United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS PROCESSING & DISTRIBUTION
CENTER, Kearney, NJ, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1527
Issued: March 29, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 20, 2020 appellant, through counsel, filed a timely appeal from a March 24,
2020 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. 3
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.

3
The Board notes that appellant submitted additional evidence to OWCP following the March 24, 2020 decision.
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.

ISSUE
The issue is whether appellant has met his burden of proof to establish expansion of the
acceptance of his claim to include bilateral carpal tunnel syndrome, bilateral knee arthritis, and
internal derangement of the right knee.
FACTUAL HISTORY
On November 9, 2010 appellant, then a 53-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on November 3, 2010 he sustained low back and right knee
injuries when loading a postal container onto a truck while in the performance of duty. He
explained that the truck pulled away without warning, causing the container to roll backward.
Appellant stopped work on November 3, 2010. On November 4, 2010 he received treatment in a
hospital emergency department.
In a November 13, 2010 report, Dr. F. Kennedy Gordon, Board-certified in internal and
sports medicine, provided a history of injury and treatment. He noted that appellant under went
arthroscopic right meniscal repair in January 2010. Dr. Gordon diagnosed right-sided cervical
strain, right superior trapezius strain, paralumbar sprain/strain, lower right abdominal strain, right
groin strain, right medial collateral ligament sprain, and history of right meniscal tear. 4
On November 23, 2010 OWCP accepted the claim for lumbar, thoracic, and cervical spine
sprains, sprain of the right lateral collateral ligament, and a groin sprain. 5 It paid appellant wageloss compensation on the supplemental rolls commencing December 26, 2010 and on the periodic
rolls commencing September 25, 2011.6
On July 1, 2011 OWCP referred appellant for a second opinion evaluation and report from
Dr. Jeffrey F. Lakin, a Board-certified orthopedic surgeon. In a July 22, 2011 report, Dr. Lakin
opined that the accepted right knee injury remained active. He recommended right knee
arthroscopy.
On July 7, 2013 appellant returned to modified duty as a mail handler for two hours a day.
OWCP paid appellant wage-loss compensation for the remaining hours on the supplemental rolls
commencing July 7, 2013.
In an August 1, 2013 report, Dr. Mark A.P. Filippone, a Board-certified physiatrist,
reviewed a history of injury and treatment. He noted a January 2010 right knee arthroscopy prior
to the accepted injury and a 2003 nonoccupational left knee arthroscopy. On examination,
Dr. Filippone noted: bilaterally-positive Tinel’s and Phalen’s signs over the median nerve at the
wrists; diminished pinprick sensation in the right thumb, index, and middle fingers; decreased
4

Dr. Gordon provided periodic reports dated from December 6, 2010 through May 31, 2013 noting continued right
medial collateral ligament pain and a right meniscal tear requiring surgical repair. A December 30, 2010 magnetic
resonance imaging (MRI) scan of the right knee demonstrated prior meniscal surgery, tear or retear of the posterior
horn, joint effusion, chondromalacia of the patella, diffuse thickening of the patellar tendon, spurring of the p atellar
poles, and a posterior popliteal cyst.
5

Appellant underwent right inguinal hernia repair in February 2016.

6

From June 23, 2011 through February 14, 2013, appellant underwent a series of OWCP-authorized cervical and
lumbar injections, and stereotactic radiofrequency neurotomy of the right L3, L4, L5, S1, S2, and S3 nerve roots.

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pinprick sensation over the distal volar aspect of all five left fingers and hypothenar eminence;
limited range of motion throughout the spine; right knee swelling; an equivocally-positive drawer
sign in the right knee; and crepitation over the right medial meniscus. He diagnosed cervical and
thoracic radiculitis, right inguinal hernia. and internal derangement of the right knee. Dr. Filippone
opined that all of these diagnoses “need to be accepted by [OWCP].”7
In a September 12, 2013 report, Dr. David Deramo, a Board-certified orthopedic surgeon,
provided a history of January 2010 right knee surgery and the accepted November 3, 2010
employment injury. He diagnosed right knee pain, acute right medial meniscus tear, internal
derangement of the right knee, and patellar chondromalacia.
In a September 13, 2013 report, Dr. Filippone opined that electromyography/nerve
conduction velocity (EMG/NCV) studies of the bilateral upper extremities demonstrated bilateral
carpal tunnel syndrome. 8
Appellant stopped work on March 7, 2014 and did not return.
On June 17, 2014 Dr. Marc S. Arginteanu, a Board-certified neurosurgeon, performed
OWCP-authorized partial L5 laminectomy, partial S1 laminectomy, and L5-S1 discectomy.
By decision dated June 25, 2014, OWCP accepted a recurrence of disability and a need for
medical treatment commencing March 7, 2014. It expanded the acceptance of the claim to include
lumbosacral spondylosis without myelopathy.
By decision dated July 9, 2014, OWCP accepted another recurrence of disability effective
June 17, 2014. It authorized payment of wage-loss compensation for partial disability from
May 31 through June 16, 2014. OWCP placed appellant on the periodic compensation rolls
retroactive to June 29, 2014.
Dr. Filippone provided periodic reports dated from September 5, 2014 through June 30,
2015 diagnosing cervical, 9 thoracic, and lumbar radiculopathy; bilateral carpal tunnel syndrome
with positive Tinel’s and Phalen’s signs; and internal derangement of the right knee. He opined
that these conditions were causally related to the accepted November 3, 2010 employment injury.10
7

An August 19, 2013 MRI scan of the right knee demonstrated mild tricompartmental osteoarthritis, chronic
thickening of the medial collateral ligament and patellar tendon, persistent tear of the posterior horn of the medial
meniscus, persistent radial tear of the lateral meniscus, chondromalacia, and a popliteal cyst and a focal area of
inflammation in the superolateral aspect of Hoffa’s fat pad. August 21, 2013 MRI scans of the cervical and thoracic
spine demonstrated disc bulges at C5-6, C6-7, and C7-T1, thoracic kyphosis and spondylosis deformans, and multiple
Shmorl’s nodes in the lower thoracic region.
8

In November and December 2013 appellant underwent a series of OWCP-authorized lumbar and lumbosacral
injections.
9

A January 13, 2015 MRI scan of the cervical spine demonstrated a C4-5 broad-based posterior disc bulge, C5-6
broad-based midline disc herniation with mild spinal stenosis, board-based posterior disc bulge at C6-7, and C7-T1
asymmetric disc bulge to the right. A May 20, 2015 MRI scan of the right knee demonstrated postoperative changes
from prior partial medial meniscectomy, increased cartilage loss, and patellar tracking disorder.
10

Appellant underwent a series of OWCP-authorized epidural steroid injections from March 26 through
August 13, 2015.

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In a June 8, 2015 report, Dr. Yaser El-Gazzar, an orthopedic surgeon, noted the onset of
right knee pain after the November 3, 2010 employment injury. On examination, he observed
crepitance of both knees. Dr. El-Gazzar diagnosed patellofemoral syndrome, a right meniscal tear,
acquired genu varum deformity, and synovitis status postemployment injury. He administered a
series of cortisone injections and prescribed a knee brace.
Thereafter, OWCP referred appellant to a second opinion physician. In a July 2, 2015
report, Dr. Timothy Henderson, a Board-certified orthopedic surgeon, reviewed a statement of
accepted facts (SOAF) and the medical record and noted findings on examination. He opined that
the accepted cervical spine injury caused “double crush” bilateral carpal tunnel syndrome due to
compression of cervical nerve roots superimposed on mild compression of the median nerve at the
wrists.
Dr. Filippone submitted reports dated July 31, 2015 through September 26, 2017 finding
appellant totally disabled from work due to cervical, 11 thoracic, and lumbar radiculopathy, bilateral
carpal tunnel syndrome, and internal derangement of the right knee. He op ined that these
conditions were caused by the accepted November 3, 2010 employment injury.
Thereafter, OWCP referred appellant for a second opinion report to Dr. Stanley Askin, a
Board-certified orthopedic surgeon. In an October 6, 2017 report, Dr. Askin reviewed a SOAF
and the medical records. On examination, he observed bilaterally-positive Tinel’s sign at the wrist,
and limited active range of motion throughout the spine. Dr. Askin opined that the accepted
employment conditions had resolved without residuals. He attributed appellant’s spinal and
musculoskeletal complaints to obesity “and not consequential to the fact that he fell on
November 3, 2010.” Dr. Askin concluded that the acceptance of appellant’s claim “should not be
expanded to include any other conditions for the November 3, 2010, incident.”
In reports dated November 20, 2017, Dr. Filippone noted bilateral hand numbness
secondary to the use of a cane. 12 In reports dated December 19, 2017, he noted that both knees
were tender and effused. Dr. Filippone opined that appellant urgently required right knee
arthroscopy.
In a January 26, 2018 letter, appellant, through counsel, requested that OWCP expand the
acceptance of the claim to include bilateral carpal tunnel syndrome, based on Dr. Henderson’s
July 2, 2015 opinion.
In a February 14, 2018 report, Dr. Paul M. Brisson, a Board-certified orthopedic surgeon,
related appellant’s complaints of increased numbness and weakness in both hands. He opined that
appellant had sustained cervical and lumbar spine injuries in the November 3, 2010 employment
incident. In a March 14, 2018 report, Dr. Brisson diagnosed bilateral radiculopathy at C5, C6, C7,
and L5-S1.

11

In an October 20, 2015 report, Dr. Filippone noted that a May 6, 2015 EMG/NCV study of the bilateral upper
extremities demonstrated right C5, C6, and C7 cervical radiculopathy and left C5-6 cervical radiculopathy.
12

A November 29, 2017 MRI scan of the right knee demonstrated status post partial lateral meniscectomy,
“[r]ecurrent tear within the posterior horn of the lateral meniscus, “[n]ew vertical tear within the body and posterior
horn” of the medial meniscus, and a small ganglion cyst.

4

OWCP found a conflict of medical opinion between Dr. Filippone, for appellant, and
Dr. Askin, for the government, regarding whether acceptance of the claim should be expanded to
include additional spinal conditions, bilateral carpal tunnel syndrome, and derangement of the right
knee, and whether appellant had continuing work-related disability or required further medical
treatment. It referred appellant, an updated statement of accepted facts (SOAF), and the medical
record to Dr. Dean Carlson, a Board-certified orthopedic surgeon, to resolve the conflict of opinion
as the impartial medical examiner (IME).
In a February 15, 2018 report, Dr. Carlson diagnosed resolved cervical, thoracic, and
lumbar sprains, status post lumbar discectomy, a resolved L5-S1 disc herniation, resolved right
lateral collateral ligament sprain, nonoccupational bilateral carpal tunnel syndrome, and
nonoccupational osteoarthritis of both knees.
In a June 4, 2018 report, Dr. Imran Ashraf, a Board-certified orthopedic surgeon,
diagnosed a work-related right knee injury and post-traumatic osteoarthritis. He recommended
right knee surgery.
By notice dated July 18, 2018, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits as the accepted employment conditions had ceased. It afforded
him 30 days to submit additional evidence or argument.
Appellant, through counsel, contended in an August 13, 2018 statement that Dr. Carlson
provided insufficient medical rationale. He submitted reports from Dr. Filippone dated from
July 18 through August 16, 2018 reiterating previous diagnoses.
By decision dated August 29, 2018, OWCP denied expansion of the acceptance of
appellant’s claim to include bilateral carpal tunnel syndrome, internal derangement of the right
knee, bilateral knee arthritis, right inguinal hernia, herniated/bulging discs of the cervical and
lumbar spine, and cervical and lumbar degenerative disc disease, based on Dr. Carlson’s opinion
as the special weight of the medical evidence.
By decision dated September 7, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day, based on Dr. Carlson’s opinion as the
special weight of the medical evidence.
Appellant, through counsel timely requested a hearing before a representative of OWCP’s
Branch of Hearings and Review with regard to both the expansion and termination decisions.
During the hearing, held on February 21, 2019, counsel contended that OWCP should have
accepted bilateral carpal tunnel syndrome/double crush syndrome based on Dr. Henderson’s
July 2, 2015 opinion instead of posing the same question to Dr. Askin. He submitted additional
reports from Dr. Filippone dated September 13, 2018 through April 25, 2019, which reiterated that
the November 3, 2010 employment injuries caused bilateral carpal tunnel syndrome and internal
derangement of the right knee.
By decision dated May 8, 2019, OWCP’s hearing representative reversed the September 7,
2018 termination decision, set aside the August 29, 2018 expansion decision, and remanded the
case for additional development.

5

On remand, OWCP referred appellant, an updated SOAF, and the medical record to
Dr. Howard M. Pecker, Board-certified in orthopedic surgery and sports medicine, for an impartial
medical opinion. In an August 6, 2019 report, Dr. Pecker reviewed the medical record and SOAF.
On examination of appellant, he observed triggering of the index and long fingers of the right hand,
and a palpable medial osteophyte of the right knee. Dr. Pecker noted that there was no evidence
of carpal tunnel syndrome. He diagnosed degenerative cervical and lumbar disc disease, and
osteoarthritis of both knees. Dr. Pecker opined that all conditions present on examination were
age-related, without contribution by physical trauma. He returned appellant to full-time medium
duty.
By decision dated September 5, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day based on Dr. Pecker’s August 6, 2019 report
as the special weight of the medical evidence.
By separate decision also dated September 5, 2019, OWCP denied expansion of the
acceptance of appellant’s claim to include bilateral carpal tunnel syndrome, internal derangement
of the right knee, bilateral knee arthritis, herniated/bulging cervical and lumbar discs, cervical and
lumbar degenerative disc disease, and inguinal hernia based on Dr. Pecker’s opinion as the special
weight of the medical evidence.
On September 12, 2019 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review with regard to both September 5, 2019
decisions. The hearing was held on January 17, 2020.
OWCP subsequently received a July 24, 2019 report, wherein Dr. Serge Menkin, Boardcertified in physiatry and pain medicine, provided a history of injury and treatment. On
examination, he noted positive cervical, thoracic, and lumbar facet loading maneuvers, positive
Apley’s maneuver and McMurray’s sign in the right knee, and a positive right patellofemoral grind
test. He diagnosed lumbar radiculopathy, lumbar facet pain, cervicalgia, thoracic pain, and right
knee pain. Dr. Menkin reiterated these diagnoses in reports through December 18, 2019.
By decision dated March 24, 2020, OWCP’s hearing representative reversed the
September 5, 2019 termination decision. He remanded the case to obtain a supplemental report
from Dr. Pecker on whether the accepted November 3, 2010 employment injury had caused or
contributed to herniated/bulging cervical and lumbar discs, cervical and lumbar degenerative disc
disease, and right inguinal hernia. The hearing representative affirmed the September 5, 2019
denial of expansion of the acceptance of appellant’s claim to include bilateral carpal tunnel
syndrome, internal derangement of the right knee, and bilateral knee arthritis, based on
Dr. Pecker’s report as the special weight of the medical evidence.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.13
13

D.B., Docket No. 20-1280 (issued March 2, 2021); R.R., Docket No. 19-0086 (issued February 10, 2021); K.T.,
Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

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Causal relationship is a medical question that requires medical opinion evidence to resolve
the issue.14 The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the accepted
employment injury.15
To establish causal relationship between the condition as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evid ence.16
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. 17 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.18
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The rules that come
into play are essentially based upon the concepts of direct and natural results and of the claimant’s
own conduct as an independent intervening cause. The basic rule is that a subsequent injury,
whether an aggravation of the original injury or a new and distinct injury, is compensable if it is
the direct and natural result of a compensable primary injury.19
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.20
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, OWCP
shall appoint a third physician (known as a referee physician or IME) who shall make an
examination. 21 This is called a referee examination and OWCP will select a physician who is
14

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

15

Id.

16

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
17

D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
18

See P.M., Docket No. 18-0287 (issued October 11, 2018).

19

D.B., supra note 14; see V.K., Docket No. 19-0422 (issued June 10, 2020).

20

B.P., Docket No. 19-1376 (issued January 4, 2021); M.O., Docket No. 18-0229 (issued September 23, 2019);
J.F., Docket No. 19-0456 (issued July 12, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013).
21

5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August 26, 2020); M.S., 58 ECAB 328 (2007).

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qualified in the appropriate specialty and who has no prior connection with the case.22 When there
exist opposing medical reports of virtually equal weight and rationale and the case is referred to
an IME 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. 23
ANALYSIS
The Board finds that this case is not in posture for a decision.
Dr. Pecker, the IME, opined in his August 6, 2019 report that appellant’s bilateral knee
conditions were age-related with no contribution from physical trauma. However, he did not
identify the conditions that necessitated the prior bilateral knee surgeries, or explain whether the
accepted right medial collateral ligament sprain would have had any effect on those degenerative
processes or caused an acute meniscal tear. Additionally, in contrast to appellant’s treating
physicians, Dr. Pecker opined that there were no objective findings of carpal tunnel syndrome. He
did not address the reports of Dr. Filippone or Dr. Henderson, which documented the presence of
bilateral carpal tunnel syndrome and supported causal relationship. As Dr. Pecker did not provide
medical rationale, his opinion requires clarification.24
In a situation where OWCP secures an opinion from an IME for the purpose of resolving
a conflict in the medical evidence and the opinion from such examiner requires clarification and/or
elaboration, OWCP has the responsibility to secure a supplemental report from the exa miner for
the purpose of correcting the defect in the original opinion. 25
For the above-described reasons, the opinion of Dr. Pecker requires clarification.
Therefore, in order to address the unresolved conflict in the medical opinion evidence, the Board
will remand the case to OWCP for a supplemental opinion regarding whether OWCP should
expand its acceptance of the claim to include bilateral carpal tunnel syndrome , internal
derangement of the right knee, and bilateral knee osteoarthritis. If Dr. Pecker is unable to clarify
his opinion or if his requested supplemental report is also lacking rationale, OWCP shall refer
appellant to a new IME for the purpose of obtaining a rationalized medical opinion on the issue. 26
After this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

22

20 C.F.R. § 10.321; P.B., Docket No. 20-0984 (issued November 25, 2020); R.C., 58 ECAB 238 (2006).

23

R.R., supra note 14; see Y.I., Docket No. 20-0263 (issued November 30, 2020); Darlene R. Kennedy, 57 ECAB
414 (2006).
24

B.P., supra note 21.

25

T.C., Docket No. 20-1170 (issued January 29, 2021); S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232 (1988).
26

M.D., Docket No. 19-0510 (issued August 6, 2019); Harold Travis, 30 ECAB 1071 (1979).

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ORDER
IT IS HEREBY ORDERED THAT the March 24, 2020 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: March 29, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ferndale, WA, Employer
__________________________________________

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

Docket No. 11-974
Issued: February 8, 2012

Case Submitted on the Record

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

JURISDICTION
On March 9, 2011 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated November 3, 2010. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective
November 3, 2010, based on her capacity to perform the duties of a customer service
representative.
FACTUAL HISTORY
Appellant, a 54-year-old rural mail carrier, injured her left knee while entering her truck on
December 29, 2004. She filed a claim for benefits, which OWCP accepted for permanent
1

5 U.S.C. § 8101 et seq.

aggravation of osteoarthritis of the left knee, lumbar strain and temporary aggravation of major
depression. OWCP commenced payment for temporary total disability compensation.
On April 18, 2006 appellant underwent a total left knee arthroplasty. The procedure was
performed by Dr. Ronald Y. Woo, Board-certified in orthopedic surgery.
In order to determine appellant’s current condition, OWCP referred her to Dr. Paul H.
Reiss, Board-certified in orthopedic surgery, for a second opinion examination. In a February 27,
2007 report, Dr. Reiss stated that she had no objective findings stemming from her accepted
conditions. He advised that appellant had sustained a strain/sprain of left knee, which caused an
aggravation of her degenerative, preexisting condition; Dr. Reiss opined that this condition had
resolved. In response to OWCP’s question, “Did the December 29, 2004 work injury aggravate
or accelerate a preexisting condition?” Dr. Reiss responded, “In my opinion, no.” He also stated
that “the magnetic resonance imaging [MRI] scan findings predated the injury and were not
aggravated either temporarily or permanently by the injury.”
On March 16, 2007 OWCP referred appellant for vocational rehabilitation.
In a report dated August 24, 2007, Dr. Lora C. Sherman, Board-certified in family
practice, stated that appellant was currently experiencing several medical problems which
interfered with her ability to obtain gainful employment. She advised that appellant had
significant lower extremity lymphedema and was undergoing tests to determine whether this was
cardiac related. Dr. Sherman stated that appellant needed to keep her legs elevated and was
unable to walk and sit with her legs down for long periods of time; this hindered her ability to
perform the physical tasks necessary to engage in a full-time job search. She advised that
appellant could continue to engage in job search efforts on the computer or activities at home
with her legs elevated.
Dr. Sherman further indicated that appellant had severe chronic depression, which had
significantly worsened over the last several months, in addition to left-sided buttock and
sacroiliac pain. She advised that appellant was also being evaluated for obesity surgery.
Dr. Sherman asserted that, following this surgery, as appellant continues to lose weight, her
ability to function after her total knee replacement would improve, as would her low back and
left buttocks pain. Appellant would eventually be able to return to a physical job search,
depending on the date of her obesity surgery and her subsequent recovery period.
In a September 4, 2007 report, Dr. Sherman stated that appellant’s emotional and
physical conditions had severely impaired her ability to hold any job. She advised that appellant
walked with a cane, with difficulty and was unable to climb two flights of stairs. Dr. Sherman
noted that appellant had severe osteoarthritis in both of her knees. She stated that appellant’s left
knee had been replaced but that her right knee was also severely affected. Appellant also had
severe degenerative joint disease of her lumbar spine and sacroiliac joints in addition to
significant lower extremity edema which limited her ambulation. Dr. Sherman opined that
appellant was not able to engage in gainful employment at that time.
In a report dated October 4, 2007, Dr. Susan Hakeman, a Board-certified psychiatrist,
stated that appellant had been experiencing severe depression since her December 2004
2

employment injury. Appellant related that she had limited energy and low interest in activities;
she experienced sleeplessness, anxiety and feelings of anger and frustration. Dr. Hakeman
diagnosed major depression, recurrent and dysthymia and anxiety.
In an April 12, 2008 report, Dr. Gwenyth K. McConnell, Board-certified in psychiatry
and a second opinion referral physician opined that appellant had a major depression condition
which was aggravated by employment factors. She advised that appellant was not totally
disabled and could perform the duties of a foreign clerk for four hours per day; in approximately
six months, she should be able to work for eight hours per day.
OWCP found that there was a conflict in the medical evidence regarding whether
appellant was totally disabled due to her major depression condition. In order to resolve this
conflict, it referred her to Dr. Robert I. Fink, Board-certified in psychiatry. In reports dated
July 17 and October 13, 2008, Dr. Fink agreed with Dr. McConnell that appellant could work for
four hours a day for six months and then for eight hours per day.
In a report dated May 3, 2010, Dr. Shelby R. Hein, a Board-certified family practitioner,
stated that appellant was experiencing multiple medical issues which impeded her ability to
work. He noted that she underwent total left knee replacement surgery but also experienced right
knee pain, due primarily to overcompensating while awaiting surgery. Appellant also had
significant osteoarthritis and pain with weight bearing, with recurrent lower extremity edema
pain and pain in her low back, hips and ankles. Dr. Hein advised that she was unable to
ambulate without using a cane. Appellant stated that she needed to keep her legs elevated when
she was not walking, which interfered with her ability to sit for long periods of time. In addition,
she had morbid obesity which was worsening due to severe pain and inability to exercise.
Although appellant underwent lap-band surgery to assist with her obesity, her pain was
preventing her from exercising to keep her weight stable. Dr. Hein noted that she also was
experiencing severe, chronic depression. Appellant opined that she was unable to perform work
duties or engage in a job search. In her work capacity evaluation, which accompanied Dr. Hein’s
report, he indicated that she was not able to walk or sit without pain for extended periods due to
lower extremity pain; he opined that she was not able to work an eight-hour day due to
significant pain in her back and in both knees, in addition to her severe depression condition.
In a vocational rehabilitation report dated May 14, 2010, a vocational rehabilitation
counselor recommended two positions for appellant listed in the Department of Labor’s
Dictionary of Occupational Titles (DOT), foreign sales, DOT No. 214.467-010 and customer
service representative DOT No. 239.362-014 which were within her indicated restrictions and
reasonably reflected her ability to earn wages.
OWCP found that there was a conflict in the medical evidence between Dr. Hein, her
treating physician, and Dr. Reiss, the second opinion physician, regarding appellant’s ability to
engage in gainful employment. It referred her to Dr. James A. Champoux, Board-certified in
orthopedic surgery, for a referee medical examination to resolve the conflict in the medical
evidence. In a July 28, 2010 report, Dr. Champoux noted appellant’s medical history including a
right knee arthroscopic surgery with lateral release in 2002. He stated that the presence of a total
left knee arthroplasty would have a permanent impact on her employment capabilities,
specifically with reference to prolonged standing or walking. Dr. Champoux advised that the
3

presence of the multilevel lumbar degenerative disc disease of the spine would also negatively
impact appellant’s ability to stand or walk for prolonged periods of time. He stated that both
conditions would affect her ability to lift or carry heavier loads. Dr. Champoux opined that
appellant was not totally disabled and could perform sedentary work, with restrictions on lifting
more than 25 to 30 pounds.
In an August 30, 2010 form report, Dr. Champoux checked a box indicating that
appellant was capable of performing the foreign clerk and customer service representative
positions. In a supplemental report dated August 30, 2010, he explained that he had now been
provided the position descriptions for foreign clerk and customer service representative.
Dr. Champoux concluded that appellant could perform those positions, taking in account her
work injury of December 29, 2004.
By notice of proposed reduction dated September 24, 2010, OWCP advised appellant of
its proposal to reduce her compensation because the factual and medical evidence established
that she was no longer totally disabled and that she had the capacity to earn wages as a customer
service representative at the weekly rate of $472.00 in accordance with the factors outlined in
5 U.S.C. § 8115.2 It calculated that her compensation rate should be adjusted to $1,508.00 using
the Shadrick3 formula. OWCP found that appellant’s current adjusted compensation rate, every
four-week period, was $418.30. It stated that the case had been referred to a vocational
rehabilitation counselor, who had located positions as a customer service representative which he
found to be suitable for appellant given her work restrictions and was available in her commuting
area. OWCP allowed appellant 30 days in which to submit any contrary evidence.
In a report received by OWCP on October 22, 2010, Dr. Hein reiterated his previously
stated opinion that appellant was unable to engage in gainful employment. He also reiterated
that the left knee replacement surgery caused overcompensation on her right knee and weight
gain due to her inability to exercise. Dr. Hein asserted that appellant’s lack of mobility due to
her left knee injury was most likely related to the continuum of medical issues and depression.
Appellant stated that she underwent an MRI scan on September 13, 2010 which showed
multi-level degenerative disease of the lumbar spine, with significant progression at the L4-5,
L5-S1 levels which demonstrated moderate-to-severe canal stenosis. In addition, results of x-ray
testing on her right knee she underwent on September 30, 2010 showed severe degenerative joint
disease of the patellofemoral and medial compartments of the right knee. Dr. Hein stated that
appellant was scheduled for total right knee replacement on November 9, 2010.
By decision dated November 3, 2010, OWCP advised appellant that it was reducing her
compensation because the weight of the medical evidence showed that she was no longer totally
disabled for work due to effects of her December 29, 2004 employment injury and that the
evidence of record showed that the position of customer service representative represented her
wage-earning capacity.

2

Id. at § 8115.

3

Albert C. Shadrick, 5 ECAB 376 (1953); see Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment and Determining Wage-Earning Capacity, Chapter 2, 814.2 (April 1995).

4

LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction of benefits.4
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open
labor market under normal employment conditions given the nature of the employee’s injuries
and the degree of physical impairment, his or her usual employment. If actual earnings do not
fairly and reasonably represent wage-earning capacity or if the employee has no actual earnings,
her wage-earning capacity is determined with due regard to the nature of the injury, the degree of
physical impairment, his or her usual employment, age, qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect wageearning capacity in her disabled condition.5 Also, the evidence must establish that jobs in the
position selected for determining wage-earning capacity are reasonably available in the general
labor market in the commuting area in which the employee lives.6
ANALYSIS
The Board finds that OWCP did not meet its burden to reduce appellant’s disability
compensation. In this case, OWCP determined that a conflict existed in the medical evidence
between Dr. Hein, appellant’s treating physician, and Dr. Reiss, OWCP’s second opinion
physician, as to whether appellant was still totally disabled due to her December 29, 2004 work
injury. It thereafter based its decision to reduce her compensation on the July 28 and August 30,
2010 reports of Dr. Champoux, the independent medical examiner. The Board, however, finds
that OWCP erred in finding that there was a conflict in the medical evidence at the time it
referred appellant to Dr. Champoux. OWCP erred by finding that Dr. Reiss represented one side
of the medical evidence. Dr. Reiss advised in his February 27, 2007 report that appellant’s
December 29, 2004 work injury did not aggravate or accelerate a preexisting condition. He also
stated that MRI scan findings predated the injury and were not aggravated either temporarily or
permanently by the injury. OWCP, however, had accepted a permanent aggravation of
underlying arthritis of the left knee as employment related. As Dr. Reiss did not give due regard
to the statement of accepted facts, his opinion was not based on a proper factual background. He
disregarded a critical element of the statement of accepted facts and his report is of diminished
probative value. The Board notes that OWCP’s June 8, 2010 statement of accepted facts listed
that the claim had been accepted for a permanent aggravation of preexisting osteoarthritis of the
left knee, causally related to the December 29, 2004 work injury. Thus, OWCP erred by asking
Dr. Reiss whether the December 29, 2004 work injury aggravated or accelerated a preexisting
condition. Consequently, the Board finds that there is an unresolved conflict in the medical
evidence regarding whether appellant continues to have disability or residuals attributable to her
accepted condition, aggravation of underlying arthritis of the left knee.
4

Harold S. McGough, 36 ECAB 332 (1984); Samuel J. Russo, 28 ECAB 43 (1976).

5

See N.J., 59 ECAB 171 (2007).

6

Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

5

Further, Dr. Hein presented probative medical opinion that appellant had additional
medical conditions which rendered her unable to engage in gainful employment. He stated that
September 30, 2010 x-rays of her right knee demonstrated severe degenerative joint disease of
the patellofemoral and medial compartments; he opined that her 2006 left knee replacement
surgery caused overcompensation on her right knee and weight gain due to her inability to
exercise. Dr. Hein stated that, as a result, appellant was scheduled for total right knee
replacement on November 9, 2010 with Dr. Woo, the surgeon who performed the 2006 left knee
replacement procedure. Dr. Woo concluded that her lack of mobility due to her left knee injury
was most likely related to the continuum of medical issues and depression. Dr. Hein opined that
the emergence of appellant’s right knee osteoarthritic condition had caused a recurrence of her
major depression condition. In addition, a September 13, 2010 MRI scan showed multi-level
degenerative disease of the lumbar spine, with significant progression at the L4-5, L5-S1 levels,
which demonstrated moderate-to-severe canal stenosis.
The additional medical evidence therefore at least suggests that appellant had greater
physical and mental restrictions, causally related to the accepted injury, than those upon which
the customer service position was based and which were not evaluated by Dr. Champoux.7
While Dr. Champoux based his opinion that she could perform the selected positions, given her
accepted conditions from the December 29, 2004 injury, he did not consider her preexisting
conditions in assessing her ability to perform this work.8
OWCP did not meet its burden of proof in this case to reduce appellant’s compensation
benefits. The Board will reverse the November 3, 2010 decision.
CONCLUSION
The Board finds that OWCP has failed to meet its burden of proof in reducing appellant’s
compensation.

7

See 20 C.F.R. § 10.124(c).

8

In determining an employees’ wage-earning capacity based on a position deemed suitable, but not actually held,
OWCP must consider the degree of physical impairment, including impairments resulting from both injury related
and preexisting conditions. See N.J., supra note 5.

6

ORDER
IT IS HEREBY ORDERED THAT the November 3, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 8, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.N., Appellant
and
DEPARTMENT OF THE ARMY, 7TH SIGNAL
BRIGADE, Camp Doha, Kuwait, Employer
__________________________________________

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

Docket No. 07-2441
Issued: March 14, 2008

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 September 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 26, 2006 merit decision denying his emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On November 7, 2005 appellant, then a 45-year-old information technology specialist,
filed a claim alleging that he sustained a major depression, high blood pressure, sexual
dysfunction and sleep abnormalities in the performance of duty. Regarding the cause of his
claimed emotional condition, he stated, “I had almost daily traumatic experiences during my six

months deployment to Kuwait in support of Operation Iraqi Freedom II. I had no medical issues
or symptoms of this problem prior to this event.”
In statements received by the Office on February 8, 2006, appellant asserted that he
sustained an employment-related emotional condition while he was stationed in Kuwait between
January 9 and July 1, 2004 in support of Operation Iraqi Freedom II.1 He claimed that he was
personally responsible for the “entirety of 7th Signal Brigade network operations throughout
Kuwait, Iraq, and Afghanistan during my 12-hour duty shift.” Appellant asserted that he was not
trained on the tactical aspects of the network and was not allowed to provide guidance and
supervision to junior network managers regarding tasks which were within his knowledge area.
He claimed that he made numerous requests for the tactical standard operating procedure of the
organization but this information was not provided until April 2004. Appellant asserted that the
enlisted officers became aware that he had no real authority or influence and he became “the foil
for whatever jokes or harassment any of them felt like delivering my way.” He claimed that the
junior officers appeared to see him as “in the way” and did not welcome him into the
organization.
Appellant asserted that, during a meeting with the deputy brigade commander regarding
his problems with supervisors and coworkers, it was suggested that he should physically assault
a company-grade commissioned officer who had been abusive in his dealings with him. He
initially thought the individual was joking but he later witnessed another soldier attempt to
assault the officer he had complained about. Appellant claimed that he was assigned to quarters
with an individual of a different sexual orientation and stated that this “caused me great
discomfort as I was concerned about the possibility of a problem with my roommate, due to our
differences in this regard.” He asserted that this situation caused him to be subjected to ridicule
by his coworkers and that when he made a request to be moved, management questioned why he
was such a “homophobe.” Appellant claimed that management responded in a condescending or
patronizing manner to his concerns about his working and living environments.
Appellant claimed that a noncommissioned officer in charge of the rear detachment
operation center directed him to access and field test a web-based calendaring system, but that a
supervisor, Major Frank Gonzales, later told him that he should not have addressed this matter.
He became afraid to take any actions regarding mission functions within the network operations
center until the main body of the organization returned at the end of the week. Appellant
claimed that he became concerned when Major Gonzales indicated that he would not be invited
to a meeting for all Network Operations and Security Center (NOSC) personnel because there
was not enough money to pay overtime for his presence at the meeting. He told Major Gonzales
that overtime pay was not an issue for him but that Major Gonzales departed the area after he
made this comment. Appellant indicated that he concluded that he was not invited to the
meeting because he was not wanted there.
Appellant indicated that he was upset because Major Gonzales did not seem to know that
he was off work for legitimate medical reasons and claimed that he was wrongly designated
“absent without leave.” He claimed that Major Gonzales stated that he “didn’t understand how
1

Appellant stated that his duty position during this period was brigade night watch officer.

2

anything that happened in Kuwait could have possibly resulted in the problems I reported.”
Appellant stated that he became angry and confused after Major Gonzales indicated that he
would support his departure from the organization. He asserted that on January 14, 2005
Major Gonzales became angry when he learned that appellant had spoken to coworkers about
their “negative working relationship.” Appellant claimed that, during a January 14, 2005
meeting, Major Gonzales pointed to a stack of resumes and stated that his resume was not in the
stack and that he was not qualified for the job he held. He alleged that Major Gonzales became
angry when he learned that he had spoken to Michelle Curtis, chief of the information
management office, about his detail to Kuwait. Appellant claimed that Major Gonzales stated,
“What are you doing here, and how long is it going to take you to leave?”
Appellant stated that he felt his “true duty was to stay awake for 12 hours, be the butt of
crude humor and disrespectful treatment by the workers under my ‘supervision’ and to take
personal responsibility in the event a catastrophic event occurred anywhere within the 7th Signal
Brigade’s area of responsibility during my tour of duty.” He claimed that the “fear of enemy
attack, or an act-of-God failure at a network node under my official responsibility plagued me
constantly.” Appellant claimed that his immediate supervisor was patronizing during discussions
about his concerns and responded that his grade was equivalent to that of an Army major and
that he should “take charge” of the situation. He alleged that his immediate supervisor reminded
him every morning that it was not his decision to hire him and that he did not feel he was
qualified for the job.
Appellant submitted a November 10, 2005 report of Dr. Francis J. Manley, an attending
clinical psychologist. On February 10, 2006 the Office requested that appellant submit
additional factual and medical evidence in support of his claim. Appellant submitted reports of
Dr. Kathleen North-Wilhelm, an attending Board-certified family practitioner, and Margaret A.
Miller, an attending Board-certified psychiatrist.
In a June 30, 3006 decision, the Office denied appellant’s emotional condition claim on
the grounds that he did not establish any compensable employment factors. The Office found
that appellant did not establish that he was subjected to harassment or discrimination or that the
employing establishment committed error or abuse in carrying out its administrative functions.2
Appellant submitted additional statements which provided further details regarding the
conditions which he felt caused his claimed emotional condition. He stated that on or about
January 18, 2004 he was instructed to update the network diagram but did not do so because he
was given inadequate instructions. Appellant claimed that Captain Bettic, a supervisor, advised
Lieutenant Colonel Coles, the deputy brigade commander, and Major Gonzales, that he had not
made the updates but did not tell them that he was not given proper instructions. He was

2

The Office addressed a number of appellant’s assertions, including his claims that he was the foil for jokes and
harassment, that he felt that he was made to feel that he was “in the way,” that he feared an enemy attack or act of
God, that his immediate supervisor was patronizing, that it was suggested that he should physically assault an
officer, that he was verbally threatened by a coworker, and that he was assigned to quarters with an individual of a
different sexual orientation.

3

verbally counseled by Major Gonzales for not making the updates.3 Appellant claimed that on
one occasion several technicians ignored his requests to verify the ranges of internet protocol
addresses after the addresses had been changed. He asserted that the technicians found errors in
the addresses after he insisted that they check them. Appellant indicated that he advised
Major Gonzales that the errors in the addresses could have caused “catastrophic damage on the
battlefield … or in a civilian populated area” but that his concerns were brushed aside. He
claimed that after he told his roommate that he was in a relationship with a woman that he
responded, “Yes, but what about your boyfriend?” Appellant claimed that his roommate used
vulgar language when asking him for help in downloading pornographic material on his personal
computer. He claimed that during a therapy session Dr. Miller stated, “They are mad at you for
using all of your leave.”
Appellant also submitted several reports of Dr. Manley and a request for action by the
inspector general of the employing establishment.
In a September 26, 2006 decision, the Office affirmed its June 30, 3006 decision. It
found that appellant did not establish any compensable employment factors. The Office
addressed a number of appellant’s assertions, noting that the claimed incident regarding the
verification of the internet protocol addresses.4 It found that appellant’s claims were either
unsubstantiated or did not rise to the level of harassment.5
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.6 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.7
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
3

Appellant asserted that Captain Bettic was the officer he was advised to assault and claimed that a Major
Chandler attempted to assault Captain Bettic at a birthday party for Major Gonzales.
4

The Office made note of some of appellant’s additional statements regarding his roommate and the suggestion
that he should assault an officer.
5

Appellant submitted additional evidence after the Office’s September 26, 2006 decision, but the Board cannot
consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).
6

5 U.S.C. §§ 8101-8193.

7

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 28
ECAB 125 (1976).

4

adversely affected by employment factors.8 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.9 However, it is well
established that proceedings under the Act are not adversarial in nature, and while the claimant
has the burden to establish entitlement to compensation, the Office shares responsibility in the
development of the evidence.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.12
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied appellant’s emotional condition claim
on the grounds that he did not establish any compensable employment factors.
The Board finds that the Office, in its June 30 and September 26, 2006 decisions, did not
make adequate findings of fact regarding appellant’s claimed employment factors and did not
provide sufficient reasoning for concluding that he did not establish any compensable
employment factors. Appellant provided detailed statements regarding the incidents and
conditions which he believed caused him to develop an employment-related emotional condition,
but the Office either provided very brief mentions of these claimed employment factors or failed

8

Pamela R. Rice, 38 ECAB 838, 841 (1987).

9

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

10

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

11

See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Section 8124(a) provides: “The [Office] shall determine
and make a finding of facts and make an award for or against payment of compensation.” 20 C.F.R. § 10.126
provides in pertinent part that the final decision of the Office “shall contain findings of fact and a statement of
reasons.” Office procedure further specifies that a final decision of the Office must include findings of fact and
provide clear reasoning which allows the claimant to “understand the precise defect of the claim and the kind of
evidence which would tend to overcome it.” See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Disallowances, Chapter 2.1400.4 (July 1997).
12

Id. However, if a claimant does not establish any compensable employment factors, it is not necessary to not
consider the medical evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

5

to discuss them altogether.13 For example, the Office did not make any findings of fact regarding
appellant’s claims that he was not trained on the tactical aspects of the computer network, that he
was not allowed to provide guidance and supervision to junior network managers regarding tasks
which were within his knowledge area, that a supervisor, Major Gonzales, unfairly criticized him
for field testing a web-based calendaring system,14 that he was not invited to a meeting for all
NOSC personnel, and that Major Gonzales unfairly questioned the legitimacy of his absences for
medical reasons and had wrongly designated him absent without leave.15 The Office also did not
discuss appellant’s claims that Major Gonzales became angry when he learned that appellant had
spoken to coworkers about their negative working relationship, that on January 14, 2005 and
numerous other occasions Major Gonzales told him that he was not qualified for the job he held
and encouraged him to leave,16 and that Major Gonzales became angry when he learned that he
had spoken to Ms. Curtis, chief of the information management office, about his detail to
Kuwait.
The Office briefly discussed a number of claimed employment factors and collectively
concluded, without further discussion, that they either did not constitute harassment or
discrimination17 or that the employing establishment did not commit error or abuse with respect
to the administrative matter.18 Moreover, it does not appear that the Office attempted to obtain
any response to appellant’s allegations from the employing establishment.19 As noted,
13

In its June 30, 3006 decision, the Office only indicated that appellant claimed that he was the foil for jokes and
harassment, that he felt that he was made to feel that he was “in the way,” that he feared an enemy attack or act of
God, that his immediate supervisor was patronizing, that it was suggested that he should physically assault an
officer, that he was verbally threatened by a coworker, and that he was assigned to quarters with an individual of a
different sexual orientation. In its September 26, 2006 decision, the Office discussed appellant’s claimed incident
regarding the verification of the internet protocol addresses and made note of some of his additional statements
regarding his roommate and the suggestion that he should assault an officer.
14

Appellant claimed that Major Gonzales also unfairly criticized him for not making certain computer upgrades
despite the fact that he was not given proper instructions for the task.
15

Appellant claimed that Major Gonzales stated that he “didn’t understand how anything that happened in Kuwait
could have possibly resulted in the problems I reported.”
16

Appellant claimed that Major Gonzales then stated, “What are you doing here, and how long is it going to take
you to leave?”
17

To the extent that disputes and incidents alleged as constituting harassment and discrimination by supervisors
and coworkers are established as occurring and arising from appellant’s performance of his regular duties, these
could constitute employment factors. David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker,
42 ECAB 603, 608 (1991). However, for harassment or discrimination to give rise to a compensable disability
under the Act, there must be evidence that harassment or discrimination did in fact occur. Jack Hopkins, Jr., 42
ECAB 818, 827 (1991).
18

The Board has generally found that administrative or personnel matters are unrelated to the employee’s regular
or specially assigned work duties and do not fall within the coverage of the Act. See Janet I. Jones, 47 ECAB 345,
347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993). However, the Board has also found that an administrative
or personnel matter will be considered to be an employment factor where the evidence discloses error or abuse on
the part of the employing establishment. See Richard J. Dube, 42 ECAB 916, 920 (1991).
19

It would be particularly helpful to obtain a statement from Major Gonzales as many of appellant’s claims
pertain to this individual.

6

proceedings under the Act are not adversarial in nature, and while the claimant has the burden to
establish entitlement to compensation, the Office shares responsibility in the development of the
evidence.20
Because the Office did not make adequate factual findings and provide sufficient
reasoning, appellant has not been given the opportunity to understand the precise defects of his
claim and the kind of evidence which would tend to overcome it.21 The case will be remanded
for the Office, as part of its adjudicatory function, to make detailed findings regarding
appellant’s allegations, in conformance with its regulations and Board precedent. After such
development as it deems necessary,22 the Office should issue an appropriate decision regarding
appellant’s emotional condition claim.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met his burden of proof to establish that he sustained an emotional condition in the performance
of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 26, 2006 decision is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: March 14, 2008
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
20

See supra note 10 and accompanying text.

21

See supra note 11.

22

This development should include an attempt to obtain a response to appellant’s claims from the employment
establishment.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
White Plains, NY, Employer
__________________________________________
Appearances:
Robert A. Taylor, Esq., for the appellant
No appearance, for the Director

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Docket No. 09-1036
Issued: December 8, 2009

Oral Argument September 17, 2009

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

JURISDICTION
On March 12, 2009 appellant filed a timely appeal from a December 1, 2008 decision of
the Office of Workers’ Compensation Programs affirming an April 21, 2008 decision which
denied his claim for disability compensation. Pursuant to 20 C.F.R. § 501.2(c) and 501.3, the
Board has jurisdiction over this claim.
ISSUE
The issue is whether appellant has established employment-related disability on
October 20, November 13 and 21 through 25, 2006, due to his March 30, 2001 employment
injuries.
FACTUAL HISTORY
On March 30, 2001 appellant, then a 33-year-old mail handler, injured his low back in the
performance of duty. He stopped work on March 31, 2001.1 The Office accepted the claim for
1

The record reflects that appellant received continuation of pay through May 14, 2001. On May 15, 2001 he
began receiving compensation for lost wages due to continued temporary total disability.

lumbosacral sprain. Appellant returned to a limited-duty position for eight hours a day on
November 20, 2001. The Office accepted his claim for a recurrence of disability on
October 3, 2003. The record reflects that appellant was totally disabled from December 16, 2004
to February 4, 2005. The Office also accepted claims for a recurrence of disability on
December 18, 2004, December 27, 2005 and July 10, 2006.2 Appellant received appropriate
compensation benefits.
In a June 5, 2006 attending physician’s report, Dr. Stephen Andrus, Board-certified in
pain medicine, diagnosed left sacroiliitis and chronic low back pain and radiculitis. He advised
that appellant could perform light duty, four hours per day with no lifting over 40 pounds and
continued to treat appellant. In a September 8, 2006 duty status report, Dr. Andrus diagnosed
lumbar radiculopathy and advised that appellant could continue to work four hours per day with
a 40-pound lifting restriction.
On December 21, 2006 appellant filed a Form CA-2a, notice of recurrence, for 20 hours
of total disability on October 20, November 13 and 21 through 25, 2006. He alleged that his
condition was chronic in nature, and that he experienced episodes of chronic and severe pain. In
a letter dated January 22, 2007, appellant noted that November 21, 2006 was a nonscheduled
workday. He alleged that on November 22, 2006 he made an effort to report to work but had to
leave after 15 minutes.
On January 13, 2007 appellant was removed from his employment for violation of a last
chance agreement that he signed on September 21, 2006. He returned to duty at another
employing establishment in September 2007 in a full-time regular mail handler position effective
October 13, 2007.
On September 14, 2007 appellant also completed a Form CA-7 requesting 20 hours of
wage-loss compensation for total disability on October 20, November 18, 22, 23 and 25, 2006.
The employing establishment noted that appellant was previously paid four hours per day for the
aforementioned dates due to a loss of wage-earning capacity determination made on
March 31, 2001. Appellant was now seeking payment for the additional four hours of pay for
time missed on those dates. In a letter dated October 1, 2007, appellant’s representative noted
that appellant was seeking compensation for four hours a day for the dates in question.
Appellant submitted a December 4, 2006 disability certificate from Dr. Andrus who
diagnosed lumbar radiculopathy and placed appellant off work on October 20, November 13 and
21 to 25, 2006. Dr. Andrus indicated that appellant could resume limited duties from
December 4, 2006 to January 30, 2007. In a separate attending physician’s report of
December 4, 2006, he checked the box “yes” that he believed appellant’s condition was caused
or aggravated by an employment activity. Dr. Andrus prescribed no lifting over 40 pounds and
no bending for no more than four hours a day. He noted that appellant was partially disabled
from February 24 to December 4, 2006. Dr. Andrus advised that appellant had chronic
intermittent low back pain which varied in intensity and “may cause episodic periods of
incapacity and is chronic in nature.”
2

Appellant also received compensation for wage loss for the period July 10 to August 13, 2006.

2

In reports dated May 1 and 25, 2007, Dr. Andrus noted that appellant was out of work
and disabled on October 20, November 13 and 21 through 25, 2006. In a June 4, 2007 report, he
noted that appellant was able to resume light-duty work on March 7, 2006. In an August 2, 2007
report, Dr. Andrus opined that appellant was partially disabled from February 24 to
December 4, 2006.
In a letter dated January 2, 2008, the Office advised appellant that additional factual and
medical evidence was needed and that a physician’s reasoned opinion was crucial to his claim.
On February 1, 2008 the employing establishment controverted the claim and alleged that
appellant’s inability to work was due to a disciplinary action.
In reports dated February 12 and 15, 2008, Dr. Andrus noted that appellant was seen for
follow up due to pain in his lower back, left buttocks and mid thigh. He diagnosed left sacroiliac
and chronic strain spasm and lumbar radiculopathy. Dr. Andrus placed appellant off work from
January 2, 2007 to February 12, 2008. He continued to treat appellant and submit reports.
By decision dated April 21, 2008, the Office denied appellant’s claim for compensation.
It found that the evidence failed to show that there was a change in the claimant’s light-duty
assignment or a change in his accepted work- related conditions.
On May 14, 2008 appellant’s representative requested a hearing, which was held on
September 23, 2008.3
On July 8, 2008 Dr. Andrus noted that appellant was seen for a lumbar strain and opined
that he could return to work with restrictions for the period July 8 to August 14, 2008. He
opined that appellant was partially disabled on October 20, November 12, 22, 24 and 25, 2006
due to the lumbar strain as a direct result of his work-related injury on March 30, 2001.
Dr. Andrus also noted that appellant was partially disabled from January 12, 2007 to
July 8, 2008.
In a September 15, 2008 report, Dr. Andrus noted that appellant originally had a
diagnosis of lumbar strain and lumbar disc displacement. He noted that, after multiple
examinations, he also determined that appellant had chronic left sacroiliitis and left lumbar
radiculopathy. Dr. Andrus explained that the nature of these diagnoses resulted in appellant
having a chronic condition with intermittent exacerbations, which limited him to working four
hours per day, five days a week. He opined that, while appellant was on limited duty, his
position required lifting, twisting and reaching, and these activities contributed to an
exacerbation of his symptoms which forced appellant to go out on full disability on October 20,
November 18, 22, 24 and 25, 2006.4 Dr. Andrus noted that appellant’s most recent evaluation
3

During the hearing, appellant and his representative alleged that appellant’s medical condition and work factors
had changed. He alleged that the employing establishment violated appellant’s weight restriction of 40 pounds by
directing him to push an all-purpose container (APC) weighing 250 pounds. Appellant’s representative noted that
appellant had previously requested leave for the dates of November 24 to 25, 2006 in order to winterize his home in
upstate New York. However, because of his injuries, he was unable to perform the project and had to hire someone.
Appellant also alleged that he could not get an earlier appointment because his physician’s wife had a child and he
was out for a few weeks.
4

The physician also referred to later dates.

3

was July 8, 2008. He opined that appellant aggravated and worsened his condition by work he
did at the employing establishment prior to October 26, 2006 and from November 26 to
January 13, 2007. Dr. Andrus opined that appellant’s duties “directly resulted in an exacerbation
of his underlying chronic lumbar spine condition.” He explained that, because of these workrelated exacerbations, appellant had full disability and could not work on October 20,
November 18, 22, 24 and 25, 2006. Dr. Andrus opined that appellant was likely to continue to
have a chronic lumbar spine condition which should be considered a moderate partial permanent
disability related to his lumbar spine. He indicated that appellant could not return to full duty;
however, appellant should be able to return to his light-duty position for four hours per day, five
days a week. Dr. Andrus continued to treat appellant and submit reports.
On October 17, 2008 appellant’s representative contended that appellant had submitted
rationalized medical evidence and that the employing establishment did not adhere to appellant’s
medical restrictions. He submitted a copy of an arbitration decision issued on August 19, 2006.
The decision found that appellant pushed a heavy mail container in violation of his medical
restriction that limited his pushing, pulling and lifting of more than 40 pounds. In an October 10,
2008 statement, Steven Rodriquez, a coworker, indicated that he worked with appellant from
August through December 2006. He noted that, on a daily basis, he observed appellant pushing
and pulling postal containers, hampers and racks, weighing in excess of 200 pounds.
Mr. Rodriguez indicated that appellant was performing these tasks under direction of the
employing establishment.
By decision dated December 1, 2008, the Office hearing representative affirmed the
April 21, 2008 decision.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act5 (“Act”)
has the burden of proof to establish the essential elements of his claim by the weight of the
evidence,6 including that he sustained an injury in the performance of duty and that any specific
condition or disability for work for which he claims compensation is causally related to that
employment injury.7
As used in the Act, the term “disability” means incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of injury.8 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical

5

5 U.S.C. §§ 8101-8193.

6

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

7

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37 ECAB 528 (1986); Elden H. Tietze, 2 ECAB
38 (1948); 20 C.F.R. § 10.5(f).

4

standpoint, they prevent the employee from continuing in his employment, he is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.9
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.10 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.11 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.12
ANALYSIS
The Office accepted appellant’s claim for lumbosacral sprain. Appellant requested
compensation for disability for 20 hours of disability on October 20, November 13 and 21
through 25, 2006. On January 2, 2008 the Office advised appellant of the evidence needed to
establish his claim. Appellant, however, did not submit sufficient reasoned medical evidence to
establish that his disability for the 20 hours claimed was causally related to his accepted injury.
He did not submit a medical report in which his treating physician explained how his disability
was related to the accepted injury.
Dr. Andrus provided a December 4, 2006 disability certificate which diagnosed lumbar
radiculopathy. He advised that he had placed appellant off work on October 20, November 13
and 21, to 25, 2006 and that appellant could resume limited duties from December 4, 2006 to
January 30, 2007. The Board notes that Dr. Andrus did not address why appellant was unable to
perform any type of work on these dates. To establish causal relationship, a claimant must
submit a physician’s report in which the physician reviews the employment factors identified by
the claimant as causing the claimed condition and, taking these factors into consideration as well
as findings upon examination, states whether the employment injury caused or aggravated the
diagnosed conditions and presents medical rationale in support of his or her opinion.13
Moreover, Dr. Andrus did not address whether he had actually examined appellant on the dates
of disability claimed. His December certificate does not list any findings from physical
examination in October or November 2006.
9

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

10

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

11

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); see Huie Lee Goal, 1 ECAB 180,
182 (1948).
12

G.T., supra note 11; Fereidoon Kharabi, supra note 10.

13

D.D., 57 ECAB 734 (2006).

5

In a separate report also dated December 4, 2006, Dr. Andrus checked the box “yes” that
he believed appellant’s condition was caused or aggravated by an employment activity. He
noted that appellant was partially disabled from February 24 to December 4, 2006. The Board
has held that when a physician’s opinion on causal relationship consists only of checking “yes”
to a form question, without explanation or rationale, that opinion is of diminished probative
value and is insufficient to establish a claim.14 Dr. Andrus did not offer a rationalized medical
opinion as to how appellant’s employment caused or aggravated his condition and caused
disability for the 20 hours claimed.
In reports dated May 1, 25, August 2, 2007 and July 8, 2008, Dr. Andrus reiterated his
opinion that appellant was disabled on the aforementioned dates. He opined that appellant was
partially disabled on the above dates due to the lumbar strain as a direct result of his work-related
injury on March 30, 2001. The Board notes that these reports are also insufficient as Dr. Andrus
did not provide a fully rationalized medical opinion,15 nor did he address whether he had
examined appellant in October or November 2006 to support his opinion on disability.
In a September 15, 2008 report, Dr. Andrus noted that he originally diagnosed a lumbar
strain and lumbar disc displacement and later determined that appellant had chronic left
sacroiliitis and left lumbar radiculopathy. He noted that appellant’s position required lifting,
twisting and reaching, and these activities contributed to an exacerbation of his symptoms which
forced appellant to go out on full disability on October 20, November 18, 22, 24 and 25, 2006.
Dr. Andrus opined that appellant’s duties “directly resulted in an exacerbation of his underlying
chronic lumbar spine condition.” The Board notes that, while he attempted to address in 2008
how appellant had exacerbated his symptoms in 2006, he did not provide any contemporaneous
examination findings or a reasoned explanation as to how he arrived at his conclusion.16 This is
particularly important in light of the additional diagnoses of chronic left sacroiliitis and left
lumbar radiculopathy.17 The Board notes that there are no contemporaneous findings pertaining
to the aforementioned periods. Dr. Andrus noted that his most recent examination was in
July 2008. The Board finds that this opinion is insufficient to establish disability on the 20-hour
periods in 2006.
Other reports contained in the record did not address the period or disability or offer a
specific opinion on causal relationship. Medical reports not containing rationale on causal
relation are entitled to little probative value and are generally insufficient to meet an employee’s
burden of proof.18
In the instant case, none of the medical reports submitted by appellant contained a
sufficiently rationalized opinion to establish that he could no longer perform the duties of his
14

Sedi L. Graham, 57 ECAB 494 (2006).

15

Id.

16

See supra note 11.

17

The Board notes that the record is unclear as to whether these conditions are accepted.

18

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

6

light-duty position or his disability on October 20, November 13, 21 through 25, 2006. The
Board finds that appellant has failed to submit rationalized medical evidence establishing that his
disability for the 20 hours claimed in 2006 was causally related to his accepted employment
injury. Appellant has not met his burden of proof.
The Board notes that, while the present case only pertains to the 20 hours of disability
claimed, further development is needed by the Office to clarify certain aspects of appellant’s
claim. For example, the statement of accepted facts indicates that appellant’s claim was accepted
for a lumbar strain; however, the Office hearing representative noted that appellant’s accepted
conditions included a herniated disc and sacroiliitis. It appears that appellant is alleging a change
in the nature and extent of his injury-related condition or conditions on other dates, which has
not been adjudicated by the Office. The record suggests that there was a change in the nature
and extent of appellant’s duties. The August 16, 2006 arbitration decision indicates that
appellant worked beyond his restrictions. It appears that further development of the record is
required in order to ascertain whether there was a change in the nature and extent of the injuryrelated condition or in the light-duty position.
Appellant’s representative contended at oral argument that appellant had established his
claim for disability for the 20 hours claimed. However, as noted, appellant did not meet his
burden of proof in regard to this period of disability.
CONCLUSION
The Board finds that appellant failed to establish an employment-related disability on
October 20, November 13, 21 through 25, 2006, due to his March 30, 2001 employment injuries.

7

ORDER
IT IS HEREBY ORDERED THAT the December 1, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 8, 2009
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
L.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Yorktown Heights, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-374
Issued: October 21, 2011

Case Submitted on the Record

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

JURISDICTION
On December 8, 2010 appellant filed a timely appeal from a September 20, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of $6,767.49 was
created; (2) whether OWCP properly found that appellant was at fault in creating the
overpayment; and (3) whether OWCP properly denied appellant’s request for a prerecoupment
hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 5, 2010 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained an injury while carrying mail up a flight of stairs.
OWCP accepted the claim for a right inguinal hernia. Appellant began receiving compensation
for wage loss as of February 20, 2010.
By letter dated May 11, 2010, OWCP advised appellant that he would be receiving net
compensation of $2,561.43 every 28 days until further notice. Appellant was advised that he
must notify OWCP of any return to work. OWCP stated that compensation payments included
the period covered by each payment and, if appellant worked for any part of the period covered
by a payment, it must be returned to OWCP.
The record establishes that appellant returned to work on May 19, 2010. Compensation
payments were issued for the periods May 9 to June 5, June 6 to July 3 and July 4 to 31, 2010.
Each payment was in the amount of $2,561.43.
By letter dated August 20, 2010, OWCP advised appellant of a preliminary finding that
an overpayment of $6,767.49 had occurred.2 As to the amount of the overpayment, it calculated
that for the payment from May 9 to June 5, 2010, $1,646.63 was an overpayment of
compensation. The remaining two payments of $2,561.43 were also found to be overpayments,
resulting in a total of $6,769.49.3 It found that appellant had returned to work on May 19, 2010
and was issued compensation payments through July 31, 2010 that he had not returned. In
addition, OWCP found that he was at fault in creating the overpayment, as he had accepted
payments he knew or should have known were incorrect and failed to provide material
information regarding his return to work. Appellant was advised that he could request a
prerecoupment hearing if he disagreed with the finding of overpayment, amount or fault
determination within 30 days. He did not respond.
By decision dated September 20, 2010, OWCP finalized its finding that an overpayment
of $6,767.49 was created. It also found that appellant was at fault in creating the overpayment
and therefore was not entitled to waiver of the overpayment.
On September 24, 2010 OWCP’s Branch of Hearings and Review received a request for
a prerecoupment hearing on fault and waiver issues. Appellant stated that he “never filed after
[May 6, 2010].” The request was postmarked September 21, 2010.
By decision dated November 29, 2010, OWCP denied appellant’s request for a
prerecoupment hearing as it was untimely filed. It found that appellant did not have a right to a
hearing after a final overpayment decision.

2

OWCP included an overpayment calculation, which actually showed an overpayment of $6,769.49.

3

OWCP found that the overpayment amount was $6,767.49.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
may not receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.4 20 C.F.R. § 10.500 provides that “compensation for wage loss due to disability
is available only for any periods during which an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related injury.”
ANALYSIS -- ISSUE 1
In the present case, the record indicates and appellant does not contest, that he returned to
full-time work on May 19, 2010. He continued to receive compensation for wage loss through
July 31, 2010. As noted above, appellant is not entitled to compensation for wage loss after he
returned to work earning his date-of-injury wages. Therefore, an overpayment of compensation
resulted.
Appellant received compensation payments dated June 5 and July 3 and 31, 2010. The
entire amounts of the July 3 and 31, 2010 payments (each compensation payment was $2,561.43)
are considered an overpayment, since appellant worked during the entire period covered by the
payments. The period covered by the June 5, 2010 payment was May 9 to June 5, 2010. OWCP
calculated that $1,646.63 of the payment included the period May 19 to June 5, 2010, resulting in
an overpayment. Combining the two payments of $2,561.43 with $1,646.63, it found an
overpayment of $6,767.49.5 The Board finds that OWCP properly determined that an
overpayment of $6,767.49 was created in this case.
LEGAL PRECEDENT -- ISSUE 2
According to 5 U.S.C. § 8129(b): “Adjustment or recovery by the United States may not
be made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.” No waiver of an overpayment is possible if the claimant is at fault in creating the
overpayment.6
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault
if he or she has done any of the following: “(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 was incorrect.”

4

5 U.S.C. § 8116(a).

5

The actual amount was $6,769.49, but any error in the stated amount was not adverse to appellant.

6

Gregg B. Manston, 45 ECAB 344 (1994).

3

ANALYSIS -- ISSUE 2
OWCP had advised appellant by letter dated May 11, 2010 of his obligation to notify
OWCP of any return to work. In addition, appellant was notified that if he received a
compensation payment covering any portion of a period that he had worked, he must return the
check to OWCP. The Board notes that OWCP regulations state that each periodic check
includes clear indication of the period for which payment is being made.7 In this case, OWCP
issued a payment on June 5, 2010 for the period May 9 to June 5, 2010, a payment dated July 3,
2010 covering the period June 6 to July 3, 2010 and a payment dated July 31, 2010 covering the
period July 4 to 31, 2010. When appellant received the payments he should have known each
payment was incorrect, because he was clearly notified that he must return any payment that
covered a period during which he had worked for any portion of that period.
There is no evidence of record that appellant returned any of the three compensation
payments at issue. The Board accordingly finds that he accepted payments he should have
known were incorrect.8 Pursuant to 20 C.F.R. § 10.433 appellant was at fault in creating the
overpayment and therefore no waiver of the overpayment is possible.
On appeal, appellant submitted a letter that he had apparently included with a request for
a prerecoupment hearing. He stated that “everybody was notified” of his return to work on
May 19, 2010. The Board notes that there was no indication of record that appellant notified
OWCP of his return to work, although OWCP did receive a Form CA-3 (Report of Termination
of Disability and/or Payment) on May 25, 2010 indicating appellant had returned to work. But
even if OWCP should have been generally aware that appellant had returned to work and issued
the payments in error, he should have been aware of the error and returned the payments.
Appellant also stated that he never filed or applied for compensation benefits after his return to
work, an apparent reference to the claims for compensation (Form CA-7) that he filed with
OWCP. As the May 11, 2010 OWCP letter indicated however appellant was going to be paid
pursuant to periodic payments every four weeks. There is no question appellant did not submit a
specific claim for compensation after May 19, 2010. The finding of fault in this case was based
on the acceptance of periodic payments he knew or should have known to be incorrect. For the
reasons noted, the Board finds that the evidence of record supports the finding of fault in this
case.
LEGAL PRECEDENT -- ISSUE 3
OWCP regulations provide that an individual may present evidence in response to a
preliminary notice of overpayment in writing or at a prerecoupment hearing.9 The evidence must
be presented or the hearing requested within 30 days of the date of the written notice of

7

20 C.F.R. § 10.430.

8

See. e.g., M.J., Docket No. 10-554 (issued November 3, 2010).

9

20 C.F.R. § 10.432.

4

overpayment. Failure to request the hearing within this 30-day period shall constitute a waiver
of that right.10
ANALYSIS -- ISSUE 3
In the present case, OWCP issued the preliminary overpayment determination on
August 20, 2010. The 30-day period to request a prerecoupment hearing expired on Monday,
September 20, 2010. The prerecoupment hearing request was postmarked September 21, 2010.11
The evidence therefore established that appellant failed to request the hearing within the specific
time period. Pursuant to 20 C.F.R. § 10.432, he waived his right to a prerecoupment hearing.
The Board finds that OWCP properly denied the hearing request.12
CONCLUSION
The Board finds that an overpayment of $6767.49 was created from May 19 to July 31,
2010 as appellant received compensation for wage loss during a period he had returned to work.
The Board further finds that OWCP properly found appellant accepted payments he should have
known were incorrect and therefore he is at fault in creating the overpayment and not entitled to
waiver. In addition, the Board finds that OWCP properly denied the request for a prerecoupment
hearing.

10

Id.

11

See 20 C.F.R. § 10.439 (prerecoupment hearings shall be conducted in exactly the same manner as provided for
hearings under 5 U.S.C. § 8124(b)); 20 C.F.R. § 10.616(a) (the hearing request must be sent within 30 days as
determined by postmark or other carrier’s date marking).
12

See N.D., Docket No. 10-1601 (issued April 6, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 29 and September 20, 2010 are affirmed.
Issued: October 21, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6