United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.U., Appellant
and
U.S. POSTAL SERVICE, LINDA MAR
STATION, Pacifica, CA, Employer
__________________________________________

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

Docket No. 17-1281
Issued: April 2, 2018

Case Submitted on the Record

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

JURISDICTION
On May 22, 2017 appellant, filed a timely appeal from March 17 and April 27, 2017 merit
decisions 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 OWCP properly determined that appellant received an
overpayment of compensation in the amount of $48,300.57 for the period January 1, 2011 to
April 2, 2016; (2) whether OWCP properly determined that appellant received an overpayment of
compensation in the amount of $1,519.79 for the period June 30 to August 20, 2016; and
(3) whether OWCP properly determined that appellant was at fault in the creation of the
overpayments of compensation in the amount of $48,300.57 and $1,519.79, thereby precluding
waiver of recovery of the overpayments.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that she is not at fault in the creation of the overpayments as
she was misled by OWCP, the Social Security Administration (SSA), and the Office of Personnel
Management (OPM).
FACTUAL HISTORY
OWCP accepted that on October 26, 1991 appellant, then a 42-year-old mail carrier,
sustained a back strain as a result of tripping on a sidewalk while walking with her mailbag. It
paid wage-loss compensation and medical benefits. On November 27, 2006 OWCP accepted a
recurrence of disability from April 27 to July 22, 2006 and paid additional wage-loss compensation
benefits. On September 15, 2010 it expanded acceptance of appellant’s claim to include
displacement of the lumbar intervertebral disc without myelopathy and paid compensation
benefits. By decision dated March 14, 2011, OWCP reduced her compensation, effective that date,
based on her capacity to earn wages in a constructed position of floral designer (retail trade). It
paid appellant compensation for partial disability on the supplemental rolls beginning March 14,
2011, and placed her on the periodic rolls beginning March 31, 2011.
In EN1032 forms signed by appellant on December 27, 2011, December 28, 2012,
January 3, 2014, January 1, 2015, and January 5, 20162 she responded “NO” to the question of
whether she received benefits from SSA as part of an annuity for federal service. By signing the
forms, appellant certified that all the statements made in response to the questions on the form
were true, complete, and correct to the best of her knowledge and belief. In December 10, 2012,
December 18, 2013, and December 16, 2014 letters accompanying the EN1032 forms, she was
advised that she “must report to OWCP … any income or change in income from
Federally[-]assisted disability or benefit programs” as this information would be used to decide
whether she was entitled to continue receiving these benefits or whether her benefits should be
adjusted.
In a facsimile transmittal dated January 21, 2016, OWCP requested SSA to provide
information regarding any dual benefits appellant may have received.
On March 29, 2016 SSA submitted a form which showed SSA benefit rates with a Federal
Employees Retirement System (FERS) offset and without a FERS offset from January 2011
through December 2015. OWCP then calculated wage-loss compensation benefits that appellant
should have received with appropriate offset.
In a notice dated April 29, 2016, OWCP advised appellant of its preliminary determination
that she received a $48,300.57 overpayment of compensation for the period January 1, 2011 to
April 2, 2016 due to the failure to offset her FECA benefits for SSA benefits she received. It found
appellant at fault in the creation of the overpayment because she had made statements on the Form
EN1032 which she knew or should have known were incorrect, failed to provide information
which she knew or should have known was material, and accepted payments which she knew or
should reasonably have known were incorrect. OWCP advised her that she could submit evidence
challenging the fact, amount, or fault finding and request waiver of recovery of the overpayment.
2
Appellant actually listed the date that she signed the form, sent to her on December 12, 2015, as “January 5, 2015.”
From the context of the evidence, the date should have been January 5, 2016.

2

Additionally, it informed appellant that, within 30 days, she could request a telephone conference,
a final decision based on the written evidence, or a prerecoupment hearing. OWCP requested that
she complete an enclosed overpayment recovery questionnaire (Form OWCP-20) and submit
supporting financial documentation.
On May 6, 2016 appellant requested a telephone conference with OWCP. She requested
waiver of recovery as she was not at fault in the creation of the overpayment. In a May 17, 2016
letter, appellant noted that, upon her completion of an employee rehabilitation program, the
director of the program specifically told her that the amount of money she would receive from the
Department of Labor (DOL) was set even if she started a different higher paying job. She further
noted that an SSA official told her that the amount of money she received from SSA had nothing
to do with DOL. Appellant thought that she was properly informed based on the information she
received from two official departments. She contended that she was not hiding anything on the
forms.
Appellant submitted a completed Form OWCP-20, on which she reported total monthly
income of $1,054.00 in SSA benefits. Her reported monthly expenses totaled $1,820.00.
Appellant also reported $6,000.00 in assets, including checking and savings accounts and other
personal property and other funds.
On July 15, 2016 appellant retroactively elected to receive OPM retirement benefits in lieu
of FECA benefits, effective June 30, 2016. She continued to receive compensation benefits on the
periodic rolls in the amount of $1,519.79 through August 20, 2016.
In an August 19, 2016 letter, appellant contended that she was underpaid as she received
approximately $1,500.00 a month in compensation benefits from DOL for one year and only
received $1,000.00 a month in benefits from SSA beginning January 1, 2011.
In a March 15, 2017 notice, OWCP advised appellant of its preliminary determination that
she received a $1,519.79 overpayment of compensation for the period June 30 to August 20, 2016,
because she had received both FECA and OPM benefits for the same period. Appellant was found
at fault in creating the overpayment because she was aware or should have reasonably been aware
that compensation and retirement benefits were not payable concurrently. She was advised of
rights she could exercise in an attempt to overturn the preliminary finding, including the right to
request a telephone conference. OWCP requested that appellant complete the enclosed Form
OWCP-20 and submit supporting financial documents.
On March 17, 2017 appellant participated in a telephone conference with an OWCP claims
examiner regarding the $48,300.57 overpayment preliminary determination. She acknowledged
that she understood the principles of a FERS offset.
By decision dated March 17, 2017, OWCP finalized its preliminary determination that
appellant received a $48,300.57 overpayment of compensation for the period January 1, 2011
through April 2, 2016. It found that she was at fault in the creation of the overpayment, thereby
precluding waiver of recovery of the overpayment. OWCP requested that appellant submit the full
amount of the overpayment or contact it within 30 days to make appropriate arrangements for
recovery.

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By letter dated March 21, 2017, the employing establishment submitted a notification of
personnel action (Form SF-50) dated August 2, 2016 which indicated that appellant had retired
effective June 30, 2016 and that she was covered under FERS retirement plan.
On March 28, 2017 appellant requested a telephone conference with OWCP regarding the
$1,519.79 overpayment preliminary determination. She challenged OWCP’s finding that she was
at fault in creation of the overpayment. In an undated letter, appellant referenced enclosed
statements revealing her loss of income in the amount of $20,000.00 during the first and second
years after her accepted employment injury while working as a floral designer. She noted that her
DOL caseworker told her to take the larger amount of money when she asked her about retirement.
Appellant maintained that she would not have taken SSA benefits before her full benefit date had
she known that she could not do it. She thought that she had an option of taking a DOL check or
the employing establishment retirement check.
In an accompanying Form OWCP-20, appellant reported no monthly income. She reported
monthly expenses that totaled approximately $2,035.00.3 Appellant advised that she had
$101,500.00 in assets, including cash on hand, checking and savings accounts, and $100,000.00
in a Thrift Savings Plan account.
On April 27, 2017 OWCP issued a decision finalizing the preliminary determination that
appellant received a $1,519.79 overpayment of compensation for the period June 30 through
August 20, 2016.4 It found that she was at fault in the creation of the overpayment, thereby
precluding waiver of recovery of the overpayment. OWCP noted that during a telephone
conference, appellant had indicated that she was unsure as to when she began receiving OPM
retirement benefits and the dates covered by the compensation received. OWCP requested
repayment be made in full or that she contact it about repayment arrangements within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.5
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion of
SSA benefits based on age or death that are attributable to federal service and that, if an employee
receives SSA benefits based on federal service, his or her compensation benefits shall be reduced
by the amount of SSA benefits.6
3

The Board notes that it appears that appellant inadvertently calculated $2,050.00 rather than $2,035.00 in monthly
expenses.
4

The Board notes that a memorandum regarding the April 27, 2017 telephone conference is not contained in the
case record.
5

5 U.S.C. § 8102(a).

6
Id. at § 8116(d); see G.B., Docket No. 11-1568 (issued February 15, 2012); see also Janet K. George (Angelos
George), 54 ECAB 201 (2002).

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OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.7 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. It will
also provide a hypothetical SSA benefit computed without FERS covered earnings. OWCP will
then deduct the hypothetical benefit from the actual benefits to determine the amount of benefits
which are attributable to federal service and that amount will be deducted from FECA benefits to
obtain the amount of compensation payable.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $48,300.57 for the period January 1, 2011 to April 2, 2016.
OWCP accepted that appellant sustained back strain and sprain and displacement of the
lumbar intervertebral disc without myelopathy on October 26, 1991 while in the performance of
duty. Appellant’s August 2, 2016 Form SF-50 documented her enrollment in the FERS retirement
plan.
Appellant received FECA partial disability compensation and SSA age-related retirement
benefits concurrently from January 1, 2011 to April 2, 2016. OWCP requested, and SSA provided,
information regarding her applicable SSA rates and their effective dates. Based on these rates, it
determined that appellant received a prohibited dual benefit from January 1, 2011 to April 2, 2016
in the amount of $48,300.57, because she received compensation from OWCP and SSA benefits
without an appropriate offset. The offset provision of section 8116(d)(2) applies to SSA benefits
that are attributable to federal service. Appellant received SSA benefits under the FERS system.
As noted, the receipt of concurrent FECA and FERS benefits attributable to federal employment
is a prohibited dual benefit.9 As appellant received SSA benefits based on her federal service
concurrently with partial disability compensation from OWCP without an appropriate offset, she
received an overpayment of compensation.
The Board has reviewed OWCP’s calculations of the dual benefits appellant received and
finds that it properly determined that she received dual benefits totaling $48,300.57, creating an
overpayment of compensation in that amount. The Board notes that, on appeal, appellant does not
contest the fact or amount of the overpayment.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.11 (February 1995); see R.C.,
Docket No. 09-2131 (issued April 2, 2010).
8

See P.G., Docket No. 13-0589 (issued July 9, 2013).

9

B.L., Docket No. 13-1422 (issued June 2, 2014).

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LEGAL PRECEDENT -- ISSUE 2
Section 8116(a) of FECA provides that, while an employee is receiving workers’
compensation benefits, he or she may not receive salary, pay, or remuneration of any type from
the United States, except in return for services actually performed or for certain payments related
to service in the Armed Forces, including benefits administered by the Department of Veterans
Affairs, unless such benefits are payable for the same injury or the same death being compensated
for under FECA.10
Under section 10.421(a) of OWCP’s implementing federal regulations, a beneficiary may
not receive wage-loss compensation concurrently with a federal retirement or survivor annuity.11
The beneficiary must elect the benefit that he or she wishes to receive.12
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $1,519.79 for the period June 30 to August 20, 2016.
On July 15, 2016 appellant retroactively elected OPM retirement benefits beginning
effective June 30, 2016. She also received wage-loss compensation from OWCP for the period
June 30 to August 20, 2016. As noted, an employee cannot receive compensation under FECA
and retirement pay from OPM for the same period.13
As appellant elected retirement benefits from OPM for a period already covered by FECA
compensation payments, the Board finds that she did in fact receive an overpayment of
compensation for the entire amount. Her election of retirement annuity benefits from OPM,
beginning June 30, 2016 and continuing through August 20, 2016, created a prohibited dual benefit
under section 8116 of FECA. The record supports that appellant received partial disability
compensation in the amount of $1,519.79 for the period June 30 to August 20, 2016. The Board
finds, therefore, that an overpayment of compensation in the amount of $1,519.79 was created
from June 30 to August 20, 2016.14
LEGAL PRECEDENT -- ISSUE 3
Under OWCP regulations, waiver of the recovery of an overpayment may be considered
only if the individual to whom it was made was not at fault in accepting or creating the
overpayment.15 The fact that the overpayment was the result of error by OWCP or another
10

5 U.S.C. § 8116(a).

11

20 C.F.R. § 10.421(a).

12

Id.

13

Id.

14

5 U.S.C. § 8116; see N.P., Docket No. 15-1799 (issued January 11, 2016).

15

20 C.F.R. § 10.433(a).

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government employing establishment does not by itself relieve the individual who received the
overpayment of liability for repayment if the individual also was at fault for receiving the
overpayment.16 Each recipient of compensation benefits is responsible for taking all reasonable
measures to ensure that payments he or she received from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events that may affect entitlement
to or the amount of benefits. A recipient who has done any of the following will be found to be at
fault with respect to creating an overpayment: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known to be incorrect (this provision applies only to the overpaid
individual).17
With respect to whether an individual is without fault, section 10.433(b) of OWCP
regulations provides that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.18
ANALYSIS -- ISSUE 3
The Board finds that appellant was at fault in the creation of the $48,300.57 overpayment
of compensation for the period January 1, 2011 through April 2, 2016.
The record reflects that appellant accepted payments covering the period January 1, 2011
to April 2, 2016 which she knew or should have known to be incorrect. She was advised on several
occasions that receipt of SSA benefits would affect her entitlement to FECA compensation, but
she continued to accept full FECA benefits during the period January 1, 2011 to April 2, 2016 in
addition to her SSA benefits. In December 10, 2012, December 18, 2013, and December 16, 2014
letters accompanying EN1032 forms, appellant was repeatedly advised that she must inform
OWCP immediately if she received benefits from federally-assisted disability or benefit programs
as this would affect her benefits from OWCP.
Despite being given notice that receipt of SSA benefits would reduce her entitlement to
FECA compensation, appellant continued to accept full FECA benefits during the period
January 1, 2011 to April 2, 2016. In addition, she also failed to provide information which she
knew or should have known to be material for a portion of the period January 1, 2011 to
April 2, 2016. In EN1032 forms signed on December 27, 2011, December 28, 2012, January 3,
2014, and January 1, 2015, appellant responded “NO” to the question of whether she received
benefits from the SSA as part of an annuity for federal service, despite the fact that she had received
such benefits in the 15-month period preceding her signing of the form. By signing the form,

16

Id. at § 10.435(a).

17

Id. at § 10.433(a); see Kenneth E. Rush, 51 ECAB 116 (1999).

18

Id. at § 10.433(b).

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appellant certified that all of the statements made in response to the questions on the form were
true, complete, and correct to the best of her knowledge and belief.
The Board thus finds appellant at fault under the third standard, as she accepted
compensation which she knew or should have known she was not entitled to receive19 and, as such,
recovery of the overpayment of compensation in the amount of $48,300.57 may not be waived.
The Board further finds that appellant was at fault in the creation of the $1,519.79
overpayment of compensation for the period June 30 through August 20, 2016 on the same basis.
As set forth above, appellant had been advised that a person who receives compensation
benefits under FECA is not permitted to receive retirement benefits concurrently with FECA
payments. Notwithstanding this notice, she made an election to receive retirement benefits
retroactively to June 30, 2016. Appellant received FECA benefits in the amount of $1,519.79 for
the period June 30 to August 20, 2016. She was clearly aware that she could not receive
compensation for wage-loss and OPM benefits for the same period.
The employing establishment informed OWCP that appellant was retiring, effective
June 30, 2016 and appellant informed OWCP that she had elected OPM benefits. Appellant made
an election, when she elected to receive retirement benefits, to receive a prohibited dual benefit
under 5 U.S.C. § 8116. Her election created an overpayment of compensation in the amount of
$1,519.79, and as of the effective date of the commencement of her retirement benefits, she knew
or should have known that she was not permitted to receive both FECA disability benefits and
OPM annuity benefits for the same period.20
The Board, therefore, finds appellant at fault under the third standard, as she accepted
compensation which she knew or should have known she was not entitled to receive21 and, as such,
she is not eligible for waiver of recovery of the $1,519.79 overpayment.
While appellant contends on appeal that she was told by department officials, including an
OWCP caseworker, that she could receive OWCP compensation benefits and SSA retirement
benefits at the same time, there is no documentation in the record which supports this argument.22
She also generally contends on appeal that she should have received compensation for periods in
which she received no compensation. As explained, the Board only has jurisdiction over the

19

5 U.S.C. § 8129(b); id. at § 10.433(a).

20

See A.P., Docket No. 15-0586 (issued June 6, 2016); N.P., supra note 14; B.G., Docket No. 14-2002 (issued
August 13, 2015).
21

Supra note 19.

22

In such cases, there must be documentation to show that misinformation was communicated by either OWCP or
the employing establishment. Furthermore, there cannot be any evidence that the individual knew or should have
known the proper course of action to be followed. Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.5b(2) (June 2009).

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March 17 and April 27, 2017 OWCP decisions finding that overpayments occurred during specific
periods. The Board does not have jurisdiction to review any other periods of compensation.23
With respect to recovery of the overpayment, the Board’s jurisdiction is limited to
reviewing those cases where OWCP seeks recovery from continuing compensation benefits under
FECA.24 As appellant is no longer receiving wage-loss compensation, the Board does not have
jurisdiction with respect to the recovery of the overpayment under the Debt Collection Act.25
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $48,300.57 for the period January 1, 2011 to April 2, 2016. The
Board further finds that OWCP properly determined that she received an overpayment of
compensation in the amount of $1,519.79 for the period June 30 to August 20, 2016. Lastly, the
Board finds that OWCP properly determined that appellant was at fault in the creation of the
overpayments of compensation in the amount of $48,300.57 and $1,519.79, thereby precluding
waiver of recovery of the overpayments.

23

See 20 C.F.R. § 501.2(c).

24

Cheryl Thomas, 55 ECAB 610 (2004).

25

Id.

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ORDER
IT IS HEREBY ORDERED THAT that the April 27 and March 17, 2017 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: April 2, 2018
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, SPRINGFIELD POST
OFFICE, Springfield, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1193
Issued: March 15, 2022

Case Submitted on the Record

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

On August 2, 2021 appellant, through counsel, sought an appeal from a purported July 27,
2021 decision of the Office of Workers’ Compensation Programs (OWCP). 2 The Clerk of the
Appellate Boards assigned Docket No. 21-1193.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act
(FECA).3 This jurisdiction encompasses any final decision issued by OWCP within 180 days of

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

The case record also contains March 24 and June 30, 2021 decisions of OWCP. As counsel did not appeal from
those decisions, the Board will not consider them in this appeal. See 20 C.F.R. § 501.3; see also D.E., Docket No. 210531 (issued June 16, 2021).
3

5 U.S.C. § 8101 et seq; 20 C.F.R. §§501.2(c) and 501.3(a).

the date appellant filed his appeal.4 The Board notes that the case record does not contain a final
adverse decision of OWCP dated July 27, 2021.5
As there is no final adverse decision of OWCP, appealed by counsel within 180 days of
the filing of this appeal, the Board concludes that the appeal docketed as No. 21-1193 must be
dismissed.6
Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1193 is dismissed.
Issued: March 15, 2022
Washington, DC

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

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

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

Id. at § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of
issuance of a decision of OWCP.”
4

5

By order dated July 27, 2021, the Board dismissed, at counsel’s request, a timely appeal from the March 24, 2021
merit decision. Order Dismissing Appeal, Docket No. 21-0762 (issued July 27, 2021). That order became final upon
the expiration of 30 days from the date of its issuance and is not subject to further review. 20 C.F.R. § 501.6(d).
6

Id.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF LAND MANAGEMENT, Bakersfield, CA,
Employer
__________________________________________

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

Docket No. 08-1486
Issued: March 16, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 28, 2008 appellant filed a timely appeal from a November 19, 2007 merit
decision of the Office of Workers’ Compensation Programs denying his claim for an increased
pay rate and an April 11, 2008 nonmerit decision denying his request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether the Office properly determined appellant’s pay rate for
compensation purposes; and (2) whether the Office properly refused to reopen his case for
further review of the merits under 5 U.S.C. § 8128.
FACTUAL HISTORY
This case is before the Board for the second time. By decision dated July 13, 2006, the
Board set aside a March 31, 2005 decision determining appellant’s pay rate for compensation

purposes.1 The Board found that the Office correctly applied the provisions of 5 U.S.C.
§ 8114(d)(3) in determining his pay rate as he did not work in the position in which he was
employed at the time of injury for a whole year immediately preceding the injury and the
position would not have afforded employment for substantially the whole year. The Board noted
that appellant was a career seasonal employee as his company and the employing establishment
had a July 1990 contract that established an expectation of recurring seasonal employment. The
Board concluded that the Office properly calculated appellant’s pay rate as $436.00 per week by
using the pay rate of a full-time administratively determined (AD) employee at the rate provided
for appellant in the contract between the company and the employing establishment of $10.90
per hour. The Board determined, however, that the Office did not consider whether his average
daily wage during the year preceding his injury multiplied by 150 yielded a greater pay rate
pursuant to section 8114(d)(3). The Board remanded the case for the Office to contact
appellant’s federal employers for the year immediately preceding his work injury to determine
his daily wages for that period. The Board noted that his employers appeared to be the
Department of Interior’s Bureau of Land Management (BLM) and the Department of
Agriculture’s U.S. Forest Service (Forest Service). The findings of fact and conclusions of law
from the prior decision are hereby incorporated by reference.
In a letter dated July 28, 2006, appellant noted that he worked as an AD employee and
received pay at either a daily or hourly rate. AD personnel were not covered by overtime rules,
laws passed after 1992 or rules applicable to federal employees. Appellant maintained that his
payroll records were not kept for more than seven years and thus had been destroyed. He
contended that the Office erred in failing to consider his similar employment in determining his
pay rate. Appellant asserted that he earned $38.00 per hour working for Petersen Equipment as a
medical supervisor, the same position that he held for the Forest Service.
By letters dated July 31, 2006, the Office requested that the Forest Service and the BLM
provide appellant’s daily wages from August 29, 1991 to August 29, 1992. The BLM
resubmitted a contract showing that he would receive a flat rate of pay of $174.40 per day for
work performed. The Forest Service indicated that he worked from August 21 through 31, 1992
as a fire emergency hire and that it had no records of income prior to August 21, 1992.
Appellant earned $1,716.75 from August 21 to 31, 1992.
On July 20, 2006 the BLM indicated that AD employees worked in emergencies, usually
suppressing fires. An AD employee was not a regular government employee and did not sign an
Oath of Office or receive government benefits. AD employees were covered under the Federal
Employees’ Compensation Act (the Act).2
In a letter dated October 7, 1998, Audrey Johnston, the chief executive officer of Petersen
Equipment, stated:
“[Appellant] has been an operations officer for Petersen Equipment since 1988.
He does not receive pay from Petersen Equipment because our contracts are with
1

57 ECAB 680 (2006). On August 30, 1992 appellant, then a 56-year-old subcontractor, sustained chronic
chemical pneumonitis and an aggravation of asthma due to fuel splashing onto his face and in his mouth. The Office
paid him compensation beginning October 16, 1993 at a pay rate of $436.00 per week.
2

5 U.S.C. §§ 8101-8193.

2

the Federal Government and under our contracts he is a [f]ederal employee.
[Appellant’s] pay with the Federal Government was around $25.00 per hour. I no
longer have those records.”
In a letter dated November 9, 1998, Petersen Equipment clarified that appellant did not
receive pay from the company while working under a contract with the Federal Government.
Appellant received $40.00 per hour from the company when he was not employed with the
government.
In a September 27, 2006 telephone call, the employing establishment indicated that
appellant possibly worked for both the BLM and the Forest Service on the Rainbow fire and
noted that an employee could work for several agencies under one contract.
By letter dated October 23, 2006, Arlene D. Brown, a budget analyst with the BLM,
asserted that the AD plan under which appellant worked provided for an hourly rather than a
daily wage. She noted that the July 1990 contract referred to by the Board in its July 13, 2006
decision was an emergency equipment rental agreement (EERA). Ms. Brown stated that, while
she signed the original EERA, as the Forest Service broke the fire it was responsible for
processing claims and payment. She stated:
“In your letter dated July 31, 2006, you requested that we provide you with the
wages earned each day from August 29, 1991 through August 29, 1992. In order
to do this, we would have to know which agencies hired him and ask them to
query their records (if they have them that far back) and get the information. This
was an EERA that could have been used by any [f]ederal [a]gency across the
United States during the period in question.
“I would assume that [appellant] would have received 1099s from the agencies
that hired him during the period of time in question. If he can provide that to us,
we might be able to provide the information that is being asked for.”
By decision dated October 24, 2006, the Office denied appellant’s claim for an increased
pay rate. It found that he earned $1,716.75 in the year preceding his injury from the Forest
Service. The Office noted that the BLM asserted that the Forest Service paid appellant even
though it signed the contract. It calculated appellant’s earnings using the 150 formula and found
that it yielded a pay rate of $33.00 per week. The Office consequently determined that it
properly paid him at the higher rate of $436.00 per week pursuant to section 8114(d)(3).
On August 17, 2007 appellant requested reconsideration. He contended that AD
personnel were not subject to rules governing federal employees. Appellant related that all his
employment and payroll records had been destroyed. He asserted that the Office must contact
every the BLM, Forest Service, National Park Service and Bureau of Indian Affairs office in the
country to check for his payroll records. Appellant also challenged the Board’s prior finding that
he was a career seasonal employee. He argued that his compensation should be based on a daily
pay rate of $174.40 per day or $38.00 per hour. Appellant also contended that the Office failed
to consider his similar employment in calculating his pay rate. He maintained that he earned
$40.00 per hour at Peterson Equipment performing the same job as held with the BLM at the

3

time of injury. Appellant submitted a letter dated July 26, 2006 from James C. Knox, the BLM,
who indicated that AD personnel were not career seasonal employees.3
In a decision dated November 19, 2007, the Office denied modification of its October 24,
2006 decision. It found that appellant had not submitted any evidence that he earned wages in
concurrent similar employment at the time of his injury. The Office further noted that it did not
have the obligation to contact every agency in the country to obtain possible payroll records.
On December 14, 2007 appellant questioned whether the Office had considered all of the
submitted information in reaching its November 19, 2007 decision. He contended that the Office
should have notified Petersen Equipment of the need to maintain his records. Appellant again
noted that the Office must contact all offices to obtain his pay rate information as there is no
national data base. He argued that 5 U.S.C. § 8114(d)(3) did not apply to AD employees.
Appellant also contended that he should have received pay at a higher AD rate based on the
actual work performed. He noted that pay for an AD was based on an 8- to 16-hour workday and
that overtime rules did not apply. Appellant resubmitted evidence previously of record relevant
to the pay rate determination, including the October 7 and November 9, 1998 letters from
Ms. Johnston and the July 20 and 26, 2006 letters from the BLM. He further submitted a form
from the Internal Revenue Service advising a taxpayer to keep records for four years and a form
showing that overtime was not paid to AD personnel.
In a letter dated January 11, 2008, the Office noted that it had received all the evidence
submitted by appellant when reaching its November 19, 2007 decision. On January 15, 2008
appellant requested reconsideration. In an accompanying letter dated January 14, 2008, he
requested the number of cases accepted or rejected by the Office since 1992.
By decision dated April 11, 2008, the Office denied appellant’s request for
reconsideration on the grounds that he failed to submit evidence and argument sufficient to
warrant reopening his case for further merit review.
LEGAL PRECEDENT -- ISSUE 1
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.”4 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 Pay rate for compensation
purposes is defined in section 8101(4) as the monthly pay at the time of injury, the time disability
begins or the time disability recurs, if the recurrence is more than six months after returning to
full-time work, which ever is greater.6

3

Appellant further resubmitted pay rate information previously of record.

4

5 U.S.C. § 8105(a).

5

Id. at § 8110(b).

6

Id. at §§ 8101(4); 8114; see also 20 C.F.R. § 10.5(s).

4

Section 8114(d)(1) and (2) of the Act,7 provide methodology for computation of pay rate
for compensation purposes by determining average annual earnings at the time of injury. Section
8114(d)(1) and (2) of the Act specify methods of computation of pay for employees who worked
in the employment for substantially the whole year prior to the date of injury and for employees
who did not work the majority of the preceding year, but for whom the position would have
afforded employment of substantially the whole year if the employee had not been injured.
Section 8114(d)(3) provides:
“If either of the forgoing methods of the average annual earnings cannot be applied
reasonably and fairly, the average annual earnings are a sum that reasonably
represents the annual earning capacity of the injured employee in the employment
in which he was working at the time of the injury having regard to the previous
earnings of the employee in federal employment and of other employees of the
United States in the same or most similar class working in the same or most similar
employment in the same or neighboring location, other previous employment of the
employee or other relevant factors. However, the average annual earnings may not
be less than 150 times the average daily wage the employee earned in the
employment during the days employed within one year immediately preceding the
injury.8
ANALYSIS -- ISSUE 1
The Board previously affirmed the Office’s use of section 8114(d)(3) of the Act in
determining appellant’s pay rate for compensation purposes. Section 8114(d)(3) provides for the
calculation of average annual earnings in situations where the employee did not work
substantially the whole year prior to the injury and was not employed in a position that would
have afforded employment for substantially a whole year. The employee’s average annual
earnings are a sum that reasonably represents the annual earning capacity of the injured
employee in the employment in which he was working at the time of the injury having regard to
the previous earnings of the employee in federal employment and of other employees of the
United States in the same or most similar class working in the same or most similar employment
in the same or neighboring location, other previous employment of the employee or other
relevant factors. However, the average annual earnings may not be less than 150 times the
average daily wage the employee earned in the employment during the days employed within
one year immediately preceding the injury.9 The Board found that the Office properly
determined that his average annual earnings were $10.90 per hour or $436.00 per week. The
Board determined, however, that the Office had not considered whether appellant’s average
annual earnings were less than 150 times the average daily wage he earned in his employment
for the year immediately preceding the injury.
On remand the Office requested that the Forest Service and the BLM provide appellant’s
daily wages for the year preceding his work injury. The BLM submitted a contract showing that
7

5 U.S.C. § 8114(d)(1) and (2).

8

Id. at § 8114(d)(3).

9

Monte Fuller, 51 ECAB 571 (2000).

5

he would receive a flat rate of $174.40 per day. The Forest Service indicated that appellant
worked from August 21 through 31, 1992 as an emergency fire hire. Appellant earned $1,716.75
during that period. On October 23, 2006 Ms. Brown explained that the Forest Service paid
appellant compensation as it “broke the fire.” She indicated that she would have to query every
agency across the country to get information about his earnings in the year prior to his injury.
Ms. Brown noted that appellant would have received 1099 tax forms from any agency that hired
him during that period.
Based on this evidence, the Office determined that appellant earned $1,716.75 in the year
prior to his August 30, 1992 work injury, or earnings of $6.60 per day. It multiplied $6.60 per
day by 5 to find a pay rate of $33.00 per week. Under the 150 formula, however, appellant’s
average annual daily earnings of $6.60 are multiplied by 150, which yields $990.00 per year, or
$19.04 per week. As this amount is less than the pay rate of $436.00 found by the Office and
previously affirmed by the Board, the Office properly denied appellant’s claim for an increased
pay rate.
Appellant contended that the Office erred in failing to contact every federal office in the
BLM, Forest Service, National Park Service and Bureau of Indian Affairs to determine whether
he earned wages in the year preceding his injury. He has not, however, specifically listed any
employer or provided any employment information, such as tax forms, in support of his
contention that he performed additional federal employment. This is appellant’s responsibility.
Appellant additionally maintained that the Office erred in failing to include his
concurrent, similar earnings in calculating his pay rate. Earnings from concurrent nonfederal
employment may be combined with the federal salary in determining pay rate if derived from
similar employment.10 By letter dated October 7, 1998, Ms. Johnston related that appellant did
not receive pay from Peterson Equipment but was instead paid as a federal employee under
contracts between the Federal Government and the company. She no longer had records of his
employment. On November 9, 1998 Ms. Johnson maintained that when appellant was not
working under contract with the Federal Government he earned $40.00 per hour from Peterson
Equipment. She did not submit any evidence documenting her assertion or the hours worked by
appellant and paid by Peterson Equipment in the year prior to August 30, 1992. Appellant,
consequently, has not established that he had earnings for concurrent, similar employment.
Appellant argued that he was not a career seasonal employee and that his compensation
should be based on a pay rate of $174.40 per day or $38.00 per hour. As discussed, however, the
provisions of section 8114(d)(3) apply to determining his compensation and establish his pay
rate as $436.00 per week.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
11

10

See L.C., 60 ECAB ___ (Docket No. 08-224, issued December 23, 2008).

11

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”

6

previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.12 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.13 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.14
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.15 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.16 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.17
ANALYSIS -- ISSUE 2
In its November 19, 2007 decision, the Office denied appellant’s request for an increased
pay rate. On January 14, 2008 appellant requested that the Office provide the number of cases
that it had accepted or rejected since 1992. He submitted a form from the Internal Revenue
Service indicating that tax records should be maintained four years and a form showing that
overtime rates did not apply to AD personnel. Appellant’s request for information about the
Office’s processing of cases, however, does not constitute a relevant legal argument sufficient to
warrant reopening his case for further review of the merits. Further, the evidence about tax
records and overtime rates is not relevant to the Office’s determination of his pay rate. Evidence
or argument that does not address the particular issue involved does not warrant reopening a case
for merit review.18
Appellant resubmitted pay rate information, including letters from Ms. Johnston dated
October 7 and November 9, 1998 and from the BLM dated July 20 and 26, 2006. He again
argued that the Office should have contacted all government agencies to determine his pay rate
and that the provisions of the Act did not apply as he was an AD employee. Evidence or
argument, however, which repeats or duplicates evidence already in the case record has no
evidentiary value and does not constitute a basis for reopening a case.19

12

20 C.F.R. § 10.606(b)(2).

13

Id. at § 10.607(a).

14

Id. at § 10.608(b).

15

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

16

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

17

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

18

Freddie Mosley, 54 ECAB 255 (2002).

19

Richard Yadron, 57 ECAB 207 (2005).

7

Appellant further contended that the Office should have notified Petersen Equipment of
the need to maintain his records and that he should have been paid at a higher rate then specified
because of the work that he performed. The Office, however, is not responsible for the work
records of a private company or determining the rate that a claimant is paid for his federal
employment. Thus, appellant’s argument does not have a reasonable color of validity such that it
would warrant reopening his case for merit review.20
Appellant 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
new and relevant evidence not previously considered. As he did not meet any of the necessary
regulatory requirements, he is not entitled to further merit review.
CONCLUSION
The Board finds that the Office properly determined appellant’s pay rate for
compensation purposes. The Board further finds that the Office properly refused to reopen his
case for further review of the merits under 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 11, 2008 and November 19, 2007 are affirmed.
Issued: March 16, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

20

Elaine M. Borghini, 57 ECAB 549 (2006).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jamestown, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-892
Issued: July 5, 2013

Case Submitted on the Record

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

JURISDICTION
On March 5, 2013 appellant, through her attorney, filed a timely appeal of a
November 15, 2012 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP), denying her application for reconsideration without merit review of the claim. Since
more than 180 days elapsed from the last merit decision of June 6, 2012 to the filing of this
appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3. The Board also has jurisdiction over a December 6, 2012 OWCP
decision denying a request for a hearing, and a December 10, 2012 decision denying merit
review.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s applications for
reconsideration under 5 U.S.C. § 8128(a); and (2) whether OWCP properly denied appellant’s
request for a hearing.

FACTUAL HISTORY
On July 28, 2011 appellant, then a 39-year-old letter carrier, completed a traumatic injury
claim (Form CA-1) alleging that on October 12, 2010 she was involved in a motor vehicle
accident while in the performance of duty. She injured her neck, back and legs. By decision
dated October 13, 2011, OWCP denied the claim, finding that the employment incident was not
established as alleged.
Appellant requested a hearing, which was held on March 13, 2012. By decision dated
June 6, 2012, the hearing representative found that the October 12, 2010 motor vehicle accident
was established. Appellant received treatment for cervical strain.1 The hearing representative
found that no disability was established and no additional condition to her leg, back or foot were
established as employment related.
By letter dated June 19, 2012, appellant, through her representative, requested
reconsideration. She submitted an April 3, 2012 report from Dr. Darshan Shah, a Board-certified
emergency medicine specialist. The report was previously submitted on April 23, 2012 and
reviewed by the hearing representative in the June 6, 2012 decision.
In a decision dated November 15, 2012, OWCP found that the application for
reconsideration was insufficient to warrant a review of the merits of the claim. On
November 26, 2012 it received a November 20, 2012 letter from counsel requesting a hearing on
the November 15, 2012 decision. In a letter dated December 4, 2012, appellant again requested
reconsideration and resubmitted the April 3, 2012 report from Dr. Shah.
By decision dated December 6, 2012, OWCP denied appellant’s request for a hearing. It
found that she previously had requested reconsideration and was not entitled to a hearing as a
matter of right. OWCP stated that the hearing request was further denied as the case could
equally well be addressed by submitting new evidence with a request for reconsideration.
In a decision dated December 10, 2012, OWCP denied the December 4, 2012 application
for reconsideration. It found that the application was insufficient to warrant merit review of the
claim as the evidence submitted was previously reviewed
LEGAL PRECEDENT -- ISSUE 1
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations at 20 C.F.R. § 10.606(b)(2) provide that a claimant may obtain review of
the merits of the claim by submitting a written application for reconsideration that sets forth
arguments and contains evidence that either “(i) shows that OWCP erroneously applied or
interpreted a specific point of law, (ii) advances a relevant legal argument not previously
considered by OWCP or (iii) constitutes relevant and pertinent evidence not previously
1

On June 8, 2012 OWCP accepted the claim for a neck sprain.

2

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).

2

considered by OWCP.”3 Section 10.608(b) of Title 20 of the Code of Federal Regulations states
that any application for review that does not meet at least one of the requirements listed in 20
C.F.R. § 10.606(b)(2) will be denied by OWCP without review of the merits of the claim.4
ANALYSIS -- ISSUE 1
OWCP issued a June 6, 2012 decision that found no employment-related disability due to
the accepted cervical sprain and no additional employment-related conditions other than the
cervical strain. Appellant submitted written applications for reconsideration dated June 19 and
December 4, 2012. She did not discuss a specific point of law or advance a legal argument.
With both the June 19 and December 4, 2012 applications for reconsideration, she submitted the
April 3, 2012 report from Dr. Shah. The Board notes that this report had been previously
submitted on April 23, 2012 and was considered by OWCP in the June 6, 2012 merit decision.
The April 3, 2012 report from Dr. Shah is repetitious and does not meet the requirement of
submitting relevant and pertinent evidence not previously considered by OWCP.5
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent evidence not previously considered by OWCP. Therefore OWCP properly
denied the June 19 and December 4, 2012 applications for reconsideration without review of the
merits of the claim for compensation.
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
claim before a representative of the Secretary.6 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.7 OWCP’s regulations provide that the request must be
sent within 30 days of the date of the decision for which a hearing is sought and also that the
claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.8

3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). In the present case the “merits” of the
claim would be the termination of compensation effective October 13, 2011.
5

Evidence that repeats or duplicates that already of record has no evidentiary value. See Freddie Mosley, 54
ECAB 255 (2002).
6

5 U.S.C. § 824(b)(1).

7

20 C.F.R. § 10.615.

8

Id. at 10.616(a).

3

The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA, 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.9 This includes the situation where a claimant requests a second
hearing on an issue. There is no provision in FECA for more than one hearing on the same
issue.10 If a request for a second hearing is made, appellant is not entitled as a matter of right,
but OWCP must exercise its discretion in determining whether to grant a hearing.11
ANALYSIS -- ISSUE 2
Appellant submitted a request for a hearing before an OWCP hearing representative on
November 2, 2012. The record establishes, however, that appellant previously had a hearing on
March 13, 2012 and had requested reconsideration on June 19, 2012. As noted, there is no
provision for a second hearing. OWCP regulations also provide that a claimant must not have
previously requested reconsideration. Therefore, appellant was not entitled to a hearing as a
matter of right.
When a claimant has previously requested reconsideration, or requests a second hearing
on the issue, OWCP must exercise its discretionary authority to grant or deny the hearing
request. In this case OWCP considered the issue and found it could be equally well addressed by
submitting new and relevant evidence with an application for reconsideration. This is a proper
exercise of OWCP’s discretionary authority.12 The Board finds that OWCP did not abuse its
discretion in denying appellant’s hearing request.
CONCLUSION
The Board finds that OWCP properly denied appellant’s June 19 and December 4, 2012
applications for reconsideration without reviewing the merits of the claim for compensation. The
Board further finds that OWCP properly denied appellant’s request for a hearing.

9

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

10

John S. Baldwin, 35 ECAB 1161 (1984).

11

Id.

12

See Lawrence C. Parr, 48 ECAB 445 (1997).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 10 and 6 and November 15, 2012 are affirmed.
Issued: July 5, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Reading, MA, Employer
)
___________________________________________ )
C.W., Appellant

Appearances:
William E. Shanahan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2004
Issued: January 25, 2008

Case Submitted on the Record

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

JURISDICTION
On July 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated June 29, 2007, denying her request for further
merit review of her claim. Because more than one year has elapsed between the Office’s most
recent merit decision dated January 18, 2006 and the filing of this appeal, the Board lacks
jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and
501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In an August 4, 2006
decision, the Board affirmed the January 18, 2006 decision of the Office hearing representative,
1

Docket No. 06-935 (issued August 4, 2006), petition for recon., denied (issued January 17, 2007).

finding that appellant did not sustain an injury in the performance of duty on
September 11, 2004. The facts and history contained in the prior appeal are incorporated by
reference.
Following the Board’s August 4, 2006 decision, appellant submitted a November 16,
2005 report from Dr. Savita Patil, Board-certified in internal medicine, who noted that she was
seen on September 17, 2004 for follow up to low back pain which occurred following an injury
at work on September 11, 2004. The history reflected that she moved a heavy parcel. Dr. Patil
advised that appellant developed right-sided low back pain with radiation to the right leg. The
onset of her symptoms was related to the reported injury. Dr. Patil advised that the
musculoskeletal and neurological findings on September 17, 2004 were within normal limits and
appellant was diagnosed with a lumbar strain. Appellant had previously been treated for lumbar
strain in April 2003 and she had improved with treatment. She noted some low level residual
pain. Due to the chronic nature of the symptoms, coupled with the new symptoms, appellant
underwent a magnetic resonance imaging (MRI) scan. It revealed a “paracentral bulge at the L34 level nerve roots which effaces the anterior thecal sac but does not impinge on the central roots
or exiting nerve roots.”
In a March 27, 2006 report, Dr. Elizardo P. Carandang, Board-certified in physical
medicine and rehabilitation, indicated that he first saw appellant on October 1, 2004 for
persistent back pain. Appellant reported that she had experienced pain across the back and
radiating towards the top of the right buttock and occasionally along the posterior thigh and calf.
Dr. Carandang noted that she had an MRI scan on September 21, 2004 which revealed
paracentral bulging at the L3-4 level, which effaced the thecal sac but did not impinge on the
central or exiting nerve roots. He did not obtain a history of injury from appellant’s first visit
until he received subsequent notes from her in which she stated that she sustained an injury at
work on September 11, 2004. Appellant related that she was “counting parcels in a hamper,
moved a large one and felt a pull and sharp pain in low back.” Dr. Carandang noted that
appellant had no neuromuscular deficit on her clinical examination, but she had symptoms
pointing to a right S1 radiculopathy, which were not in accordance with the MRI scan findings.
Dr. Carandang indicated that conservative treatments did not help appellant improve. He opined
that appellant’s low back pain on September 11, 2004 resulted in a lumbosacral sprain and a
pelvogluteal sprain with underlying degenerative disc disease.
On January 23,
reconsideration.

April 2

and

12,

2007,

appellant’s

representative

requested

By decision dated June 29, 2007, the Office denied appellant’s request for
reconsideration without a review of the merits. It found that her request neither raised substantial
legal questions nor included new and relevant evidence and was insufficient to warrant further
merit review.

2

LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,2 the Office may
reopen a case for review on the merits in accordance with the guidelines set forth in section
10.606(b)(2) of the implementing federal regulations. It provides that a claimant may obtain
review of the merits if the written application for reconsideration, including all supporting
documents, sets forth arguments and contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law;
“(ii) Advances a relevant legal argument not previously considered by the Office;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.4
ANALYSIS
Appellant disagreed with the denial of her claim and requested reconsideration. The
underlying issue on reconsideration was whether appellant submitted sufficient medical evidence
to establish that her work caused an injury on September 11, 2004. However, appellant did not
provide any relevant or pertinent new evidence to the issue of whether she sustained an injury in
the performance of duty on September 11, 2004. She did not submit any new medical evidence
with regard to whether she sustained an injury in the performance of duty on
September 11, 2004.
In support of her claim, she submitted a November 16, 2005 report from Dr. Patil, Boardcertified in internal medicine. Dr. Patil noted that appellant was seen on September 17, 2004 for
follow up related to low back pain which she reported had occurred following an injury at work
on September 11, 2004 which occurred after she moved a heavy parcel and he advised that the
onset of her symptoms was related in terms of time to the reported injury. However, this report
did not provide any further support for causal relationship beyond that noted in the physician’s
April 8 and October 11, 2005 reports. Thus, while the November 16, 2005 report is new, it is not
relevant as it is duplicative of his prior reports with regard to causal relationship. Evidence or

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b).

4

Id. at § 10.608(b).

3

argument that repeats or duplicates evidence previously of record has no evidentiary value and
does not constitute a basis for reopening a case.5
In a March 27, 2006 report, Dr. Carandang repeated the contents of his October 1, 2004
and March 31, 2005 reports. He noted that she sustained an injury at work on September 11,
2004 which occurred when she was “counting parcels in a hamper, moved a large one and felt a
pull and sharp pain in low back.” While Dr. Carandang opined that appellant’s low back pain on
September 11, 2004 resulted in her lumbosacral sprain and a pelvogluteal sprain with underlying
degenerative disc disease, this is duplicative of his March 31, 2005 report in which he checked
the box “yes” that appellant’s condition was causally related to her employment. He did not
provide any new details on causal relationship. As noted, evidence or argument that repeats or
duplicates evidence previously of record has no evidentiary value and does not constitute a basis
for reopening a case.6
Consequently, appellant has not submitted relevant and pertinent new evidence not
previously considered by the Office; nor has she shown that the Office erroneously applied or
interpreted a specific point of law or advanced a relevant new argument not previously
considered by the Office. Therefore, the Office properly denied her request for reconsideration
without conducting a merit review of the claim.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

5

L.C., 58 ECAB ___ (Docket No. 06-1928, issued May 31, 2007); J.P., 58 ECAB ___ (Docket No. 06-1274,
issued January 29, 2007).
6

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 29, 2007 is affirmed.
Issued: January 25, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Norfolk, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1740
Issued: May 10, 2019

Case Submitted on the Record

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

JURISDICTION
On September 18, 2018 appellant, through counsel, filed a timely appeal from a July 30,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his lumbar
conditions were causally related to the accepted December 26, 2016 employment incident.

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 2, 2017 appellant, then a 68-year-old radio electronics technician, filed an
occupational disease claim (Form CA-2) alleging that he developed a sciatic nerve injury on
December 26, 2016 when he climbed on a table to reset a clock and slipped while in the
performance of duty. He related that he first became aware of the medical condition on
December 26, 2016 and realized that it was caused or aggravated by his federal employment on
December 27, 2016, the day he stopped work.
In support of his claim, appellant submitted physical therapy notes dated March 27, and
May 1, and 2, 2017, which related that he was seen for complaints of recurring lower lumbar back
pain and intermittent left lower extremity pain and weakness. The physical therapist reported
diagnoses of lumbar sciatica, L4-5 and L5-S1 lumbar degenerative disc disease, Grade 1
spondylolisthesis, and L4-5 nerve root impingement.
On May 25, 2017 OWCP converted the claim to a traumatic injury claim rather than an
occupational disease claim as the injury described occurred during the course of a single work
shift.
In a development letter also dated May 25, 2017, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of medical
and factual evidence needed and provided a questionnaire for his completion. By separate letter
of even date, OWCP requested that the employing establishment provide information regarding
appellant’s work status. It afforded both parties 30 days to respond.
Appellant subsequently submitted a December 30, 2016 x-ray report, a January 1, 2017
magnetic resonance imaging (MRI) scan, and physical therapy notes covering the period March 27
to May 25, 2017. He also submitted an additional statement in which he described his injury.
In an attending physician’s report (Form CA-20) dated June 7, 2017, Dr. Ismail S. Ahmed,
a Board-certified internist, diagnosed left sciatica with excessive left leg pain.3 He described the
December 26, 2016 incident when appellant climbed on top of a table to change a clock battery,
slipped, and landed on his back. Dr. Ahmed reported that appellant had sustained an injury to the
same area that he had injured when he fell down stairs at work in August 2008, which had healed.
Examination findings included severe spinal stenosis, L4-5 foraminal stenosis, and impingement
of the L5 nerve root. Dr. Ahmed checked a box marked “yes” to the question of whether the
diagnosed condition had been caused or aggravated by the December 26, 2016 work incident and
wrote “direct correlation to [appellant’s] fall.” He indicated that this injury required
hospitalization with admission on December 27, 2016 and discharge on January 4, 2017.
By decision dated July 6, 2017, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish causal relationship between the accepted
December 26, 2016 employment incident and the diagnosed medical conditions. It noted that
appellant had a preexisting lumbar radiculopathy and sciatica which had been accepted by OWCP
under OWCP File No. xxxxxx591 on October 27, 2008. On August 10, 2017 OWCP received
3
The record also contains an attending physicians report (Form CA-20) from Dr. Ahmed received on June 15,
2017, which referenced OWCP File No. xxxxxx591 and an injury date of August 22, 2008.

2

appellant’s August 2, 2017 request for a telephonic hearing before an OWCP hearing
representative, which was also postmarked August 2, 2017. The telephonic hearing was held on
December 13, 2017.
By decision dated January 23, 2018, an OWCP hearing representative affirmed the denial
of appellant’s claim.
Subsequent to the hearing representative’s decision, OWCP received progress notes dated
September 5 and 30, and December 26, 2017, as well as a September 29, 2017 surgical report and
October 2, 2017 discharge summary from Dr. Mario M. Sertich, a Board-certified neurosurgeon.
It also received physical therapy notes covering the period October 17 to December 15, 2017 and
a September 29, 2017 lumbosacral x-ray interpretation.
Dr. Sertich, in his September 5, 2017 report, noted that appellant had experienced
degenerative spinal problems for the past 10 years. Appellant reported a worsening of pain, more
on the left than on the right. Dr. Sertich reviewed an MRI scan, which revealed significant L2-3,
L3-4, and L4-5 spinal stenosis. Physical examination and medical history findings were detailed.
He diagnosed lumbar facet arthritis, chronic bilateral low back pain with bilateral sciatica, and
lumbar stenosis with neurogenic claudication. Dr. Sertich recommended decompressive
laminectomy surgery.
In a September 29, 2017 operative report, Dr. Sertich performed L2-3, L3-4, and L4-5
decompressive laminectomy via the left side based on a diagnosis of L2-3, L3-4, and L4-5 spinal
stenosis. On September 30, 2017 he observed that appellant had considerable pain following his
back surgery. Dr. Sertich diagnosed L2-4, L3-4, and L4-5 spinal stenosis.
On December 26, 2017 appellant was seen for complaints of back pain and occasional left
sciatic pain by Dr. Sertich. Dr. Sertich noted that appellant was status three months after having
left-sided decompressive surgery. He provided examination findings and diagnosed lumbar facet
arthritis, left-sided sciatica, and lumbar stenosis with neurogenic claudication.
By decision dated July 30, 2018, OWCP denied modification of its prior decision, finding
that the medical evidence of record was insufficient to establish causal relationship between the
diagnosed medical conditions and the accepted December 26, 2016 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 filed within the applicable time
limitation, that an injury5 was sustained while in the performance of duty, as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
4

Supra note 2.

5
OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body
affected. 20 C.F.R. § 10.5(ee).

3

employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.8 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.9 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.10
Rationalized medical opinion evidence is required to establish causal relationship. 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 incident
identified by the claimant.11 This medical opinion must include an accurate history of the
employee’s employment injury and must explain how the condition is related to the incident. The
weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his lumbar
conditions were causally related to the accepted December 26, 2016 employment incident.
OWCP received reports from Dr. Ahmed. In a June 7, 2017 Form CA-20, Dr. Ahmed
diagnosed left sciatica with excessive left leg pain, and noted a prior August 2008 employment
injury. He noted the history of appellant’s December 26, 2016 employment incident and
concluded that there was a direct correlation between the diagnosed left sciatica and the accepted
incident. Dr. Ahmed also checked a box marked “yes” indicating that the diagnosed conditions
were caused by the employment incident. The Board has held, however, that when a physician’s
opinion on causal relationship consists only of checking a box marked “yes” to a form question,
without explanation or rationale, that opinion has limited probative value and is insufficient to

6

N.C., Docket No. 17-0425 (issued June 21, 2018); C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A.
Contreras, 57 ECAB 364 (2006).
7

N.C., id.; S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

8

R.B., Docket No 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, supra note 6.
9

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

10
A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 6.
11

A.D., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

12

S.H., Docket No. 17-1660 (issued March 27, 2018); James Mack, 43 ECAB 321 (1991).

4

establish a claim.13 Dr. Ahmed did not specifically explain how appellant’s December 26, 2016
employment incident physiologically caused the diagnosed conditions. A conclusory statement
regarding causal relationship is of limited probative value.14 Thus, this report is insufficient to
establish appellant’s claim.
The record also contains several reports from Dr. Sertich, diagnosing L2-3, L3-4, and L45 spinal stenosis. Dr. Sertich, however, offered no opinion regarding the cause of the diagnosed
conditions. Medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.15 For this reason,
Dr. Sertich’s reports are insufficient to establish appellant’s claim.
Appellant also submitted reports from physical therapists. These reports, however, do not
constitute competent medical evidence because physical therapists are not considered “physicians”
as defined under FECA.16 As such, this evidence is of no probative value and is insufficient to
meet appellant’s burden of proof.
OWCP also received diagnostic reports. The Board has held that reports of diagnostic tests
lack probative value as they do not provide an opinion on the causal relationship between
appellant’s employment duties and the diagnosed conditions.17
As appellant has not submitted rationalized medical evidence establishing causal
relationship between his diagnosed conditions and the accepted employment incident, the Board
finds that 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.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his lumbar
conditions were causally related to the accepted December 26, 2016 employment incident.

13

L.M., Docket No. 18-1274 (issued February 6, 2019).

14

See R.D., Docket No. 18-1551 (issued March 1, 2019); B.B., Docket No. 18-1036 (issued December 31, 2018);
J.D., Docket No. 14-2061 (issued February 27, 2015).
15

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018); Ellen L.
Noble, 55 ECAB 530 (2004).
16
5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See 5 U.S.C. § 8102(2); M.M., Docket No. 16-1617 (issued January 24, 2017); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006) (lay individuals such as nurses, physician assistants and physical therapists are not competent to render a
medical opinion under FECA). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB
208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative
medical evidence from a physician).
17

K.K., Docket No. 18-1209 (issued March 7, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the July 30, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 10, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy 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

6