United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
PACIFIC, Fort Shafter, HI, Employer
__________________________________________

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

Docket No. 15-0259
Issued: November 3, 2015

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 November 14, 2014 appellant filed a timely appeal from June 5, July 17, and
October 28, 2014 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 appellant met his burden of proof to establish work-related
medical conditions other than those already accepted; and (2) whether OWCP abused its
discretion by denying appellant’s request for authorization of foot therapy beginning
January 1, 2013.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 5, 1989 appellant, then a 28-year-old tools and parts attendant, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral plantar fasciitis and
heel spur syndrome due to performing his work duties over time. His duties required standing
for prolonged periods each workday.2 Appellant first became aware of his claimed condition in
February 1979 and first realized in July 1987 that it was caused or aggravated by his
employment. He stopped work on December 17, 1988 and OWCP initially accepted his claim
for temporary aggravation of bilateral pes planus (flat feet) and bilateral plantar fasciitis.
Appellant returned to work on April 19, 1989 in a light-duty position for the employing
establishment. He stopped work again on April 3, 1990 and was placed on the daily
compensation rolls effective that date.3
By decision dated September 3, 1992, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective September 20, 1992 because the opinion of
Dr. Edward Gunderson, a Board-certified orthopedic surgeon serving as an OWCP referral
physician, showed that he ceased to have residuals of his work injuries after that date.
Appellant was examined on December 12, 2008 by Dr. Marc A. Katz, a podiatrist serving
as an impartial medical specialist.4 Dr. Katz diagnosed plantar fasciitis, pes planovalgus, and
tarsal tunnel syndrome. He found that appellant sustained a permanent aggravation of his
underlying bilateral foot condition due to his work duties and that this continuing condition
disabled him from work.
OWCP reinstated benefits and retroactively paid appellant disability compensation
beginning September 20, 1992. It upgraded the accepted conditions to include permanent
aggravation of bilateral pes planus (flat feet) and bilateral plantar fibromatosis.
Between 2010 and 2012, OWCP authorized physical therapy treatment for appellant’s
feet, including manual therapy. The record reveals that manual therapy techniques consisted of,
but were not limited to, connective tissue massage, joint mobilization and manipulation, manual
traction, passive range of motion, soft tissue mobilization and manipulation, and therapeutic
massage.
Appellant received treatment for his foot problems from Dr. Gary Goodman, an attending
podiatrist. In a January 3, 2012 report, Dr. Goodman stated that he had been treating appellant
for two years and that he had pes planus valgus feet and chronic bilateral plantar fasciitis which
did not show marked inflammation on magnetic resonance imaging (MRI) scan testing.
2

Appellant’s job duties included receiving and storing lawn movers, seed fertilizer, shovels, and other hardware
items at a self-help store in Fort Shafter. He occasionally drove a forklift to move heavy items. In June 1981
appellant received 10 percent disability rating from the Department of Veterans Affairs for service-connected pes
planus and, in August 1986, the disability rating was raised to 50 percent.
3

Appellant was later placed on the periodic compensation rolls.

4

OWCP determined that there was a conflict in the medical opinion evidence regarding appellant’s work-related
residuals between Dr. Gunderson and Dr. Michael K. Lee, an attending podiatrist.

2

Sally Marlowe, an attending nurse practitioner, indicated in an April 11, 2012 report, that
appellant had received manual therapy at the Southeast Regional Arthritis Center two times per
week for almost a year. She stated that this treatment included use of a Hivamat deep oscillation
machine on appellant’s feet.5 Ms. Marlowe noted that there was no real cure for appellant’s foot
condition, but that the treatment kept his pain level even.
In a June 21, 2012 report, Dr. Goodman noted that he had referred appellant to
Ms. Marlowe for foot therapy and that appellant had reported that the therapy had helped on a
short-term basis. He indicated that Ms. Marlowe’s treatment was the only known modality to
give appellant any relief from foot pain.
On August 15, 2012 Dr. Goodman responded to an OWCP request for additional
information about appellant’s need for therapy services.6 He indicated that the goal of the
therapy was to reduce pain and improve functional capabilities and noted that, after some therapy
sessions, appellant had reported at least a couple of days of being able to walk a little bit better.
Dr. Goodman recommended continuation of therapy for as long as is necessary.7 On October 29,
2012 he indicated that appellant’s “only positive finding” was Ms. Marlowe’s treatment and he
recommended that the treatment be continued.
Appellant next underwent evaluation by Dr. Lawrence A. DiDomenico, an attending
podiatrist. Dr. DiDomenico reported the findings of his November 20, 2012 examination and
concluded that appellant had a “more permanent than temporary” aggravation of his underlying
bilateral pes planus. He indicated that appellant also had diabetic peripheral neuropathy, tarsal
tunnel syndrome, and entrapment neuropathy located at the tarsal tunnel bilaterally, deep
peroneal nerve bilaterally, deep peroneal nerve distally on the right, superficial peroneal nerve on
the right, and common peroneal nerve bilaterally.
In early 2013, appellant submitted a request to OWCP for authorization of manual foot
therapy for the period January 1 to December 31, 2013. He requested that the therapy include
use of a Hivamat machine.8
In a February 13, 2013 report, Dr. Peter M. Mason, a podiatrist serving as an OWCP
referral physician, noted that appellant reported that his foot pain went from 10 to 7 on a 1/10
scale after Ms. Marlowe applied Hivamat machine treatment. He diagnosed plantar fasciitis, pes
planus, severe biomechanical pathology secondary to tibia vara and pronation, and neuropathy
with loss of sensation.
5

The Hivamat machine applies vibrations to muscles and is designed to reduce edema and improve blood
circulation.
6

In a May 23, 2012 letter, OWCP requested that appellant submit medical evidence regarding his request for
therapy which detailed the specific functional deficits to be treated, the specific goals of the therapy, and the
expected duration and frequency of treatment.
7

In reports dated November 16, 2012 and January 3, 2012, Dr. Goodman indicated that Ms. Marlowe had been
providing therapy treatment which seemed to be helpful for short periods.
8

Appellant continued to submit requests for authorization of manual therapy for periods continuing after
December 31, 2013.

3

By decision dated March 14, 2013, OWCP denied appellant’s request for authorization of
manual foot therapy. It noted that, although appellant’s medical providers recommended
palliative treatment of a chronic condition, OWCP had broad discretion regarding authorization
of long periods of physical therapy for such palliative purposes.
Appellant requested a telephonic hearing with an OWCP hearing representative. During
the hearing held on August 14, 2013, appellant’s counsel at the time argued that the reports of
attending physicians showed that continued therapy would be helpful in treating appellant’s foot
condition.
In a November 1, 2013 decision, an OWCP hearing representative affirmed OWCP’s
March 14, 2013 decision denying appellant’s request for authorization of manual foot therapy.
She indicated that the medical evidence revealed that there had been no change in appellant’s
foot condition and that continued therapy would not likely cure or provide lasting relief for the
accepted work injury.
In a January 15, 2013 report received in December 2013, Dr. Tatiana Wellens, an
attending podiatrist, diagnosed appellant with bilateral flat foot, plantar fasciitis, tarsal tunnel
syndrome, and “other specified idiopathic peripheral neuropathy.” Under the treatment section
of her report, she indicated that appellant was given instructions on stretching and icing and
advised regarding supportive shoe gear. Dr. Wellens recommended that appellant undergo
bilateral tarsal tunnel release.
In a September 10, 2013 report, Dr. Samy F. Bishai, an attending Board-certified
orthopedic surgeon, stated that appellant should undergo an aggressive program of physical
therapy treatment to give him relief from foot pain and improve the quality of his life.
Appellant also received periodic treatment in early 2014 from Dr. Robert R. Reppy, an
attending osteopath. In a report dated January 14, 2014, Dr. Reppy stated that appellant needed
an aggressive program of physical therapy from Ms. Marlowe.9 He diagnosed multiple bilateral
foot conditions, including severe planovalgus, chronic plantar fasciitis, tarsal tunnel syndrome,
peripheral neuropathy, common peroneal nerve entrapment, lateral plantar nerve entrapment, and
superficial peroneal nerve entrapment.
In a report dated May 15, 2014, Dr. Eduardo L. Gonzalez, an attending family
practitioner, stated that it was medically necessary that appellant continue with foot therapy,
including use of a transcutaneous electrical nerve stimulation (TENS) unit.
On May 27, 2014 Dr. Earl Taitt, Jr., a Board-certified psychiatrist serving as an OWCP
referral physician, stated that appellant had a mood disorder due to chronic bilateral foot pain
with major depressive-like episode. He also diagnosed chronic post-traumatic stress disorder but
he did not provide an opinion on the cause of this condition.

9

In a February 18, 2014 report, Dr. Reppy noted that appellant reported that he had been treated for two years
with a Hivamat machine by Ms. Marlowe which had reduced his foot pain from 9 to 7 on a 1 to 10 scale.

4

In a June 5, 2014 decision, OWCP affirmed its November 1, 2013 decision denying
appellant’s request for authorization of manual foot therapy. It found that a rationalized medical
opinion had not been submitted to show that additional therapy was needed due to work-related
conditions.
On June 12, 2014 appellant claimed that he sustained work-related foot conditions in
addition to those already accepted by OWCP, including lateral plantar nerve entrapment,
superficial peroneal nerve entrapment, common peroneal nerve entrapment, calcaneal spurs,
peripheral neuropathy, and diabetic neuropathy.
By decision dated July 17, 2014, OWCP upgraded the accepted conditions to include
bilateral tarsal tunnel syndrome. It found that appellant had not met his burden of proof to
establish any additional work-related conditions, including lateral plantar nerve entrapment,
superficial peroneal nerve entrapment, common peroneal nerve entrapment, calcaneal spurs,
peripheral neuropathy, or diabetic neuropathy.
In a July 31, 2014 report, Dr. Walter Afield, an attending Board-certified psychiatrist and
neurologist, indicated that use of a Hivamat machine was the only treatment that provided
appellant with relief from his work-related foot pain and noted that it took his pain from 9 to 7 on
a 1 to 10 scale. He recommended that appellant continue therapy treatment with the Hivamat
machine.
In an August 13, 2014 report, Dr. Goodman stated that appellant reported that the pain of
his fasciitis was relieved by a minimum of 40 percent following sustained therapy treatments.10
On September 9, 2014 Dr. Reppy indicated that he was encouraging appellant to attend physical
therapy sessions for his feet.
In a September 9, 2014 report, Dr. Afield noted that appellant complained of personal
problems and chronic pain in his feet. He diagnosed recurrent major repressive illness
(moderate) and generalized anxiety disorder.
OWCP upgraded the accepted conditions to include work-related mood disorder due to
chronic bilateral foot pain with major depressive-like episode.
OWCP requested that Dr. Howard Hogshead, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, provide an opinion on appellant’s request for foot surgery
due to his accepted work conditions. On September 12, 2014 Dr. Hogshead noted that the
Hivamat machine is a tool that is supposed to introduce tissue vibrations thereby reducing edema
and promoting continued local circulation. He stated, “Less exotic methods such as massage are
available at less expense. Continued treatment with this device cannot be approved.”
In an October 28, 2014 decision, OWCP affirmed its June 5, 2014 decision denying
appellant’s request for authorization of foot therapy.

10

Dr. Goodman completed a prescription for a Hivamat machine and a TENS unit on July 2, 2014.

5

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any specific condition for which compensation is claimed is causally related to the
employment injury.11 The medical evidence required to establish a causal relationship between a
claimed specific condition and an employment injury is rationalized medical opinion evidence.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.12
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s case for permanent aggravation of bilateral pes planus (flat
feet) and bilateral plantar fibromatosis;13 bilateral tarsal tunnel syndrome; and mood disorder due
to chronic bilateral foot pain with major depressive-like episode. Appellant alleged that he
sustained a number of other work-related conditions. In a July 17, 2014 decision, OWCP
determined that he did not meet his burden of proof to establish work-related medical conditions
other than those already accepted.14
The Board finds that appellant did not establish work-related medical conditions other
than those already accepted.
On appeal, appellant stated that several physicians diagnosed foot conditions, including
tibial and peroneal nerve disorders, that had not been accepted by OWCP and he claimed that
these conditions were also employment related. The record does contain a number of reports in
which additional foot conditions were in fact diagnosed. For example, in a November 20, 2012
report, Dr. DiDomenico, an attending podiatrist, diagnosed diabetic peripheral neuropathy, and
entrapment neuropathy located at the deep peroneal nerve bilaterally, deep peroneal nerve
distally on the right, superficial peroneal nerve on the right, and common peroneal nerve
bilaterally. In a January 15, 2013 report, Dr. Wellens, an attending podiatrist, diagnosed “other
specified idiopathic peripheral neuropathy.” On February 13, 2013 Dr. Mason, a podiatrist
serving as an OWCP referral physician, diagnosed severe biomechanical pathology secondary to
tibia vara and pronation, and neuropathy with loss of sensation. In a report dated January 14,
11

J.F., Docket No. 09-1061 (issued November 17, 2009).

12

See E.J., Docket No. 09-1481 (issued February 19, 2010).

13

OWCP initially accepted temporary aggravation of bilateral pes planus (flat feet) and bilateral plantar fasciitis.
Plantar fibromatosis is a form of plantar fasciitis.
14

OWCP noted that appellant had not met his burden of proof to establish any additional work-related conditions,
including lateral plantar nerve entrapment, superficial peroneal nerve entrapment, common peroneal nerve
entrapment, calcaneal spurs, peripheral neuropathy, or diabetic neuropathy.

6

2014, Dr. Reppy, an attending osteopath, diagnosed peripheral neuropathy, common peroneal
nerve entrapment, lateral plantar nerve entrapment, and superficial peroneal nerve entrapment.
The Board finds, however, that appellant did not meet his burden of proof to establish
work-related medical conditions other than those already accepted because none of these medical
reports contain a rationalized opinion that he has work-related foot conditions beyond those
already accepted. The Board has held that medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.15
On appeal, appellant also alleged that he sustained a more serious consequential
emotional condition than had been accepted by OWCP. He argued that the opinion of Dr. Taitt,
a Board-certified psychiatrist serving as an OWCP referral physician, justified the acceptance of
post-traumatic stress syndrome. The Board notes that, in a May 27, 2014 report, Dr. Taitt
diagnosed chronic post-traumatic stress disorder. However, Dr. Taitt did not provide an opinion
on the cause of this condition and the record contains no basis to upgrade appellant’s accepted
consequential emotional condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA states in pertinent part: “The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers
likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the
amount of the monthly compensation.”16
The Board has found that OWCP has great discretion in determining whether a particular
type of treatment is likely to cure or give relief.17 The only limitation on OWCP’s authority is
that of reasonableness.18 Abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts. It is not enough to merely show that the evidence
could be construed so as to produce a contrary factual conclusion.19

15

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

16

5 U.S.C. § 8103.

17

Vicky C. Randall, 51 ECAB 357 (2000).

18

Lecil E. Stevens, 49 ECAB 673 (1998).

19

Rosa Lee Jones, 36 ECAB 679 (1985).

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In order to be entitled to reimbursement of medical expenses, it must be shown that the
expenditures were incurred for treatment of the effects of an employment-related injury or
condition.20 Proof of causal relationship in a case such as this must include supporting
rationalized medical evidence.21
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”22 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.23 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.24
ANALYSIS -- ISSUE 2
Between 2010 and 2012, OWCP did authorize physical therapy treatment for appellant’s
feet, including manual therapy. Appellant requested authorization of manual foot therapy,
including use a Hivamat deep oscillation machine, for the period beginning January 1, 2013
continuing. OWCP denied appellant’s request, indicating that a rationalized medical opinion had
not been submitted to show that additional therapy was needed due to work-related conditions.
The Board finds that there is a conflict in the medical opinion evidence regarding
appellant’s need for foot therapy due to his accepted foot conditions.
In multiple reports dated beginning in late 2012, Dr. Goodman, an attending podiatrist,
recommended that appellant continue with manual foot therapy, including use of a Hivamat
machine, in order to treat and provide pain relief from his accepted work-related foot
conditions.25 In several reports completed in 2013 and 2014, he noted that foot therapy helped
provide relief to appellant from work-related pain and also seemed to improve his functional
capacity to walk. For example, on August 15, 2012, Dr. Goodman noted that appellant reported
at least a couple of days of being able to walk a little bit better after foot therapy. He
recommended continuation of therapy for as long as is necessary. In an August 13, 2014 report,
Dr. Goodman stated that appellant reported that the pain of his fasciitis was relieved by a

20

Bertha L. Arnold, 38 ECAB 282 (1986).

21

Zane H. Cassell, 32 ECAB 1537 (1981); John E. Benton, 15 ECAB 48 (1963).

22

5 U.S.C. § 8123(a).

23

William C. Bush, 40 ECAB 1064, 1975 (1989).

24

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

25

Dr. Goodman completed a prescription for a Hivamat machine and a TENS unit on July 2, 2014.

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minimum of 40 percent following sustained therapy treatments.26 In a report dated January 14,
2014, Dr. Reppy, an attending osteopath, stated that appellant needed to continue with an
aggressive program of physical therapy using the Hivamat machine.27 On May 15, 2014
Dr. Gonzalez, an attending family practitioner, noted that it was medically necessary that
appellant continue with foot therapy, including use of a TENS unit. In a July 31, 2014 report,
Dr. Afield, an attending Board-certified psychiatrist and neurologist, indicated that use of a
Hivamat machine was the only treatment that provided appellant with relief from his workrelated foot pain and noted that it took his pain from 9 to 7 on a 1 to 10 scale. He recommended
that appellant continue therapy treatment with the Hivamat machine.
In contrast, an OWCP physician recommended against continuation of authorization of
foot therapy, including the use of a Hivamat machine. Dr. Hogshead, a Board-certified
orthopedic surgeon serving as an OWCP medical adviser, noted on September 12, 2014 that the
Hivamat machine was a tool that is supposed to introduce tissue vibrations thereby reducing
edema and promoting continued local circulation. He stated, “Less exotic methods such as
massage are available at less expense. Continued treatment with this device cannot be
approved.”
Consequently, the case must be referred to an impartial medical specialist to resolve the
conflict in the medical opinion evidence between appellant’s attending physicians and the
OWCP physician, Dr. Hogshead, pursuant to 5 U.S.C. § 8123(a), regarding appellant’s need for
foot therapy and use of the Hivamat machine due to his accepted foot conditions. On remand
OWCP should refer appellant, along with the case file and the statement of accepted facts, to an
appropriate specialist for an impartial medical evaluation and report including a rationalized
opinion on this matter. After carrying out this development, OWCP should issue a de novo
decision regarding appellant’s claim for authorization of foot therapy beginning January 1, 2013.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish work-related
medical conditions other than those already accepted. The Board further finds that the case is
not in posture for decision regarding whether OWCP abused its discretion by denying appellant’s
request for authorization of foot therapy beginning January 1, 2013.

26

Although Dr. Goodman acknowledged that appellant’s relief from pain was temporary, he repeatedly indicated
that foot therapy, including use of a Hivamat machine, was the only modality which seemed to help in the treatment
of appellant’s accepted foot conditions.
27

In a February 18, 2014 report, Dr. Reppy noted that appellant reported that he had been treated for two years
with a Hivamat machine which had reduced his foot pain from 9 to 7 on a 1 to 10 scale.

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ORDER
IT IS HEREBY ORDERED THAT the July 17, 2014 decision of the Office of
Workers’ Compensation Programs, regarding the denial of additional accepted conditions, is
affirmed. The October 28 and June 5, 2014 decisions of OWCP, regarding the denial of
additional medical treatment, are set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: November 3, 2015
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WRIGHT PATTERSON MEDICAL CENTER,
WRIGHT PATTERSON AIR FORCE BASE,
OH, Employer
__________________________________________

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

Docket No. 18-1317
Issued: April 17, 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 June 21, 2018 appellant, through counsel, filed a timely appeal from a May 25, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $19,081.57 for the period March 4 through October 30, 2016; (2) whether OWCP
properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly required
recovery of the overpayment by deducting $400.00 from appellant’s continuing compensation
payments every 28 days.
FACTUAL HISTORY
On May 14, 2015 appellant, then a 46-year-old medical instrument technician, filed an
occupational disease claim (Form CA-2) alleging that she sustained right thoracic outlet syndrome
while in the performance of duty. She noted that she first became aware of her condition and
related it to her federal employment on April 30, 2012. OWCP assigned File No. xxxxxx244 and,
following development of the claim, accepted right thoracic outlet syndrome. It paid appellant
wage-loss compensation for total disability commencing January 18, 2016.
Previously, under OWCP File No. xxxxxx517, OWCP had accepted a November 9, 2009
occupational disease claim (Form CA-2) for right bicipital tendinitis and other affectations of the
right shoulder. Appellant was off work beginning December 18, 2009 due to OWCP authorized
right shoulder arthroscopy. She was released to restricted duty on February 11, 2010 and returned
to regular-duty work on April 30, 2010. By decision dated March 15, 2017, OWCP granted
appellant a schedule award for 11 percent permanent impairment of her right upper extremity. The
award ran for 34.32 weeks from March 4 to October 30, 2016 (fraction of day) for a total of
$26,245.28. OWCP noted that payment of the award ended when appellant had been paid for the
last day shown in the period of award, October 30, 2016.4
The record reflects that on June 30, 2017 in OWCP File No. xxxxxx244, it paid appellant
wage-loss compensation for the period April 4, 2016 through June 9, 2017. On September 12,
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the May 25, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
4

Appellant also has an October 14, 2011 occupational disease claim under OWCP File No. xxxxxx451, which
OWCP accepted for right carpal tunnel syndrome and right lesion of ulnar nerve/cubital tunnel syndrome. Appellant
underwent OWCP-authorized right carpal tunnel syndrome surgery on February 3, 2012 and returned to full-time full
duty on October 20, 2012. She stopped work on January 6, 2016 and has not returned. By decision dated July 12,
2016, OWCP denied appellant’s claim for wage-loss compensation for the period January 18, 2016 and continuing,
as the evidence did not establish that she was disabled as a result of her accepted October 14, 2011 work-related
medical conditions. By decision dated June 5, 2017, an OWCP hearing representative affirmed the July 12, 2016
decision. On April 8, 2016 appellant filed a Form CA-7 schedule award claim. On July 14, 2017 OWCP
administratively combined OWCP File Nos. xxxxxx451, xxxxxx517, and xxxxxx244, with File No. xxxxxx244
designated as the master file.

2

2017 it issued a compensation check for the period January 18 to March 29, 2016. A separate
worksheet noted the amount of compensation paid for each period commencing April 4, 2016.
On September 22, 2017 OWCP advised appellant of its preliminary determination that she
had received an overpayment of compensation in the amount of $19,081.57 for the period March 4
through October 30, 2016, because she received compensation benefits based on temporary total
disability for her right arm condition under OWCP File No. xxxxxx244 after she was paid schedule
award compensation for that same period under OWCP File No. xxxxxx517. It also made a
preliminary determination that she was without fault in the creation of the overpayment. OWCP
advised appellant that she could submit evidence challenging the fact and amount of the
overpayment, and request waiver of recovery. It informed her that she could submit additional
evidence in writing or at prerecoupment hearing, but that a prerecoupment hearing must be
requested within 30 days of the date of the written notice of overpayment. OWCP 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 recovery of the overpayment.
An OWCP worksheet, which detailed the amount of compensation paid due to concurrent
payment of temporary total disability and the schedule award for the right arm, noted a total
overpayment of $19,083.08 for the period March 4 through October 30, 2016. A recovery
reporting form indicated that appellant had oversubscribed for optional life insurance and that the
final overpayment for dual payment during the reported period was $19,081.57.
On September 29, 2017 appellant requested a prerecoupment telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. She contested the fact of overpayment
and requested waiver of recovery, asserting that she had no income when she received the
compensation payment and that the monies were used to pay bills over the last two years.
Appellant submitted an overpayment recovery questionnaire (Form OWCP-20), completed
on October 2, 2017, in which she listed monthly income of $5,000.00, monthly expenses of
$4,320.00, and assets of $7,700.00.
During the prerecoupment hearing, held on March 13, 2018, counsel indicated that, in the
event the overpayment was upheld, appellant could pay $50.00 per month. Appellant testified
regarding her finances. She indicated that her husband contributed $3,200.00 per month, which
made the household monthly income over $8,000.00.
Appellant retired from the employing establishment, effective December 23, 2017. She
elected Office of Personnel Management retirement benefits as of July 22, 2018.
In an April 4, 2018 updated overpayment recovery questionnaire (Form OWCP-20),
appellant listed $8,000.00 total monthly income, $9,290.00 total monthly expenses, and
$12,500.00 in funds. She noted that she was paid a lump sum for an injury approximately one
year prior to her workers’ compensation payments began. No documentation was provided.
By decision dated May 25, 2018, OWCP’s hearing representative determined that
appellant received an overpayment of compensation in the amount of $19,081.57 for the period
March 4 to October 30, 2016 because she received wage-loss compensation and schedule award
compensation for accepted right upper extremity conditions concurrently. He found that she was
not at fault in the creation of the overpayment, but that the overpayment was not subject to waiver
3

of recovery because her monthly income of $8,000.00 exceeded her monthly expenses of “less
than $6,070.00” by more than $50.00. The hearing representative explained that appellant no
longer had listed expenses pertaining to her son, that she had not submitted documentation
verifying her income and expenses, but that benevolently accepting the listed expenses, she still
had enough income to repay the overpayment. Therefore, appellant had not established that
recovery of the overpayment would defeat the purpose of FECA. The hearing representative
required recovery of the overpayment by deducting $400.00 from her continuing compensation
payments every 28 days.5
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.6 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”7
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $19,081.57.
In this case, appellant received a schedule award for 11 percent permanent impairment of
her right upper extremity due to a right shoulder injury under OWCP File No. xxxxxx517. The
award ran from March 4 to October 30, 2016. OWCP also paid appellant wage-loss compensation
for total disability under OWCP File No. xxxxxx244 commencing January 18, 2016 through the
present for another right shoulder injury. It found an overpayment of compensation in the amount
of $19,081.57 resulted as appellant was not entitled to concurrently receive both wage-loss and
schedule award compensation for the same part of the body.
5

The hearing representative noted that since the additional schedule award claim had not been paid, the case should
be flagged so that prior to any payment, the funds will be applied to the overpayment. See Federal (FECA) Procedure
Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.300.8 (May 2004) (recovery from continuing
entitlement).
6

5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

8

Id. at § 8116(a).

4

As appellant was not entitled to both wage-loss and schedule award compensation for both
right shoulder injuries, the Board finds that OWCP properly determined that an overpayment of
compensation was created.9
The Board further finds that OWCP properly calculated the amount of the overpayment as
$19,081.57, the amount that appellant received in wage-loss compensation and schedule award
compensation for the two shoulder conditions. The Board notes that she has not disputed the
amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that
rests within OWCP’s discretion pursuant to statutory guidelines.10 These statutory guidelines are
found in section 8129(b) of FECA which provide: “Adjustment or recovery [of an overpayment]
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this subchapter
or would be against equity and good conscience.”11 If OWCP finds a claimant to be without fault
in the matter of an overpayment, then, in accordance with section 8129(b), OWCP may only
recover the overpayment if it determined that recovery of the overpayment would neither defeat
the purpose of FECA, nor be against equity and good conscience.12
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.13 According to 20 C.F.R. § 10.437,
recovery of an overpayment is considered to be against equity and good conscience when an
individual who received an overpayment would experience severe financial hardship attempting
to repay the debt and when an individual, in reliance on such payments or on notice that such
payments would be made, gives up a valuable right or changes his or her position for the worse.14
To establish that a valuable right has been relinquished, it must be shown that the right was in fact

9

E.S., Docket No. 16-1248 (issued May 15, 2017).

10

See P.J., Docket No. 18-0248 (issued August 14, 2018); Robert Atchison, 41 ECAB 83, 87 (1989).

11

5 U.S.C. § 8129(b).

12

See P.J., supra note 10.

13

20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet current and
ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Assets must not
exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual with a spouse or dependent plus
$960.00 for each additional dependent. See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.6(a) (October 2004); see P.J., supra note 10; B.F., Docket No. 13-0785 (issued
September 20, 2013).
14

Id. at § 10.437(a), (b).

5

valuable, that it cannot be regained, and that the action was based chiefly or solely in reliance on
the payments or on the notice of payment.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because she has not shown that she needs substantially all of her current income to meet
ordinary and necessary living expenses. OWCP’s hearing representative reviewed appellant’s
updated overpayment recovery questionnaire dated April 4, 2018 and found that “even without
documentation, and benevolently accepting all listed expenses, appellant had sufficient funds to
repay the overpayment.” As noted above, the hearing representative found that appellant’s
expenses were “less than $6,070.00” and that her monthly income of $8,000.00 exceeded her
monthly ordinary and necessary expenses by approximately $2,000.00. As appellant’s current
income exceeds her current ordinary and necessary living expenses by more than $50.00 she has
not shown that she needs substantially all of her current income to meet current ordinary and
necessary living expenses.16 Because she has not met the first prong of the two-prong test of
whether recovery of the overpayment would defeat the purpose of FECA, it is not necessary for
OWCP to consider whether her assets do not exceed the allowable resource base.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she would
experience severe financial hardship in attempting to repay the debt or that she relinquished a
valuable right or changed her position for the worse in reliance on the payment which created the
overpayment.17
Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that OWCP properly
denied waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of Title 20 of the Code of Federal Regulations provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the

15

Id. at § 10.437(b)(1).

16

See supra note 13

17

See P.J., supra note 10; William J. Murphy, 41 ECAB 569, 571-72 (1989).

6

financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”18
ANALYSIS -- ISSUE 3
The Board also finds that OWCP properly required recovery of the overpayment by
deducting $400.00 from appellant’s continuing compensation payments every 28 days.
The record supports that, in requiring recovery of the overpayment by deducting $400.00
from appellant’s continuing compensation payments every 28 days, OWCP took into consideration
the financial information submitted by her as well as the factors set forth in section 10.441 and
found that this method of recovery would minimize any resulting hardship on her. Therefore, it
properly required recovery of the overpayment by deducting $400.00 from her continuing
compensation payments every 28 days.
CONCLUSION
The Board finds that appellant received a $19,081.57 overpayment of compensation for the
period March 4 to October 30, 2016, for which she was without fault. The Board further finds that
OWCP properly denied waiver of recovery of the overpayment and properly required recovery of
the overpayment by deducting $400.00 from her continuing compensation payments every 28
days.

18

20 C.F.R. § 10.441(a); see P.J., supra note 10; Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

7

ORDER
IT IS HEREBY ORDERED THAT the May 25, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 17, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. COAST GUARD, Baltimore, MD, Employer
__________________________________________

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

Docket No. 09-1442
Issued: June 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 22, 2009 appellant filed a timely appeal from a May 11, 2009 merit decision of
the Office of Workers’ Compensation Programs regarding an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.1
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation in the amount of $336.64 during the period March 3 to 14, 2009;
(2) whether the Office properly found that appellant was at fault in the creation of the
overpayment and therefore not entitled to waiver; and (3) whether the Office properly directed
recovery of the overpayment at the rate of $50.00 every four weeks from his continuing
compensation payments.

1

By decision dated May 21, 2009, the Office adjusted appellant’s compensation effective March 3, 2009 on the
basis that his actual earnings in private employment as a microfiche machine operator fairly and reasonably
represented his wage-earning capacity. Appellant did not appeal from this decision.

FACTUAL HISTORY
On June 30, 2003 appellant, then a 49-year-old structural worker, experienced pain in his
low back and right shoulder when carrying closing plates from a pier to his work site. The
Office accepted the claim for permanent aggravation of lumbosacral spondylosis and paid
appropriate compensation benefits. Appellant retired from the employing establishment on
March 6, 2004 and elected benefits under the Federal Employees’ Compensation Act. Beginning
September 4, 2005, he was paid compensation for total disability on the periodic rolls.
By letter dated August 30, 2005, the Office advised appellant of the circumstances under
which he could receive compensation. It informed him that, to avoid an overpayment, he must
return any periodic rolls checks issued which included payment of compensation after he
returned to work.
Appellant returned to work in the private sector as a microfiche machine operator on
March 3, 2009. Subsequently, he submitted evidence showing his earnings in his new job. The
employing establishment submitted evidence regarding appellant’s rate of pay on the date of
injury and on March 3, 2009.
In a letter dated April 6, 2009, the Office informally reduced appellant’s compensation
benefits effective March 3, 2009 based on his earnings as a microfiche machine operator for a
private employer with weekly wages of $320.00 ($8.00 per hour for 40 hours per week). It noted
that he received a 28-day compensation check for the period February 15 through March 14,
2009 which partially covered the period following his return to work on March 3, 2009. The
Office advised that, in order to avoid an overpayment, appellant should return the check and
another check, which covered the appropriate period, would be issued. It also enclosed its
worksheet which found that appellant’s new compensation rate each four weeks effective
March 3, 2009 would be $1,620.34. Appellant did not respond.
In a letter dated April 14, 2009, the Office advised appellant that it made a preliminary
determination that he received a $336.64 overpayment of compensation because he returned to
full-time work on March 3, 2009 in the private sector but continued to receive compensation for
total disability until March 14, 2009. It found that he was at fault in the creation of the
overpayment as he knew or should have reasonably known that he was not entitled to
compensation for total disability after his return to work on March 3, 2009. For the period
March 3 to 14, 2009, the Office found that appellant received $1,071.14. It calculated this
amount by dividing the $2,499.34 net compensation payment appellant received from
February 15 to March 14, 2009 by 28 days to find that appellant received $89.26 a day. The
$89.26 a day in compensation was multiplied by 12 days in the overpayment period from
March 3 to 14, 2009.
The Office then subtracted $734.50, appellant’s entitlement to
compensation less his actual earnings for the period March 3 to 14, 2009, to find the $336.64
overpayment amount. The $734.50 was calculated under the Shadrick formula and represented

2

appellant’s entitlement to compensation after his return to work on March 3, 2009.2 Appellant
was informed of his right to challenge the fact or amount of the overpayment or request a waiver.
If he wished a waiver of the overpayment, he was directed to submit financial information by
completing an overpayment recovery questionnaire. The overpayment recovery questionnaire in
part directed appellant to list his monthly income including any income from a spouse or any
dependent relative living in the household with him. The Office attached copies of its
worksheets which explained how the overpayment was calculated.
On April 18, 2009 appellant requested that the Office make a decision on his
overpayment based on the written evidence. He disagreed that the overpayment had occurred
through any fault of his and requested waiver. Appellant completed an overpayment recovery
questionnaire. He advised that he currently had $32.57 in his checking account and $100.00 in
his savings account and his monthly income was $4,916.48. Appellant listed monthly expenses
of $4,410.48, which included $1,685.00 for mortgage and property tax, $400.00 for food,
$300.00 for clothing and $980.00 for utilities. He paid monthly installments of $65.00, $291.00,
$155.00 and $534.00 to individual creditors. Appellant believed that the money in his workers’
compensation check was his and that he did not get a financial breakdown on what his new rate
of compensation would be until a week later. He stated that he needed the money to help pay
bills.
By decision dated May 11, 2009, the Office finalized the overpayment of compensation
in the amount of $336.64. Appellant returned to work in the private sector on March 3, 2009 and
had earnings but continued to receive compensation for total disability until March 14, 2009.
The Office found that appellant was at fault in the matter of the overpayment as he accepted
payments he knew or reasonably should have known he was not entitled as he had returned to
work in the private sector. It reviewed the financial evidence provided and directed recovery by
deducting $50.00 every four weeks from his continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Act3 provides that the United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty. A claimant, however, is not entitled to
receive temporary total disability and actual earnings for the same period.4 Office procedures
2

The formula for determining loss of wage-earning capacity based on actual earnings, developed in Albert C.
Shadrick, 5 ECAB 376 (1953), has been codified at 20 C.F.R. § 10.403 of the Office’s regulations. The Office
calculates an employee’s wage-earning capacity in terms of percentage by dividing the employee’s earnings by the
current pay rate for the date-of-injury job. See J.C., 58 ECAB 700 (2007). Under the Shadrick formula, the Office
determined that appellant’s salary on June 30, 2003, the date he was injured, was $801.89 per week, that the current
adjusted pay rate for his job was $1,011.00 per week and that he was currently capable of earning $320.00 per week
as a microfiche machine operator in the private sector. It, then determined that appellant had 32 percent wageearning capacity, which resulted in an adjusted wage-earning capacity of $256.60 per week. The Office concluded
that appellant’s new gross weekly compensation rate was $467.50 with cost-of-living adjustment and that his net
compensation, after reduction for life and health insurance, for each four-week period would be $1,620.34.
3

5 U.S.C. §§ 8101-8193, 8102(a).

4

Id. at § 8116(a).

3

provide that an overpayment in compensation is created when a claimant returns to work but
continues to receive wage-loss compensation.5
Under sections 8110(a)(1) and 8101(17) of the Act, an employee is entitled to
compensation at the augmented rate of 3/4 of his weekly pay if he has one or more dependents.6
ANALYSIS -- ISSUE 1
The record establishes that appellant received an overpayment of compensation in the
amount of $336.64 for the period March 3 to 14, 2009 because he had actual earnings from
employment during a period for which he received total disability compensation. When an
employee has earnings from employment, he is not entitled to receive temporary total disability
benefits and actual earnings for the same time period.7 Under these circumstances, the Office
offsets actual earnings pursuant to the Shadrick formula. If a reduction of benefits based upon
actual earnings is not accompanied by a determination that the earnings fairly and reasonably
represent the employee’s wage-earning capacity, an informal reduction of benefits utilizing the
Shadrick formula is proper rather than a formal loss of wage-earning capacity determination.
The Office had not found that appellant’s actual earnings as a microfiche machine operator fairly
and reasonably represented his wage-earning capacity at the time it issued its overpayment
decision. Therefore, it properly provided an informal determination of the amount owed based
on his actual earnings using the Shadrick formula.8
In determining the amount of the overpayment, the Office found that appellant earned
$8.00 an hour for a 40-hour week ($320.00 per week) when he returned to work in the private
sector on March 3, 2009. Using the Shadrick formula, it found that he was entitled to
compensation during the period March 3 to 14, 2009 period based on his actual earnings in the
amount of $734.50. The Office subtracted the amount of compensation owed, $734.50, from the
amount of compensation received, $1,071.14, to find an overpayment of $336.64. Appellant has
not submitted any evidence to show that he did not receive this overpayment of compensation or
that the amount of the overpayment was erroneously calculated. The Board finds that he
received an overpayment of compensation in the amount of $336.64 for the period March 3 to
14, 2009.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act9 provides that adjustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
5

Danny E. Haley, 56 ECAB 393, 400 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.2(a) (September 1994).
6

5 U.S.C. §§ 8110(a)(1) and 8101(17); 20 C.F.R. § 10.405.

7

L.S., 59 ECAB ___ (Docket No. 07-1961, issued February 14, 2008); Daniel Renard, 51 ECAB 466 (2000); 20
C.F.R. § 10.403(c).
8

5 U.S.C. § 8106(a); see id.

9

Id. at § 8129(b).

4

and when adjustment or recovery would defeat the purpose of the Act or would be against equity
and good conscience.
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
received from the Office are proper. The recipient must show good faith and exercise a high
degree of care in reporting events, which 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).10
Whether or not the Office 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.11
Section 10.430(a) of the Office’s regulations advises that the Office includes on each
periodic check a clear indication of the period for which payment is being made. A form is sent
to the recipient with each supplemental check which states the period for which payment is being
made. Section 10.430(b) notes that, by these means, the Office puts the recipient on notice that a
payment was made and the amount of the payment.12
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in creating the overpayment because he
accepted a payment he knew or should have known to be incorrect. As noted, appellant was not
entitled to wage-loss compensation from March 3 through 14, 2009 for total disability when he
also worked and received a salary. Each recipient of compensation benefits is responsible for
taking all reasonable measures to ensure that payments he or she receives are proper.13 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.14
The Office notified appellant in an August 30, 2005 letter, when he was placed on the
periodic compensation rolls, that he was to immediately inform the Office upon his return to
work to avoid an overpayment in compensation and that, if he worked during any period covered
10

20 C.F.R. § 10.433(a).

11

Id. at § 10.433(b).

12

Id. at § 10.430.

13

See Danny E. Haley, 56 ECAB 393 (2005).

14

See Sinclair L. Taylor, 52 ECAB 227 (2001).

5

by a compensation payment, he had to return the payment to the Office. Under these
circumstances, appellant should have known that he could not receive wage-loss compensation
during any period that he worked.15 While he notified the Office of his return to work, he did not
return the compensation he received by check for the period February 15 through March 14,
2009, which covered the period following his return to work.16
Furthermore, the Office includes on each periodic check a clear indication of the period
for which payment is being made. By doing this, it puts the recipient on notice that a payment
was made and the amount of the payment.17 This is evidence that appellant should have been
aware that, when he accepted the compensation for the period in question, he was not entitled to
receive wage-loss compensation for total disability for a period when he worked.
The Board finds that appellant knew or should have known after he returned to work that
he was not entitled to concurrently receive a salary and wage-loss compensation. Appellant had
an obligation to return payments that he knew or should have known to be incorrect. Appellant
was at fault in the creation of the overpayment and is not entitled to waiver of the overpayment
in compensation.18
LEGAL PRECEDENT -- ISSUE 3
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information will be used to
determine the repayment schedule, if necessary.19
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to the Office the amount of the overpayment as soon as the
error is discovered or his or her attention is called to the same. If no refund is made, the Office
shall decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.20
ANALYSIS -- ISSUE 3
With respect to the recovery of an overpayment, the Board notes that its jurisdiction is
limited to reviewing those cases where the Office seeks recovery from continuing compensation

15

See Neill D. Dewald, 57 ECAB 451 (2006).

16

The fact that the Office may have been negligent in making payment to a claimant does not relieve the
employee of fault in accepting an incorrect payment. See Ricky Greenwood, 57 ECAB 462 (2006).
17

J.R., 60 ECAB ___ (Docket No. 08-1107, issued June 15, 2009). 20 C.F.R. § 10.430.

18

Supra note 10.

19

20 C.F.R. § 10.438.

20

Id. at § 10.441(a).

6

benefits under the Act.21 Regarding the recovery of the $336.64 overpayment from appellant’s
continuing compensation, the Office found it reasonable to deduct $50.00 from his periodic
continuing compensation payments to recover the debt.
Appellant reported in the overpayment recovery questionnaire that he had a monthly
income of $4,916.48 and monthly expenses of $4,410.48. The Office determined that he
received $3,150.00 from his monthly compensation payments and actual earnings in the private
sector, which was less than the total amount of income indicated. It noted that appellant did not
report income from his spouse and that he failed to provide any supporting financial evidence to
support his reported monthly income and expenses. The Office found that his actual monthly
expenses did not exceed the actual monthly income. Based on the evidence of record, it took
into consideration relevant factors so as to minimize any hardship and properly directed recovery
of the overpayment by deducting $50.00 from continuing compensation payments every four
weeks.
Appellant argues on appeal that he included his wife’s income in the reported monthly
income of $4,916.48. The Board notes that it is his responsibility to submit supporting financial
evidence.22 In any event, appellant’s reported income exceeded his monthly expenses by about
$500.00. He also asserts that he was owed additional compensation from the Office and was
justified in cashing his compensation check. However, appellant did not submit any evidence to
establish that he was owed additional compensation the overpayment was created. Additionally,
he was advised to return any compensation checks received after he returned to work. The
compensation check in question contained the period covered by the check to put appellant on
notice that the check was payment for a period in which he worked and earned a salary.
CONCLUSION
The Board finds that the Office properly determined that appellant received a $336.64
overpayment of compensation from March 3 through 14, 2009, that he was at fault in creating
the overpayment and that the Office properly directed recovery of the overpayment at the rate of
$50.00 every four weeks from appellant’s continuing compensation payments.

21

Terry A. Keister, 56 ECAB 559 (2005); see also Cheryl Thomas, 55 ECAB 610 (2004).

22

See 20 C.F.R. § 10.438(a).

7

ORDER
IT IS HEREBY ORDERED THAT the May 11, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 22, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF THE INTERIOR,
VOLCANOES NATIONAL PARK, Volcano, HI,
Employer
__________________________________________
Appearances:
Christopher R. Evans, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-2000
Issued: June 28, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On August 3, 2010 appellant, through his attorney, filed a timely appeal from a
February 23, 2010 merit decision of the Office of Workers’ Compensation Programs granting
him a schedule award. The Board docketed the appeal as No. 10-2000.
The Board has reviewed the case record on appeal and finds that it is not in posture for
decision. This case has previously been before the Board. In a decision dated December 8,
2009, the Board set aside December 21, 2007 and October 22, 2008 schedule award decisions
finding that appellant had 29 percent permanent impairment of the right lower extremity and 20
percent permanent impairment of the left lower extremity.1 It found that the opinion of the
Office medical adviser was insufficient to establish the extent of appellant’s permanent
impairment under the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001). The Board remanded the case for the Office medical adviser to
reevaluate the extent of the permanent impairment of the bilateral lower extremities consistent
with the A.M.A., Guides and to consider whether appellant’s plantar fasciitis was preexisting and
thus included in the schedule award.

1

Docket No. 09-489 (issued December 8, 2009).

On remand, in a report dated February 8, 2010, the Office medical adviser applied the
fifth edition of the A.M.A., Guides and determined that appellant had 20 percent permanent
impairment of the left lower extremity and 29 percent permanent impairment of the right lower
extremity. By decision dated February 23, 2010, the Office found that he was not entitled to an
additional schedule award beyond that previously awarded.
The sixth edition of the A.M.A., Guides became effective May 1, 2009. FECA Bulletin
No. 09-3 provides that any initial schedule award decision issued on or after May 1, 2009 will be
based on the sixth edition of the A.M.A., Guides even if the amount of the award was calculated
prior to that date.2 The Board set aside the prior schedule award decisions granting appellant a
29 percent permanent impairment of the right lower extremity and a 20 percent permanent
impairment of the left lower extremity. Consequently, the Office should have based its
February 23, 2010 schedule award decision on the sixth edition of the A.M.A., Guides rather
than the fifth edition as it was an initial schedule award determination. The Board thus finds that
the case must be remanded to the Office for recalculation of the extent of appellant’s permanent
impairment under the sixth edition of the A.M.A., Guides. Following such further development
as it deems necessary, it should issue an appropriate decision.
IT IS HEREBY ORDERED THAT the February 23, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 28, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

FECA Bulletin No. 09-03 (issued March 15, 2009, expires May 1, 2010); see also Federal (FECA) Procedure
Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.6a (January 2010);
see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

2


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

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

Docket No. 14-1399
Issued: September 23, 2014

Case Submitted on the Record

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

JURISDICTION
On June 3, 2014 appellant filed a timely appeal from a March 25, 2014 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 in this case is whether appellant met his burden of proof to establish a traumatic
injury in the performance of duty on June 13, 2013.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted evidence after the issuance of the March 25, 2014 decision. The
Board lacks jurisdiction to review evidence for the first time on appeal. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On June 14, 2013 appellant, then a 51-year-old carrier technician, filed a traumatic injury
claim (Form CA-1) alleging injury on June 13, 2013. He described the cause of his injury under
the heading of “place where injury occurred” as: “while working on daily route 329 carrier case,
employee reached to the floor to pick up a tub of NLM flat mail.” Under the heading of “cause
of injury,” appellant stated that he experienced fatigue and a pulled muscle. He described the
nature of his injury as a right shoulder strain.
On June 20, 2013 the employing establishment challenged appellant’s claim for
compensation. It stated that he had not specified what event led to his injury, and that there was
no objective medical rationale that would show that this injury occurred in the performance of
duty.
In a report dated July 17, 2013, Dr. Shireen Rudderow, Board-certified in family
medicine, assessed appellant with joint pain localized in the shoulder and diagnosed him with
shoulder strain. She stated that appellant told her that he picked up a tub of mail on June 13,
2013 and felt a pulling or popping sensation in his right shoulder. Since that time, appellant had
aching pain in his right shoulder, but no numbness or swelling. He stated that he had no prior
history of shoulder problems. Dr. Rudderow recommended work restrictions of lifting no more
than 10 pounds, repetitive lifting of no more than one pound, carrying of no more than 10 pounds
and no overhead reaching.
In a diagnostic report dated July 18, 2013, Dr. Pio Hocate, a Board-certified radiologist,
examined the results of an x-ray of appellant’s right shoulder. He stated that appellant’s right
shoulder appeared normal.
On July 19, 2013 Dr. Steven Waskow, a Board-certified orthopedist, diagnosed appellant
with impingement of the right shoulder and adhesions of the bicipital tendon of the right arm.
He stated that appellant told him that he injured his shoulder on June 13, 2013 when picking up a
tub of mail while at work and began to have pain after that time. However, Dr. Waskow also
noted that appellant told him that he had pain since October. On examination of appellant’s right
shoulder, Dr. Waskow noted no abnormalities concerning tenderness, acromioclavicular (AC)
step-off, deformities, range of motion or crepitus with motion. Appellant exhibited a positive
Neer impingement test, a positive Hawkins-Kennedy impingement test, but an intact rotator cuff
and a negative cross-arm test. Dr. Waskow referred appellant for physical therapy.
In a diagnostic report dated July 22, 2013, Dr. Kristen LaChance, a specialist in
interventional radiology, examined the results of an MRI scan of appellant’s right shoulder.3 She
stated her impression of partial tearing of the supraspinatus tendon anteriorly with some
associated tendinopathy, a thickened coracohumeral ligament and inflammation within the
rotator cuff interval, os acromiale, mild tendinopathy of the infraspinatus tendon, possible mild
thinning of the long head of the biceps tendons at the labral biceps anchor, a probable anterior
labral foramen, and a degenerative tear and scarring of the posterior inferior labrum.
3

Dr. LaChance’s certification in a medical specialty could not be confirmed with a search of physicians certified
by the American Board of Medical Specialties or the American Osteopathic Association.

2

By letter dated July 23, 2013, OWCP informed appellant of the evidence needed to
support his claim and sent him a questionnaire for completion.
On July 26, 2013 Dr. Rudderow diagnosed appellant with right shoulder impingement
and shoulder strain and assessed him with joint pain localized in the shoulder. She noted that he
continued to have right shoulder pain despite his use of prescribed medications. Dr. Rudderow
noted that appellant had weakness in grip, but no swelling or numbness. She recommended that
his work restrictions continue unmodified. Dr. Rudderow prescribed appellant hydrocodoneacetaminophen, and noted current relevant medications of acetaminophen-codeine and naproxen.
In a report dated July 30, 2013, Dr. Waskow diagnosed appellant with adhesions of the
bicipital tendon of the right arm, impingement of the right shoulder, and right shoulder strain,
and assessed him with joint pain localized in the shoulder. He suggested that because appellant
had a torn bicipital tendon, he could undergo surgery to reattach it. Dr. Waskow administered a
subcoracoid depomedrol injection to appellant.
By decision dated September 9, 2013, OWCP denied appellant’s claim. It found that he
had not submitted sufficient evidence to establish a causal relationship between his diagnosed
conditions and the incident of June 13, 2013. OWCP accepted that appellant was a federal
civilian employee who filed a timely claim; that the incident occurred; that a medical condition
had been diagnosed; and that he was within the performance of duty.
On September 17, 2013 Dr. Rudderow noted that appellant visited for a follow-up on a
right shoulder injection. She noted that he told her that his prescription slips were stolen and he
had not taken the medications she prescribed to him at his last appointment. Dr. Rudderow
stated that appellant was still performing overhead movement and lifting 10 to 15 pounds with
his left arm as much as possible. She noted that he was referred to physical therapy, but that he
did not pursue it, because he told her that physical therapy had aggravated his symptoms in the
past. Dr. Rudderow stated that appellant’s injury occurred on June 13, 2013 and that the type of
injury was musculoskeletal.
In a duty status report dated September 17, 2013, Dr. Rudderow recommended that
appellant’s work restrictions continue unmodified. She stated that he had signs of impingement
and that her diagnosis was due to appellant’s described injury on June 13, 2013. Dr. Rudderow
submitted another duty status report recommending the same work restrictions on
October 17, 2013.
In a report dated September 20, 2013, Dr. Waskow noted that appellant’s shoulder girdle
strain pain had worsened but that his subcoracoid pain had improved. Appellant told
Dr. Waskow that his range of motion seemed to be “off” because when he moved his shoulder in
a certain manner, it caused him pain.
On September 20, 2013 appellant requested a review of the written record before the
Branch of Hearings and Review. With his request, he submitted an undated narrative statement.
Appellant noted that he had worked for the employing establishment since October 22, 1988, and
that during his employment he had cased and delivered one to three thousand pieces of mail per
day. He stated that Dr. Rudderow had confirmed to him in an appointment on September 17,

3

2013 that the repetitive motion of casing mail “has and could have caused” his injury on
June 13, 2013.
In a report dated October 17, 2013, Dr. Rudderow stated that appellant had “sign pain
pushing open doors” and a constant ache of the posterior shoulder/trapezius. Appellant told her
that his shoulder sometimes felt like it would slip out of its joint. On examination of the right
shoulder, Dr. Rudderow noted tenderness to palpation on the posterior shoulder, signs of
impingement, full range of motion with sign pain on flexion or abduction greater than 90
degrees, with no instability appreciated.
On March 25, 2014 the hearing representative affirmed the decision dated September 9,
2013, denying appellant’s claim on the grounds that he had not established a causal relationship
between his condition and the incident of June 13, 2013. She found, “Nowhere in the medical
record is there evidence that the claimant sustained an injury as claimed on June 13, 2013. First,
there is no evidence of medical care prior to July 17, 2013. Second, the medical evidence of
record refers to lifting a tub of mail. The claimant did not identify this as a cause of injury.”
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.7
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.8 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.9
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
4

5 U.S.C. § 8101 et seq.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

6

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

9

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 5.

4

specific employment incident or to specific conditions of employment.10 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.12 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.13 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.14
ANALYSIS
Appellant alleged that on June 13, 2013 he sustained an injury to his right shoulder in the
performance of duty while lifting a tub of mail. In the decision dated September 9, 2013, OWCP
accepted that the incident occurred as alleged. The Board finds that appellant has not met his
burden of proof to establish a causal relationship between his right shoulder conditions and the
employment incident.15
On July 17, 2013 Dr. Rudderow stated that appellant told her that he picked up a tub of
mail on June 13, 2013 and felt a pulling or popping sensation in his right shoulder. On
September 17, 2013 she stated that his injury occurred on June 13, 2013, and that the type of
injury was musculoskeletal. In a duty status report dated September 17, 2013, Dr. Rudderow
stated that her diagnosis was due to appellant’s described injury on June 13, 2013. However, she
did not provide adequate medical rationale explaining the mechanism of how his right shoulder
condition was caused or aggravated by lifting a tub of mail on June 13, 2013. Dr. Rudderow
stated that appellant had been injured on June 13, 2013 by lifting a tub of mail, but such
generalized statements do not establish causal relationship because they merely repeat
10

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

11

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

12

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
13

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

14

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

15

OWCP accepted in its decision dated September 9, 2013 that appellant had established the occurrence of the
incident of June 13, 2013. However, the hearing representative noted in her March 25, 2014 decision that “the
medical evidence of record refers to lifting a tub of mail. The claimant did not identify this as a cause of injury.”
The Board notes that appellant had, in fact, identified lifting a tub of mail as the cause of his injury on his
Form CA-1.

5

appellant’s allegations and are unsupported by adequate medical rationale explaining how this
physical activity actually caused the diagnosed conditions.16 Lacking thorough medical rationale
on the issue of causal relationship, Dr. Rudderow’s reports are of limited probative value and are
insufficient to establish that appellant sustained an employment-related injury on June 13, 2013.
Dr. Waskow’s July 19, 2013 report is similarly deficient, as it merely repeats appellant’s
allegations without providing an adequate medical rationale. Furthermore, his July 19, 2013
report indicates that appellant told him both that his pain began after picking up a tub of mail on
June 13, 2013 and that it began in October of the previous year. This unaccounted for
inconsistency in appellant’s account of the beginning of symptoms further diminishes the
probative value of Dr. Waskow’s opinion on causal relationship.17
Appellant also submitted reports from Drs. Hocate and LaChance containing diagnoses,
but lacking opinion regarding the cause of the diagnosed condition, and specifically lacking any
opinion on the issue of whether his conditions were caused or aggravated by the June 13, 2013
employment incident. The Board has held that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.18
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to a June 13, 2013 employment incident, he
has failed to meet his burden of proof to establish a claim.19
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 right
shoulder conditions are causally related to a June 13, 2013 employment incident.

16

See K.W., Docket No. 10-98 (issued September 10, 2010).

17

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (holding that medical opinions based upon an incomplete
history have little probative value).
18

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

19

The Board notes that appellant stated that his condition resulted from repetitive motion over a period of time
since the beginning of his employment. If appellant believes that his right shoulder condition was caused or
aggravated due to employment activities occurring over a period of more than one workday or shift, he has the right
to file a claim for occupational disease. 20 C.F.R. § 10.5(q).

6

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7