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

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

Docket No. 17-1359
Issued: May 3, 2019

Case Submitted on the Record

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

JURISDICTION
On June 9, 2017 appellant, through counsel, filed a timely appeal from a March 9, 2017
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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 9, 2017 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her cervical
and right shoulder conditions are causally related to the accepted May 2, 2016 employment
incident.
FACTUAL HISTORY
On May 3, 2016 appellant, then a 55-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 2, 2016 she injured her right shoulder while in the performance
of duty. She stated that she went to lift a tray in her mail vehicle, she felt a sharp pain in her right
shoulder. Afterwards, appellant was unable to move her right arm. She stopped work on
May 3, 2016. The employing establishment controverted continuation of pay, noting “Pending
medical findings [-]- preexisting??” No additional documentation accompanied appellant’s
May 3, 2016 Form CA-1.
In a May 11, 2016 development letter, OWCP advised appellant that it had not received
any medical evidence in support of her FECA claim. It requested that she submit a narrative
medical report from her physician, which included a diagnosis and an opinion on causal
relationship that explained how the reported May 2, 2016 employment incident either caused or
aggravated her medical condition. OWCP also asked appellant to respond to the employing
establishment’s allegation that her condition may be preexisting. It afforded her 30 days to submit
the requested information.
OWCP subsequently received May 3, 2016 treatment records from an emergency
department. The records revealed that appellant complained of right shoulder pain, which began
the previous day “while moving trays on the mail truck.” She developed pain in her right shoulder
and felt a “pop.” Appellant also reported that she went home that evening and applied a heating
pad, without relief. A May 3, 2016 right shoulder x-ray revealed no fracture or dislocation, and
no acute pathology. A nurse practitioner diagnosed work-related acute right shoulder pain and
right shoulder repetitive strain injury. She excused appellant from work for two days.
In a May 17, 2016 report, Dr. David B. Dickerson, a Board-certified orthopedic surgeon,
noted that on May 2, 2016 appellant was lifting trays of mail when she felt sudden right shoulder
pain. He advised that she went to the emergency room the next day and had right shoulder x-rays,
which were normal. Dr. Dickerson obtained x-rays of the cervical spine, which revealed C5
retrolisthesis and moderate narrowing at C5-6, with anterior degenerative endplate changes. He
examined appellant and diagnosed cervical spondylosis with myelopathy and right shoulder pain.
Dr. Dickerson recommended magnetic resonance imaging (MRI) scans of the right upper
extremity and cervical spine, and advised that appellant not work pending the MRI scan results.
In a May 19, 2016 attending physician’s report (Form CA-20), a nurse practitioner
diagnosed rotator cuff injury and cervical radiculopathy, with a reported May 2, 2016 date of
injury. The nurse practitioner also completed a duty status report (Form CA-17) excusing
appellant from all work.
By decision dated June 14, 2016, OWCP accepted that the May 2, 2016 incident occurred
as alleged and that a medical condition had been diagnosed. It also found that appellant was in the
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performance of duty at the time of the May 2, 2016 incident. However, OWCP denied her
traumatic injury claim, finding that the evidence of record was insufficient to establish causal
relationship between the diagnosed conditions and the accepted May 2, 2016 employment incident
Appellant, through counsel, timely requested a hearing before a representative of OWCP’s
Branch of Hearings and Review, which was conducted on October 13, 2016.
Evidence received since OWCP’s June 14, 2016 decision included June 3, 2016 cervical
and right upper extremity MRI scans. The right shoulder MRI scan revealed rotator cuff
tendinopathy without evidence of tear and severe edema of the acromioclavicular (AC) joint, with
associated small effusion. Appellant’s cervical MRI scan showed degenerative disc disease, most
pronounced at C5-6. There was also evidence of facet joint arthrosis, most pronounced at left C45 facet.
In a June 28, 2016 follow-up report, Dr. Dickerson diagnosed cervical spondylosis with
myelopathy and right shoulder bursitis. He noted that the June 3, 2016 right shoulder MRI scan
showed bursitis “plausibly related to lifting trays on date of incident exacerbating underlying
cervical stenosis.” Dr. Dickerson stated “[w]ith a reasonable degree of medical certainty, there is
a causal relationship between [appellant] lifting the heavy trays with her right arm and the
exacerbation of [her] underlying cervical radiculopathy[,] as well as causing the bursitis of the
right shoulder.” He administered right shoulder steroid injection on July 7, 2016.
On July 11, 2016 Dr. Bruce R. Rosenblum, a Board-certified neurosurgeon, initially
evaluated appellant for complaints of neck pain radiating to her right shoulder, arm, elbow, and
hand. Appellant also reported hand numbness, bilaterally. Dr. Rosenblum noted a May 2, 2016
history of a work-related injury when she was carrying heavy trays of mail and felt a sharp pain in
her right shoulder. Appellant had been out of work since the incident. She also reported no prior
problems relative to her neck. Dr. Rosenblum also noted that she recently had a shoulder injection,
which provided no relief. Additionally, he noted that her cervical MRI scan revealed C5-6 disc
herniation. Dr. Rosenblum provided physical examination findings and diagnosed cervical
radiculopathy. He indicated that appellant’s cervical radiculopathy, and the need for treatment,
was directly related to her May 2, 2016 injury. Dr. Rosenblum recommended C5-6 anterior
cervical discectomy instrumentation and fusion (ACDIF).
An August 30, 2016 cervical MRI scan revealed C4-5 anterolisthesis, C5-6 retrolisthesis,
multilevel disc bulges and degenerative disc disease, primarily at C5-6.
Dr. Rosenblum saw appellant for a follow-up examination on August 30, 2016. He
discussed treatment options and provided information regarding the recommended surgery
ACDIF, which he performed on September 1, 2016. Appellant’s postoperative diagnoses were
cervical radiculopathy with C4-5 and C5-6 herniated discs, and grade 1 C4-5 anteriolisthesis.
After surgery she remained hospitalized through September 4, 2016.
In a September 13, 2016 follow-up report, Dr. Rosenblum noted that cervical x-rays
showed very good alignment. Appellant reported soreness and stiffness in the back of her neck
and a few episodes of numbness in her hands, but her radiculopathy had largely resolved.
In a September 14, 2016 narrative report, Dr. Rosenblum noted that he initially evaluated
appellant on July 11, 2016, at which time she reported a May 2, 2016 work-related injury “lifting
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heavy trays of mail.” Appellant reported experiencing a sharp pain in her right shoulder and an
inability to move her arm without pain. Dr. Rosenblum also noted that she had been off work
since the incident. He reviewed appellant’s June 3, 2016 cervical MRI scan, and also noted that
she received a July 7, 2016 right shoulder injection without relief. Dr. Rosenblum provided a
chronology of the treatment he provided her, including the September 1, 2016 C4-5 and C5-6
cervical discectomy with instrumentation and fusion. He also described the results of his most
recent September 13, 2016 follow-up examination. Dr. Rosenblum noted that he had advised
appellant to remain off work pending further evaluation.
With regard to causal relationship, Dr. Rosenblum stated “within a reasonable degree of
medical certainty … [that appellant] suffered with a post[-]traumatic cervical radiculopathy as a
result of her work-related injury….” He further stated that appellant’s post-traumatic cervical
radiculopathy was caused by a permanent aggravation of preexisting cervical degenerative disc
disease at C4-5 and C5-6. Dr. Rosenblum explained that it was well known that the sort of physical
activity that she engaged in “utilizing her upper extremities for repetitive motion” is exactly the
sort of physical exertion which can aggravate and force preexisting degenerative asymptomatic
cervical spine disease to manifest as a clinical syndrome, as was the case with her cervical
radiculopathy. He described appellant’s current cervical condition as a “manifestation of her
previously asymptomatic cervical discogenic disease due to the aggravation by her work-related
activity….” Dr. Rosenblum further noted that she had been totally disabled from the date of injury
to the present time, and that she had yet to reach maximum medical improvement. He noted that
appellant’s prognosis was guarded, and he identified additional necessary treatment, including
postsurgical physical therapy.
Dr. Rosenblum also provided follow-up treatment reports dated October 18 and 25, 2016.
Appellant was to begin physical therapy in mid-October 2016, and her surgical wound was noted
to be mostly closed as of October 25, 2016.
By decision dated December 2, 2016, OWCP’s hearing representative affirmed the
June 14, 2016 decision. She found that the reports from Dr. Rosenblum and Dr. Dickerson did not
adequately explain how the May 2, 2016 employment incident either caused or contributed to
appellant’s diagnosed conditions, particularly in light of the preexisting cervical spine pathology.
On December 16, 2016 appellant, through counsel, requested reconsideration. In support
of the request, counsel submitted a December 3, 2016 addendum report from Dr. Rosenblum.
Dr. Rosenblum noted that he had seen appellant in follow-up on September 26, October 18 and
25, and November 8, 2016 and most recently on November 29, 2016. He briefly described her
progress, and noted that when last seen she felt that physical therapy was helpful. Dr. Rosenblum
also noted that appellant continued to complain of neck pain radiating into her right shoulder. A
recent right shoulder injection reportedly did not significantly alleviate her symptoms.
Dr. Rosenblum also noted that appellant had a well-healed wound and her cervical spine x-rays
showed routine postoperative changes. Regarding causal relationship, he indicated that his
September 14, 2016 opinion had not since changed. Dr. Rosenblum explained that she had
preexisting degenerative disc disease at C4-5 and C5-6, “but the work-related activities which she
was carrying out on [May 2, 2016] including lifting and carrying up to 70 pounds as well as
bending, stooping, twisting, and reaching above her shoulders” were exactly the sort of physical
activities that would exacerbate preexisting degenerative disc disease and cause it to become

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symptomatic “by virtue of compression of the existing nerve roots” with resultant post-traumatic
cervical radiculopathy.
OWCP also received additional follow-up progress reports from Dr. Rosenblum dated
September 26 and November 29, 2016, and January 10, 2017. In his latest January 10, 2017
report, Dr. Rosenblum noted that appellant felt well and could return to work full duty on
January 18, 2017.
By decision dated March 9, 2017, OWCP denied modification of the December 2, 2016
decision, finding that the evidence of record was insufficient to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation,5 that an injury was sustained in the performance of duty as alleged, and that any
disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.8 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.9 The second component is whether the employment incident caused a personal
injury.10 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.11

4

Supra note 2.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

11

D.D., Docket No. 18-0648 (issued October 15, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

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Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.12 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.13 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).14
In any 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.15
ANALYSIS
The Board finds that the case is not in posture for decision.
Dr. Rosenblum was aware of appellant’s underlying, preexisting cervical condition. He
was also aware of the May 2, 2016 employment-related lifting incident. Dr. Rosenblum found that
appellant’s current cervical and right upper extremity condition were either caused or exacerbated
by her federal employment. He explained that she had preexisting degenerative disc disease at
C4-5 and C5-6, “but the work-related activities which [appellant] was carrying out on [May 2,
2016] including lifting and carrying up to 70 pounds as well as bending, stooping, twisting, and
reaching above her shoulders” were exactly the sort of physical activities that would exacerbate
preexisting degenerative disc disease and cause it to become symptomatic “by virtue of
compression of the existing nerve roots” with resultant post-traumatic cervical radiculopathy.
Although Dr. Rosenblum various reports are insufficient to discharge appellant’s burden of
proving that her current cervical and/or right upper extremity conditions are causally related to the
accepted May 2, 2016 employment incident, his opinions are sufficient to require further
development of the case record by OWCP.16
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done.17
On remand, OWCP should refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts. OWCP’s referral physician should provide an evaluation
and a rationalized medical opinion on whether appellant’s cervical and/or right upper extremity
12

T.H., supra note 8 at 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

13

M.V., Docket No. 18-0884 (issued December 28, 2018).

14

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

15

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

16

See John J. Carlone, supra note 10; Horace Langhorne, 29 ECAB 820 (1978).

17

C.M., Docket No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

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conditions were caused or aggravated by the accepted May 2, 2016 employment incident. After
such further development of the case record as OWCP deems necessary, a de novo decision shall
be issued.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 9, 2017 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: May 3, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Q.S., Appellant
and
U.S. POSTAL SERVICE, MONMOUTH
PROCESSING & DISTRIBUTION CENTER,
Eatontown, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-760
Issued: July 3, 2007

Case Submitted on the Record

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

JURISDICTION
On January 24, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 31, 2006 denying her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established that she sustained carpal tunnel syndrome
causally related to her federal employment.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated May 3, 2005, the
Board found a conflict in the medical evidence regarding the diagnosis of carpal tunnel existed.1
1

Docket No. 05-342 (issued May 3, 2005). A subsequent appeal docketed as 06-343 was dismissed by order
dated February 2, 2006.

The case was remanded to the Office to resolve the conflict. The history of the case is contained
in the Board’s prior decision and is incorporated herein by reference.
On remand, the Office selected Dr. William Head, a Board-certified neurologist, to
provide a referee examination.2 In a report dated January 11, 2006, Dr. Head provided a detailed
history and results on examination. He noted an essentially normal neurological examination
with no objective evidence of any neurological condition or disability. Dr. Head opined in
pertinent part, “There is no current clinical evidence of carpal tunnel syndrome being present. In
view of her reportedly normal upper extremity EMG [electromyogram] tests, the weight of the
evidence indicates carpal tunnel syndrome has never been present.” The referee examiner stated
that appellant was able to perform her regular duties and had been able to perform her regular
duties since April 1997.
By decision dated February 3, 2006, the Office denied the claim for compensation. The
Office found the weight of the evidence was represented by Dr. Head.
Appellant requested a hearing before an Office hearing representative, which was held on
June 19, 2006. She submitted an undated report from her attending physician, Dr. Michael
Pecoraro, a surgeon, who indicated that he disagreed with Dr. Head and reiterated his opinion
that appellant had carpal tunnel syndrome.
By decision dated July 31, 2006, the Office hearing representative affirmed the
February 3, 2006 decision. The hearing representative found the weight of the evidence rested
with Dr. Head.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4
It is well established that when a case is referred to a referee examiner for the purpose of
resolving a conflict under 5 U.S.C. § 8123(a), the opinion of such specialist, if sufficiently well
rationalized and based on a proper factual and medical background, must be given special
weight.5

2

The record contains a number of computer screen entries indicating that specific physicians were bypassed as
the phone number provided did not correspond to the identified physician.
3

5 U.S.C. §§ 8101-8193.

4

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

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Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

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ANALYSIS
The Board remanded the case for referral to a referee examiner to resolve the conflict in
the medical evidence. The initial question presented was whether the diagnosis of carpal tunnel
syndrome was established. If the diagnosis was established, then the referee examiner should
give an opinion as to whether the condition was employment related. In this case, Dr. Head, the
neurologist selected as a referee examiner, opined that the diagnosis of carpal tunnel syndrome
was not established. Dr. Head provided a detailed history and he explained his opinion by noting
the negative results on EMG testing and the lack of clinical findings. He provided an
unequivocal and rationalized opinion that appellant currently did not have carpal tunnel
syndrome and based on the evidence she never had carpal tunnel syndrome.
As noted above, the rationalized opinion of a referee examiner that is based on a
complete background is entitled to special weight. The Board finds that the opinion of Dr. Head
represents the weight of the medical evidence.
The Board notes that in a letter dated July 19, 2006 appellant’s representative argued that
the process of selecting Dr. Head was improper based on the computer screens showing that a
number of physicians were bypassed. There is, however, no probative evidence of error in the
selection process.6 The computer screen information indicated only that there were problems
contacting physicians whose names appeared in the medical directory and, therefore, the
physician was bypassed.
Appellant also raised an argument that Dr. Head was not provided a complete factual
background in the statement of accepted facts. The report of Dr. Head, however, provided a
complete background and discussed appellant’s relevant factual and medical history. There is no
evidence that Dr. Head based his opinion on an incomplete or inaccurate background.
For the above reasons, the Board finds that Dr. Head properly resolved the conflict in the
medical evidence. Based on the weight of the evidence, the Office properly concluded that
appellant had not established her claim.
CONCLUSION
The weight of the medical evidence does not establish that appellant sustained carpal
tunnel syndrome causally related to her federal employment.

6

Under Office procedures, referee examiners are chosen by a strict rotational system using appropriate medical
directories. Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4
(May 2003).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 31 and February 3, 2006 are affirmed.
Issued: July 3, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Tucson, AZ, Employer
__________________________________________

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

Docket No. 09-1265
Issued: December 23, 2009

Case Submitted on the Record

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

JURISDICTION
On April 16, 2009 appellant filed a timely appeal of a February 10, 2009 schedule award
decision of the Office of Workers’ Compensation Programs finding a two percent permanent
impairment of his right lower extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a two percent permanent impairment of the
right lower extremity for which he received a schedule award.
FACTUAL HISTORY
On February 21, 2008 appellant, then a 31-year-old correctional officer, was injured
when he felt a pop in his right knee while walking down stairs at work. He stopped work that
day and returned to light duty on March 5, 2008. The Office accepted the claim for internal
derangement of the lateral meniscus of the right knee.

In a March 14, 2008 diagnostic report, Dr. James Collins, a diagnostic radiologist, found
degenerative changes and an anterior horn lateral meniscus tear of appellant’s right knee. In an
April 8, 2008 report, Dr. Rex Cooley, an osteopath specializing in orthopedic surgery, diagnosed
right derangement of the posterior horn of the lateral meniscus. On May 14, 2008 he performed
a right knee subtotal lateral meniscectomy and removed approximately 50 percent of appellant’s
meniscus primarily over the mid body and lateral part of the anterior third. Dr. Cooley
recommended physical therapy. In a November 26, 2008 report, he advised that appellant had
reached a stable and stationary point. Dr. Cooley released appellant from care and advised that
he sustained seven percent impairment for resection of the lateral meniscus and pain in the knee.
Appellant filed a schedule award claim on December 3, 2008. On December 15, 2008
the Office requested an opinion from Dr. Cooley regarding appellant’s permanent impairment
according to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). In a January 12, 2009 response, Dr. Cooley indicated that
appellant’s loss of function was due to pain. He determined that appellant lacked eight degrees
flexion that amounted to zero percent impairment. Dr. Cooley determined that a total lateral
meniscectomy amounted to nine percent impairment. He also found that appellant had mild to
moderate lateral knee pain and difficulty with gait and standing which amounted to one percent
impairment. Dr. Cooley noted appellant’s range of motion consisted of 135 degrees flexion, 0
degrees extension and no ankylosis. He also noted no varus or valgus deformity of the knee.
Dr. Cooley determined that appellant had 10 percent loss of lower extremity length. He further
determined 100 percent loss of shock absorption from the meniscectomy and also indicated that
appellant had a “complete” lateral meniscectomy. Dr. Cooley advised that appellant reached
maximum medical improvement on November 26, 2008.
In a January 15, 2009 report, Dr. Cooley reviewed the A.M.A., Guides and determined
that, due to a complete total lateral meniscectomy, appellant had nine percent permanent
impairment. He further determined that appellant’s continued lack of strength in his quadriceps
and hamstrings qualified him for another one percent permanent impairment. Dr. Cooley found
normal range of motion and continued constant aching rated 3 on a pain scale of 1 to 10. He
opined that appellant had a total of 10 percent permanent impairment of the right lower extremity
secondary to a total meniscectomy, continued discomfort and pain the right knee with loss of
strength.1
On January 20, 2009 an Office medical adviser reviewed Dr. Cooley’s reports. Although
Dr. Cooley indicated nine percent impairment for a total lateral meniscectomy, a review of the
operative report indicated that appellant underwent a partial meniscectomy with removal of 50
percent of the meniscus. The medical adviser determined that appellant had two percent
impairment of the right lower extremity for undergoing a partial lateral meniscectomy, citing
Table 17-33 on page 546 of the A.M.A., Guides. He also noted that the A.M.A., Guides do not
allow for impairment for muscle weakness to be combined with impairment for arthroscopic
partial lateral meniscectomy as this was considered redundant and duplicative, citing Table 17-2
1

A January 9, 2009 report from Dr. Cooley reiterated that appellant had a seven percent impairment due to
resection of the lateral meniscus and pain in the knee. However, he retracted this finding in his January 15, 2009
report.

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on page 526. The medical adviser concluded that the date of maximum medical improvement
was November 26, 2008.
In a February 10, 2009 decision, the Office granted appellant a schedule award for two
percent permanent impairment of the right lower extremity. It paid compensation for 5.76 weeks
from November 26, 2008 to January 5, 2009.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office for evaluating
schedule losses and the Board has concurred in such adoption.3
ANALYSIS
The Office accepted that appellant sustained internal derangement of the lateral meniscus
of the right knee. Appellant subsequently received a schedule award for a two percent
permanent impairment of the right lower extremity based on the evaluation of an Office medical
adviser upon reviewing reports from Dr. Cooley. The Board finds that the Office medical
adviser properly determined appellant’s impairment rating.
Appellant submitted reports from Dr. Cooley regarding the degree of impairment to his
right lower extremity. On January 12, 2009 Dr. Cooley advised that appellant had nine percent
impairment for a total lateral meniscectomy, and one percent impairment for knee pain and
difficulty with gait. This report also contained values for appellant’s range of motion, including
135 degrees flexion and 0 degrees extension which Dr. Cooley indicated were not ratable.4 He
did not explain how he applied these values under the A.M.A., Guides. In a January 15, 2009
report, Dr. Cooley generally referred to the A.M.A., Guides to find that appellant had 9 percent
impairment for total lateral meniscectomy and 1 percent impairment for lack of strength of his
right lower extremity, for a total of 10 percent permanent impairment. Again, however, he did
not address how this rating conformed to the A.M.A., Guides.5 Dr. Cooley improperly based his
impairment rating on a total lateral meniscectomy; however, his May 14, 2008 operative report

2

5 U.S.C. §§ 8101-8193. See 5 U.S.C. § 8107.

3

See 20 C.F.R. § 10.404; R.D., 59 ECAB ___ (Docket No. 07-379, issued October 2, 2007).

4

See A.MA., Guides, 532, Table 17-10 (5th ed. 2001).

5

See Tommy R. Martin, 56 ECAB 273 (2005) (where the Board found that a physician’s impairment calculation
not sufficiently supported by the A.M.A., Guides is of diminished probative value).

3

stated that a partial meniscectomy was performed as it noted that about 50 percent of the
meniscus was removed.
The Office medical adviser reviewed Dr. Cooley’s reports and properly evaluated
appellant’s right knee impairment.6 His rating derived from a review of the medical record,
noted that appellant underwent a partial lateral meniscectomy. The medical adviser explained
that, while Dr. Cooley asserted that appellant should receive impairment based on a total lateral
meniscectomy, his May 14, 2008 operative report indicated that only about one half of the
meniscus was removed. He applied this to Table 17-33 on page 546 of the A.M.A., Guides and
to find two percent impairment for this diagnosis-based estimate for a partial lateral
meniscectomy. This provision of the A.M.A., Guides states that a total medial or lateral
meniscectomy is a seven percent impairment of the leg while a partial medial or lateral
meniscectomy represents two percent impairment of the leg. The medical adviser also explained
that one percent impairment for loss of strength recommended by Dr. Cooley could not be
combined with impairment due to the partial lateral meniscectomy based on Table 17-2 on page
526 of the A.M.A., Guides. The cross-usage chart lists evaluation methods that may be
combined. Dr. Cooley did not note any other basis on which permanent impairment could be
rated.
There is no other medical evidence, consistent with the A.M.A., Guides, establishing that
appellant has greater than two percent impairment of the right knee.
On appeal, appellant contends that he has 10 percent impairment as Dr. Cooley provided
substantial reasoning for his rating. However, as noted, a physician’s impairment rating must
conform to the A.M.A., Guides and cite to specific tables and figures that explain how the
physician derived the impairment calculation.7 Dr. Cooley did not support his impairment rating
under the A.M.A., Guides. Therefore, his opinion is of diminished probative value.
CONCLUSION
The Board finds that appellant has no more than two percent right lower extremity
impairment.

6

J.Q., 59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008) (it is well established that, when the examining
physician does not provide an estimate of impairment conforming to the A.M.A., Guides, the Office may rely on the
impairment rating provided by a medical adviser).
7

See supra notes 3 and 5.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 10, 2009 is affirmed.
Issued: December 23, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Iron Mountain, MI, Employer
__________________________________________

)
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)
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)
)

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

Docket No. 20-0281
Issued: May 18, 2021

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 November 20, 2019 appellant, through counsel, filed a timely appeal from an
October 31, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.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, following the October 31, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $3,359.33 for the period February 9, 2011 through January 5, 2019, for which he was
not at fault, because of an under withholding of life insurance premiums; (2) whether OWCP
properly denied waiver of recovery of the overpayment; and (3) whether it properly required
recovery of the overpayment by deducting $250.00 from appellant’s continuing compensation
payments every 28 days.
FACTUAL HISTORY
On November 10, 2005 appellant, then a 38-year-old registered respiratory therapist, filed
an occupational disease claim (Form CA-2) alleging that he developed stress, depression, and
anxiety causally related to factors of his federal employment. OWCP accepted the claim for an
aggravation of adjustment reaction with disturbance of anxiety. It initially paid appellant wageloss compensation benefits on the supplemental rolls and then on the periodic rolls as of
May 14, 2006. Appellant returned to part-time work on November 23, 2009. OWCP subsequently
resumed payment of wage-loss benefits for temporary total disability on the periodic rolls
beginning June 1, 2010.
In a letter dated June 4, 2010, OWCP notified appellant that it was placing him on the
periodic compensation rolls, effective August 17, 2005. It advised him that it was making
deductions for health insurance benefits, basic life insurance (BLI), and optional life insurance
(OLI) premiums from his compensation payments. OWCP requested that appellant notify it
immediately if he had benefits such as OLI that it was not deducting from his wage-loss
compensation.
On April 20, 2017 the Office of Personnel Management (OPM) informed OWCP that as a
compensationer appellant was eligible to continue Federal Employees’ Group Life Insurance
(FEGLI) coverage in the form of basic, postretirement basic life insurance (PRBLI), and OLI
coverage. The final base salary on which FEGLI was based was $54,000.00. OPM requested
OWCP to deduct for BLI, and OLI, option B no reduction with 5 multiples and option C no
reduction with 5. PRBLI was 50 percent reduction. OWCP was subsequently informed that
appellant’s PRBLI at 50 percent reduction commenced on August 21, 2006 and his base salary
was $45,371.00.
In a preliminary overpayment determination dated August 11, 2017, OWCP notified
appellant that he had received an overpayment of compensation in the amount of $5,483.58
because PRBLI and BLI premiums had not been properly deducted from his FECA compensation
for the period August 21, 2006 through June 24, 2017. It further advised him of its preliminary
determination that he was not at fault in the creation of the overpayment and requested that he
complete an overpayment action request form and an overpayment recovery questionnaire (Form
OWCP-20). Additionally, OWCP notified appellant that within 30 days of the date of the letter,
he could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing.
On September 1, 2017 appellant requested a prerecoupment hearing by telephone.

2

By decision dated December 21, 2017, OWCP’s hearing representative set aside the
August 11, 2017 preliminary overpayment determination and remanded the case for further
development. On remand OWCP was to instruct OPM to properly assess whether an adjustment
should be made relative to appellant’s PRBLI reduction. It also requested clarification as to
whether any adjustments needed to be made based upon changes to appellant’s base salary for life
insurance purposes.
In a January 16, 2019 letter, OPM again informed OWCP that appellant, as a
compensationer, was eligible to continue coverage under the FEGLI Program. It indicated that the
final base salary on which FEGLI was based was $50,657.00. OPM requested OWCP to deduct
premiums for Code Z5, which included BLI at 50 percent and OLI, Option A Standard, and Option
B and Option C no reduction with 5 multiples. The PRBLI was at 50 percent reduction
commencing February 9, 2011. OPM provided a form completed by appellant on September 3,
2015 indicating that he wanted to continue FEGLI in retirement with 50 percent reduction for
PRBLI and no reduction in BLI, Option B or Option C.
In a preliminary overpayment determination dated January 23, 2019, OWCP notified
appellant that he had received an overpayment of compensation in the amount of $3,359.33
because it had failed to properly deduct BLI, OLI, and PRBLI premiums from his FECA
compensation payments for the period February 9, 2011 through January 5, 2019. It further
notified him of its preliminary overpayment determination that he was without fault in the creation
of the overpayment and requested that he complete an overpayment action request form and Form
OWCP-20, and submit supporting financial documentation. Additionally, OWCP notified
appellant that he could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing. OWCP allotted 30 days for appellant to respond. No
response was received.
OWCP provided compensation payment records for the period February 9, 2011 through
January 5, 2019, as well as an overpayment worksheet explaining the $3,359.33 overpayment. It
provided calculations showing shortfalls in deductions for the period February 9, 2011 through
January 5, 2019. The worksheet shows that these shortages for the stated period occurred because
of an underwithholding of life insurance premiums. The total of these deduction shortages is
$3,359.33.
OWCP, by decision dated February 26, 2019, finalized the preliminary overpayment
determination that appellant had received an overpayment of compensation in the amount of
$3,359.33 for the period February 9, 2011 through January 5, 2019, as it failed to deduct BLI, OLI,
and PRBLI premiums from his compensation payments. It denied waiver of recovery of the
overpayment as no financial evidence had been submitted in response to the preliminary
overpayment determination, as requested. OWCP directed recovery of the overpayment by
deducting $680.36 every 28 days from appellant’s continuing compensation payments.
On February 27, 2019 appellant, through counsel, faxed an overpayment action request
form dated February 20, 2019 to OWCP. He disagreed that an overpayment occurred, disagreed
with the amount of the overpayment, and requested waiver of the overpayment. Counsel did not
submit an overpayment recovery questionnaire.
By decision dated April 12, 2019, OWCP denied appellant’s request for a prerecoupment
hearing as untimely filed pursuant to 5 U.S.C. § 8124(b). It informed him that, as his request was
3

not made within 30 days of the January 23, 2019 decision, he was not, as a matter of right, entitled
to a prerecoupment hearing.
On April 25, 2019 counsel contended that appellant had filed a timely request for a
prerecoupment hearing on February 14, 2019. He submitted a copy of appellant’s overpayment
action request form which indicated that it was faxed to OWCP on February 14, 2019.
During a telephonic prerecoupment hearing held on July 26, 2019, appellant testified that
he had not yet retired from the employing establishment.
By decision dated October 9, 2019, an OWCP hearing representative set aside the
January 23, 2019 preliminary overpayment determination and remanded the case for further
development. He instructed OWCP to obtain information from the employing establishment as to
when, if ever, appellant had separated from federal employment. The hearing representative
determined that this information was necessary for determination of the amount of the declared
overpayment of compensation. He explained that a March 1, 2016 notification of personnel action
(Standard Form (SF)-50) did not show that appellant had separated or retired from federal
employment, and thus, the period of the overpayment could not go back to 2011. The hearing
representative further explained that neither OWCP nor OPM explained why he would be required
to pay PRBLI premiums if he had not separated or retired from employment.
In an October 31, 2019 decision, an OWCP hearing representative vacated the October 9,
2019 decision and finalized OWCP’s January 23, 2019 preliminary overpayment determination
that appellant had received an overpayment of compensation in the amount of $3,359.33 for the
period February 9, 2011 through January 5, 2019 because it did not make proper deductions for
BLI, OLI, and PRBLI premiums from his FECA compensation payments. She explained that the
evidence of record was sufficient to establish that an overpayment had occurred. The hearing
representative denied waiver of recovery of the overpayment as appellant had provided no
financial documentation regarding his household income and assets. She required recovery of the
overpayment by deducting $250.00 every 28 days from his continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in BLI and one or more of the options.4 The coverage for BLI is effective unless
waived,5 and premiums for basic and optional life coverage are withheld from the employee’s
pay.6 Upon retirement or upon separation from the employing establishment or being placed on
the FECA periodic compensation rolls, an employee may choose to continue BLI and OLI
coverage in which case the schedule of deductions made will be used to withhold premiums from
his or her annuity or compensation payments.7 BLI coverage shall be continued without cost to

4

5 U.S.C. § 8702(a).

5

Id. at § 8702(b).

6

Id. at § 8707.

7

Id. at § 8706.

4

an employee who retired or began receiving compensation on or before December 31, 1989;8
however, the employee is responsible for payment of premiums for OLI coverage which is
accomplished by authorizing withholdings from his or her compensation.9
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium).10 When an underwithholding of life insurance premiums occurs, the entire
amount is deemed an overpayment of compensation because OWCP must pay the full premium to
OPM upon discovery of the error.11
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of duty.12 When
an overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which the individual is entitled.13
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$3,359.33 for the period February 9, 2011 through January 5, 2019, for which he was not at fault,
because OWCP because of an underwithholding of life insurance premiums from his FECA
compensation.
OPM notified OWCP that appellant had elected PRBLI, BLI, and OLI coverage effective
February 9, 2011. OWCP, however, did not deduct the proper amounts of premiums for PRBLI,
BLI, and OLI from appellant’s wage-loss compensation benefits for the period February 9, 2011
through January 5, 2019. It calculated the amount of the resulting overpayment as $3,359.33. The
record contains compensation payment records, as well as an overpayment worksheet explaining
the overpayment calculation and how the overpayment occurred. While in compensationer status,
appellant remained responsible for all insurance benefits, including the premiums for PRBLI at
8

Id. at § 8707(b)(2).

9

Id. at § 8706(b)(3)(B). See B.B., Docket No. 17-1733 (issued March 26, 2018).

10

See I.J., Docket No. 19-1672 (issued March 10, 2020); C.A., Docket No. 18-1284 (issued April 15, 2019);
James J. Conway, Docket No. 04-2047 (issued May 20, 2005).
11

5 U.S.C. § 8707(d); see also B.B., supra note 9.

12

Id. at § 8102(a).

13

Id. at § 8129(a).

5

whatever option he or she had selected.14 Moreover, as noted, when an underwithholding of life
insurance premiums occurs, the entire amount is deemed an overpayment of compensation because
OWCP must pay the full premium to OPM upon discovery of the error.15
The Board thus finds that OWCP properly calculated the amount of the overpayment. As
OWCP failed to properly deduct PRBLI, BLI, and OLI premiums for the period February 9, 2011
to January 5, 2019, appellant received an overpayment of compensation of $3,359.33 during this
period.16
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.17
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.18 Additionally, recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.19
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.20 Failure to submit the requested information

14

5 C.F.R. § 870.504(b); S.P., Docket No. 17-1888 (issued July 18, 2018).

15

5 U.S.C. § 8102.

16

See I.J., supra note 10; D.H., Docket No. 19-0384 (issued August 12, 2019); R.W., Docket No. 19-0451 (issued
August 7, 2019).
17
5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
18

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
19

Id. at § 10.437(a)(b).

20

Id. at § 10.438(a).

6

within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished.21
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The fact that a claimant is without fault in the creation of an overpayment does not preclude
OWCP from recovering the overpayment.22 As OWCP found appellant without fault in the
creation of the overpayment, waiver must be considered, and repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience.23 Appellant, however, has the responsibility to provide the appropriate
financial information and documentation to OWCP.24
In its preliminary overpayment determination dated January 23, 2019, OWCP explained
the importance of providing the completed Form OWCP-20 and financial information, including
copies of income tax returns, bank account statements, bills, pay slips, and any other records to
support income and expenses. It advised appellant that it would deny waiver of recovery if he
failed to furnish the requested financial information within 30 days. Appellant, however, did not
respond. As such, OWCP did not have the necessary financial information to determine if recovery
of the overpayment would defeat the purpose of FECA or if recovery would be against equity and
good conscience.25
As appellant did not submit the information required under 20 C.F.R. § 10.438, which was
necessary to determine his eligibility for waiver, the Board finds that OWCP properly denied
waiver of recovery of the overpayment.26
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as the error is discovered or his or her attention is called to the same.
If no refund is made, OWCP shall decrease later payments of compensation, taking into account

21

Id. at § 10.438(b).

22

See George A. Rodriguez, 57 ECAB 224 (2005); Joyce O. Diaz, 51 ECAB 124 (1999).

23

20 C.F.R. § 10.436.

24
Id. at § 10.438; see also N.J., Docket No. 19-1170 (issued January 10, 2020); S.M., Docket No. 17-1802 (issued
August 20, 2018).
25

D.H., Docket No. 19-0384 (issued August 12, 2019).

26

Id.

7

the probable extent of future payments, the rate of compensation, the financial circumstances of
the individual, and any other relevant factors, so as to minimize any hardship.27
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$250.00 from appellant’s continuing compensation payments, every 28 days.
OWCP provided a Form OWCP-20 to appellant with the January 23, 2019 preliminary
overpayment determination. Appellant did not complete the form or provide the necessary
financial information to support his income and expenses prior to the final October 31, 2019
overpayment decision. The overpaid individual is responsible for providing information about
income, expenses, and assets as specified by OWCP.28
As appellant did not submit the financial documentation to OWCP as requested, the Board
finds that there is no evidence of record to establish that OWCP erred in directing recovery of the
$3,359.33 overpayment at the rate of $250.00 every 28 days from his continuing compensation
payments.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$3,359.33 for the period February 9, 2011 through January 5, 2019 because of an underwithholding
of life insurance premiums. The Board further finds that OWCP properly denied waiver of
recovery of the overpayment and properly required repayment of the overpayment by deducting
$250.00 from his continuing compensation payments every 28 days.

27

20 C.F.R. § 10.441(a).

28

Id. at § 10.438. See also A.F., Docket No. 19-0054 (issued June 12, 2019).

8

ORDER
IT IS HEREBY ORDERED THAT the October 31, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 18, 2021
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
__________________________________________
I.B., Appellant
and
U.S. POSTAL SERVICE, LaVERNE POST
OFFICE, LaVerne, CA, Employer
__________________________________________

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

Docket No. 07-601
Issued: June 11, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 27, 2006 appellant filed a timely appeal from a September 27, 2006 merit
decision of the Office of Workers’ Compensation Programs, finding that she did not sustain an
injury while in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained an injury while in the
performance of duty.
FACTUAL HISTORY
On April 30, 2006 appellant, then a 57-year-old clerk, filed an occupational disease claim
(Form CA-2).1 On April 17, 2001 she first realized that the pain in her right wrist, arm, elbow
1

The record reveals that, prior to the instant claim, appellant filed claims assigned file numbers 132081630 for
right carpal tunnel syndrome and 132141441 for a right elbow condition. She underwent right carpal tunnel release
surgery in either 2003 or 2004.

and shoulder was caused by her federal employment. Appellant stated that, following her return
to work from carpal tunnel syndrome surgery, she experienced pain in her arm, elbow and
shoulder after working a few hours. She thought the pain was due to not having worked in four
months but the pain continued after two or three hours. In accompanying narrative statements,
appellant provided a history of her employment and described the development of her claimed
conditions and medical treatment received.
By letter dated June 9, 2006, the Office requested that the employing establishment
respond to appellant’s claim and provide a copy of her position description including the
physical requirements. By letter of the same date, the Office advised appellant that the evidence
submitted was insufficient to establish her claim. It addressed the medical evidence she needed
to submit to establish her claim. The Office requested a rationalized medical report from
appellant’s attending physician which described her symptoms, results of examination and tests,
diagnosis, treatment provided, the effect of treatment and opinion with medical reasons on
whether exposure or incidents in appellant’s federal employment contributed to her condition.
On June 19, 2006 appellant related that the Office erred in stating that the date of her
injury was on April 17, 2006. She further stated that she was initially hurt in April 2001 and
continued to experience pain. Appellant suffered from pain in her hands, wrists, arm, elbow and
shoulder. She submitted a CA-2 form dated November 7, 2005. Appellant alleged that in
February 2003 she first realized that the tendinitis in her right forearm and shoulder was caused
by her employment. She stated that Dr. Isaias F. Salazar, a Board-certified orthopedic surgeon,
opined that her condition was caused by the performance of repetitive work duties.
In a report dated June 6, 2006, Dr. Steve Huang, an occupational medicine specialist,
noted appellant’s right shoulder and elbow symptoms and repetitive use of her arm. He stated
that appellant was originally injured on April 1, 2001 and that she continued to experience pain
in her right shoulder, elbow and wrist. Dr. Huang provided a history of her social, family and
employment background. He reported essentially normal findings on physical examination.
Dr. Huang diagnosed tendinitis in the right shoulder, elbow and wrist. He opined that appellant
could return to modified-duty work with physical restrictions from June 6 through 29, 2006.
On December 12, 2005 the employing establishment offered appellant a modified
position. Appellant rejected the job offer stating that the position was not consistent with her
physician’s restrictions.
In a letter dated June 23, 2006, Frank Malone, an officer-in-charge at the employing
establishment, stated that appellant returned to work on April 17, 2006 because she wanted work
hours. Appellant advised management that she was going to apply for disability retirement.
Mr. Malone stated that, at the time appellant returned to work, it was understood that she had no
job-related restrictions. Appellant was only entitled to light-duty work due to her nonindustrial
restrictions. Mr. Malone stated that appellant agreed to perform duties which included the
distribution of letter mail and throwing box mail. On April 17 and 19, 2006 appellant was
assigned to the box section to throw box mail. Mr. Malone noted that appellant went home
shortly after performing this task because she was unable to perform any other duties. He stated
that, after working nine days, she went to her physician due to pain in her arm, elbow and
shoulder. On April 30, 2006 appellant submitted a CA-2 form for the pain. Mr. Malone

2

indicated that appellant probably should have submitted a claim for a recurrence of disability
(Form CA-2a) resulting from her previous employment-related elbow condition. He further
indicated that she refused a February 2006 limited-duty job offer contending that the work duties
were not consistent with her medical restrictions. Mr. Malone related that appellant had not
worked since May 30, 2006 because she was having problems performing her work duties and
claimed that she was experiencing arm, elbow and shoulder pain. He noted that, due to her
nonjob-related injuries, the employing establishment was having difficulty in providing her with
work. Mr. Malone concluded that in light of her medical problems, appellant was physically
unable to perform her job duties.
In a May 24, 2006 report, Dr. Huang stated that appellant sustained right lateral
epicondylitis and noted her physical restrictions.
In a letter dated June 26, 2006, Nancy Lemus, an employing establishment nurse,
provided a history of appellant’s bilateral carpal tunnel syndrome, rheumatoid, diabetic and right
lateral epicondylitis conditions. She stated that appellant did not have any work-related
restrictions. Ms. Lemus further stated that contrary to appellant’s contention, the duties of an
offered job did not require her to work outside her restrictions. She noted that appellant was
“P&S’d” by Dr. Lauri B. Hemsley, Board-certified in occupational medicine, on May 24, 2006.
Dr. Hemsley advised appellant that she could not find anything wrong with her shoulder after
evaluating her following her admission of falling in the parking lot of a grocery store.
The employing establishment submitted a description of appellant’s distribution clerk
position.
Dr. Hemsley’s June 14, 2006 report provided a history of appellant’s right elbow and
forearm condition and medical treatment. On physical examination, she reported full range of
motion of the right shoulder, elbow and wrist and normal upper extremity strength. Dr. Hemsley
diagnosed right lateral epicondylitis. She opined that appellant was at maximum medical
improvement. Dr. Hemsley further opined that, based on the American Medical Association,
Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides), appellant
had zero percent impairment of the upper extremity and whole person. She stated that appellant
only had a mild change in her daily living activities and no objective findings. Dr. Hemsley
opined that an impairment rating for pain would not adequately reflect appellant’s condition
since the change in her daily living activities was mild. She concluded by noting appellant’s
physical restrictions and recommending job modification.
Dr. Huang’s August 8, 2006 report revealed essentially normal findings on physical
examination of appellant’s right shoulder and elbow. He released her to return to modified work
with restrictions from July 24 through August 8, 2006.
An August 8, 2006 report of Dr. Christopher J. Shean, a Board-certified orthopedic
surgeon, stated that appellant had right tennis elbow and cubital tunnel symptoms. He indicated
that appellant wished to schedule surgery for operative release.

3

By decision dated September 27, 2006, the Office found that appellant did not sustain an
injury while in the performance of duty. The medical evidence failed to establish a causal
relationship between the alleged shoulder and elbow conditions and her employment duties.2
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background 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.6 Neither the fact that appellant’s condition became apparent during a
period of employment nor her belief that the condition was caused by her employment is
sufficient to establish a causal relationship.7

2

Following the issuance of the Office’s September 27, 2006 decision, the Office received additional evidence.
The Board may not consider evidence for the first time on appeal which was not before the Office at the time it
issued the final decision in the case. 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and
request reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
3

5 U.S.C. §§ 8101-8193.

4

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

5

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

6

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

7

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

4

ANALYSIS
The Board finds that appellant has failed to establish a causal relationship between her
right wrist, arm, elbow and shoulder conditions and her federal employment. The record reveals
that appellant previously sustained right carpal tunnel syndrome and a right elbow condition in
April 2001. According to appellant, she underwent right carpal tunnel release surgery in either
2003 or 2004.
Appellant submitted several reports of Dr. Huang. In a June 6, 2006 report, Dr. Huang
stated that appellant was originally injured on April 1, 2001 and that she continued to experience
pain in her right shoulder, elbow and wrist. He reported essentially normal findings on physical
examination. Dr. Huang diagnosed tendinitis in the right shoulder, elbow and wrist. He opined
that appellant could return to modified-duty work with physical restrictions from June 6
to 29, 2006. Dr. Huang’s May 24, 2006 report stated that appellant had right lateral epicondylitis
and physical restrictions. His reports are of diminished probative value as they failed to address
whether the diagnosed conditions were caused or aggravated by factors of appellant’s
employment. The Board, therefore, finds that this evidence is insufficient to establish appellant’s
burden of proof.
Dr. Huang’s August 8, 2006 report provided essentially normal findings on physical
examination of appellant’s right shoulder and elbow. He released her to return to modified work
with restrictions from July 24 to August 8, 2006. Dr. Huang failed to provide a definite
diagnosis of a right upper extremity condition or to address whether the diagnosed condition was
caused or aggravated by factors of appellant’s employment. The Board finds that Dr. Huang’s
report is insufficient to establish appellant’s burden of proof.
Similarly, Dr. Hemsley’s June 14, 2006 report failed to provide a diagnosed condition or
address whether the diagnosed condition was caused or aggravated by factors of appellant’s
employment. She reported normal findings on physical examination. Dr. Hemsley opined that
appellant was at maximum medical improvement and that she had zero percent impairment of
the upper extremity and whole person based on the A.M.A., Guides. She stated that an
impairment rating based on pain would not adequately reflect appellant’s condition since the
change in her daily living activities was mild. Dr. Hemsley noted her physical restrictions and
recommended job modification. As she did not diagnose a condition causally related or
aggravated by appellant’s employment, the Board finds that her report is insufficient to establish
appellant’s claim.
In an August 8, 2006 report, Dr. Shean opined that appellant had right tennis elbow and
cubital tunnel symptoms. His report is of diminished probative value because he failed to
address whether the diagnosed conditions were caused by appellant’s employment. The Board
finds that Dr. Shean’s report is insufficient to establish appellant’s claim.
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained right wrist, arm, elbow and shoulder conditions causally related
to factors of her federal employment as a clerk. Appellant did not meet her burden of proof.

5

CONCLUSION
The Board finds that appellant has failed to establish that she sustained an injury while in
the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 27, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 11, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 18-1178
Issued: February 11, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 17, 2018 appellant filed a timely appeal from a January 31, 2018 merit decision
and an April 19, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant filed a timely claim for compensation pursuant to
5 U.S.C. § 8122; and (2) whether OWCP properly denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 1, 2017 appellant, then a 63-year-old retired sheet metal mechanic, filed an
occupational disease claim (Form CA-2) alleging bilateral hearing loss due to his exposure to
occupational noise while in the performance of duty. He indicated that he first became aware of
his bilateral hearing loss and that it was caused or aggravated by his federal employment following
an April 5, 2011 hearing evaluation. Appellant explained that the hearing evaluation revealed that
his baseline hearing changed due to hearing loss caused by exposure to occupational noise. The
employing establishment noted that he had retired on June 30, 2012.
In an August 9, 2017 developmental letter, OWCP requested that appellant submit
additional evidence to establish his claim. It noted that the evidence of record was insufficient to
establish that he had provided timely notification of his work injury. OWCP afforded appellant
30 days to submit the necessary evidence. It also requested that the employing establishment
submit factual and medical evidence related to his noise exposure in the course of his federal
employment.
Appellant subsequently submitted a position description and a notification of personnel
action (SF-50) confirming that he had retired on June 30, 2012.
The employing establishment submitted hearing conservation data, including reference
audiograms dated February 9, 2005 and February 29, 2012. Using the frequencies of 500, 1,000,
2,000, and 3,000 cycles per second (cps) the reference audiogram dated February 9, 2005
documented appellant’s hearing as follows: -5, 0, 10, and 5 decibels in the left ear and 0, 0, 15,
and 15 decibels in the right ear. Using the same frequencies the February 29, 2012 reference
audiogram revealed appellant’s hearing measured as: 0, 5, 10, and 10 decibels in the left ear and
0, 10, 15, and 20 decibels in the right ear.
In a September 7, 2017 narrative statement, appellant contended that his claim was filed in
a timely manner because both his supervisor and the technician at the dispensary were aware of
the injury and argued that the audiograms taken at the employing establishment were evidence of
the injury.
By decision dated January 31, 2018, OWCP denied appellant’s claim, finding that it was
untimely filed. It found that the date of appellant’s injury was April 5, 2011, as indicated on his
claim form, and it noted that his claim was not filed within three years of the date of last exposure.
OWCP further noted that appellant’s immediate supervisor did not have actual knowledge of the
injury within 30 days of the date of last exposure.
On March 27, 2018 appellant requested reconsideration. He submitted a narrative
statement dated March 5, 2018 and enclosed a hearing conservation disposition dated February 9,
2005 from the employing establishment which reported a provisional diagnosis of noise-induced
sensorineural hearing loss. Appellant further indicated that he was sent by his supervisor back to
the dispensary to reestablish the reference audiogram and subsequently his baseline thresholds
were adjusted and he returned to work. He contended that this was evidence that both the
dispensary and his immediate supervisor had knowledge of the injury.

2

By decision dated April 19, 2018, OWCP denied appellant’s request for reconsideration
without conducting a merit review because he failed to advance a relevant legal argument or submit
any relevant and pertinent new evidence. It found that the evidence appellant submitted on
reconsideration was irrelevant to the issue of whether he had filed a timely claim for compensation
pursuant to 5 U.S.C. § 8122.
LEGAL PRECEDENT -- ISSUE 1
Under section 8122(a) of FECA2 a claimant has three years to file a claim for
compensation.3 In a case of occupational disease, the Board has held that the time for filing a
claim begins to run when the employee first becomes aware or reasonably should have been aware,
of a possible relationship between his or her condition and his or her employment. Such awareness
is competent to start the limitation period even if the employee does not know the nature of the
impairment or whether the ultimate result of such affect would be temporary or permanent.4 Where
the employee continues in the same employment after such awareness, the time limitation begins
to run on the date of his or her last exposure to the implicated factors.5 For latent disability cases,
section 8122(b) of FECA provides that the time limitation does not begin to run until the claimant
is aware of the causal relationship between his or her employment and the compensable disability
or should have been aware of this relationship by exercising reasonable diligence.6
Even if the claim is not filed within the three-year period, it may be regarded as timely
under section 8122(a)(1) if appellant’s immediate supervisor had actual knowledge of his or her
alleged employment-related injury within 30 days such that the immediate superior was put
reasonably on notice of an on-the-job injury or death.7 In interpreting section 8122(a)(1) of FECA,
OWCP procedures provide that, if the employing establishment provides regular physical
examinations which might have detected signs of illness, such as hearing tests, it should be asked
whether the results of such tests were positive for illness and whether the employee was notified
of the results.8
The Board has held that a program of periodic audiometric examinations conducted by an
employing establishment in conjunction with an employee testing program for hazardous noise
exposure is sufficient to constructively establish actual knowledge of a hearing loss, such as to put
2

5 U.S.C. § 8122(a).

3

M.G., Docket No. 17-1334 (issued December 18, 2017); Duet Brinson, 52 ECAB 168 (2000); William F.
Dorson, 47 ECAB 253, 257 (1995); see 20 C.F.R. § 10.101(b).
4

M.G., id.

5

M.N., Docket No. 17-0931 (issued August 15, 2017); Larry E. Young, 52 ECAB 264 (2001).

6

5 U.S.C. § 8122(b); I.W., Docket No. 15-1691 (issued February 11, 2016); Bennie L. McDonald, 49 ECAB 509,
514 (1998).
7

Id. at § 8122(a)(1).

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6(c) (March 1993); L.C., 57 ECAB 740
(2006); Ralph L. Dill, 57 ECAB 248 (2005).

3

the immediate supervisor on notice of an on-the-job injury.9 A hearing loss identified on such a
test would constitute actual knowledge on the part of the employing establishment of a possible
work injury.10
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
Appellant stated on his CA-2 claim form that he was aware of a relationship between the
claimed condition and his federal employment as of April 5, 2011. Under section 8122(b), the
time limitation begins to run when he became aware of causal relationship, or, if he continued to
be exposed to noise after awareness, the date he is no longer exposed to noise. Appellant retired
from federal employment on June 30, 2012. Therefore, the three-year time limitation began to run
on June 30, 2012. As appellant did not file his occupational disease claim until August 1, 2017,
the Board finds that it was untimely filed under section 8122(b).11
Appellant’s claim would still be regarded as timely filed under 5 U.S.C. § 8122 if his
immediate superior had actual knowledge of the injury within 30 days or, under section 8122(a),
if written notice of injury had been given to his immediate superior within 30 days. The Board
has previously held, however, that participation in an employing establishment hearing
conservation program can also establish constructive notice of injury.12 A positive test result from
an employing establishment program of regular audiometric examination as part of a hearing
conservation program is sufficient to establish knowledge of hearing loss so as to put the
immediate superior on notice of an on-the-job injury.13
Herein, the results of a February 9, 2005 reference audiogram at the frequency levels of
500, 1,000, 2,000, and 3,000 cps revealed decibel losses of -5, 0, 10, and 5 decibels in the left ear
and 0, 0, 15, and 15 decibels in the right ear. Subsequently, a February 29, 2012 reference
audiogram at the same frequency levels revealed decibel losses of 0, 5, 10, and 10 decibels in the
left ear and 0, 10, 15, and 20 decibels in the right ear. This demonstrates a hearing loss which
constitutes actual knowledge by the employing establishment of a possible work-related hearing
loss within 30 days of his last noise exposure which occurred no later than June 30, 2012, the date
of his retirement.14 Therefore, based on this positive test result from the employing

9

L.B., Docket No. 12-1548 (issued January 10, 2013); James W. Beavers, 57 ECAB 254 (2005).

10

L.E., Docket No. 14-1551 (issued October 28, 2014).

11

See supra note 6.

12

See J.C., Docket No. 15-1517 (issued February 25, 2016); see also M.W., Docket No. 16-0394 (issued
April 8, 2016).
13

See M.N., Docket No. 17-0931 (issued August 15, 2017); W.P., Docket No. 15-0597 (issued January 27, 2016).

14

See supra notes 9, 10, 12, and 13.

4

establishment’s hearing conservation program, appellant’s hearing loss claim is considered
timely.15
The case must therefore be remanded for OWCP to address the merits of the claim. After
carrying out this development, OWCP shall issue a de novo decision.16
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 31, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: February 11, 2019
Washington, DC

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

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

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

15

M.N., supra note 13.

16
In light of the Board’s disposition of the timeliness issue, the second issue of whether OWCP properly denied
appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a) is moot.

5