United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Youngstown, OH, Employer
__________________________________________

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

Docket No. 16-0390
Issued: September 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 29, 2015 appellant filed a timely appeal from a November 24, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits for her accepted right carpal tunnel syndrome, effective
November 24, 2015.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence after OWCP rendered its November 24, 2015 decision. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore,
this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 25, 2009 appellant, then a 49-year-old mail handler, injured her neck and
left upper extremity in the performance of duty.3 OWCP accepted her traumatic injury claim
(Form CA-1) for left shoulder sprain and cervical sprain/strain under OWCP File No.
xxxxxx454. Appellant had previously sustained work-related neck and upper extremity injuries
on August 28 and September 30, 2008, which OWCP accepted for neck sprain/strain, left
shoulder sprain, right carpal tunnel syndrome, and aggravation of preexisting cervical stenosis
(OWCP File Nos. xxxxxx661 and xxxxxx009).4 Following her latest employment injury, she
was able to work in a limited-duty capacity, but, as of September 21, 2010, the employing
establishment was no longer able to accommodate appellant’s work restrictions. Therefore,
OWCP paid appellant wage-loss compensation for temporary total disability.5 Appellant
returned to full-time, light-duty work on March 28, 2011.
In August 2012, OWCP referred appellant to Dr. Manhal A. Ghanma, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of her
employment-related conditions. In her September 20, 2012 report, Dr. Ghanma provided results
on examination and reviewed the statement of accepted facts (SOAF), history of the injuries, and
the medical evidence of record. He found that appellant’s accepted cervical conditions, left
shoulder sprain/strain, and right carpal tunnel syndrome had resolved. Dr. Ghanma reported
diagnostic findings of cervical degenerative disc disease and left acromioclavicular (AC) joint
degenerative disease. However, he opined that neither condition was employment related.
Dr. Ghanma also noted that appellant had right shoulder degenerative changes that affected her
range of motion. This too was not employment related. Dr. Ghanma opined that based on
appellant’s accepted conditions having resolved, she was capable of returning to full-duty work
and no further treatment for her accepted conditions was necessary.
On November 20, 2012 appellant began to lose intermittent work hours again and
stopped work completely on February 8, 2013 due to nonemployment-related illness. She
returned to work on April 26, 2013, but stopped again on April 27, 2013 because the employing
establishment was unable to accommodate her medical restrictions. OWCP resumed payment of
wage-loss compensation effective April 27, 2013.6
Subsequently, appellant submitted reports dated January 9, February 6, and March 6,
2014 from Dr. Timothy J. Wagner, a Board-certified family practitioner, who diagnosed carpal
tunnel syndrome, impingement syndrome of shoulder region, shoulder pain, neck pain, cervical
sprain, and cervical spinal stenosis. Upon physical examination, Dr. Wagner found restriction of
range of motion in the neck, back, upper back, and bilateral shoulders. He also found abnormal
and decreased muscle strength in the upper extremities bilaterally due to pain. On April 2, 2014
3

Appellant was performing the job of cut-ups and rejects when she experienced pain in her left shoulder.

4

OWCP administratively combined the above-noted cervical and upper extremity injury claims and assigned File
No. xxxxxx454 as the master file.
5

OWCP placed appellant on the periodic compensation rolls, effective February 13, 2011.

6

Effective December 15, 2013, OWCP returned appellant to the periodic compensation rolls.

2

Dr. Wagner found numbness in appellant’s right and left hands and tenderness in the left
shoulder, neck, left upper arm, right shoulder, and right upper arm. On May 15, 2014 he
reported that appellant complained of worsening pain in the right arm and numbness and tingling
in both arms.
OWCP found a conflict in medical opinion between Drs. Wagner and Ghanma and
referred appellant to Dr. Robert C. Erickson, a Board-certified orthopedic surgeon, for an
impartial medical examination to resolve the issue of whether she continued to have any
disability or residuals as a result of the accepted employment conditions. In his May 29, 2014
report, Dr. Erickson reviewed a statement of accepted facts and the medical evidence of record.
He found that appellant’s left shoulder sprain and cervical sprain conditions had resolved.
Dr. Erickson concluded that appellant had reached maximum medical improvement and was
capable of working regular duty with medical restrictions that were unrelated to her accepted
conditions.
Appellant submitted reports dated June 11 through September 24, 2014. Dr. Wagner
noted that appellant had been experiencing increased pain after physical therapy to the point
where she was unable to complete exercises due to pain in the neck and left shoulder. On
September 24, 2014 he reiterated his diagnoses and indicated that appellant’s diagnoses
included: upper arm sprain, cervical spinal stenosis, cervical sprain, bilateral carpal tunnel
syndrome, exacerbation of asthma, impingement syndrome of shoulder region, neck pain,
bilateral shoulder pain, and sinusitis.
In a July 30, 2015 memorandum to the file, OWCP acknowledged that Dr. Erickson’s
impartial medical examination was insufficient to resolve the issue in the claim because he was
not asked to address all of the accepted conditions in appellant’s combined cases. Therefore, his
May 29, 2014 report could not be used to terminate her compensation benefits. OWCP further
indicated that additional medical development was needed to address appellant’s residuals and
work capabilities in regards to all of her accepted conditions.
In an August 7, 2015 letter, OWCP requested that Dr. Wagner submit an updated report
regarding appellant’s work-related conditions and capabilities, including any residuals of her
cervical sprain and aggravation of cervical stenosis. Dr. Wagner did not respond.
On August 11, 2015 OWCP referred appellant to Dr. Richard Deerhake, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of her
accepted employment-related conditions. In his September 9, 2015 report, Dr. Deerhake
reviewed the updated SOAF and appellant’s medical history.7 On physical examination he found
that appellant had approximately 80 percent range of motion in her neck. Appellant complained
bitterly of pain when Dr. Deerhake touched her or moved her in certain directions in a
nonorganic fashion. In ranging the shoulders, she had a lot of weakness, positive Waddell-type
signs, and exaggerated pain with any attempts at motion of her shoulders. Dr. Deerhake found
7

The updated August 7, 2015 SOAF identified appellant’s accepted conditions under OWCP File Nos.
xxxxxx661, xxxxxx009 and xxxxxx454. It also noted that appellant had the following nonwork-related medical
diagnoses: degenerative joint and disc disease of the cervical spine; and degenerative joint disease of the bilateral
AC joints.

3

that appellant’s shoulders could be moved through essentially a normal range of motion when
she was distracted. Appellant had weakness in abduction, forward flexion, and internal and
external rotation. She had normal reflexes, normal fine touch sensation, negative Tinel’s signs,
and negative Phalen’s tests in both upper extremities. Dr. Deerhake found that appellant did
have “a residual loss of motion of the cervical spine, and this could not be attributable to any of
the specific injuries, but would relate to basically all three of them.” He opined that “she will
have some permanence to the loss of motion of the cervical spine related to the degenerative
changes and the cervical stenosis.” Regarding appellant’s left shoulder condition, Dr. Deerhake
opined that she had a lot of exaggeration in her findings and that it would be impossible to tell if
there were residuals remaining from her left shoulder sprain related to her employment injuries.
He found that appellant had no symptoms or residuals related to carpal tunnel syndrome.
Dr. Deerhake concluded that appellant was capable of her regular duties as a mail handler and
released her to full-duty work without restrictions.
By letter dated October 23, 2015, OWCP notified appellant that it proposed to terminate
her wage-loss compensation. It advised appellant that her claim would remain open for
conservative medical treatment of the cervical spine and left shoulder. OWCP further advised
that the proposed action was based on Dr. Deerhake’s September 9, 2015 second opinion
examination results. It explained that wage-loss compensation would be terminated with respect
to all three claims (August 28 and September 30, 2008, and September 25, 2009), and that
medical benefits would be terminated with respect to appellant’s accepted right carpal tunnel
syndrome (September 30, 2008). OWCP afforded appellant 30 days to submit additional
evidence or argument in disagreement with the proposed action.
In response, appellant submitted a November 14, 2015 narrative statement arguing that
Dr. Deerhake’s second opinion lacked probative value and should not be given the weight of the
evidence in her case.
By decision dated November 24, 2015, OWCP terminated appellant’s medical benefits
for right carpal tunnel syndrome and also her wage-loss compensation benefits effective that day,
noting that the claim would remain open for conservative medical treatment of her accepted
cervical spine and left shoulder conditions. It found the weight of the medical evidence was
represented by Dr. Deerhake.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.8 After it has determined that an
employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer

8

See S.F., 59 ECAB 642 (2008).

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related to the employment.9 Its burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.10
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.11 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.12
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.13 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”14 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well reasoned and based upon a proper factual background, must be given special
weight.15
ANALYSIS
Appellant’s accepted conditions include neck/cervical sprain/strain, left shoulder sprain,
right carpal tunnel syndrome, and aggravation of preexisting cervical stenosis (OWCP File Nos.
xxxxxx454, xxxxxx661 and xxxxxx009). Effective November 24, 2015, OWCP terminated
entitlement to wage-loss compensation under all three claims, and terminated medical benefits
with respect to her previously accepted right carpal tunnel syndrome (OWCP File No.
xxxxxx009).16 It based its decision to terminate compensation and medical benefits carpal tunnel
syndrome only on the September 9, 2015 report of Dr. Deerhake, a Board-certified orthopedic
surgeon and OWCP referral physician.
OWCP referred appellant to Dr. Deerhake for a second opinion evaluation to determine
the nature and extent of her accepted employment-related conditions. In his September 9, 2015
report, Dr. Deerhake found that appellant had approximately 80 percent range of motion in her
neck. In ranging the shoulders, appellant had a lot of weakness, positive Waddell-type signs, and
exaggerated pain with any attempts at motion of her shoulders. Dr. Deerhake found that
appellant’s shoulders could be moved through essentially a normal range of motion when she
9

See I.J., 59 ECAB 524 (2008).

10

See J.M., 58 ECAB 478 (2007).

11

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

12

See James F. Weikel, 54 ECAB 660 (2003).

13

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

14

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

15

Gary R. Sieber, 46 ECAB 215, 225 (1994).

16

Appellant remained eligible for medical benefits with respect to her accepted cervical/neck and left upper
extremity employment injuries.

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was distracted. Appellant had normal reflexes, normal fine touch sensation, negative Tinel’s
signs, and negative Phalen’s tests in both upper extremities. Dr. Deerhake found that appellant
had a residual loss of motion of the cervical spine, which could not be attributable to any of the
specific injuries. Regarding appellant’s left shoulder condition, he opined that she had a lot of
exaggeration in her findings and that it would be impossible to tell if there were residuals
remaining from her left shoulder sprain related to her employment injuries. Dr. Deerhake found
that appellant had no symptoms or residuals related to carpal tunnel syndrome. He concluded
that appellant was capable of her regular duties as a mail handler and released her to full-duty
work without restrictions.
The Board finds that Dr. Deerhake’s report represented the weight of the medical
evidence as of November 24, 2015. OWCP properly relied on his September 9, 2015 report in
terminating appellant’s wage-loss compensation and medical benefits (CTS only). The Board
finds that he had full knowledge of the relevant facts and evaluated the course of appellant’s
condition. Dr. Deerhake’s opinion is based on a proper factual and medical history and his
report contained a detailed summary of this history. He reviewed the medical records and made
his own examination findings to reach a reasoned conclusion regarding appellant’s conditions.17
At the time benefits were terminated, he found no basis on which to attribute any continued
disability to appellant’s accepted conditions. Dr. Deerhake’s opinion as set forth in his
September 9, 2015 report is found to be probative evidence and reliable. The Board finds that
Dr. Deerhake’s opinion constitutes the weight of the medical evidence and is sufficient to justify
OWCP’s termination of benefits for the accepted conditions.
In his reports, Dr. Wagner diagnosed upper arm sprain, bilateral carpal tunnel syndrome,
impingement syndrome of shoulder region, cervical sprain, and cervical spinal stenosis. Upon
physical examination, he found restriction of range of motion in the neck, back, upper back, and
bilateral shoulders. Dr. Wagner also found abnormal and decreased muscle strength in the upper
extremities bilaterally due to pain. He asserted that appellant had been noticing increased pain
after physical therapy to the point where she was unable to complete exercises due to pain in the
neck and left shoulder. However, Dr. Wagner did not provide any medical rationale explaining
how appellant’s conditions were causally related to her federal employment or her accepted
conditions or why they rendered her disabled. Thus, his reports are of diminished probative
value and insufficient to overcome the weight of Dr. Deerhake’s report or to create a medical
conflict.18
Accordingly, the Board finds that Dr. Deerhake’s opinion continues to constitute the
weight of the medical evidence and supports OWCP’s decision terminating appellant’s wageloss compensation and medical benefits (carpal tunnel only), effective November 24, 2015.
17

See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be
given to each individual report).
18

See S.S., Docket No. 15-1160 (issued January 11, 2016). 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. James Mack, 43 ECAB 321 (1991).

6

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits for her accepted right carpal tunnel syndrome, effective
November 24, 2015.
ORDER
IT IS HEREBY ORDERED THAT the November 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 20, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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

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

Docket No. 20-0509
Issued: August 18, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On January 6, 2020 appellant, through counsel, filed a timely appeal from an October 28,
2019 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.

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.

ISSUE
The issue is whether appellant met his burden of proof to establish left leg and hip injuries
causally related to the accepted February 27, 2019 employment incident.
FACTUAL HISTORY
On March 5, 2019 appellant, then a 66-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on February 27, 2019 he sustained an upper left leg injury while in the
performance of duty. In an accompanying narrative statement, he explained that he tripped on a
box and harshly twisted his left leg while trying to regain his balance. Appellant noted that he felt
a sharp snapping pain in his upper left leg and tried to walk it off. On the reverse side of the claim
form, the employing establishment acknowledged that he did trip over a box, but controverted his
claim asserting that the injury was caused by his willful misconduct as he should not have been in
the area where the custodian was moving a file cabinet. Appellant did not stop work.
In a March 6, 2019 report, Dr. Stephen Lojewski, an osteopath specializing in emergency
medicine, noted that appellant tripped on an obstruction at work and pulled his upper left leg. He
diagnosed left thigh pain/strain, left hip pain, and left quadriceps strain.
Appellant submitted emergency department discharge instructions, dated March 6, 2019,
which provided instructions for care for hip and knee pain and recommended light-duty work with
restrictions with follow up in two days.3
In a March 14, 2019 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30
days to submit the necessary evidence.
X-rays of appellant’s left knee, dated March 6, 2019, revealed no acute fracture or
dislocation. X-rays of his left hip of even date showed moderate degenerative change with joint
space narrowing and subchondral sclerosis as well as spurring.
In a March 11, 2019 report, Dr. Fathallah Hayek, a specialist in emergency medicine, noted
that appellant had ongoing pain in the left thigh after tripping and twisting his leg. He examined
appellant and indicated that there was no gross abnormality, instability, or deformity in the left leg.
Dr. Hayek diagnosed left thigh strain and left hip sprain.
In a March 11, 2019 duty status report (Form CA-17), Dr. Hayek diagnosed left thigh strain
and left hip sprain. He indicated that appellant was advised to resume full-time work without
restrictions on March 11, 2019.

3
Appellant also submitted a partially completed duty status report (Form CA-17) which was completed by a
supervisor, but not by a physician.

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In a March 22, 2019 report, Dr. Hayek noted that appellant had intermittent pain in the left
leg that was radiating, sharp, and throbbing. He examined appellant and indicated that there were
no abnormal findings. Dr. Hayek diagnosed left thigh strain and left hip sprain.
In a March 22, 2019 Form CA-17 report, Dr. Hayek again diagnosed left thigh strain and
left hip sprain. He indicated that appellant was advised to resume full-time work without
restrictions on March 22, 2019.
By decision dated April 15, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between appellant’s diagnosed conditions and the accepted February 27, 2019 employment
incident.
On May 1, 2019 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative.
Appellant resubmitted emergency department discharge notes and reports and x-rays, dated
March 6, 2019.
A telephonic hearing was held on August 12, 2019. Counsel argued that appellant’s claim
should be accepted for sprain of the hip and upper leg. He contended that it was difficult to get a
fully-rationalized medical opinion on causal relationship from an emergency room doctor and that
appellant was only seeking compensation for two medical bills with no lost time.
By decision dated October 28, 2019, OWCP’s hearing representative affirmed the
April 15, 2019 decision.
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 timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 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.7

4

Supra note 2.

5

G.L., Docket No. 18-1057 (issued April 14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

M.G., Docket No. 18-1616 (issued April 9, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
7
20 C.F.R. § 10.115; A.S., Docket No. 19-1955 (issued April 9, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

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To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.8 The second component is whether the employment incident caused a personal injury.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.10 The opinion of the physician must be based on a complete factual
and medical background of the claimant, 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
OWCP’s procedures recognize that a claim may be accepted without a medical report when
the condition is a minor one which can be identified on visual inspection.12 In clear-cut traumatic
injury claims, such as a fall resulting in a broken arm, a physician’s affirmative statement is
sufficient and no rationalized opinion on causal relationship is needed. In all other traumatic injury
claims, a rationalized medical opinion supporting causal relationship is required.13
ANALYSIS
The Board finds that appellant has met his burden of proof to establish a left leg and hip
injuries causally related to the accepted February 27, 2019 employment incident.
In its April 15 and October 28, 2019 decisions, OWCP found that the employment incident
occurred as alleged, a medical condition had been diagnosed, and appellant was injured in the
performance of duty. However, it denied his traumatic injury claim finding that medical evidence
of record was insufficient to establish a causal relationship between his diagnosed conditions and
the accepted employment incident.
Appellant submitted a March 6, 2019 report from Dr. Lojewski who noted that appellant
tripped on an obstruction at work and pulled his upper left leg. Dr. Lojewski diagnosed left thigh
strain and left quadriceps strain. Appellant also submitted March 11 and 22, 2019 reports from
Dr. Hayek who noted that appellant had ongoing pain in the left thigh after tripping and twisting
his leg. Dr. Hayek diagnosed left thigh strain and left hip sprain.
In clear-cut traumatic injury claims, where the fact of injury is established and is clearly
competent to cause the condition described (for instance, a worker falls from a scaffold and breaks
8

R.K., Docket No. 19-0904 (issued April 10, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

9

Y.D., Docket No. 19-1200 (issued April 6, 2020); John J. Carlone, 41 ECAB 354 (1989).

10

L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013).

13

Id. at Chapter 2.805.3(d) (January 2013).

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an arm), a fully-rationalized medical opinion is not needed. The physician’s diagnosis and an
affirmative statement are sufficient to accept the claim.14
The Board finds that appellant has established a clear-cut traumatic injury. OWCP
accepted that the February 27, 2019 employment incident occurred as alleged, a medical condition
had been diagnosed, and appellant was injured in the performance of duty. Both Dr. Lojewski and
Dr. Hayek provided descriptions of appellant tripping and twisting his left leg at work. The
physicians diagnosed left thigh strain, left quadriceps strain, and left hip sprain. The Board finds
that this evidence is sufficient to meet appellant’s burden of proof that he sustained left leg and hip
injuries on February 27, 2019.15
As appellant has established that injuries resulted from the February 27, 2019 employment
incident, the Board will, therefore, reverse OWCP’s October 28, 2019 decision and remand the
case for payment of medical costs and wage-loss compensation, if any.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish a left leg and hip
injuries causally related to the accepted February 27, 2019 employment incident.

14

Id. See also A.J., Docket No. 19-1289 (issued December 31, 2019).

15

Id.

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ORDER
IT IS HEREBY ORDERED THAT the October 28, 2019 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 18, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 21-1278
Issued: March 29, 2022

Case Submitted on the Record

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

JURISDICTION
On August 23, 2021 appellant filed a timely appeal from a February 23, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days
elapsed from the last merit decision dated January 7, 2020 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 3

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s February 23, 2021 decision was August 22, 2021. As
this fell on a Sunday, the appeal was due the next business day, which was Monday, August 23, 2021, rendering the
appeal timely filed. See 20 C.F.R. § 501.3(f)(3).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 23, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedures provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On September 24, 2018 appellant, then a 34-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on September 12, 2018 she sustained an injury
to her left shoulder when she was carrying packages upstairs and an entire step collapsed, causing
her to fall to the left and hit her shoulder, while in the performance of duty. She did not stop work.
A September 12, 2018 urgent care report from Dr. Brian Hagler, a Board-certified family
practitioner, related appellant’s history of injury. Dr. Hagler’s examination revealed pain with
movement of the left shoulder and tenderness over the acromioclavicular (AC) joint. He reviewed
x-ray scans of appellant’s left shoulder taken on the same date, which revealed no acute
abnormality, and diagnosed a left shoulder injury.
A medical report dated October 3, 2018 from Dr. Thomas E. Kingsley, Board-certified in
family medicine and an occupational medicine specialist, related appellant’s history of carrying
packages up cement steps when a step gave way, causing her to fall to her left and hit her trapezius
muscles between her shoulder and neck on the handrail. Dr. Kingsley reviewed appellant’s
medical records from the date of injury, noting that her left shoulder x -ray was negative. His
examination revealed discomfort and tenderness to palpation in the trapezius muscles of the upper
back just behind the left clavicle, pain in left trapezius muscles with reaching the left hand over
head and with movement of the head. Dr. Kingsley diagnosed myalgia, referred appellant to
physical therapy, and advised her to use ibuprofen. An accompanying duty status report (Form
CA-17) of even date diagnosed shoulder pain and advised that appellant would need help when
lifting objects above her head at work.
In November 1 and December 26, 2018 medical reports, Dr. Kingsley related appellant’s
history of injury, diagnosed myalgia, and advised that appellant should not lift, push, or pull more
than 10 pounds with her left arm or lift above her head. In a work restriction note, patient discharge
summary, and Form CA-17, all dated December 26, 2018, he related that appellant could lift, push,
and pull up to 10 pounds with her left arm with no lifting above her head.
Appellant also submitted medical reports from Dr. Dominic McKinley, Board-certified in
family practice and sports medicine, dated February 1 and 12, 2019. In his February 1, 2019
report, Dr. McKinley related appellant’s history of injury. He indicated that, though appellant was
in physical therapy, she continued to experience left shoulder and neck pain that was aggravated
with activity. Dr. McKinley’s examination revealed tenderness along the left side of appellant’s
neck, acromion region, and trapezius region, painful arc of motion with lightly limited flexion,
positive empty can test, and positive impingement signs. He reviewed x-ray scans of the left
shoulder taken that day, which revealed a partially fused os acromiale, and noted that there was
some indication that the region had partially healed, as compared to the Sep tember 12, 2018 x-rays.
Additionally, cervical spine x-rays revealed no abnormalities. Dr. McKinley diagnosed cervical
strain with possible left-side radiculopathy and left shoulder pain, which he believed had
multifactorial etiology, including possible referred pain from her neck, symptomatic healing os
acromiale avulsion fracture, and possible rotator cuff injury. He recommended appellant undergo
2

magnetic resonance imaging (MRI) scans and advised that appellant should not lift more than 10
pounds with her left arm, lift overhead, or reach behind herself. In his February 12 report,
Dr. McKinley noted that appellant’s shoulder pain had increased, she was having difficulty lifting
objects at work, and she had missed work in previous days due to the aggravated pain. He injected
a mixture of betamethasone and lidocaine into the left subacromial space , which improved
appellant’s range of motion in her neck and left shoulder. Dr. McKinley advised that appellant
should not work pending the recommended MRI scan.
In a development letter dated March 5, 2019, OWCP informed appellant of the deficiencies
of her claim. It advised her as to the type of factual and medical evidence needed and provided a
questionnaire for completion. OWCP afforded appellant 30 days to respond.
Appellant submitted a Form CA-17 dated February 12, 2019 from Dr. McKinley, who
diagnosed cervical radiculitis and left shoulder pain. Dr. McKinley recommended that appellant
undergo an MRI scan of her left shoulder before returning to work.
On March 11, 2019 appellant responded to OWCP’s development questionnaire, relating
that she was delivering packages at an apartment complex on September 12, 2018 and, as she
climbed the steps, a step collapsed and she “went left,” trying to hold herself up while carrying
packages, and hit her shoulder. She reported that she notified R.W., the employing establishment
supervisor on September 12, 2018, the day she fell. Appellant also noted that she had no prior
injuries.
In a March 19, 2019 medical report, Dr. McKinley noted appellant’s continuing left
shoulder and neck pain, as well as a sensation of “lack of blood flow” radiating from her shoulder
down to her hand for the previous 4 to 6 weeks. Appellant had not returned to work and was no
longer undergoing physical therapy. Dr. McKinley reviewed the March 9, 2019 left shoulder MRI
and the March 16, 2019 cervical spine MRI.4 He diagnosed neck pain secondary to cervical strain
due to compensating for left shoulder discomfort, noting that the MRI did not reveal findings
consistent with a work-related injury, as well as persisting left shoulder pain with multifactorial
etiology including symptomatic biceps tendinitis and aggravation of pre -existing left AC joint
arthritis.5 Dr. McKinley advised that appellant should not lift more than five pounds or use her
left upper extremity.
By decision dated April 11, 2019, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the incident occurred, as alleged. It noted that
the evidence of record contained factual inconsistencies and that appellant had not adequately

4

The March 16, 2019 cervical spine MRI scan revealed suspected congenital incomplete segmentation of the C5C6 cervical level, minor superimposed cervical spine degeneration, and borderline to mild left side neural foraminal
stenosis at the left C7 and C8 nerve levels.
5

Dr. McKinley also diagnosed swelling and fullness in the left supraclavicular region associated with an enlarged
axillary lymph gland unrelated to her injury.

3

described the mechanism of injury. It concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA. 6
On April 29, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. The hearing was held on July 25, 2019. OWCP did not receive
any further evidence.
By decision dated September 3, 2019, OWCP’s hearing representative affirmed the
April 11, 2019 decision, as modified, finding that the evidence of record established that the
incident occurred as alleged. The claim remained denied, however, as the medical evidence of
record was insufficient to establish causal relationship between appellant’s diagnosed conditions
and the accepted September 12, 2018 employment incident.7
OWCP subsequently received a September 13, 2019 narrative medical report from
Dr. Dawn Quashie, a Board-certified family practitioner, who described appellant’s employment
duties and history of injury and examined appellant. Dr. Quashie diagnosed a sprain of the AC
joint, a sprain of the left shoulder joint, and adhesive capsulitis of the left shoulder. She advised
that appellant was temporarily disabled and should be on light-duty work. In her discussion of the
September 12, 2018 employment incident, Dr. Quashie described the anatomy of the shoulder and
stated that appellant “tried to stop her fall by stretching out her left arm . . . [and] she jammed her
humerus into the shoulder joint leading to her shoulder sprain.” She further explained what occurs
when a person falls forward onto an outstretched hand,
“[T]he impact force travels up the arm and exits in the cervical spine (neck) and thoracic
spine (upper back) similar to a whiplash type injury. Residual delayed symptoms may
appear, which include headaches, neck pain, muscle spasm, tingling or numbness in the
arm, and pain between the shoulder blades. [Appellant’s] fall caused mechanical and
functional damage to the left shoulder leading to inefficient movement and compensations.
These neurological compensations are part of your nervous system[‘]s hardwired survival
mechanism to avoid pain at all cost by taking the path of least resistance.”
Dr. Quashie opined that appellant’s shoulder sprain was directly and causally attributed to
the September 12, 2018 employment incident.
On October 10, 2019 appellant requested reconsideration.
By decision dated January 7, 2020, OWCP denied modification of its September 3, 2019
decision.
OWCP subsequently received an October 7, 2020 narrative medical report from
Dr. Quashie relating that appellant’s neck and left shoulder pain had progressively worsened and
6

Appellant subsequently submitted the March 9, 2019 left shoulder MRI scan, which revealed mild supraspinatus
and infraspinatus tendinosis, mild biceps tenosynovitis, mild AC osteoarthritis, and a single enlarged left axillary
lymph node.
7

The hearing representative noted that appellant’s 2016 injury had been assigned OWCP File No. xxxxxx987 and
accepted for limited medical expenses without formal adjudication. The representative ordered the case files to be
administratively combined. On January 9, 2020 it administratively combined OWCP File Nos. xxxxxx987 and
xxxxxx854, with the current file designated as the master file.

4

that she continued to have reduced range of motion with pain for the left shoulder. She diagnosed
arthropathy and primary osteoarthritis of the left shoulder and advised that appellant should remain
on light duty. Dr. Quashie noted that “[w]hile most people experience wear and tear in their joints
as they age, the development of [appellant’s] acromioclavicular joint arthrosis caused
degeneration, disabling the shoulder joint, sometimes making it appear la rger. Spurs, or spiny
projections from the bones, may develop around the joint. With this condition, there is usually
pain and swelling that limits the motion of the arm.” Dr. Quashie explained that appellant’s
employment duties, including sorting mail and lifting and delivering packages, placed a great deal
of stress on her shoulder joint, leading to “cartilage deterioration in her right [sic] shoulder ... and
allowing arthritis to develop into the joint.” She opined that appellant’s September 12, 2018 fall
through the apartment steps exacerbated her arthritic shoulder, leading to her AC joint arthropathy.
On January 29, 2021 appellant requested reconsideration. OWCP did not receive any
further evidence.
By decision dated February 23, 2021, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.8 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 9 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 10
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 11
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 12 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of

8

5 U.S.C. § 8128(a); see T.J., Docket No. 21-0586 (issued September 30, 2021); L.W., Docket No. 18-1475 (issued
February 7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).
9

20 C.F.R. § 10.607(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b (September 2020).

11

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
12

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).

5

OWCP.13 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 14
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 15 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.16
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.17 The Board makes an independent determination of whether a claimant has demo nstrated
clear evidence of error on the part of OWCP. 18
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
The last merit decision was dated January 7, 2020. As appellant’s request for
reconsideration was not received by OWCP until January 21, 2021, more than one year after
January 7, 2020, pursuant to 20 C.F.R. § 10.607(a), the request for reconsideration was untimely
filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in denying the
claim.19
The Board further finds that OWCP summarily denied appellant’s request for
reconsideration without complying with the review requirement of FECA and its implementing
13

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 10 at Chapter 2.1602.5 (September 2020).
14

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

15

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 10 at Chapter 2.1602.5a (September 2020).

16

C.M., Docket No. 19-1211 (issued August 5, 2020).

17

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 10 at Chapter 2.1602.5(a) (September 2020).

18

D.S., Docket No. 17-0407 (issued May 24, 2017).

19

20 C.F.R. § 10.607(b); S.C., Docket No. 20-1537 (issued April 14, 2021); R.T., Docket No. 19-0604 (issued
September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).

6

regulations.20 As noted, section 8124(a) of FECA provides that OWCP shall determine and make
a finding of fact and make an award for or against payment of compensation.21 Its regulations at
20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings and
facts and a statement of reasons. 22 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.23
In the February 23, 2021 decision, OWCP did not address Dr. Quashie’s October 7, 2020
medical report, which was received after the January 7, 2020 merit decision. It failed to analyze
this evidence as to whether it was sufficient to demonstrate clear evidence of error. The Board
finds that OWCP failed to properly explain the findings with respect to the issue presented so that
appellant could understand the basis for the decision, i.e., whether she had demonstrated clear
evidence that OWCP’s last merit decision was incorrect.
The case must, therefore, be remanded for findings of fact and a statement of reasons, to
be followed by an appropriate decision on appellant’s untimely reconsideration request.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed. The Board
further finds that the case is not in posture for decision regarding whether appellant has
demonstrated clear evidence of error.

20

See Order Remanding Case, W.D., Docket No. 20-0859 (issued November 20, 2020); Order Remanding Case,
C.G., Docket No. 20-0051 (issued June 29, 2020); Order Remanding Case, T.P., Docket No. 19-1533 (issued April 30,
2020); see also 20 C.F.R. § 10.607(b).
21

5 U.S.C. § 8124(a).

22

20 C.F.R. § 10.126.

23

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the
disallowance).

7

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: March 29, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rochester, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Ron Watson, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0567
Issued: December 9, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION
On February 3, 2016 appellant, through her representative, filed a timely appeal from a
September 30, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).2
Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

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) (2014). 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 (2006). Demands for
payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for
investigation.
2

Appellant’s representative filed his appearance before the Board after appellant submitted her February 3, 2016
application for review (Form AB-1).
3

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
$83,388.25 overpayment of compensation for the period May 1, 2009 through August 23, 2014;
and (2) whether OWCP properly determined that appellant was at fault in the creation of the
overpayment of compensation, thereby precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
OWCP accepted that on January 7, 1999 appellant, then a 55-year-old city letter carrier,
sustained a lumbosacral sprain due to a fall at work. Appellant received disability compensation
on the daily rolls beginning June 18, 2007 and on the periodic rolls effective July 8, 2007.4
On August 6, 2007 a Form CA-1049 was issued notifying appellant of her placement on
the periodic rolls, effective July 8, 2007, which advised her: “You must also report any
retirement income, disability income, or compensation benefits from any federal agency. This is
because a recipient of compensation benefits under [FECA] is not permitted to receive benefits
under certain other federal programs, including the Civil Service retirement program.” The
Form CA-1049 also advised, “If you are receiving or have filed [Social Security Administration
(SSA)] disability benefits, please contact your local [SSA] office about this award.” On
August 10, 2007 appellant certified that she had read and understood the terms and conditions
under which she could receive compensation.
Appellant began receiving SSA retirement benefits on May 1, 2009. In EN1032 forms
signed by appellant on April 15, 2009 and May 12, 2011, she responded “No” to the question of
whether she received benefits from SSA as part of an annuity for federal service.5 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 May 10, 2012,
May 6, 2013, and May 5, 2014 letters accompanying EN1032 forms, appellant was advised that
she “must inform this office immediately if you receive benefits from [SSA], and that agency
converts you from SSA Disability Retirement to SSA Regular Retirement, as this will affect your
benefits from this office.”
In August 2014, SSA provided documents showing SSA rates with a Federal Employees’
Retirement System (FERS) offset and without a FERS offset from May 1, 2009 through
August 23, 2014. Effective August 24, 2014, OWCP reduced appellant’s 28-day compensation
payment by $1,269.88, the amount of her SSA retirement benefits attributable to her federal
service. The record includes an OWCP worksheet containing a calculation showing that
appellant received an $83,388.25 overpayment of compensation for the period May 1, 2009 to
August 23, 2014 due to the failure to offset SSA benefits.
4

In a February 6, 2009 decision, OWCP reduced appellant’s compensation based on its determination that the
constructed position of information clerk represented her wage-earning capacity.
5

Each form covered the 15-month period preceding the date appellant signed each form. In EN1032 forms
signed on May 16, 2012, May 16, 2013, and May 22, 2014, appellant responded “Yes” to the question of whether
she received benefits from SSA as part of an annuity for federal service.

2

In a September 16, 2014 notice, OWCP advised appellant of its preliminary
determination of an overpayment of compensation in the amount of $83,388.25 for the period
May 1, 2009 to August 23, 2014. OWCP also made a preliminary determination that she was at
fault in the creation of the overpayment because she had not accurately reported her receipt of
SSA benefits. It advised appellant that she could submit evidence challenging the fact, amount,
or finding of fault and request waiver of the overpayment. OWCP informed her that she could
submit additional evidence in writing or at a prerecoupment hearing, but that a prerecoupment
hearing must be requested within 30 days of the date of the written notice of the overpayment. It
requested that appellant complete and return an enclosed overpayment recovery questionnaire
(Form OWCP-20) within 30 days even if she was not requesting waiver of the overpayment.
Appellant requested a telephonic prerecoupment hearing with an OWCP hearing
representative. During the hearing held on July 14, 2015, appellant’s representative indicated
that she was not contesting the fact or amount of the $83,388.25 overpayment of compensation.
However, appellant took issue with OWCP’s preliminary determination that she was at fault in
the creation of the overpayment. She testified that she called OWCP in 2009 to advise that she
was receiving SSA benefits, that she received incorrect advice about completing EN1032 forms,
and that she did not realize that she could not receive SSA and FECA benefits at the same time.6
Appellant testified regarding her monthly income, monthly expenses, and assets. After the
hearing, she submitted a Form OWCP-20, completed on July 27, 2015, in which she listed her
monthly income, monthly expenses, and assets.
In a September 30, 2015 decision, an OWCP hearing representative determined that
appellant received an $83,388.25 overpayment of compensation. She found that appellant was at
fault in the creation of the overpayment, thereby precluding waiver of recovery of the
overpayment. The hearing representative found that appellant had $3,996.00 in monthly income,
$3,037.00 in monthly expenses, and $273,465.00 in assets and required repayment of the
overpayment through payments of $700.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits 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 attributable to his or her federal service.7
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.8 The
6

The record (Form CA-110) indicates that appellant called OWCP on May 8, 2009 and advised that she
“received a social security award letter.” OWCP advised appellant to fax a copy of her award letter.
7

5 U.S.C. § 8116(d). See G.T., Docket No. 15-1314 (issued September 9, 2016).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995);
Chapter 2.1000(e)(2) (February 1995). OWCP does not require an election between FECA benefits and SSA
benefits except when they are attributable to the employee’s federal service. See R.C., Docket No. 09-2131 (issued
April 2, 2010).

3

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. SSA
will also provide a hypothetical SSA benefit computed without the FERS covered earnings.
OWCP will then deduct the hypothetical benefit from the actual benefit 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.9
ANALYSIS -- ISSUE 1
The record supports that appellant received FECA wage-loss compensation beginning in
June 2007 and that she received SSA benefits beginning on May 1, 2009. The portion of the
SSA benefits appellant 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 August 24, 2014.
The SSA notified OWCP of the applicable SSA rates for appellant and their effective dates.
Based on these rates, OWCP was able to calculate the dual benefit appellant received from
May 1, 2009 to August 23, 2014 which yielded an overpayment of compensation in the amount
of $83,388.25. The record includes an overpayment worksheet explaining the overpayment
calculation. Therefore, the evidence of record establishes that appellant received an
overpayment of compensation in the amount of $83,388.25.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.11 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”12 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.13

9

FECA Bulletin No. 97-09 (issued February 3, 1997); E.C., Docket No. 14-1743 (issued December 4, 2014).

10

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

11

5 U.S.C. § 8129(a).

12

Id. at § 8129(b).

13

L.J., 59 ECAB 264 (2007).

4

In determining whether an individual is “at fault” in the creation of an overpayment,
section 10.433(a) of Title 20 of the Code of Federal Regulations provides in relevant part:
“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; or
(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….”14
Section 10.433(b) of OWCP’s regulations provides:
“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.”15
ANALYSIS -- ISSUE 2
The Board finds that appellant was at fault in the creation of the $83,388.25 overpayment
of compensation. The record reflects that appellant accepted payments covering the period
May 1, 2009 to August 23, 2014 which she knew or should have known to be incorrect and,
therefore, she was at fault in the creation of the $83,388.25 overpayment of compensation on this
basis.16
Appellant 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 May 1, 2009 to August 23, 2014 in addition to her SSA benefits. On August 6, 2007 a
Form CA-1049 was issued notifying appellant of her placement on the periodic rolls effective
July 8, 2007 and advising her of her entitlement to ongoing disability payments. The Form CA1049 further advised, “You must also report any retirement income, disability income, or
compensation benefits from any federal agency. This is because a recipient of compensation
benefits under [FECA] is not permitted to receive benefits under certain other federal programs,
including the Civil Service retirement program.”17 On August 10, 2007 appellant certified that
14

20 C.F.R. § 10.433(a).

15

Id. at § 10.433(b).

16

See supra note 15.

17

The Form CA-1049 also advised, “If you are receiving or have filed [SSA] disability benefits, please contact
your local [SSA] office about this award.”

5

she had read and understood the terms and conditions under which she could receive
compensation. Moreover, in May 10, 2012, May 6, 2013, and May 5, 2014 letters accompanying
EN1032 forms, appellant was repeatedly advised that she “must inform this office immediately if
you receive benefits from [SSA], and that agency converts you from SSA Disability Retirement
to SSA Regular Retirement, as this will affect your benefits from this office.”
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 May 1,
2009 to August 23, 2014. In addition, appellant also failed to provide information which she
knew or should have known to be material for a portion of the period May 1, 2009 to
August 23, 2014.18 In a Form EN1032 signed on May 12, 2011, 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, 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.
On appeal, appellant argues that she was not at fault in the creation of the $83,388.25
overpayment of compensation because she reported her receipt of SSA benefits to OWCP in
May 2009. However, the fact that appellant reported receipt of SSA benefits for portions of the
period of overpayment does not negate the fact that she accepted monies during that period
which she knew or should have known to be incorrect.
Appellant’s representative also provides argument on appeal challenging OWCP’s
determination of an $83,388.25 overpayment of compensation. He indicates that OWCP
procedures provide that, where an equally valid argument can be made both for without fault and
with fault, the benefit of the doubt should go to the claimant, and a finding of without fault
should be made consistent with the nature of FECA as social legislation designed to benefit
entitled employees.19
Appellant’s representative indicates that OWCP’s hearing representative, in her
September 30, 2015 decision, essentially argued that appellant was at fault in the creation of the
$83,388.25 overpayment of compensation, because she knew of the possibility of a dual benefit
offset in 2009 when she advised OWCP of the approval for SSA benefits. He contends that this
argument ignores the failure of OWCP to take any action after being advised by appellant of
SSA’s approval of her application for benefits. However, even though OWCP may have been
negligent in continuing to issue checks to appellant for compensation to which she was not fully
entitled to receive, this does not excuse appellant’s acceptance of such checks which she knew or
should have been expected to know were incorrect.20 Given the facts of the present case, it

18

See supra note 15.

19

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.5
(June 2009).
20

See Robert W. O’Brien, 36 ECAB 541, 547 (1985).

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cannot be said that an equally valid argument can be made both for without fault and with fault
in the creation of the $83,388.25 overpayment of compensation.21
Appellant’s representative further contends that appellant’s signing of a Form EN1032 on
April 15, 2009 could not serve as a basis for finding fault in the creation of the overpayment of
compensation for the period May 1, 2009 to August 23, 2014. As explained above, other
evidence of record establishes appellant’s fault in the creation of the $83,388.25 overpayment of
compensation for the period May 1, 2009 to August 23, 2014, including the fact that she
accepted payments during this period which she knew or should have known were incorrect.
Appellant’s representative notes that appellant testified that she was provided incorrect
advice prior to the time she completed the EN1032 forms, including the form completed on
May 12, 2011, and answered “No” to the question of whether she received benefits from SSA as
part of an annuity for federal service. However, he has failed to explain how the evidence of
record establishes this assertion.22
For these reasons, OWCP properly determined that appellant was at fault in the creation
of the $83,388.25 overpayment of compensation and found that, therefore, she did not qualify
under FECA for waiver of recovery of the overpayment.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an $83,388.25
overpayment of compensation for the period May 1, 2009 through August 23, 2014. The Board
further finds that OWCP properly determined that appellant was at fault in the creation of the
overpayment, thereby precluding waiver of recovery.23

21

See supra note 20.

22

The record contains a document indicating that appellant called OWCP on May 8, 2009 and advised that she
“received a social security award letter.” However, the document (Form CA-110) does not provide any further
details about this telephone call apart from OWCP having advised appellant to submit a copy of her SSA award
letter.
23

With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where OWCP
seeks recovery from continuing compensation benefits. D.R., 59 ECAB 148 (2007); Miguel A. Muniz, 54 ECAB
217 (2002). As appellant was not in receipt of continuing compensation at the time of OWCP’s overpayment
determination, the Board does not have jurisdiction over the method of recovery of the overpayment in this case.
See Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.

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ORDER
IT IS HEREBY ORDERED THAT the September 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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