Office; or (3) constitute relevant and pertinent new evidence not previously considered by the
Office.6 Section 10.608(b) of Office regulations provide that, when an application for
reconsideration does not meet at least one of the three requirements enumerated under section

5

Appellant requested reconsideration of the Office decision on July 26, 2010, stating that her first right knee
injury in 2005 belonged to claim File No. xxxxxx929 and her injury to her left knee belonged to claim File No.
xxxxxx616. On August 19, 2010 she filed a timely appeal to the Board from the Office’s March 9, 2010 decision.
On August 20, 2010 the Office denied appellant’s request for reconsideration finding that she did not raise a
substantive legal question or include any new and relevant evidence. As previously noted, the Board does not have
jurisdiction over the Office’s August 20, 2010 decision. The Board has jurisdiction only over appeals from a final
decision of the Office. As appellant filed her appeal on August 19, 2010, the Board has no jurisdiction where the
Office has not issued such a decision. 20 C.F.R. § 501.2(c)(2).
6

D.K., 59 ECAB 141 (2007).

3

10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.7
ANALYSIS
The Board finds that the refusal of the Office to reopen appellant’s case for further
consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The only Office decision before the Board on appeal is the March 9, 2010 decision,
denying appellant’s application for review. Because more than 180 days elapsed between the
date of the Office’s most recent merit decision on October 7, 2009 and the filing of appellant’s
appeal on August 19, 2010, the Board lacks jurisdiction to review the merits of her claim.8
On appeal from the Office’s October 7, 2009 decision, counsel reported that appellant
had surgery on her right knee in 2000 from which she completely recovered. He also stated that
her 2005 injury occurred when she moved a tray of mail to a nearby shelf and caught her right
foot and twisted it, resulting in her reinjuring her right knee which required surgery. Counsel
described appellant’s February 16, 2005 traumatic injury claim related to claim File No.
xxxxxx929 and failed to establish what employment activities she was engaged in which caused
her occupational exposure. This evidence is not material or relevant because the denial of
appellant’s claim was based on her failure to factually establish the claimed occupational
exposure to a condition which caused the medical injury or disease. To require the Office to
reopen a case for reconsideration, appellant must submit relevant evidence not previously of
record or advance legal contentions not previously considered.9 The Board has held that the
submission of evidence which does not address the particular issue involved does not constitute a
basis for reopening a case.10
Appellant has not established that the Office abused its discretion in its March 9, 2010
decision under section 8128(a) of the Act because she did not show that the Office erroneously
applied or interpreted a specific point of law, advance a relevant legal argument not previously
considered by the Office, or constitute relevant and pertinent new evidence not previously
considered by the Office.11

7

K.H., 59 ECAB 495 (2008).

8

20 C.F.R. § 501.3(e) requires that an application for review by the Board be filed within 180 days of the date of
the Office’s final decision being appealed.
9

Helen E. Tschantz, 39 ECAB 1382 (1988); Ethel D. Curry, 35 ECAB 737 (1984); Edward Matthew Diekemper,
31 ECAB 224 (1979); e.g., Eladio Joel Abrera, 28 ECAB 401 (1977).
10

Jimmy O. Gilmore, 37 ECAB 257 (1985).

11

Sherry A. Hunt, 49 ECAB 467 (1998).

4

CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 9, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 13, 2011
Washington, DC

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

Alec J. Koromilas, 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.H., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 10-1241
Issued: February 4, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 26, 2010 appellant filed a timely appeal from a March 10, 2010 merit decision
of the Office of Workers’ Compensation Programs granting a schedule award for binaural
hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this schedule award decision.
ISSUE
The issue is whether appellant has greater than a 47 percent binaural hearing loss.
FACTUAL HISTORY
On June 17, 2004 appellant, then a 61-year-old equipment repairer, filed an occupational
disease claim alleging that he sustained a hearing loss in both ears due to exposure to high noise
levels at his workplace. The Board notes that the Office previously determined that he had a 24
percent binaural hearing loss due to a June 26, 1997 injury, under OWCP claim, File No.
xxxxxx568.

The Office received additional evidence, including a description of appellant’s work
duties and noise exposures, pay rate information dated December 12, 1983 to June 15, 2003,
diagnostic testing results dated August 24, 1987 to December 9, 2003, service records dated
June 12, 1990 to October 19, 2003 and a hearing loss questionnaire dated May 22, 2004.
On August 24, 2004 the Office referred appellant, together with a statement of accepted
facts, to Dr. Howard Loveless, Jr., Board-certified in otolaryngology, for a second opinion
examination.
In a September 27, 2004 report, Dr. Loveless noted that according to the 1983 audiogram
appellant had normal hearing prior to his significant noise exposure in his federal employment.
He also stated that appellant’s current audiogram revealed moderate low frequency sensorineural
hearing loss, falling to severe high frequency sensorineural hearing loss and explained that this
loss was greater than expected on the basis of presbycusis. Dr. Loveless diagnosed sensorineural
hearing loss and concluded that it resulted from noise exposure experienced during appellant’s
federal employment. He recommended hearing aids, yearly audiograms and a follow-up speech
discrimination testing. A September 27, 2004 audiogram performed on Dr. Loveless’ behalf
recorded the following decibel losses at frequencies of 500, 1,000, 2,000 and 3,000 hertz (Hz):
45, 50, 60, and 70 for the right ear and 50, 50, 60 and 65 for the left ear.
In an October 20, 2004 medical report, an Office medical adviser reviewed Dr. Loveless’
September 27, 2004 otologic examination report and audiogram, applied the Office’s formula for
determining impairment due to hearing loss and calculated appellant’s hearing impairment as
follows: average hearing loss in the right ear 56.25 minus a fence of 25 equaled 31.25 multiplied
by 1.5 equaled a 46.88 percent hearing loss in appellant’s right ear. With regards to appellant’s
left ear, he calculated the average hearing loss of 56.25 minus a fence of 25 to equal 31.25
multiplied by 1.5 equaled 46.88 percent hearing loss. To determine appellant’s bilateral hearing
loss, the medical adviser multiplied 46.88 by 5 and added the other 46.88 percent hearing loss
and divided the sum by 6 to reach the conclusion that appellant suffered from 46.88 or 47 percent
binaural hearing loss. He ultimately diagnosed appellant with bilateral hearing loss with a
schedule award of 47 percent and authorized hearing aids.
In a decision dated October 22, 2004, the Office accepted appellant’s claim for binaural
noise-induced hearing loss.
On October 26, 2004 appellant filed a claim for a schedule award.
In a decision dated March 10, 2010, the Office granted a schedule award for 47 percent
binaural loss of hearing. As appellant had previously been paid for 24 percent, the award was for
23 percent.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations set forth the number of weeks of compensation payable to employees
1

5 U.S.C. §§ 8101-8193.

2

sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The American Medical Association, Guides to the Evaluation of
Permanent Impairment, has been adopted by the Office for evaluating schedule losses and the
Board has concurred in such adoption.2
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles a second (cps),
the losses at each frequency are added up and averaged. Then, the fence of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions. The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss. The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.3
ANALYSIS -- ISSUE 1
In 1998, the Office accepted appellant’s claim for 24 percent binaural hearing loss and
issued a schedule award for a period of 48 weeks of compensation. On June 17, 2004 appellant
filed a claim for additional hearing loss and was referred for a second opinion examination by
Dr. Loveless. Audiometric testing performed on his behalf on September 27, 2004 for the
recorded frequencies at 500, 1,000, 2,000 and 3,000 cps revealed right ear loss of 45, 50, 60 and
70 decibels and left ear loss of 50, 50, 60 and 65 decibels. Dr. Loveless ultimately diagnosed
appellant with sensorineural hearing loss and recommended hearing aids.
An Office medical adviser applied the Office’s standards for determining hearing loss to
the September 27, 2004 audiogram. Regarding the right ear, the recorded decibel losses of 45,
50, 60 and 70, resulted in a total decibel loss of 225 decibels. When divided by 4, the result was
an average hearing loss of 56.25 decibels. The fence of 25 was subtracted from the average to
equal 31.25 decibels and multiplied by 1.5 to equal a 46.88 percent hearing loss in the right ear.
Regarding the left ear, the recorded decibel losses were 50, 50, 60 and 65 for a total decibel loss
of 225. When divided by 4, the result was an average hearing loss of 56.25 decibels. The
average loss of 56.25 decibels was then reduced by the fence of 25 to equal 31.25 and multiplied
by 1.5, which resulted in a 46.88 percent impairment of the left ear. To calculate appellant’s
bilateral hearing loss, the right ear loss of 46.88 was multiplied by 5 to equal 234.4 decibels.
This amount was then added to the 46.88 left ear hearing loss to total 281.28, which was divided
by 6 and resulted in a bilateral hearing loss of 46.88 percent or rounded to 47 percent. The

2

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

3

E.S., 59 ECAB 249 (2007); Renaldo R. Lichenberger, 52 ECAB 462 (2001).

3

Board finds that the Office medical adviser properly applied the standards to the findings of the
September 27, 2004 audiogram.
In a decision dated March 10, 2010, the Office awarded appellant a schedule award of 23
percent additional bilateral hearing loss for 46 weeks.4 It reached the conclusion of 23 percent
by subtracting the previous 24 percent hearing loss previously paid from the current 47 percent
additional binaural hearing loss. In this case, appellant was awarded 47 percent binaural hearing
loss, but the total percentage of loss needed to also include the 24 percent hearing loss and the
number of weeks of compensation previously paid. To calculate the number of weeks of
compensation the Office properly multiplied the current 47 percent by the 200 weeks provided
for binaural hearing loss resulting in a total of 94 weeks of compensation. As appellant already
received compensation for 48 weeks in the 1998 schedule award, this amount is subtracted from
the 94 weeks to total 46 weeks of compensation. Accordingly, the Office correctly subtracted
the 24 percent previously paid from the 47 percent additional hearing loss which resulted in a 23
percent additional binaural hearing loss for 46 weeks.5 Appellant has not established that he is
entitled to a schedule award for greater than 47 percent binaural hearing loss.6
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for greater than 47
percent binaural hearing loss.

4

The Board notes that the Office decision appears to contain a typographical error as it states the total bilateral
loss as 46 percent, however, the medical adviser recorded a 47 percent additional hearing loss and the decision noted
both the previous 24 percent and the additional 23 percent impairment.
5

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

6

In its March 10, 2010 decision, the Office also noted that appellant was incorrectly paid from August 15, 2005
through July 16, 2006 in error, which resulted in an overpayment of compensation. Appellant was notified of the
overpayment in a preliminary finding issued on March 5, 2010. As no final decision had been issued regarding the
overpayment as of the date of this appeal, this issue is not before the Board.

4

ORDER
IT IS HEREBY ORDERED THAT the March 10, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2011
Washington, DC

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

Colleen Duffy Kiko, 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.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Edison, NJ,
Employer
__________________________________________

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Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-247
Issued: September 13, 2011

Case Submitted on the Record

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

JURISDICTION
On November 2, 2010 appellant filed a timely appeal from a May 6, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On March 4, 2004 appellant, then a 46-year-old former mail handler, filed a traumatic
injury claim alleging that he sustained progressive neck, lower back, left leg and hip symptoms
1

5 U.S.C. § 8101 et seq.

as a result of unloading trailers at work. He became aware of his condition sometime between
late December 2003 and February 4, 2004. The employing establishment controverted the claim,
asserting that appellant stated that his injury was not work related on two occasions and only
filed the claim after he was dismissed.2
Appellant specified in an undated addendum that he woke up on the evening of
February 4, 2004 to work the midnight shift, but was unable to move because of severe cramps.
Thereafter, he experienced continuous neck and lower back symptoms such as pain, stiffness and
diminishing range of motion (ROM), which worsened whenever he lifted, bent, sat or stood for
prolonged periods. A March 4, 2004 employing establishment health unit form signed by
Dr. Kevin Kikta, an osteopath specializing in emergency medicine, placed appellant off duty
indefinitely on account of his neck and lower back.
OWCP informed appellant in a May 5, 2004 letter that his claim for traumatic injury was
being developed as a claim for occupational injury, the evidence was insufficient to establish his
claim, and additional evidence was needed. It requested a physician’s reasoned opinion
explaining how employment factors caused or aggravated an injury. Appellant did not respond.
By decision dated June 4, 2004, OWCP denied appellant’s claim, finding the medical
evidence insufficient to establish that the accepted employment activity of unloading trailers
caused or contributed to a diagnosed condition.
Appellant’s counsel requested reconsideration on January 26, 2005 and submitted
additional medical evidence. In March 4, 2004 hospital triage and treatment records, Dr. Kikta
related that appellant strained his lower back while lifting on the job approximately one month
earlier. On examination, he observed mild lumbar tenderness and decreased lumbar ROM.
Dr. Kikta assessed chronic lower back pain.
On February 21, 2008 OWCP denied modification of the June 4, 2004 decision.3
Appellant’s counsel requested reconsideration on February 12, 2009. In a November 28,
2008 statement, appellant recalled that he was unloading trailers around the beginning of his shift
on February 4, 2004 when his lower back gave out and he fell to the floor of the trailer. A
February 23, 2004 emergency department report signed by a nurse noted that appellant
complained of lower back pain and tenderness for approximately a month and advised that he
visit a workers’ compensation physician on February 24, 2004. An x-ray of the lumbar spine
performed by Dr. Sandip Basak, a Board-certified diagnostic radiologist, was unremarkable.
In a January 21, 2009 report, Dr. Nicholas Diamond, an osteopath specializing in family
medicine, related that appellant was unloading a trailer on February 4, 2004 when he suddenly
felt pain in his lower back and fell to the floor. He further indicated that appellant was employed
2

Appellant was terminated effective February 13, 2004.

3

OWCP originally issued a November 13, 2007 decision denying appellant’s request for reconsideration on the
basis that he did not present new evidence warranting further merit review. Following receipt of a November 21,
2007 request for reconsideration from appellant’s counsel, OWCP found, in its February 21, 2008 decision, that the
March 4, 2004 hospital records were new and pertinent evidence not previously of record.

2

as a bus driver for a private corporation, reinjured his back on June 17, 2004 and sometime in
July 2008, and complained of lower back and bilateral lower extremity pain. A July 17, 2004
magnetic resonance imaging (MRI) scan revealed L3-L4 and L5-S1 herniated nuclei pulposi. On
examination, Dr. Diamond observed left lumbar paravertebral muscle, iliolumbar ligamentous
and posterior superior iliac spine tenderness, positive Travell trigger points, and hip flexor,
adductor and abductor motor strength deficits. He diagnosed aggravated chronic post-traumatic
lumbosacral strain and sprain, aggravated L3-L4 and L5-S1 herniated nuclei pulposi, preexisting
lumbar osteoarthritis and left lumbar radiculitis. Dr. Diamond opined: “The work-related injury
of February 4, 2004 was the competent producing factor for the claimant’s subjective and
objective findings of today.”
On March 31, 2009 OWCP denied modification of the February 21, 2008 decision.
Appellant’s counsel requested reconsideration on January 5, 2010 and submitted
additional evidence, including evidence previously of record. In a July 30, 2009 statement,
appellant noted that he was presently unemployed and had chronic lower back and left leg pain
stemming from his former federal employment. He detailed that his condition arose in
January 2004 after a few days of unloading mailbags weighing above 50 pounds from trailers,
but continued working. Appellant’s lower back and left leg symptoms worsened to such an
extent that he took a two-day leave of absence starting on February 4, 2004.
A February 14, 2009 hospital medical chart, which did not contain a physician’s
signature, noted that appellant presented with lower back and buttocks pain after he stood up
from a sitting position three days earlier. He had spinal and paraspinal musculature tenderness
on palpation as well as pain on spinal flexion and hyperextension. Appellant was diagnosed with
chronic lower back pain and disc problems. A June 22, 2009 MRI scan report from
Dr. Steven M. Schonfeld, a Board-certified diagnostic radiologist, showed multilevel
degenerative changes from L3-L4 through L5-S1. In a July 1, 2009 progress note, Dr. Paul K.
Ratzker, a Board-certified neurological surgeon, identified a five-year history of lower back pain
and numbness due to manual labor and reviewed an MRI scan demonstrating an L4-L5 herniated
nucleus pulposus. He examined appellant, found limited ROM, ruled out radiculitis and
diagnosed lower back pain.4
In a September 27, 2005 report, Dr. David Weiss, an osteopath and Board-certified
family practitioner, stated that appellant worked as a school bus driver and reported that, on
June 17, 2004, he was crawling under branches when he suddenly felt a popping sensation in his
lower back. He also pointed out that appellant had a preexisting lower back condition. An MRI
scan performed on July 17, 2004 revealed herniated discs at L3-L4 and L5-S1 and a bulging disc
at L4-L5. On examination, Dr. Weiss observed left lumbar paravertebral muscle, iliolumbar
ligamentous and posterior superior iliac spine tenderness, restricted ROM on account of pain,
positive left sitting root sign and bilateral straight leg raise, and a sensory deficit over the left L4
dermatome. He diagnosed chronic post-traumatic lumbosacral strain and sprain, L3-L4 and L5S1 herniated nuclei pulposi, aggravated lumbar osteoarthritis and left lumbar radiculitis.
Dr. Weiss attributed appellant’s condition to the June 17, 2004 incident.
4

A significant portion of Dr. Ratzker’s note was illegible.

3

On May 6, 2010 OWCP denied modification of the March 31, 2009 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.5 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.6
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.7 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.8
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS
The evidence supports that appellant unloaded mailbags weighing above 50 pounds from
trailers for the employing establishment for the period December 2003 to February 4, 2004. The
record also contains firm diagnoses of chronic post-traumatic lumbosacral strain and sprain, L3L4 and L5-S1 herniated nuclei pulposi, lumbar osteoarthritis and left lumbar radiculitis; but the
medical evidence is insufficient to establish that appellant’s job duties caused or aggravated a
neck, lower back, left leg or hip condition.

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

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

7

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

8

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

9

I.J., 59 ECAB 408 (2008); Woodhams, supra note 6.

4

In a January 21, 2009 report, Dr. Diamond obtained a history of injury indicating that
appellant initially hurt his lower back while unloading a trailer on February 4, 2004 and
subsequently reinjured the same area on June 17, 2004 and in July 2008. After conducting a
physical examination and evaluating an MRI scan, he concluded that the February 4, 2004
incident aggravated his chronic post-traumatic lumbosacral strain and sprain, L3-L4 and L5-S1
herniated nuclei pulposi, preexisting lumbar osteoarthritis and left lumbar radiculitis. Although
Dr. Diamond supported causal relationship, his opinion has limited probative value since he
failed to provide medical rationale explaining how unloading trailers pathophysiologically caused
or aggravated appellant’s condition.10 The history of injury that was given to him by appellant
conflicted with other narratives in the record citing a progressively-worsening condition that
arose as early as December 2003.11 The opinion of the physician does not appear to be based on
a full medical history.
Dr. Kikta noted in March 4, 2004 medical records that appellant strained his lower back
due to work-related lifting. Taking into consideration that these records were created within a
few months of the onset of injury, he was likely associating appellant’s condition with his federal
employment. Nonetheless, Dr. Kikta’s opinion is of diminished probative value because it
lacked fortifying medical rationale, presented a vague and incomplete history of injury, and
failed to identify the contributory employment factor that was described by appellant.12 He did
not explain the reasons why particular lifting activities at work caused or aggravated a diagnosed
condition.
While Drs. Weiss and Dr. Ratzker provided a September 27, 2005 report and July 1, 2009
progress note, respectively, neither addressed whether the repetitive unloading of mailbags from
December 2003 to February 4, 2004 caused or aggravated a neck, lower back, left leg or hip
condition. Dr. Weiss did not note appellant’s work as a mail handler and attributed his injury to
crawling under branches on June 17, 2004. Dr. Ratzker attributed appellant’s low back pain and
numbness to manual labor but he did not show an awareness of appellant’s duties as a mail
handler during the period at issue. As neither physician noted an awareness of the history of the
claimed injury13 or provided a specific opinion regarding whether appellant’s work duties as a
mail handler caused or aggravated a diagnosed condition,14 their reports are of diminished

10

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994). See also See George
Randolph Taylor, 6 ECAB 986, 988 (1954) (a medical opinion not fortified by medical rationale is of little probative
value).
11

See M.W., 57 ECAB 710 (2006); James A. Wyrick, 31 ECAB 1805 (1980) (medical opinions based on an
incomplete or inaccurate history are of diminished probative value). In addition, the Board points out that
Dr. Diamond did not specify that appellant had been unloading trailers for a federal employer. See W.C., Docket
No. 10-971 (issued January 10, 2011).
12

See John W. Montoya, 54 ECAB 306, 309 (2003).

13

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history have little probative value); supra note 11.
14

See S.E., Docket No. 08-2214 (issued May 6, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).

5

probative value. Similarly, diagnostic radiological reports from Drs. Basak and Schonfeld are of
diminished probative value because they did not offer any opinion regarding the cause of injury.
The remaining evidence lacks evidentiary weight. A medical issue such as causal
relationship can only be resolved through the submission of probative medical evidence from a
physician.15 Because a nurse is not a “physician” as defined under FECA,16 the February 23,
2004 nursing report cannot constitute competent medical evidence. In addition, the February 14,
2009 hospital medical chart lacks probative value because it did not include an identifiable
physician’s signature or provide any indication that it was completed by a physician.17
On appeal, appellant’s counsel submits two primary contentions. First, he argues that
OWCP did not properly weigh the factual evidence, namely appellant’s statements concerning
his work activities for the employing establishment. Second, he asserts that the medical evidence
was sufficient to establish appellant’s claim in view of the precedent set forth in Beth P.
Chaput18 and Arnold Gustafson.19 Neither the Board nor OWCP disputes that appellant’s past
duties involved unloading mailbags from employing establishment trailers. Hence, the issue is
medical in nature.
Counsel correctly cites Chaput and Gustafson for the proposition that an employee does
not need to show that an employment factor significantly contributed to his or her condition to
prevail.20 However, this precedent does not relieve appellant of the burden to provide a
physician’s rationalized opinion that is based on a complete factual and medical background, is
of reasonable medical certainty, and pathophysiologically explains the causal relationship
between appellant’s federal employment and a diagnosed condition.21 As addressed above,
appellant’s medical evidence does not satisfy this standard. In the absence of well-reasoned
medical opinion on causal relationship, appellant fails to meet his burden.

15

See Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (medical
opinion, in general, can only be given by a qualified physician).
16

5 U.S.C. § 8101(2); Humphrey, supra note 8 at 242.

17

R.M., 59 ECAB 690, 693 (2008).

18

37 ECAB 158 (1985).

19

41 ECAB 131 (1989).

20

See Chaput, supra note 18 (remanding OWCP decision that based denial of a compensation claim on a
physician’s opinion that the employee’s exposure to workplace fumes did not contribute significantly to a
pulmonary condition); Gustafson, supra note 19 (remanding OWCP decision that improperly requested that a
physician’s opinion clarify whether an employee’s job-induced emotional stress materially contributed to his
coronary artery disease or myocardial infarction).
21

The Board further points out that the remand orders found in Chaput and Gustafson instructed a newlyappointed medical specialist to supply a rationalized opinion on causal relationship. See Chaput, supra note 18, at
161; Gustafson, supra note 19, at 134.

6

Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained an occupational disease
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 6, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 13, 2011
Washington, DC

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

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

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

7