United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, LAWRENCEVILLE
POST OFFICE, Lawrenceville, VA, Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0932
Issued: December 9, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 16, 2020 appellant, through counsel, filed a timely appeal from a September 17,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s September 17, 2019 decision was Sunday, March 15,
2020; consequently, the period for filing the appeal ran to the next business day, Monday, March 16, 2020. See 20
C.F.R. § 501.3(f)(2). Since using March 19, 2020, the date the appeal was received by the Office of the Clerk of the
Appellate Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing.
The date of the U.S. Postal Service postmark is March 16, 2020, rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1)-(2).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met his burden of proof to establish a left shoulder
condition causally related to the accepted November 15, 2018 employment incident.
FACTUAL HISTORY
On November 24, 2018 appellant, then a 66-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 15, 2018, he sustained a ruptured left biceps tendon
when he reached forward to ring a doorbell with his left arm that he was also using to cradle three
lightweight packages while in the performance of duty. On the reverse side of the claim form, the
employing establishment indicated that he was injured in the performance of duty on
November 15, 2018. Appellant stopped work on November 21, 2018.
In a November 22, 2018 report, a practitioner whose signature is illegible5 diagnosed a left
biceps tendon rupture sustained on November 15, 2018.6
In a November 28, 2018 report, Dr. Seth A. Cheatham, a Board-certified orthopedic
surgeon, noted that appellant felt a pop in his left shoulder when he rang a doorbell while at work
on November 15, 2018. On examination, Dr. Cheatham noted a Popeye deformity (biceps
contraction), diminished external rotation strength, and a positive Jobe’s test. He diagnosed a
rupture of the long head of the left biceps tendon and possible concurrent rotator cuff injury. In a
report dated December 13, 2018, Dr. Cheatham recommended arthroscopic rotator cuff and tendon
repair with open distal clavicle excision.
In a December 17, 2018 duty status report (Form CA-17), Dr. Cheatham diagnosed a left
rotator cuff tear and proximal biceps tendon rupture sustained on November 15, 2018, when

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the September 17, 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.
5

The report contains a summary of a visit to a physician assistant, Alyssa Waitkus.

6

November 22, 2018 x-rays of the left shoulder demonstrated mild acromioclavicular joint space narrowing with
subchondral sclerosis and small dorsal osteophyte. November 22, 2018 x-rays of the left elbow were within normal
limits. November 28 and December 4, 2018 x-rays of the left humerus demonstrated no acute process. A
December 11, 2018 MRI scan of the left shoulder demonstrated a large full-thickness tear of the left supraspinatus
and infraspinatus tendons with moderate muscle atrophy, subscapularis tendinopathy with a partial thickness articularsided tear of the superior fibers, a partial tear of the long head of the biceps tendon, and mild acromioclavicular joint
arthritis.

2

appellant reached upward to ring a doorbell while holding packages in his left arm. He restricted
lifting to 15 pounds.
In a February 7, 2019 development letter, OWCP notified appellant that when his claim
was received it appeared to be a minor injury that resulted in minimal or no time lost from work.
It noted that it had reopened the claim for formal consideration because the medical bills had
exceeded $1,500.00. OWCP informed appellant that additional factual and medical evidence were
required to establish his claim, advised him of the type of evidence necessary to establish his claim,
and attached a questionnaire for his completion. It afforded him 30 days to submit the requested
evidence. OWCP did not receive additional evidence.
By decision dated March 11, 2019, OWCP denied appellant’s claim finding that he had not
established that the claimed November 15, 2018 employment incident occurred as alleged. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
On March 14, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. OWCP received additional evidence.
In a March 21, 2019 duty status report (Form CA-17), Dr. Cheatham noted that appellant
underwent left shoulder surgery. He held appellant off work through April 1, 2019. The record
indicates that appellant returned to full duty on April 1, 2019.
Dr. Cheatham noted in a June 24, 2019 report that appellant was four months status post
left shoulder arthroscopy with debridement of the proximal biceps tendon stump, subacromial
decompression, and open distal clavicle excision. Appellant had returned to full duty, with
intermittent mild pain and weakness.
In a June 26, 2019 report, Dr. Cheatham noted that while at work on November 15, 2019,
appellant attempted to ring a doorbell when he felt a pop in his left shoulder and arm, with the
onset of immediate pain. Appellant had no prior upper extremity problems. A magnetic resonance
imaging (MRI) scan confirmed a left biceps tendon rupture and massive rotator cuff tear with
moderate atrophy indicative of a chronic injury. Dr. Cheatham operated on February 19, 2019,
revealing a proximal biceps tendon rupture and an irreparable left rotator cuff tear. He also shaved
the distal clavicle due to existing arthritis. Appellant had returned to work following surgery with
residual pain and persistent weakness. Dr. Cheatham opined that the November 15, 2018
employment incident caused a left proximal biceps tendon rupture and aggravation of a preexisting
rotator cuff tear, as appellant had no prior left upper extremity symptoms.
At the hearing, held July 16, 2019, appellant asserted that, on November 15, 2019, he was
holding an umbrella in his right hand and carrying parcels in his left arm. He reached upward with
his left hand to ring a doorbell and experienced the immediate onset of severe pain. Appellant
submitted additional evidence.
In an operative report dated February 19, 2019, Dr. Cheatham diagnosed a massive left
rotator cuff tear, rupture of the left proximal biceps tendon, and left acromioclavicular joint
arthritis. He performed left shoulder arthroscopy with debridement of the proximal biceps tendon
stump, arthroscopic subacromial decompression, and open left distal clavicle excision.
3

Dr. Cheatham provided periodic progress notes in February and March 2019 during appellant’s
surgical recuperation.
In an August 8, 2019 report, Dr. Cheatham noted the history of injury of ringing a doorbell
while at work on November 15, 2018 and diagnosed left biceps tendon rupture and left shoulder
deformity. He opined that, “[a]lthough the mechanism of injury is unusual to result in this injury
it is still distinctly possible. I therefore am of the opinion within a reasonable degree of medical
certainty that [appellant’s] left proximal biceps tendon rupture was proximately caused by the work
incident on November 15, 2018.”7
By decision dated September 17, 2019, OWCP’s hearing representative modified the
March 11, 2019 decision finding that the evidence of record was sufficient to establish the
November 15, 2018 employment incident as factual. However, she continued to deny the claim,
as the evidence of record was insufficient to establish causal relationship between the diagnosed
left shoulder conditions and the accepted November 15, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA8 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA,9 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.10 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.11
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

7
Appellant also provided September 4, 2019 emergency department reports documenting a nondisplaced fracture
of the lateral margin of the left ninth rib sustained in an unspecified fall.
8

Supra note 3.

9

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
10

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
11
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

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time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and this component can be established only by medical evidence.12
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.13 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.14
ANALYSIS
The Board finds that this case is not in posture for decision.
In reports from November 28, 2018 to August 8, 2019, Dr. Cheatham provided a consistent,
comprehensive understanding of the claimed mechanism of injury. He also performed surgery on
February 19, 2019 and described, in detail, the injuries caused by the accepted November 15, 2018
employment incident, which were confirmed by diagnostic studies.
In his June 26 and August 8, 2019 reports, Dr. Cheatham reiterated that the accepted
employment incident of appellant reaching upward with his left hand to ring a doorbell while
cradling packages in his left arm was competent to cause the proximal left biceps tendon rupture
and aggravate a preexisting rotator cuff tear. He also noted that there were no prior problems in
this area. Dr. Cheatman’s medical reports therefore raise an uncontroverted inference of causal
relationship between appellant’s claimed left rotator cuff tear and biceps tendon rupture and the
accepted November 15, 2018 employment incident. Further development of appellant’s claim is
therefore required.15
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done.16
On remand OWCP shall prepare a statement of accepted facts setting forth the accepted
employment incident and refer appellant to a second opinion physician in the appropriate field of
12

C.H., Docket No. 20-0440 (issued August 3, 2020); T.H., Docket No. 19-0599 (issued January 28, 2020);
K.L., Docket No. 18-1029 (issued January 9, 2019); John J. Carlone, 41 ECAB 354 (1989).
13
S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
14

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
15

C.H., supra note 12; see K.T., Docket No. 19-1436 (issued February 21, 2020).

16

Y.D., Docket No. 19-1200 (issued April 6, 2020).

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medicine for an examination and a rationalized medical opinion as to whether the accepted
employment incident either caused or aggravated the diagnosed left shoulder conditions.17 If the
second opinion physician disagrees with the pathophysiological explanation provided by
Dr. Cheatham, he or she must provide a fully-rationalized explanation as to why Dr. Cheatham’s
opinion is unsupported. After this and other such further development deemed necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2019 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: December 9, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

17
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

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

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

Docket No. 15-0779
Issued: August 7, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 19, 2015 appellant, through counsel, filed a timely appeal from a
December 3, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an occupational
disease in the performance of duty.
FACTUAL HISTORY
On November 18, 2013 appellant worked as a 54-year-old city letter carrier. She filed an
occupational disease claim alleging that she injured her knees in the performance of duty.
Appellant advised that walking up and down stairs caused pain and swelling in both knees. She
1

5 U.S.C. § 8101 et seq.

became aware of her condition and its relation to her federal employment on July 8, 2013.
Appellant stopped work on July 8, 2013 and returned on October 1, 2013.
By letter dated December 16, 2013, OWCP notified appellant that evidence was
insufficient to establish the claim. Appellant was instructed to complete a questionnaire
establishing the factual element of her claim and advised of the type of medical evidence needed.
In a December 30, 2013 medical note, Dr. Dante Trovato, a Board-certified orthopedic
surgeon, advised that appellant was under his care for chondromalacia patella of both knees. He
reported that she was undergoing physical therapy, but still had bilateral knee problems.
In a December 30, 2013 statement, appellant advised that she had worked for the
employing establishment for the past seven years. She noted that on June 15, 2013 she was
reassigned to Queens, NY where, two weeks into her position, she began experiencing pain in
both knees for which she sought treatment for during her third week. Appellant further noted
that she stopped work at that time and returned on October 1, 2013. She stated that three days
after returning to work her knees were swollen and painful. Appellant attributed her condition to
climbing and descending stairs. She claimed that she did not engage in any sports or recreational
activities outside of her federal employment and that she did not have any previous knee
condition. Appellant requested reassignment back to the city.
By decision dated February 27, 2014, OWCP denied the claim because medical evidence
was insufficient to establish that a medical condition was diagnosed in relation to appellant’s
work duties.
By letter dated September 10, 2014, appellant’s counsel, requested reconsideration. He
asserted that he was submitting a new medical report that was sufficient to discharge appellant’s
burden of proof.
In a July 7, 2014 report, Dr. Trovato advised that he began treating appellant on July 17,
2013 for bilateral knee pain. He noted that she was experiencing pain and swelling in both knees
upon ambulation exacerbated by walking up and down steps, kneeling, carrying heavy objects,
and squatting. Dr. Trovato further noted seeing appellant on August 28, 2013 after a magnetic
resonance imaging (MRI) scan report revealed patella femoral osteoarthritis with fraying of
patella cartilage along the medial patella facet with a small adjacent flap tear. He diagnosed
patella femoral syndrome and chondromalacia of both knees. Dr. Trovato opined that
appellant’s condition was permanent and noted that she would have periods of intermittent pain
and swelling exacerbated by prolonged walking, standing, carrying excessive weight, kneeling,
and squatting. He asserted that her condition was causally related to her duties as a letter carrier.
In a November 27, 2013 report, Dr. Trovato diagnosed left knee osteoarthritis as
demonstrated by an x-ray, provided a series of injections, and found that appellant’s pain had
moderately improved. A partially legible August 26, 2013 left knee MRI scan report was also
submitted.
By decision dated December 3, 2014, OWCP again denied appellant’s occupational
disease claim finding that the medical evidence did not establish that the medical condition was
causally related to factors of her employment.
2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden 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, that an injury was sustained in the performance of duty as alleged, and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.2 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.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.5
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.6
ANALYSIS
Appellant claimed that she began experiencing knee pain as a result of climbing up and
down stairs. There is no dispute that she climbed stairs as a part of her job. However, the
medical evidence is insufficient to establish that any medical condition was causally related to
the accepted work conditions.
In his July 7, 2014 report, Dr. Trovato diagnosed patella femoral syndrome and
chondromalacia of both knees. He opined that appellant’s condition was permanent was
exacerbated by prolonged walking, standing, carrying excessive weight, kneeling, and squatting.
2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

5

I.J., 59 ECAB 408 (2008); supra note 3.

6

James Mack, 43 ECAB 321 (1991).

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Dr. Trovato opined that her condition was causally related to her duties as a letter carrier.
However, he did not provide any medical rationale to explain how these duties contributed to
appellant’s condition. As noted, rationalized medical opinion evidence is generally required to
establish causal relationship. Dr. Trovato’s report is insufficient to discharge appellant’s burden
of proof. Other reports from Dr. Trovato, including his November 27 and December 30, 2013
reports, do not address causal relationship.7
There is no other medical evidence of record addressing how appellant’s work factors
caused or contributed to a diagnosed medical condition.
On appeal appellant’s counsel asserts that appellant submitted evidence that was
sufficient to establish the claim. As explained, the medical evidence is insufficient to establish
that the work duties caused or contributed to appellant’s claimed condition.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish an occupational disease caused by
work-related events.

7

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer an opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship).

4

ORDER
IT IS HEREBY ORDERED THAT the December 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 7, 2015
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
L.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
El Segundo, CA, Employer
__________________________________________

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

Docket No. 19-1905
Issued: April 10, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On September 17, 2019 appellant, through counsel, filed a timely appeal from a July 30
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish neck and left upper
extremity conditions causally related to the accepted October 11, 2018 employment incident.
FACTUAL HISTORY
On October 12, 2018 appellant, then a 48-year-old air marshal, filed a claim for traumatic
injury (Form CA-1) alleging that on October 11, 2018 he experienced pain in his neck, left
shoulder, and left upper arm when he hit his head on the ceiling of an aircraft that hit a pocket of
turbulence while in the performance of duty. He stopped work on October 16, 2018 and worked
intermittently thereafter.
Appellant was treated in the emergency department on October 16, 2018 by Dr. Zeljka
Kostich, Board-certified in emergency medicine, for neck pain and numbness radiating into his
left arm and hand. He reported working as an air marshal on a plane which experienced turbulence
causing his head to strike a low ceiling. A computerized tomography scan of the cervical spine
dated October 16, 2018 revealed moderate to marked arthritic changes. Dr. Kostich diagnosed
cervical radiculopathy and referred appellant to a neurosurgeon for further evaluation. She advised
that appellant would be off work for two weeks.
An x-ray of appellant’s cervical spine dated October 24, 2018 revealed no acute pathology.
An October 31, 2018 magnetic resonance imaging (MRI) scan revealed multilevel loss of
intervertebral disc height and disc desiccation at C3-T4 and disc protrusions at C3-4, C4-5, C5-6,
C6-7, C7-T1, T1-T2, and T2-T3.
The record contains page one of an authorization for examination and/or treatment (Form
CA-16) dated October 24, 2018 from the employing establishment, which indicated that appellant
was authorized to receive treatment for neck, left shoulder, and left arm pain.
Appellant attended physical therapy treatment from October 24 to November 7, 2018.
In a doctor’s first report of occupational illness or injury dated October 24, 2018,
Dr. Maria B. Ramirez, a Board-certified anesthesiologist, recounted the history of injury and
treated appellant for cervical pain and numbness radiating down his arms. Findings on
examination revealed paracervical, sternocleidomastoid, and trapezius tenderness to palpation,
diffuse spasms, and restricted range of motion. Dr. Ramirez diagnosed cervical radiculopathy and
referred appellant for further physical therapy. She returned appellant to modified duty on
October 25, 2018.
On November 1, 2018 Dr. Howard Waters, a specialist in occupational medicine, saw
appellant for persistent neck pain. Findings on examination were essentially normal. Dr. Waters
diagnosed cervical radiculopathy and cervical degenerative disc disease and returned appellant to
work with restrictions.
Appellant was treated by Dr. Moshe H. Wilker, a Board-certified orthopedist, on
November 9, 2018 for neck pain radiating into the left arm which began on October 11, 2018.
Dr. Wilker noted tenderness to palpation of the cervical spine and diminished sensation on the
2

cervical C7 dermatome. He diagnosed cervical radiculitis. In restriction orders dated November 9
and December 7, 2018, Dr. Wilker advised that appellant was disabled from work until
January 4, 2019. He treated appellant again on December 7, 2018 for neck pain radiating into his
left scapula and left arm. Findings on examination were unchanged. Dr. Wilker reviewed the MRI
scan of the cervical spine which revealed three disc protrusions and stenosis. He diagnosed
cervicalgia and cervical radiculitis and recommended a thoracic posterior laminectomy.
Dr. Wilker advised that appellant was disabled from work. 3
In a letter dated December 20, 2018, the employing establishment contacted OWCP and
noted that it was controverting appellant’s claim on the basis of causal relationship, and that it
proposed a second opinion medical examination be scheduled to address the issue.
In a December 21, 2018 physician review report, Dr. Tifani Gleeson, a Board-certified
occupational medicine specialist, indicated that the employing establishment had contacted her to
review the claim and that she had read the available medical reports and claim documentation, but
had not spoken with or examined appellant. She noted that appellant was an air marshal who
reported striking his head in an aircraft bathroom during turbulence. Appellant was treated in the
emergency room on October 16, 2018 and was diagnosed with cervical radiculopathy. An
October 31, 2018 MRI scan revealed cervical and thoracic protrusions and stenosis, and his
physician recommended a posterior laminectomy. Dr. Gleeson opined that the medical records
she reviewed did not support the medical necessity of surgery for the work injury and the provider
had not offered substantial reasoning as to the necessity of surgery at that time. She recommended
continued conservative care.
In a December 28, 2018 development letter, OWCP advised appellant that, when his claim
was received, it appeared to be a minor injury that resulted in minimal or no lost time from work.
The claim was administratively approved to allow payment for limited medical expenses, but the
merits of the claim had not been formally adjudicated. OWCP advised that because appellant had
requested authorization for surgery, his claim would be formally adjudicated. It requested that he
submit factual and medical information, including a comprehensive report from his physician
regarding how a specific work incident contributed to his claimed injury. OWCP afforded
appellant 30 days to submit the necessary evidence.
On January 3, 2019 appellant followed up with Dr. Wilker for posterior neck pain radiating
into the bilateral arms. He reported no improvement in his neck pain and numbness with
conservative treatment. Dr. Wilker diagnosed cervical radiculitis and opined that this was
“clearly” a work injury and recommended a T1-T2 laminectomy. In restriction orders dated
January 4 and February 1, 2019, he noted that appellant was temporarily totally disabled from
January 3 to August 3, 2019.

3

The Board notes that the case record as transmitted to the Board contains a December 13, 2018 medical report for
an individual other than appellant. Upon return of the case record OWCP shall ensure that all misfiled medical
documents are redacted from this file and placed into the correct file.

3

By decision dated February 13, 2019, OWCP denied appellant’s traumatic injury claim
finding that the medical evidence of record was insufficient to establish that the medical condition
was causally related to the accepted employment incident.
On February 18, 2019 appellant requested an oral hearing before an OWCP hearing
representative that was held on June 10, 2019.
By decision dated July 30, 2019, an OWCP hearing representative affirmed the decision
dated February 13, 2019.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 and 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 There are 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
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a

4

5 U.S.C. § 8101 et seq.

5
S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6

T.H., Docket No. 18-1736 (issued March 13, 2019); 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

T.E., Docket No. 18-1595 (issued March 13, 2019); 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

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

11

S.S., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

4

complete factual and medical background. 12 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 incident. 13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish neck and left
upper extremity conditions causally related to the accepted October 11, 2018 employment
incident.
Appellant was treated by Dr. Kostich in the emergency room on October 16, 2018 for neck
pain and numbness radiating into his left arm and hand. Dr. Kostich diagnosed cervical
radiculopathy. Similarly, in a doctor’s first report of occupational illness or injury dated
October 24, 2018, Dr. Ramirez treated appellant for cervical pain and numbness radiating down
his arms. Dr. Ramirez diagnosed cervical radiculopathy. Likewise, on November 1, 2018,
Dr. Waters saw appellant in follow up for persistent neck pain for which he diagnosed cervical
radiculopathy and cervical degenerative disc disease. Drs. Kostich, Ramirez, and Waters noted
that appellant sustained an injury on October 11, 2018 while working as an air marshal, however,
the mere recitation of a patient history does not suffice for purposes of establishing causal
relationship between a diagnosed condition and the employment incident. 14 Without explaining
physiologically how the accepted employment incident caused or contributed to the diagnosed
conditions, the physician’s reports are of limited probative value. 15 The Board finds that
Drs. Kostich, Ramirez, and Waters did not sufficiently explain how the accepted October 11, 2018
employment incident caused or contributed to the cervical and left upper extremity conditions
which have been diagnosed in this claim. As these physicians failed to provide medical rationale
to support their conclusory opinions, the Board finds that the reports from Drs. Kostich, Ramirez,
and Waters are insufficient to meet appellant’s burden of proof with respect to causal relationship.
Appellant was treated by Dr. Wilker on November 9, 2018, for neck pain radiating into the
left arm and he diagnosed cervical radiculitis. On January 3, 2019 Dr. Wilker treated appellant in
follow up for chronic radiating neck pain. He diagnosed cervical radiculitis and opined that this
was “clearly” a work injury and recommended a T1-T2 laminectomy. While Dr. Wilker provided
an affirmative opinion which supported causal relationship, he did not provide a pathophysiological explanation as to how the accepted incident either caused or contributed to his
diagnosed conditions.16 A mere conclusory opinion provided by a physician without the necessary
rationale explaining how and why the incident was sufficient to result in the diagnosed medical
12

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

13

Id.

14

N.S., Docket No. 19-0167 (issued June 21, 2019); J.G., Docket No. 17-1382 (issued October 18, 2017).

15

M.N., Docket No. 19-0694 (issued September 3, 2019); A.B., Docket No. 16-1163 (issued September 8, 2017).

16
Victor J. Woodhams, 41 ECAB 345 (1989). Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013). See R.D., Docket No. 18-1551 (issued March 1, 2019).

5

condition is insufficient to meet a claimant’s burden of proof to establish a claim. 17 Thus, the
Board finds that these reports from Dr. Wilker are also insufficient to establish causal relationship.
In restriction orders dated November 9, 2018 to February 1, 2019, Dr. Wilker advised that
appellant was disabled from work until August 3, 2019. He treated appellant again on
December 7, 2018 for neck pain radiating into his left scapula and left arm. Dr. Wilker diagnosed
cervicalgia and cervical radiculitis and recommended a thoracic posterior laminectomy. These
reports are insufficient to establish the claim as Dr. Wilker did not specifically address whether
appellant’s employment incident had caused or aggravated a diagnosed medical condition. As the
Board has held, medical evidence which does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship. As such, these
reports are of no probative value. 18
The employing establishment sent the medical record it possessed to Dr. Gleeson for a
records review after noting it wanted a second opinion examination in its controversion letter. In
her December 21, 2018 physician review report she discussed the necessity of surgery, but failed
to address the issue of causal relationship. As she expressed no opinion as to causal relationship,
her report has no probative value and is insufficient to establish appellant’s claim.19
OWCP received an x-ray of the cervical spine and an MRI scan of the right shoulder. The
Board has held, however, that reports of diagnostic tests standing alone lack probative value as
they do not provide an opinion on causal relationship between an employment incident and a
diagnosed condition.20 Appellant also submitted reports from a physical therapist. Certain
healthcare providers such as physical therapists are not considered “physician[s]” as defined under
FECA.21 Consequently, their medical findings and/or opinions will not suffice for purposes of
establishing entitlement to FECA benefits.
As appellant has not submitted rationalized medical evidence establishing causal
relationship between his neck and left upper extremity conditions and the accepted October 11,
2018 employment incident, the Board finds that he has not met his burden of proof to establish his
claim.

17

J.O., Docket No. 19-0326 (issued July 16, 2019); J.D., Docket No. 14-2061 (issued February 27, 2015).

18

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

19

Id.

20

See J.M., Docket No. 17-1688 (issued December 13, 2018).

21

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006). A report from a physician assistant or certified nurse practitioner will be considered medical evidence if
countersigned by a qualified physician. S.T., Docket No. 17-0913 (issued June 23, 2017) (a physical therapist is not
considered a “physician” as defined under FECA). Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013).

6

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish neck and left
upper extremity conditions causally related to the accepted October 11, 2018 employment
incident.22
ORDER
IT IS HEREBY ORDERED THAT the July 30, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 10, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

22

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No.
171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

7


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

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

Docket No. 15-1689
Issued: April 6, 2016

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 August 5, 2015 appellant filed a timely appeal from an April 16, 2015 nonmerit
decision and a June 11, 2015 merit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a back injury in
the performance of duty on November 26, 2014; and (2) whether OWCP properly denied
appellant’s request for an oral hearing before an OWCP hearing representative as untimely filed.
On appeal, appellant contends that he sustained an employment-related back injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 4, 2014 appellant, then a 50-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a back injury when his vehicle was hit from behind
at 5:00 p.m. on November 26, 2014. His regular work hours were 7:30 a.m. to 4:00 p.m. with
rotating days off work. The employing establishment checked a box indicating that appellant
was injured in the performance of duty. It noted that the injury had been caused by a third party.
The employing establishment also challenged appellant’s claim, stating that causal relationship
and the factual aspect of the claim had not been established.
In emergency room progress notes dated November 21 and 30, 2014, Eden M. Canite, a
registered nurse, and Dr. James R. Freeman, a Board-certified internist with a primary specialty
in nephrology, respectively, indicated that appellant was treated for acute chronic back pain.
Discharge instructions were provided which addressed appellant’s restrictions and medications.
In an undated disability certificate, Dr. Ghanshyam C. Barot, a family practitioner, noted
that appellant was treated on December 2, 2014 and that he could not return to work until cleared
by an orthopedist.
By letter dated January 2, 2014, OWCP notified appellant of the deficiencies of his claim
and afforded him 30 days to submit additional factual and medical evidence. It documented that
the submitted evidence was insufficient to support that he was injured while performing any
work duty. OWCP also noted that appellant did not provide a physician’s opinion explaining
how his injury resulted in a diagnosed condition. It also requested that the employing
establishment respond to his allegations and submit evidence regarding his work duties and any
medical evidence, if he had been treated at its medical facility.
In a January 27, 2015 statement, appellant related that, on the date of injury, he was in a
government vehicle, but he was not on his usual assigned route. Rather, he was instructed by the
officer-in-charge to perform collections from the boxes located at Virginia State University
(VSU).
In a December 11, 2014 medical report, Dr. Prakasam Kalluri, a Board-certified
orthopedic surgeon, provided a history of injury that appellant was involved in a motor vehicle
accident on November 26, 2014, reviewed his medical records, and noted findings on physical
examination. He assessed appellant as having a lumbar sprain. Dr. Kalluri noted that, although
appellant had preexisting low back pain and had undergone a recent back procedure, he did not
have any pain with facet loading or extension indicating that the procedure caused a significant
increase in pain. He provided an impression that appellant’s pain was aggravated by his motor
vehicle crash. Dr. Kalluri advised appellant to stay out of work for three weeks and to undergo
physical therapy.
In reports dated January 6, 13, and 16, 2015, appellant’s physical therapists addressed the
treatment of appellant’s lumbopelvic and lower extremity conditions.
On April 16, 2015 an assistant special agent-in-charge in the employing establishment’s
Office of Inspector General submitted an investigative report regarding appellant’s

2

November 26, 2014 motor vehicle accident with surveillance photographs of his activities from
December 16, 2014 to February 17, 2015 and exhibits which included medical records related to
the treatment of his preexisting and current back conditions. The report indicated that he had
stopped work on or about November 28, 2014.
In an April 16, 2015 decision, OWCP denied appellant’s claim. It found that the factual
and medical evidence was insufficient to establish that he sustained an injury on November 26,
2014 while in the performance of duty. OWCP stated that appellant was not on his assigned
route on the date-of-injury and he did not submit any investigative reports documenting the
claimed incident. In addition, appellant did not submit any medical evidence that established a
diagnosed medical condition in connection with the work injury or event.
In an appeal request form dated May 18, 2015 and postmarked May 19, 2015, appellant
requested a telephone hearing with an OWCP hearing representative.
By letter dated May 13, 2015, Carlos A. Thomas, an employing establishment officer-incharge, stated that appellant was involved in an accident on November 26, 2014. The paperwork
presented to management indicated that appellant was off of his assigned route at the time.
Mr. Thomas stated that appellant was on a collection operation as directed by management and
he was traveling toward Ettrick to collect mail from three blue collection boxes. He further
stated that, while sitting stationary at the intersection of North Sycamore Street and East Bank
Street, appellant was struck from behind. Mr. Thomas related that appellant was still working on
the clock at the time of the accident.
Appellant submitted a police report of the November 26, 2014 incident. He also
submitted progress notes and an addendum note dated November 24, 2014 and April 6, 2015
from Dr. Meenakshi Bindal, Board-certified in physical medicine and rehabilitation, and pain
medicine, Javier Soares-Velez,2 and Dr. Allison J. Hickman, a Board-certified physiatrist, which
addressed his chronic low back pain, service-connected disabilities, and medical treatment.
By decision dated June 11, 2015, OWCP’s Branch of Hearings and Review denied
appellant’s hearing request as untimely filed. OWCP considered his request and determined that
his case could equally well be addressed by requesting reconsideration and submitting new
evidence.
LEGAL PRECEDENT -- ISSUE 1
FECA provides for the payment of compensation for the disability or death of an
employee resulting from a personal injury sustained while in the performance of duty.3 The
phrase sustained while in the performance of duty has been interpreted by the Board to be the
equivalent of the commonly found requisite in workers compensation law of arising out of and in
the course of employment. In the course of employment deals with the work setting, locale, and

2

The Board notes that the professional qualifications of Javier Soares-Velez are not contained in the case record.

3

5 U.S.C. § 8102(a). See also P.S., Docket No. 08-2216 (issued September 25, 2009).

3

time of injury whereas, arising out of the employment encompasses not only the work setting but
also the requirement that an employment factor caused the injury.4
To occur in the course of employment, in general, an injury must occur: (1) at a time
when the employee may reasonably be said to be engaged in his master’s business; (2) at a place
where he may reasonably be expected to be in connection with the employment; and (3) while he
was reasonably fulfilling the duties of his employment or engaged in doing something incidental
thereto.5
OWCP procedures include letter carriers in the first of four general classes of offpremises workers.6 In determining whether this class of employees has sustained an injury in the
performance of duty, the factual evidence must be examined to ascertain whether, at the time of
injury, the employee is within the period of the employment, at a place where the employee
reasonably may be and while the employee is fulfilling employment duties or engaged in
activities reasonably incidental thereto.7
In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment.
Once an employee establishes that he or she sustained an injury in the performance of
duty, he or she has the burden of proof to establish that any subsequent medical condition or
disability for work, for which he or she claims compensation, is causally related to the accepted
injury.8
ANALYSIS -- ISSUE 1
Appellant filed a traumatic injury claim alleging that he sustained a back injury on
November 26, 2014 when his government vehicle was hit from behind as he travelled to VSU to
collect from boxes at the school. OWCP determined that his injury did not arise in the
performance of duty. The Board, however, finds that the injury did occur in the performance of
duty.
The Board notes that the November 26, 2014 injury occurred at a time and in a place
where appellant could reasonably be engaged in his employer’s business. Appellant was
reasonably fulfilling the duties of his employment or activities incidental thereto. Mr. Thomas,
4

A.K., Docket No. 09-2032 (issued August 3, 2010); C.O., Docket No. 09-217 (issued October 21, 2009).

5

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(a) (August 1992).

7

Thomas E. Keplinger, 46 ECAB 699 (1995).

8

Michael E. Smith, 50 ECAB 313 (1999).

4

an employing establishment officer-in-charge, stated that while appellant was not on his assigned
route when his vehicle was struck from behind, he was on the clock as he was ordered to travel
to the location where his injury occurred. He related that management had directed appellant to
collect mail from three collection boxes. There was no deviation or departure from his work
assignment that occurred when he was involved in the motor vehicle accident.
The Board therefore finds that appellant’s November 26, 2014 injury occurred in the
performance of duty when his vehicle was hit from behind. Accordingly, the case will be
remanded to OWCP to consider the medical evidence in order to determine whether appellant
sustained a diagnosed medical condition causally related to the established November 26, 2014
employment incident.
CONCLUSION
The Board finds appellant has established that he sustained an injury in the performance
of duty and the case is remanded for evaluation of the medical evidence.9
ORDER
IT IS HEREBY ORDERED THAT the June 11 and April 16, 2015 decisions of the
Office of Workers’ Compensation Programs are set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: April 6, 2016
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
9

In light of the Board’s disposition on the first issue, it is not necessary to address the second issue.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Houston, TX, Employer
__________________________________________

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

Docket No. 09-1736
Issued: June 1, 2010

Case Submitted on the Record

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

JURISDICTION
On June 18, 2009 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated August 12, 2008 denying her request for an additional
schedule award and an April 8, 2009 nonmerit decision denying her request for an oral hearing
as untimely. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUES
The issues are: (1) whether appellant has more than a 30 percent impairment to her left
lower extremity; and (2) whether the Office properly denied further review of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 27, 2006 appellant, then a 55-year-old nursing assistant, injured her left leg,
left hand, left hip and lumbar spine when she stepped into a hole filled with grass and fell. The

Office accepted the claim for left hip, back and left leg contusions, which was expanded to
include the conditions of left acetabulum fracture and cervical strain.1 On June 18, 2003
appellant filed a request for a schedule award.
In a February 13, 2003 report, Dr. B.T. Wright, Jr., an attending Board-certified
orthopedic surgeon, concluded that appellant had a two percent whole person impairment. On
physical examination range of motion revealed 30 degrees extended left hip internal rotation, 45
degrees extended left hip external rotation, 25 degrees flexed left hip internal rotation, 45 degrees
flexed left hip external rotation, 40 degrees left hip abduction and 15 degrees left hip adduction.
Dr Wright noted that the measured hip flexion of the left side was 105 degrees with appellant
supine.
In a December 20, 2005 decision, the Office granted appellant a schedule award for a 30
percent impairment of the left leg. The period of the award was from October 25, 2005 to
June 21, 2007, or 86.40 weeks of compensation.
On February 13, 2007 Dr. Jerry D. Lloyd, a chiropractor, diagnosed cervical spondylosis.
He concluded that appellant had 15 percent whole person impairment as a result of her cervical
condition.
Appellant filed a claim for an additional schedule award on May 31, 2007.
By decision dated July 25, 2007, the Office denied a schedule award for appellant’s
cervical condition.
On August 16, 2007 appellant requested an oral hearing before an Office hearing
representative.
By decision dated December 20, 2007, the Office hearing representative set aside the
July 25, 2007 decision finding that further medical development was warranted on whether
appellant sustained a lumbar and cervical condition as a result of the February 26, 2002
employment injury.
On February 28, 2008 the Office referred appellant to Dr. James F. Hood, a Boardcertified orthopedic surgeon, for a second opinion evaluation on the extent of permanent
impairment. In an April 2, 2008 report, Dr. Hood noted his review of appellant’s medical and
employment injury history and her complaint of back pain and problems with her left leg. On
physical examination, the lumbar spine demonstrated limitation of motion secondary to her
discomfort complaints and no palpable spasm. Sitting straight leg raise was normal to 90
degrees bilaterally, bilateral normal hip flexor muscle strength and appellant was neurologically
normal. Dr. Hood also reported no measurable atrophy involving the left and right legs. He
provided hip range of motion measurements of 95 degrees flexion, 20 degrees internal and
external rotation and 20 degrees abduction. Dr. Hood advised that appellant had impairment
based on her acetabulum fracture which he noted would be rated by hip range of motion. Using

1

Appellant retired from the employing establishment in March 2005.

2

Table 17-9, page 537, he found appellant had a slight decrease left hip range of motion resulting
in five percent whole person impairment.
In a May 6, 2008 report, Dr. H. Mobley, an Office medical adviser, reviewed Dr. Hood’s
February 27, 2008 report. He found a total 13 percent left lower extremity impairment based on
Dr. Hood’s 5 percent whole person impairment or a 20 percent left lower extremity impairment
when adding all the hip motion impairment. Dr. Mobley reported that, under Table 17-9, page
537, appellant had a mild impairment due to 95 degrees flexion, 20 degrees internal rotation, 30
degrees external rotation and 20 degrees abduction. He noted that Dr. Hood provided a whole
person impairment rating instead of a lower extremity impairment rating. As appellant had
previously received a schedule award for a 30 percent left lower extremity impairment,
Dr. Mobley concluded that the medical evidence did not establish greater impairment.
By decision dated August 12, 2008, the Office denied an additional schedule award for
her left lower extremity.2
In a request dated February 10, 2009 and mailed on February 11, 2009, appellant
requested an oral hearing before an Office hearing representative.
By decision dated April 8, 2009, the Office denied appellant’s request as untimely and
determined that her claim could be addressed through the reconsideration process.3
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 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. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates 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
implementing regulations as the appropriate standard for evaluating schedule losses.6 Effective

2

The Board notes that the Office has not issued a final decision on whether appellant is entitled to a schedule
award for any impairment to her upper extremities resulting from her accepted cervical condition. On July 22, 2008
the Office referred appellant to Dr. Zvi Kalisky, a Board-certified orthopedic surgeon, for a second opinion or this
issue. As no final decision has been issued the Board has no jurisdiction to consider this matter; 20 C.F.R.
§ 501.2(c).
3

The Board notes that, following the April 8, 2009 decision, the Office received additional evidence. However,
the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); J.T., 59 ECAB ___ (Docket No. 071898, issued January 7, 2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A.
Kayes, 54 ECAB 373 (2003)
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

3

February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.7
ANALYSIS -- ISSUE 1
The Office accepted the claim for left hip, back and left leg contusions, left acetabulum
fracture and a cervical strain. On December 20, 2005 it granted appellant a schedule award for a
30 percent impairment of the left lower extremity. Appellant filed a claim for an additional
schedule award on May 31, 2007. The Office referred her to Dr. Hood to determine the extent
and degree of her left leg impairment.
On February 13, 2007 Dr. Lloyd, a treating chiropractor, concluded that appellant had a
15 percent whole person impairment as a result of her cervical condition. However, his
impairment rating is not probative. Dr. Lloyd did not diagnose a spinal subluxation based on
x-ray. As a chiropractor, he is not considered a physician as defined under the Act and his report
is of no medical value. A chiropractor is considered to be a physician under the Act only to the
extent that he treats a spinal subluxation as demonstrated by x-ray.8 Moreover, this report did
not address appellant’s lower extremity impairment.
In a July 29, 2008 report, Dr. Hood advised that there was no neurological involvement,
weakness or atrophy of the lower extremities. Although appellant had complaint of moderate
pain, this did not interfere with daily activity. Dr. Hood determined that she had no impairment
due to lower extremity sensory loss, weakness, atrophy or pain. He provided range of motion
findings for appellant’s hips. Dr. Hood’s findings for flexion, extension, abduction, adduction,
internal and external rotation were within the mild range as noted in Table 17-9 of the A.M.A.,
Guides. He concluded that appellant had a five percent whole person impairment due to her loss
of hip range of motion. The Office medical adviser reviewed the report and noted that schedule
awards are not authorized for permanent impairment of the whole person under the Act.9 The
Board notes that, under Office procedures, referral to an Office medical adviser is appropriate
when a detailed description of the impairment from a physician is obtained.10
Dr. Mobley stated that appellant had 20 percent impairment of the left leg for loss of
range of motion based on Dr. Hood’s report and Table 17-9 at page 537 of the A.M.A., Guides.
This included five percent for 20 degrees of internal rotation, five percent for 20 degrees of
external rotation, five percent for 95 degrees of flexion and five percent for 20 degrees of
abduction. Dr. Mobley properly noted that Dr. Hood rated a whole person impairment rating
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
8

See 20 C.F.R. § 8101(2); Mary A. Ceglia, 55 ECAB 626 (2004) (in assessing the probative value of chiropractic
evidence, the initial question is whether the chiropractor is a physician as defined under 5 U.S.C. § 8101(2); a
chiropractor is not considered a physician under the Act unless it is established that there is a spinal subluxation as
demonstrated by x-ray to exist).
9

D.J., 59 ECAB ____ (Docket No. 08-725, issued July 9, 2008); Marilyn S. Freeland, 57 ECAB 607 (2006).

10

See Thomas J. Fragale, 55 ECAB 619 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.6 (August 2002).

4

instead of a lower extremity impairment. The Office medical adviser found a total 20 percent
left lower extremity impairment when adding these values.11
The Board finds that the medical adviser properly applied the A.M.A., Guides to the
findings of Dr. Hood. The medical evidence does not establish greater impairment than that
previously noted in this case. Appellant previously received a schedule award for a 30 percent
left leg which is more than the 20 percent impairment rating found by Dr. Hood. There is no
other evidence of record, conforming with the A.M.A., Guides to establish greater impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant is entitled to a hearing before an
Office representative when a request is made within 30 days after issuance of the Office’s final
decision.12 A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark of the request.13 The Office has
discretion, however, to grant or deny a request that is made after this 30-day period.14 In such a
case, it will determine whether a discretionary hearing should be granted or, if not, will so advise
the claimant with reasons.15
ANALYSIS -- ISSUE 2
Appellant’s request for a hearing before an Office hearing representative was dated
February 10, 2009 and sent in an envelope postmarked February 11, 2009. The date of filing for
appellant’s hearing request was fixed by the date of the postmark, i.e., February 11, 2009.16
Appellant’s February 11, 2009 hearing request was made more than 30 days after the date of
issuance of the Office’s August 12, 2008 decision and, thus, she was not entitled to a hearing as a
matter of right.
The Office also has the discretionary power to grant a review of the written record when
a claimant is not entitled to a review of the written record as a matter of right. The Board finds
that the Office, in its April 8, 2009 decision, properly exercised its discretion by stating that it
had considered the matter in relation to the issue involved and had denied appellant’s request for
a review of the written record on the basis that her claim could be addressed through a
reconsideration application. The Board has held that, as the only limitation on the Office’s
authority is reasonableness, abuse of discretion is generally shown through proof of manifest
11

See A.M.A., Guides 538.

12

5 U.S.C. § 812(b)(2). See A.B., 58 ECAB 546 (2007).

13

20 C.F.R. § 10.616(b).

14

Hubert Jones, Jr., 57 ECAB 467 (2006).

15

Teresa M. Valle, 57 ECAB 542 (2006).

16

See N.M., 59 ECAB ___ (Docket No. 07-1432, issued May 5, 2008) (a hearing request must be sent within 30
days of the date of the decision for which a hearing is sought as determined by postmark or other carrier’s date
marking.

5

error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both
logic and probable deduction from established facts.17 In the present case, the evidence of record
does not indicate that the Office committed any abuse of discretion in connection with its denial
of appellant’s request for an oral hearing which could be found to be an abuse of discretion.
CONCLUSION
The Board finds that appellant has not established that she had more than 30 percent left
lower extremity impairment. The Board further finds that the Office did not abuse its discretion
when it denied her request for a hearing as untimely.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 8, 2009 and August 12, 2008 are affirmed.
Issued: June 1, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

17

Teresa M. Valle, supra note 15; Daniel J. Perea, 42 ECAB 214 (1990).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S POSTAL SERVICE, ST. JAMES PARK
STATION POST OFFICE, San Jose, Employer
__________________________________________

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

Docket No. 21-1106
Issued: March 25, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 12, 2021 appellant filed a timely appeal from a June 9, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case. 2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $24,136.16, for the period November 1, 2017
through April 24, 2021, for which she was without fault, because she concurrently received Social
1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the June 9, 2021 merit 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.

Security Administration (SSA) age-related retirement benefits while also receiving FECA wageloss compensation without an appropriate offset; and (2) whether OWCP properly denied waiver
of recovery of the overpayment.
FACTUAL HISTORY
On July 6, 1990 appellant, then a 38-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that she sustained multiple injuries when attacked from behind by an
unknown female assailant when loading her mail pouch while in the performance of duty. She
stopped work on the date of injury. A July 25, 1990 nonfatal summary (NFS) notes appellant’s
retirement plan code as “K,” indicating her enrollment in the Federal Employees Retirement
System (FERS) and Federal Insurance Contribution Act. On July 31, 1990 OWCP accepted the
claim for multiple abrasions. Appellant remained off work and OWCP paid her total disability
compensation through April 17, 1991. She returned to full-time restricted duty on April 18, 1991.
On January 7, 1994 OWCP accepted a recurrence of disability.
On May 18, 1995 OWCP expanded acceptance of the claim to include displacement of
lumbar intervertebral disc, a cervical disc bulge, and a lumbar sprain. It subsequently expanded
acceptance of the claim to include adjustment disorder with depressed mood.
Following a period of intermittent, part-time light-duty work, appellant retired from the
employing establishment effective September 17, 1998.3 OWCP paid wage-loss compensation
benefits on the periodic rolls. 4
On December 3, 2013 OWCP issued a letter advising appellant to notify OWCP upon her
receipt of SSA retirement benefits. It related that section 8116(d)(2) of FECA (5 U.S.C.
§ 8116(d)(2)) required that a claimant’s continuing compensation benefits be reduced if he or she
began receiving SSA retirement benefits based on his or her age and federal service. OWCP noted
that it was notifying appellant of this requirement as she had recently attained 62 years of age, the
minimum age at which an individual is eligible to receive SSA retirement benefits. It noted that
failure to report receipt of such retirement benefits to OWCP could result in an overpayment of
compensation, which could be subject to recovery. Consequently, if appellant had been approved
for SSA retirement benefits, or were currently receiving SSA retirement benefits, to contact OWCP
immediately so that it could begin the process of making any necessary adjustments to h er
compensation benefits.
On January 7, 2021 OWCP provided SSA with a dual benefits calculation form. It listed
the computation period as November 22, 2013 to present. On March 11, 2021 OWCP received
the completed FERS/SSA dual benefits calculation form, wherein SSA calculated SSA benefit
rates with a FERS offset and without a FERS offset from November 2017 through December 2020.
3
On April 20, 1999 OWCP granted appellant a schedule award for 29 percent permanent impairment of the right
upper extremity and 33 percent permanent impairment of the right lower extremity. The period of the award ran for
185.52 weeks from June 2, 1997 through December 21, 2000. OWCP subsequently reinstated appellant on the
periodic rolls.
4

On March 2, 2012 OWCP changed appellant’s status code to PN, entitled to payment on periodic rolls as she
remained totally disabled and her condition was “not expected to improve.”

2

Beginning November 2017, the SSA rate with FERS was $1,174.00 and without FERS was
$624.10. Beginning December 2017, the SSA rate with FERS was $1,197.40 and without FERS
was $636.50. Beginning December 2018, the SSA rate with FERS was $1,230.90 and without
FERS was $654.30. Beginning December 2019, the SSA rate with FERS was $1,250.50 and
without FERS was $664.70. Beginning December 2020, the SSA rate with FERS was $1,266.70
and without FERS was $673.30.
On May 7, 2021 OWCP prepared a FERS offset calculation based on the SSA
documentation wherein it noted the calculation of appellant’s overpayment from November 1,
2017 through April 24, 2021. It determined that, during the period November 1 through 30, 2017,
she received an overpayment in the amount of $543.86. For the period December 1, 2017 through
November 30, 2018, appellant received an overpayment in the amount of $6,749.29. For the
period December 1, 2018 through November 30, 2019, she received an overpayment in the amount
of $6,938.21. For the period December 1, 2019 through November 30, 2020, appellant received
an overpayment in the amount of $7,068.22. For the period December 1, 2020 through April 24,
2021, she received an overpayment in the amount of $2,836.58. The total overpayment was
determined to be $24,136.16.
In a letter dated May 7, 2021, OWCP advised appellant that she had been receiving a
prohibited dual benefit. It noted that the SSA had confirmed that a portion of her SSA age-related
retirement benefits were attributed to her years of federal service as an employee under FERS and
that portion required an offset of her FECA compensation benefits, in the amount of $593.40 every
28 days. OWCP indicated that, to account for her SSA offset, appellant’s FECA wage-loss
compensation would be adjusted to reflect a new net compensation amou nt of $2,494.25 effective
April 25, 2021.
On May 7, 2021 OWCP issued a preliminary overpayment determination, finding that an
overpayment of compensation in the amount of $24,136.16 had been created because the
FERS/SSA offset was not applied to payments for the period November 1, 2017 through April 24,
2021 for this period. It determined that appellant was without fault in the creation of the
overpayment. OWCP requested that she submit a completed overpayment recovery questionnaire
(Form OWCP-20) to determine a reasonable repayment method and advised h er that she could
request a waiver of recovery of the overpayment. It further requested financial information,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. OWCP advised appellant that it would deny waiver if
she failed to furnish the requested financial information within 30 days. It provided an
overpayment action request form and further notified her that, within 30 days of the date of the
letter, she could contest the overpayment and request a telephone conference, a final decision based
on the written evidence, or a prerecoupment hearing. Appellant did not respond.
By decision dated June 9, 2021, OWCP finalized the May 7, 2021 preliminary
overpayment determination that appellant had received an overpayment of compensation in the
amount of $24,136.16 because it had failed to offset her compensation payments for the period
November 1, 2017 through April 24, 2021 by the portion of her SSA benefits that were attributable
to federal service. It further found that she was without fault in the creation of the overpayment,
but denied waiver of recovery of the overpayment because the evidence of record failed to establish
that recovery of an overpayment would defeat the purpose of FECA as she had not responded to

3

the request for financial information. OWCP further found that recovery of the overpayment
would not be against equity and good conscience as appellant had no t shown that she would
experience severe financial hardship in attempting to repay the debt, and that she had not asserted
detrimental reliance. It directed recovery of the overpayment by lump sum payment of $24,136.16.
Appellant was advised by OWCP that if she was unable to refund the entire amount that she should
contact OWCP if she wished to enter into an installment payment program.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5 Section 8116 limits the right of an employee to receive compensation. While an employee
is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from
the United States. 6
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA age-related benefits that are attributable to federal
service of the employee. 7 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $24,136.16 for the period November 1, 2017 through April 24,
2021, for which she was without fault, as she concurrently received SSA age-related retirement
benefits and FECA wage-loss compensation without an appropriate offset.
As noted, a claimant cannot receive concurrent FECA wage-loss compensation and SSA
age-related retirement benefits attributable to f ederal service for the same period. 9 The information
provided by SSA established that appellant had received SSA age-related retirement benefits that
were attributable to her federal service from November 1, 2017 through April 24, 2021.
Consequently, the fact of overpayment has been established.

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); E.R., Docket No. 21-0133 (issued November 15, 2021); M.R., Docket No. 20-1622 (issued
June 30, 2021); S.S., Docket No. 19-1945 (issued March 25, 2021); see S.O., Docket No. 18-0254 (issued August 2,
2018); L.J., 59 ECAB 264 (2007).
8

FECA Bulletin No. 97-09 (issued February 3, 1997).

9

See supra note 8; M.R., Docket No. 20-0427 (issued October 30, 2020). See also N.B., Docket No. 18-0795
(issued January 4, 2019); A.C., Docket No. 18-1550 (issued February 21, 2019).

4

To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to the specific amount of SSA age-related retirement
benefits that were attributable to federal service. SSA provided age-related retirement benefits
rates with and without FERS during the specific period November 1, 2017 through April 24, 2021.
OWCP provided its calculation for each relevant period based on a FERS offset calculation
worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period November 1, 2017 through April 24, 2021 and finds that an overpayment of compensation
in the amount of $24,136.16 was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is with out fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”10 Section 10.438 of OWCP regulations provides 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.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.11
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.434
to 10.437 of OWCP’s regulations.12
Section 10.436 provides that recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics. 13 An individual is
deemed to need substantially all of his or her current income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00. 14
OWCP’s procedures provide that the assets must not exceed a resource base o f $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for
10

5 U.S.C. § 8129.

11

20 C.F.R. § 10.438.

12

Id. at §§ 10.434-10.437.

13

Id. at § 10.436.

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.400.4a(3) (September 2020).

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each additional dependent. 15 An individual’s liquid assets include, but are not limited to, cash and
the value of stocks, bonds, saving accounts, mutual funds, and certificates of deposit. Nonliquid
assets include, but are not limited to, the fair market value of an owner’s equity in property such
as a camper, boat, second home, furnishings/supplies, vehicle(s) above the two allowed per
immediate family, retirement account balances (such as Thrift Savings Plan or 401(k)), jewelry,
and artwork. 16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation.
As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery of the overpayment 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. 17 Appellant, however, had the responsibility to provide the appropriate financial
information and documentation to OWCP, but failed to do so.18
In its preliminary overpayment determination dated May 7, 2021, OWCP explained the
importance of providing the completed Form OWCP-20 along with supporting financial
documentation. It advised appellant that it would deny waiver of recovery if she failed to furnish
the requested financial information within 30 days. Appellant did not respond. As she did not
submit a completed Form OWCP-20 with supporting financial documentation of her income,
assets, and expenses, OWCP could not determine if recovery of the overpayment would defeat the
purpose of FECA or if recovery would be against equity and good conscience.19
Accordingly, as appellant did not submit the information required under 20 C.F.R. § 10.438
of OWCP’s regulations to determine her eligibility for waiver, the Board finds that OWCP
properly denied waiver of recovery of the overpayment of compensation.
On appeal, appellant contends that recovery of the overpayment would create financial
hardship as she remained totally disabled due to both occupational and nonoccupational
conditions. As noted above, she did not submit the financial information necessary for OWCP to
consider waiver of recovery of the overpayment.

15

Id. at Chapter 6.400.4a(2).

16

Id. at Chapter 6.400.4b(3)(a), (b).

17

20 C.F.R. § 10.436.

18

Id. at § 10.438.

19

P.N., Docket No. 20-1159 (issued April 20, 2021); see S.W., Docket No. 20-0544 (issued September 21, 2020).

6

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$24,136.16 for the period November 1, 2017 through April 24, 2021, for which she was without
fault, because she concurrently received SSA age-related retirement benefits while also receiving
FECA benefits without an appropriate offset. The Board further finds that OWCP properly denied
waiver of recovery of the overpayment. 20
ORDER
IT IS HEREBY ORDERED THAT the June 9, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where OWCP
seeks recovery from continuing compensation benefits. D.J., Docket No. 19-1163 (issued September 22, 2020); J.R.,
Docket No. 19-1418 (issued March 4, 2020). As OWCP did not direct recovery from appellant’s continuing
compensation benefits, the Board does not have jurisdiction over the method of recovery of the overpayment in this
case. 20 C.F.R. § 10.441(a).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, CLEVELAND POST
OFFICE, Cleveland, OH, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0359
Issued: March 1, 2022

Case Submitted on the Record

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

On January 12, 2022 appellant filed a timely appeal from a December 13, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 22-0359.
In a letter dated February 15, 2022, appellant requested that the appeal be withdrawn.
The Board has duly considered the matter and concludes that appellant’s request for the
withdrawal of the appeal should be granted. Accordingly,

IT IS HEREBY ORDERED THAT appellant’s request for the withdrawal of the appeal
is granted. The appeal docketed as No. 22-0359 is dismissed.
Issued: March 1, 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

2