United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hazleton, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1147
Issued: January 5, 2021

Case Submitted on the Record

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

JURISDICTION
On May 13, 2020 appellant filed a timely appeal from an April 21, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

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 her burden of proof to establish a right shoulder
injury in the performance of duty on June 21, 2019, as alleged.
FACTUAL HISTORY
On July 1, 2019 appellant, then a 46-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 21, 2019 at 11:00 a.m. she injured her right shoulder while in
the performance of duty. She explained that, to avoid falling, she grabbed a handrail and pulled
her right shoulder. Appellant stopped work on the date of injury.
In a development letter dated July 8, 2019, OWCP informed appellant of the deficiencies
of her claim. It advised her of the factual and medical evidence necessary to establish her claim
and provided a questionnaire for her completion, seeking a full description of the events and
circumstances surrounding the alleged June 21, 2019 employment incident. OWCP afforded
appellant 30 days to provide the necessary information.
Appellant submitted a June 24, 2019 medical report in which Dr. Eugene Stish, Boardcertified in family medicine, diagnosed acute right shoulder pain. Dr. Stish reported that he had
evaluated appellant for right shoulder pain that day and recommended that she remain out of work
until further notice.
In an after visit summary of even date, Dr. Akash Patel, a Board-certified cardiologist,
diagnosed acute right shoulder pain and provided an information sheet pertaining to arthralgia, or
pain around the joint.
In a July 23, 2019 medical report, Dr. Marcos Martinez, a Board-certified orthopedic
surgeon, diagnosed acute pain of the right shoulder, adhesive capsulitis of the right shoulder, and
calcific tendinitis of the right shoulder and identified June 21, 2019 as the date of injury. He noted
that on the alleged date of injury she was at work delivering mail when she slipped on some steps
and grabbed the railing. Appellant felt immediate pain in her right shoulder afterwards.
Dr. Martinez recommended that she undergo a magnetic resonance imaging (MRI) scan of her
right shoulder for further evaluation and advised that she could return to work with modified duties.
In response to OWCP’s development questionnaire, appellant submitted a July 23, 2019
statement in which she stated that she was handing out mail when she came down a loose step. To
avoid falling, she grabbed a handrail with her right hand and felt a tear in her right shoulder.
Appellant began to feel a lot of pain and after it became much stronger she was no longer able to
carry mail. She then called her supervisor to explain what happened.
In a July 26, 2019 attending physician’s report (Form CA-20), Dr. Martinez diagnosed
calcific tendinitis of the right shoulder and adhesive capsulitis and checked a box marked “Yes”
to indicate his belief that appellant’s conditions were caused by the June 21, 2019 employment
incident. In a work capacity evaluation musculoskeletal conditions form (Form OWCP-5c) of
even date, he advised that she was able to work with restrictions and estimated that the restrictions
would need to apply until August 2, 2019.

2

In a July 29, 2019 diagnostic report, Dr. John Dawsey, a Board-certified radiologist,
performed a right shoulder MRI scan, finding mild tendinosis of the supraspinatus tendon, mild
subacromial subdeltoid bursitis, and mild acromioclavicular joint degeneration.
In a July 31, 2019 letter, Dr. Martinez diagnosed right acute shoulder pain, right adhesive
capsulitis, and right shoulder calcific tendinitis. He noted that on June 21, 2019 appellant was
walking down the stairs, lost her balance on a loose step, and reached out to grab a handrail with
her right hand to prevent herself from falling. Dr. Martinez explained that this caused a pulling
and tugging motion on her right shoulder muscles. He opined that, within a reasonable degree of
medical certainty, when appellant grabbed the handrail to prevent herself from falling it caused the
muscles and tendons in her right shoulder to pull and overstretch to support her weight while
falling. This act introduced trauma of the right shoulder which would not have occurred if not for
the employment incident.
In an August 2, 2019 medical report, Dr. Martinez evaluated appellant’s right shoulder
injury after the alleged June 21, 2019 employment incident in which she slipped on a step while
delivering mail and grabbed the railing to stop her fall. He discussed the results of her July 29,
2019 MRI scan and administered a glenohumeral cortisone injection to treat her symptoms.
Dr. Martinez diagnosed acute pain of the right shoulder, adhesive capsulitis of the right shoulder,
and calcific tendinitis of the right shoulder and indicated that appellant would begin physical
therapy.
In an August 6, 2019 letter, the employing establishment controverted appellant’s claim,
stating that she was a 14-year employee with a low leave balance who previously called out of
work on June 19 and 20, 2019. It recounted the events of the alleged June 21, 2019 employment
incident as well as the events afterwards in which J.M., appellant’s supervisor, asked her if she
needed medical attention or wanted to file a claim and she replied “No” to both questions. The
employing establishment also indicated that on July 20, 2019 V.N., a postmaster, observed
appellant outside of work waving with her right arm and not using any type of sling. It asserted
that the medical evidence that she submitted was insufficient to meet her claim.
The employing establishment attached a July 22, 2019 e-mail from V.N. in which she
indicated that she observed appellant on July 20, 2019 speaking with two people. Appellant waved
at her with her right arm, did not appear in distress, and was not wearing a sling on her right arm.
V.N. attached what she purported to be a photo of the exchange in which appellant waved.
The employing establishment also attached an August 3, 2019 statement from J.M., in
which he recounted the events of the alleged June 21, 2019 employment incident as well as the
events that followed, including asking appellant if she needed medical attention or wanted to file
a claim. J.M. noted that appellant replied “No” to both of his questions. Appellant called off work
the next day and did not return for several days despite multiple telephone calls from the employing
establishment. She eventually returned to work the next week with a physician’s note stating that
she would need to remain off work until she could be evaluated by a specialist.
An August 8, 2019 duty status report (Form CA-17) with an illegible signature diagnosed
supraspinatus tendinitis and mild bursitis due to the alleged June 21, 2019 employment incident

3

during which she injured her right shoulder trying to catch herself to prevent a fall. It advised that
she return to work on limited duty.
By decision dated August 16, 2019, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish that the injury and/or events occurred as she
described. It noted that she had not responded to its July 8, 2019 development questionnaire or
otherwise provided information describing the alleged June 21, 2019 employment incident in
detail.
OWCP continued to receive evidence. Appellant submitted treatment notes dated from
August 12 to 21, 2019 in which Steven Clemson, a physical therapist, and John Ferdinand, a
physical therapy assistant, noted that they had evaluated her for her right shoulder pain and
adhesive capsulitis related to the alleged June 21, 2019 employment incident.
In an August 23, 2019 medical report, Dr. Martinez noted that he had reevaluated appellant
for right shoulder pain related to the alleged June 21, 2019 employment incident. He reviewed her
history of medical treatment for her injury and diagnosed adhesive capsulitis of the right shoulder,
calcific tendinitis of the right shoulder, and right shoulder pain.
Appellant submitted treatment notes dated from August 27 to September 12, 2019 in which
Joli Barkanic, a physical therapist, and Mr. Clemson provided an update of appellant’s treatment
related to her right shoulder conditions.
In medical reports dated from September 13, 2019 to January 7, 2020, Dr. Martinez
recounted appellant’s treatment for her adhesive capsulitis of the right shoulder and right shoulder
pain related to the alleged June 21, 2019 employment incident. He updated her work restrictions
and provided a new prescription for her physical therapy treatment.
In a January 13, 2020 letter, Dr. Martinez detailed his history of treatment of appellant for
her right shoulder injury due to the alleged June 21, 2019 employment incident in which she lost
her balance on a set of stairs and grabbed the railing with her right hand to prevent herself from
falling. He provided a rationalized opinion in which he explained that the rotator sits below the
AC joint providing support to the shoulder and that tension increases in the joint when the mobility
of the joint is restricted. When appellant reached out and grabbed the handrail, it caused the
muscles and tendons in her right shoulder to pull and overstretch to support her weight while
falling. Dr. Martinez further explained that adhesive capsulitis, or “frozen shoulder,” is known as
a side effect after sustaining damage to the rotator cuff and results in decreased movement. He
opined that when appellant fell and used her right arm to catch herself, it directly aggravated her
preexisting calcific tendinitis and caused her to strain her rotator cuff and subsequent adhesive
capsulitis, bursitis, and rotator cuff tendinitis.
On January 16, 2020 appellant requested reconsideration of OWCP’s August 16, 2019
decision.
In a March 6, 2020 letter, the employing establishment again controverted appellant’s
claim, stating that there were inconsistencies in her account of her injury. It also opined that the
fact that she waited three days to seek medical attention cast serious doubt on her claim.

4

By decision dated April 21, 2020, OWCP affirmed its August 16, 2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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,4 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.5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.7 Fact
of injury consists of two components that must be considered in conjunction with one another.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time and place, and in the manner alleged.8 Second, the employee
must submit sufficient evidence to establish that the employment incident caused a personal
injury.9
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.10 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.11 An employee’s
3

Id.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

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

10

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

11

L.D., Docket No. 16-0199 (issued March 8, 2016); Betty J. Smith, 54 ECAB 174 (2002).

5

statements alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.12
ANALYSIS
The Board finds that appellant has met her burden of proof to establish that the June 21,
2019 employment incident occurred in the performance of duty, as alleged.
On appellant’s July 1, 2019 Form CA-1 she explained that, at 11:00 a.m. on June 21, 2019,
to avoid falling, she grabbed a handrail and pulled her right shoulder.
As noted, an employee’s statement alleging that an injury occurred at a given time and
place, and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence.13
Herein, appellant has consistently reported that on June 21, 2019 she slipped on a loose
step while descending stairs and grabbed a handrail with her right hand to prevent herself from
falling. She has also reported that she immediately experienced pain in her right shoulder as a
result. Appellant submitted a detailed account of the June 21, 2019 employment incident in her
July 23, 2019 response to OWCP’s development questionnaire which is consistent with her claim
form.
Additionally, appellant sought prompt medical care on June 24, 2019 when she notified
Dr. Stish that she experienced pain in her right shoulder. Similarly, she submitted a series of
medical reports from Dr. Martinez in which he provided medical care to her in relation to her right
shoulder injury and the June 21, 2019 employment incident. In letters dated July 31, 2019 and
January 13, 2020, Dr. Martinez detailed the events of the June 21, 2019 employment incident
where appellant lost her balance on a set of stairs and grabbed the railing with her right hand in
order to prevent herself from falling. He also provided a detailed discussion of her injury and
related treatment as a result of the employment incident.
The history of the June 21, 2019 employment incident was confirmed by Drs. Stish and
Martinez’ medical reports which were for examination close in time with the incident. Further,
while the employing establishment controverted appellant’s claim, it did not dispute that the
incident occurred and recounted the incident appellant had described. Therefore, the Board finds
that this evidence establishes that the alleged June 21, 2019 employment incident occurred as
alleged.14 Appellant has thus established the first component of fact of injury.15

12

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

13

Id.

14

J.C., Docket No. 18-1803 (issued April 19, 2019); M.C., supra note 12; M.M., Docket No. 17-1522
(April 25, 2018).
15

J.C., id.

6

As appellant has established the claimed employment incident occurred as alleged, the
question becomes whether this employment incident caused an injury.16 As OWCP found that she
had not established fact of injury, it did not evaluate the medical evidence. Thus, the Board will
reverse OWCP’s April 21, 2020 decision and remand the case for consideration of the medical
evidence of record.17 After such further development as deemed necessary, OWCP shall issue a
de novo decision addressing whether appellant has met her burden of proof to establish an injury
causally related to the accepted occupational exposure.18
CONCLUSION
The Board finds that appellant has met her burden of proof to establish that the June 21,
2019 employment incident occurred in the performance of duty, as alleged. The Board further
finds that the case is not in posture for decision regarding whether she has established an injury
causally related to the accepted June 21, 2019 employment incident.

16

Id.

17

S.M., Docket No. 16-0875 (issued December 12, 2017).

18

P.S., Docket No. 19-1818 (issued April 14, 2020).

7

ORDER
IT IS HEREBY ORDERED THAT the April 21, 2020 decision of the Office of Workers’
Compensation Programs is reversed and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: January 5, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE INTERIOR,
)
BIA EMERGENCY FIREFIGHTERS,
)
Gallup, NM, Employer
)
___________________________________________ )
E.B., Appellant

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

Docket No. 13-136
Issued: March 29, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On October 25, 2012 appellant filed a timely appeal from a September 17, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on June 17, 2012.

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted new details pertaining to his injury. However, the Board has no jurisdiction to
review this evidence for the first time on appeal.

FACTUAL HISTORY
On July 30, 2012 appellant, then a 56-year-old emergency firefighter, filed a traumatic
injury claim alleging that, on June 17, 2012, while in the performance of duty, he became sick
while eating at camp. He indicated that he had aching joints, fever, nausea, slight vomiting, was
unable to eat, diarrhea and a severe sore throat. Appellant indicated that he “did not know” how
it happened. The employing establishment checked the box “yes” in response to whether their
knowledge of the facts about the injury agreed with the statements of the employees and
witnesses.
In a letter dated August 14, 2012, OWCP requested that appellant submit additional
factual and medical evidence with respect to his claim for compensation. It requested further
information as to how the injury occurred, the immediate effects of the injury and whether or not
appellant had a similar disability or symptoms before the injury.
In a June 29, 2012 authorization for examination and treatment and attending physician’s
report, Dr. Culle F. Shigna, a treating physician, indicated that appellant was disabled for the
period June 17 to 24, 2012 and could return to regular duty on June 29, 2012.
A June 18, 2012 message from the medical unit leader indicated that appellant was
“demobbed” due to an existing injury/illness and would pursue follow up from his physician.
By decision dated September 17, 2012, OWCP denied appellant’s claim on the grounds
that he did not establish an injury as alleged. It found that the factual aspects of the claim were
not sufficient to establish an injury in the performance of duty as appellant did not describe the
specific injury that occurred. OWCP also found that appellant did not submit any medical
evidence containing a diagnosis.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA and that an injury was sustained in the performance of duty.3 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.5 In some traumatic injury cases, this component can
3

Joe D. Cameron, 41 ECAB 153 (1989); James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

Julie B. Hawkins, 38 ECAB 393, 396 (1987).

2

be established by an employee’s uncontroverted statement on the Form CA-1.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
ANALYSIS
Appellant alleged that he became ill while eating while at work. In a letter dated
August 14, 2012, OWCP requested that he provide a detailed description as to how the injury
occurred, but no response was received. As appellant failed to describe how he sustained his
injury, he has provided insufficient evidence to establish that he actually experienced the
employment incident at the time, place and in the manner alleged. Thus, the Board finds that he
has not met the first component of fact of injury. Therefore, appellant has not established that he
sustained a June 17, 2012 employment incident in the performance of duty.
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 in establishing that he
sustained an injury in the performance of duty.

6

John J. Carlone, 41 ECAB 354 (1989).

7

See John J. Carlone, id.

3

ORDER
IT IS HEREBY ORDERED THAT the September 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 29, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
J.J., Appellant
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORATION SECURITY
)
ADMINISTRATION, El Paso, TX, Employer
)
___________________________________________ )
Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-75
Issued: September 22, 2009

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 October 15, 2008 appellant filed a timely appeal from a September 24, 2008 decision
of an Office of Workers’ Compensation Programs’ hearing representative, who affirmed the
termination of his compensation on the grounds that he refused an offer of suitable work.
Pursuant to 20 C.F.R. §§ 501.2 and 501.3(c), the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
February 16, 2008 on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
On September 29, 2003 appellant, then a 44-year-old security screener, sustained injury
to his right elbow while lifting a heavy box. He stopped work that day. The Office accepted the
claim for rupture of the right biceps tendon and authorized surgical repair, which was performed
on September 30, 2003. Appellant returned to regular duty on April 12, 2004. However, he

developed wrist pain and was taken off work on April 16, 2004. Appellant underwent surgery to
remove a right ganglion cyst on June 24, 2004 and was released to restricted duty on
July 13, 2004.
The record reflects that appellant developed a recurrent ganglion cyst and surgery was
performed on September 29, 2005 by Dr. Michael DiDonna, a Board-certified orthopedic
surgeon and treating physician. Appellant underwent surgery again on April 12, 2006 to repair a
partial right triceps tear, which was not work related. On June 16, 2006 he had surgery on the
right wrist for a recurrence of the ganglion cyst.
A functional capacity evaluation (FCE) was performed on August 24, 2006. It revealed
that appellant was unable to return to full-duty work as a security screener. Appellant
demonstrated the ability to perform at the medium physical demand level for lifting from all
levels both occasionally and frequently. It also revealed that he demonstrated a heavy physical
demand level for carrying. Based upon the FCE, Dr. DiDonna placed appellant on permanent
work restrictions. Appellant stopped work on October 7, 2005 as the employing establishment
was unable to accommodate his medical limitations. He received wage-loss compensation.
By letter dated March 15, 2007, the Office referred appellant, together with a statement
of accepted facts, a set of questions and the medical record, to Dr. Randy Pollet, a Boardcertified orthopedic surgeon. In an April 12, 2007 report, Dr. Pollet reviewed appellant’s history
of injury and treatment. He noted findings on examination which included no significant
atrophy, well-healed scars in the antecubital fossa and the posterior aspect of the elbow and
dorsum of the right wrist. Dr. Pollet found that appellant was not able to return to regular duty;
however, he determined that appellant was capable of working eight hours per day with
restrictions. Appellant could sit, walk and stand for eight hours; reach above the shoulder, twist,
operate a motor vehicle for eight hours a day, and do repetitive movements with the wrists and
elbows for eight hours a day with restrictions; push, pull and lift no more than 5 to 10 pounds,
and “careful” climbing. Dr. Pollet recommended vocational rehabilitation and that appellant
could work in an administrative position.
By letter dated April 26, 2007, the Office provided Dr. DiDonna with a copy of
Dr. Pollet’s report requested an opinion as to whether appellant was capable of working an eighthour day with restrictions. On a May 9, 2007 Dr. DiDonna concurred with Dr. Pollet that
appellant could work an eight-hour day within the specified restrictions. He also agreed that
appellant could benefit from repeat surgery.
On August 7, 2007 appellant underwent a right wrist extensor tenosynovectomy surgery
performed by Dr. DiDonna. On November 16, 2007 Dr. DiDonna advised that appellant was
capable of limited duty with no use of the right hand.
By letter dated November 29, 2007, the Office requested that Dr. DiDonna provide an
updated opinion regarding appellant’s capacity to perform limited duty.
On December 12, 2007 the employing establishment offered appellant a limited-duty
position as a travel document checker beginning on December 23, 2007, based upon
Dr. DiDonna’s restrictions. The modified position required appellant to check the identification

2

of travelers, a layered security program which included identification challenges and visibility
functions, working at the coordination center answering telephones during peak periods and
providing telephonic support. The position also required that appellant make calls to prospective
candidates and read job offers from a script. Appellant did not have to use his right arm or hand.
On that same date, he rejected the position, stating that he no longer trusted the employing
establishment.
By letter dated December 13, 2007, the Office advised appellant that the modified
position had been found suitable to his medical restrictions and was currently available. It noted
that Dr. Pollet had examined him on April 12, 2007 and provided work restrictions that were
consistent with the offered position. Dr. DiDonna also found that he could perform the position
with no use of his right hand. Appellant was advised that he should accept the position or
provide an explanation for refusing it within 30 days. If he failed to accept the offered position
or to demonstrate that such failure was justified, his compensation would be terminated.
Appellant did not respond to the Office’s December 13, 2007 letter.
In a December 7, 2007 report, Dr. DiDonna stated that appellant remained with
restrictions on no use of the right hand. In a January 4, 2008 report and a work restriction
evaluation, he reiterated the limitation on use of the right hand.
On January 7, 2008 Dr. DiDonna noted that appellant was not able to perform his regular
duties as a transportation and security screener due to ongoing pain and swelling in his right
hand. He advised that appellant would be able to “perform sedentary and light-duty activities
(administrative) within the constraints of the current work-related restriction of no use of the
right hand.”
By decision dated February 11, 2008, the Office terminated appellant’s entitlement to
monetary compensation benefits, effective February 16, 2008, on the basis that he refused an
offer of suitable work. It determined that the position was suitable and in accordance with the
restrictions of both Dr. Pollet and Dr. DiDonna.
On February 25, 2008 appellant requested a hearing, which was held on July 9, 2008. He
submitted additional medical reports noting his work status. On July 22, 2008 appellant’s
representative contended that appellant never received the December 13, 2007 letter notifying
him of the suitable work determination. He contended that, when appellant returned to work on
March 8, 2008, he was requested to use his right hand.
By decision dated September 24, 2008, the Office hearing representative affirmed the
Office’s February 11, 2008 decision.
LEGAL PRECEDENT
Once the Office accepts a claim it has the burden of justifying termination or
modification of compensation benefits.1 This includes cases in which the Office terminates
compensation under section 8106(c)(2) of the Act for refusal to accept suitable work.
1

Betty F. Wade, 37 ECAB 556, 565 (1986); Ella M. Garner, 36 ECAB 238, 241 (1984).

3

Section 8106(c)(2)2 of the Act provides that a partially disabled employee who refuses or
neglects to work after suitable work is offered to, procured by, or secured for the employee is not
entitled to compensation. Section 10.517(a)3 of the Office’s regulations provide that an
employee who refuses or neglects to work after suitable work has been offered or secured for
him or her has the burden to show that this refusal or failure to work was reasonable or justified
After providing the two notices described in section 10.516,4 the Office will terminate the
employee’s entitlement to further compensation under 5 U.S.C. §§ 8105, 8106 and 8107, as
provided by 5 U.S.C. § 8106(c)(2). However, the employee remains entitled to medical benefits
as provided by 5 U.S.C. § 8103 or justified. To justify termination, the Office must show that
the work offered was suitable5 and must inform appellant of the consequences of refusal to
accept such employment.6 According to Office procedures, certain explanations for refusing an
offer of suitable work are considered acceptable.7 Unacceptable reasons include appellant’s
preference for the area in which he resides; personal dislike of the position offered or the work
hours scheduled; lack of promotion potential or job security.8
ANALYSIS
The Board finds that the Office properly terminated appellant’s compensation effective
February 16, 2008 on the grounds that he refused an offer of suitable work.
The medical evidence establishes that the requirements of the offered position were
within appellant’s physical limitations. In an April 12, 2007 report, Dr. Pollet provided
restrictions advising that appellant could work an eight-hour day with limitations on the use of
his right hand. He advised that appellant was presently capable of working in an administrative
position with lifting limited from 5 to 10 pounds. The Office requested that appellant’s treating
physician Dr. DiDonna review the work restrictions. On May 9, 2007 Dr. DiDonna concurred
with Dr. Pollet. On November 19, 2007 following surgery, he reiterated that appellant could
return to full-time limited duty with no use of the right hand. On December 12, 2007 the
employing establishment offered appellant a limited-duty position as a travel document checker
based upon Dr. DiDonna’s restrictions. It provided that no use of the right hand was required.
Subsequent reports from Dr. DiDonna advised that appellant could perform light duty with no
2

5 U.S.C. § 8106(c)(2).

3

20 C.F.R. § 10.517(a).

4

Id. at § 10.516.

5

See Carl W. Putzier, 37 ECAB 691 (1986); Herbert R. Oldham, 35 ECAB 339 (1983).

6

See Maggie L. Moore, 42 ECAB 484, 488 (1991), reaff’d on recon., 43 ECAB 818, 824 (1992). See Federal
(FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter
2.814.5(d)(1) (July 1997).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5(a)(1)-(5) (July 1997).
8

Arthur C. Reck, 47 ECAB 339 (1996); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.5(c) (July 1997).

4

use of the right hand. The Board finds that the duties of the offered position were consistent with
the medical restrictions of Dr. DiDonna. Therefore, appellant was medically capable of doing
the modified job.9
The Board also finds that appellant was properly informed by the Office that the job was
available and provided him with the opportunity either to accept the position or explain his
refusal within 30 days. To properly terminate compensation under section 8106(c), the Office
must provide appellant notice of its finding that an offered position is suitable and give him an
opportunity to accept or provide reasons for declining the position.10 The Office followed its
procedural requirements in this case. By letter dated December 13, 2007, it advised appellant
that the position was suitable and provided him 30 days to accept the position or provide reasons
for his refusal. The Office further notified him that the position remained open and that a
partially disabled employee who refused suitable work was not entitled to compensation. The
Board notes that appellant did not respond to the Office’s December 13, 2007 letter. As such,
the Office properly issued a decision terminating appellant’s entitlement to monetary benefits.11
Appellant contends that he never received the December 13, 2007 notice letter. The Board notes
that the letter was properly addressed to appellant’s address of record and there is no evidence it
was returned as undeliverable. Under the mailbox rule, it is presumed that appellant received the
letter notifying him of the Office’s suitability determination.12
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
February 16, 2008 on the grounds that he refused an offer of suitable work.

9

See Edward P. Carroll, 44 ECAB 331, 341 (1992) (finding that appellant’s assertion of inability to work is not
reasonable grounds for refusing suitable work absent supporting medical evidence).
10

See Maggie L. Moore, supra note 6.

11

See Rosie E. Garner, 48 ECAB 220 (1996) (finding that, if an employee submits reasons for refusing an offer
of suitable work, the Office must inform appellant if it finds that the reasons are inadequate or unjustified and afford
appellant one final opportunity to accept the offered position); Carl N. Curts, 45 ECAB 374 (1994) (where appellant
did not respond to the Office’s letter advising that he had 30 days in which to accept the offered position, the Office
properly terminated benefits where the evidence showed the offered position to be suitable); Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.4(d)(2)
(July 1997) (where the claimant does not respond to the Office’s 30-day letter, the Office should prepare a formal
decision which terminates any further compensation for wage loss or permanent impairment of a scheduled
member).
12

See Kenneth E. Harris, 54 ECAB 502 (2003); A.C. Clyburn, 47 ECAB 153 (1995).

5

ORDER
IT IS HEREBY ORDERED THAT the September 24, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 22, 2009
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1478
Issued: March 8, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 20, 2015 appellant filed a timely appeal from December 23, 2014 and May 11,
2015 merit decisions of the Office of Workers’ Compensation Programs (OWCP).1 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

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 December 23, 2014 decision was June 21, 2015. Since
this fell on a Sunday the appeal would have been due the next business day which was Monday, June 22, 2015.
Since using June 29, 2015, the date the appeal was received by 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 June 20, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 11, 2015 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation benefits effective May 12, 2014 as his accepted conditions had ceased without
residuals; and (2) whether appellant met his burden of proof to establish any continuing
employment-related residuals or disability.
On appeal, appellant contends that if he had been referred to a referee physician to
resolve the conflict in the medical opinion evidence, his wage-loss compensation benefits would
not have been terminated.
FACTUAL HISTORY
On April 28, 2005 appellant, then a 42-year-old passenger screener, filed an occupational
disease claim (Form CA-2) for knee pain and veins popping out on both legs. OWCP accepted
that he sustained bilateral osteoarthrosis of the lower legs, left plantar fibromatosis,
asymptomatic varicose veins of the bilateral lower extremities, bilateral lateral meniscus tears,
right hip enthesopathy, and right lateral popliteal nerve lesions due to factors of his federal
employment, including prolonged standing.4 Appellant stopped work on April 28, 2005 and
received intermittent wage-loss compensation beginning that date. OWCP authorized a right
knee partial medial and lateral meniscectomy on June 18, 2007. It placed appellant on the
periodic compensation rolls for total disability beginning July 3, 2011.
OWCP subsequently referred appellant to Dr. James Schwartz, an orthopedic surgeon, for
a second opinion evaluation to determine the nature and extent of his employment-related
conditions. In his June 17, 2013 report, Dr. Schwartz reviewed a statement of accepted facts,
history of the injury, and the medical evidence of record. He conducted a physical examination
and found that the examination was highly nonphysiologic. Appellant was not “touchable to
identify range of motion or really localizable pain or tenderness.” Dr. Schwartz noted that
appellant had “such withdrawal from what appeared to be paresthesias, that any examination is
inconclusive.” He noted that the fact that appellant had electromyography (EMG) changes or
sensory peroneal nerve decrease on the right side could not begin to explain his hypersensitivity.
Appellant was sensitive proximal to the knee joint approximately two or three inches to the
proximal tibia and extended from about mid-lateral over to anterior patella. Dr. Schwartz
advised that this would involve at least three different nerves for this distribution and was
nonphysiologic. He determined that appellant had reached maximum medical improvement
(MMI) as treating nonphysiologic pain was not possible. Dr. Schwartz recommended evaluation
for a psychiatric problem, such as somatoform disorder. He noted that the objective findings in
this case did not support the level of pain complaints. Dr. Schwartz found no diagnosable
pathology that could explain appellant’s pain and ruled out reflex sympathetic dystrophy (RSD).
He released appellant to work without restrictions.

4

The record before the Board also includes a claim for a traumatic injury sustained on April 10, 2008 which
OWCP accepted for a left knee sprain under OWCP File No.xxxxxx264. OWCP File No. xxxxxx264 has been
combined with the April 28, 2005 occupational disease OWCP File No. xxxxxx402.

2

In an October 16, 2013 letter, OWCP notified appellant that it proposed to terminate his
wage-loss compensation benefits based on Dr. Schwartz’ June 17, 2013 report. It afforded
appellant 30 days to submit additional evidence or argument in disagreement with the proposed
action.
Appellant submitted a January 14, 2014 report from Dr. William L. Clark, a Boardcertified orthopedic surgeon, who diagnosed left bursitis greater trochanteric enthesopathy.
Dr. Clark had treated appellant in 2010 for his hips, 2011 for his left knee, 2012 for his left hip,
and again in 2014 for his left hip. He opined that appellant’s left hip condition was causally
related to his federal employment. Dr. Clark noted that it was present at the time appellant’s
claim was accepted for right hip enthesopathy, but was not accepted as an employment-related
condition.
In a November 22, 2013 addendum report, Dr. Schwartz stated that there were no
physiologically identifiable or explicable objective findings and reiterated his recommendation
for a psychiatric evaluation.
OWCP referred appellant to Dr. Gary Hudak, a Board-certified psychiatrist, for a second
opinion evaluation to determine the nature and extent of appellant’s employment-related
conditions. In his March 6, 2014 report, Dr. Hudak reviewed a statement of accepted facts,
history of the injury, and the medical evidence of record. He diagnosed pain disorder associated
with those psychological factors in the general medical condition and noted that appellant’s
stressors were unemployment, loss of former abilities, chronic pain, and financial stressors.
Dr. Hudak found no psychiatric impairment that would prevent appellant from returning to
full-time work. He concluded that appellant’s perception of pain was subjective and as long as
he believed that he had objective medical lesions his perception of pain would persist.
Dr. Hudak released appellant to full-duty work without restrictions.
In a letter dated April 8, 2014, OWCP notified appellant that it proposed to terminate his
wage-loss benefits relying on the June 17, 2013 report from Dr. Schwartz and the March 6, 2014
report from Dr. Hudak. It afforded him 30 days to submit additional evidence or argument in
response to the proposed action.
By decision dated May 12, 2014, OWCP terminated appellant’s wage-loss compensation
benefits effective that day. It found that the weight of the evidence was represented by
Drs. Schwartz and Hudak. OWCP noted that the claim remained open for medical benefits.
On June 9, 2014 appellant requested an oral hearing before an OWCP hearing
representative and submitted a March 31, 2014 report from Dr. Robert Sargent, a Board-certified
family practitioner, who reviewed appellant’s medical history and opined that any one of his
accepted conditions permanently disabled him from performing his full duties and “therefore all
of these conditions combined, on a more probable than not basis, permanently disable[d]
[appellant] from performing his [federal] duties.”
In a May 5, 2014 report Dr. Lawrence Murphy, a neurologist, stated that appellant was
initially evaluated in 2012 for lower extremity pain and continued to complain of right leg pain
when he was reevaluated in the fall of 2013. He reported that prior electrodiagnostic testing

3

confirmed a peroneal neuropathy. Dr. Murphy opined that appellant had “painful right peroneal
sensory neuropathy which more probably than not was due to nerve damage arising as a
consequence of his 2007 knee surgery.” He noted that this surgery was treatment for appellant’s
work injury and explained that this did not imply surgical negligence as peroneal neuropathy was
a known complication of knee surgery. Dr. Murphy concluded that appellant had a permanent
nerve injury, peroneal neuropathy, which was his source of ongoing pain with hypersensitivity
with even minimal tactile contact. He advised that the physical requirements of appellant’s job,
including squatting, bending, stooping, and walking “would more probably than not aggravate
his residual neuropathy.”
On October 22, 2014 an oral hearing was held before an OWCP hearing representative.
By decision dated December 23, 2014, OWCP’s hearing representative affirmed the
termination of appellant’s wage-loss compensation benefits.
However, the hearing
representative found that, after the termination, appellant submitted medical evidence from
Drs. Clark and Sargent that created a conflict with the opinion of Dr. Schwartz regarding
whether appellant had any continuing disability from his date-of-injury position causally related
to his accepted injuries. The hearing representative remanded the case for referral of appellant to
an appropriate impartial specialist.
OWCP referred appellant to Dr. James Carney, a Board-certified orthopedic surgeon, for
an impartial medical examination to resolve the conflict in medical opinion between
Drs. Schwartz, Clark, and Sargent. In an April 10, 2015 report, Dr. Carney examined appellant
and reviewed his medical history and a statement of accepted facts. He found that appellant was
morbidly obese and elicited pain behavior throughout the examination. Dr. Carney noted that
appellant exhibited severe symptom magnification with any type of touching over the anterior
and lateral aspect of the right knee. Gait was slow and antalgic, favoring the right more than the
left. There was no evidence of thrust. Inspection of stance showed no obvious varus or valgus
malalignment or recurvatum. Overall inspection of the bilateral lower extremities showed
evidence of varicosities. The bilateral ankles had no obvious swelling or deformity. Foot and
ankle palpation revealed tenderness at the insertion of the plantar fascia, bilateral heels, and left
greater than right. There were no palpable cords or abnormalities. Range of motion of the
ankles was dorsiflexion of 10 degrees and plantar flexion of 35 degrees. The hips were tender to
palpation over the left and the right greater trochanters. Appellant had no pain with compression
of the pelvis at anterior superior iliac spine. Hip range of motion was forward flexion to
100 degrees, external rotation to 50 degrees, and internal rotation to 40 degrees bilaterally.
Appellant noted discomfort over the lateral hips with these maneuvers. Adduction was to 20
degrees bilaterally and abduction to 50 degrees bilaterally. Appellant noted pain over the greater
trochanteric regions with this motion. Evaluation of both knees showed no effusion and no
deformity.
Right knee palpation revealed intense hypersensitivity anteriorly and laterally.
Dr. Carney noted that he “methodically traced this area of hypersensitivity and it did not
correspond specifically to any peripheral nerve distribution.” Tinel’s test was negative as
appellant had pain with tapping over the patellar tendon and lateral areas of the hypersensitivity
region, but had no radiating sensations. Muscle strength testing was normal in both legs.
Dr. Carney determined that appellant required no further medical treatment for his accepted

4

conditions and had reached MMI. He opined that appellant was capable of performing his
regular duties and the only work restrictions he required were related to his morbid obesity,
which was not employment related. Dr. Carney limited appellant to standing for four hours per
day due to his preexisting degenerative conditions related to his morbid obesity.
Appellant submitted hospital records from an emergency room visit on April 10, 2015
where he was diagnosed with right hip pain, right knee pain, right peroneal nerve pain, and right
lateral femoral cutaneous nerve radiculopathy. Also provided was a November 20, 2014 report
from Dr. Clark who diagnosed status post arthroscopic surgery, patellofemoral chondromalacia
of the left knee, and bilateral greater trochanteric bursitis, left greater than right.
In a January 7, 2015 report, Dr. Murphy diagnosed right knee weakness and right
infrapatellar saphenous branch pain. Appellant reported that on a number of occasions he was
going up the stairs when “pain hit and his knee gave out.”
By decision dated May 11, 2015, OWCP affirmed its May 12, 2014 decision finding that
the weight of the evidence was represented by Dr. Carney. It found that appellant failed to
establish any continuing employment-related residuals or disability causally related to his
accepted injuries.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.5 After it has determined that an
employee has disability causally related to his federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.6 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
benefits effective May 12, 2014. OWCP accepted as employment-related bilateral osteoarthrosis
of the lower legs, left plantar fibromatosis, asymptomatic varicose veins of the bilateral lower
extremities, bilateral lateral meniscus tears, right hip enthesopathy, and right lateral popliteal
nerve lesions. To determine the nature and extent of his employment-related conditions, OWCP
referred appellant to Dr. Schwartz.
In his June 17, 2013 report, Dr. Schwartz reviewed appellant’s history and noted
findings. He observed that appellant’s physical examination was highly nonphysiologic.
Appellant was not “touchable to identify range of motion” and had “such withdrawal from what
appeared to be paresthesias, that any examination is inconclusive.” He noted EMG findings
5

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

6

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

7

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

5

could not begin to explain his hypersensitivity. Appellant was sensitive proximal to the knee
joint approximately two or three inches to the proximal tibia and extended from about mid-lateral
over to anterior patella. Dr. Schwartz advised that this would involve at least three different
nerves and was nonphysiologic. He recommended a psychiatric evaluation and noted that the
objective findings did not support the level of appellant’s pain complaints. Dr. Schwartz found
no diagnosable pathology that could explain appellant’s pain and ruled out RSD. He released
appellant to work without restrictions.
In a November 22, 2013 addendum report, Dr. Schwartz reported that appellant had no
physiologically identifiable or explicable objective findings and again recommended a
psychiatric evaluation.
Thereafter, OWCP referred appellant to Dr. Hudak for a psychiatric evaluation. On
March 6, 2014 Dr. Hudak reviewed appellant’s history and diagnosed pain disorder associated
with those psychological factors in the general medical condition and noted that his stressors
were unemployment, loss of former abilities, chronic pain, and financial stressors. He found no
psychiatric impairment that would prevent appellant from returning to full-time work.
Dr. Hudak found that appellant’s perception of pain was subjective and as long as he believed
that appellant had objective medical lesions his perception of pain would persist. He released
appellant to full-duty work without restrictions.
Prior to terminating wage-loss benefits, OWCP afforded appellant 30 days to submit
additional evidence. Appellant did not submit any new medical evidence supporting continuing
work-related disability prior to the termination of his wage-loss benefits.
The Board finds that Dr. Schwartz’ reports represent the weight of the medical evidence
at the time OWCP terminated wage-loss benefits. Dr. Schwartz’ opinion was based on a full and
accurate history, a review of the medical records, and he provided a rationalized medical opinion
addressing the basis for his conclusion that appellant’s ongoing disability was no longer related
to the accepted conditions. Furthermore, OWCP also obtained an opinion from Dr. Hudak
indicating that, from a psychiatric perspective, appellant was able to work without restrictions.
At the time of the termination of wage-loss benefits, there was no current medical evidence
supporting ongoing entitlement to wage-loss benefits.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation benefits shifts to the claimant. In
order to prevail, the claimant must establish by the weight of the reliable, probative, and
substantial evidence that he or she had an employment-related disability which continued after
termination of compensation benefits.8
Section 8123(a) of FECA provides in pertinent part: if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the

8

See A.B., Docket No. 14-1510 (issued October 23, 2014).

6

Secretary shall appoint a third physician who shall make an examination.9 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.10
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish any continuing
employment-related residuals or disability.
After OWCP’s May 12, 2014 termination decision, appellant submitted additional
medical evidence. On December 23, 2014 the hearing representative found that the medical
evidence from Drs. Clark and Sargent, which appellant submitted after the proper termination of
wage-loss compensation, created a conflict with the opinion of Dr. Schwartz regarding whether
appellant had any disability from his date-of-injury position causally related to his accepted
injuries. The hearing representative remanded the case for referral of appellant to an appropriate
impartial specialist. Thereafter, OWCP referred appellant to Dr. Carney.
On April 10, 2015 Dr. Carney reviewed appellant’s history, provided results on
examination, and found no objective evidence of ongoing disability due to his employmentrelated conditions. He noted that appellant elicited pain behavior throughout the examination.
Dr. Carney explained that appellant elicited severe symptom magnification with any type of
touching over the anterior and lateral aspect of the right knee. Palpation about the right knee
revealed intense hypersensitivity over the right knee anteriorly and laterally, but Dr. Carney
noted that he “methodically traced this area of hypersensitivity and it did not correspond
specifically to any peripheral nerve distribution.” Dr. Carney documented other findings
including normal muscle strength in the legs. He determined that appellant required no further
medical treatment for his accepted conditions and had reached MMI. Dr. Carney opined that
appellant was capable of performing his regular duties and the only work restrictions he required
were related to appellant’s morbid obesity, which was not an employment-related condition.
The Board finds that Dr. Carney’s report represents the weight of the medical evidence
and OWCP properly relied on his report in finding that, after a proper termination of appellant’s
wage-loss benefits, the medical evidence failed to establish any continuing employment-related
disability. The Board finds that Dr. Carney had full knowledge of the relevant facts and
evaluated the course of appellant’s condition. Dr. Carney is a specialist in the appropriate field.
His opinion is based on proper factual and medical history and his report contained a detailed
summary of this history. Dr. Carney addressed the medical records and made his own
examination findings to reach a reasoned conclusion regarding appellant’s condition.11 He found
9

5 U.S.C. § 8123(a). See also R.C., 58 ECAB 238 (2006).

10

See V.G., 59 ECAB 635 (2008).

11

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

7

no basis on which to attribute any continued disability to appellant’s accepted conditions.
Dr. Carney’s opinion as set forth in his April 10, 2015 report is found to be probative evidence
and reliable. The Board finds that his opinion is entitled to special weight and establishes that
appellant had no continuing work-related disability subsequent to the May 12, 2014 termination
decision.12
Following Dr. Carney’s report, appellant submitted a November 20, 2014 report from
Dr. Clark who diagnosed patellofemoral chondromalacia of the left knee and bilateral greater
trochanteric bursitis, left greater than right. However, Dr. Clark failed to provide a wellrationalized explanation as to how and whether these conditions, not accepted by OWCP, are
causally related to appellant’s work injuries.13 Furthermore, as he was on one side of the medical
conflict that was resolved by Dr. Carney, another report from him would generally be
insufficient to overcome the weight accorded Dr. Carney’s report as the impartial examiner or to
create a new conflict.14
On January 7, 2015 Dr. Murphy diagnosed right knee weakness and right infrapatellar
saphenous branch pain. He failed to provide a rationalized explanation as to how and whether
these conditions, which had not been accepted by OWCP, are causally related to appellant’s
employment injuries.15 Thus, Dr. Murphy’s report is of diminished probative value and
insufficient to overcome the weight accorded to Dr. Carney’s report as the impartial medical
examiner or to create a new conflict.16
The April 10, 2015 hospital records from an emergency room visit on April 10, 2015 do
not specifically address whether any diagnosed conditions are disabling and causally related to
appellant’s accepted injuries.17 The Board therefore finds that this evidence is insufficient to
establish any continuing employment-related residuals or disability.
On appeal, appellant contends that OWCP did not wait until he submitted additional
medical evidence before terminating his wage-loss benefits. As explained, OWCP properly
terminated such benefits based on the evidence before it on May 12, 2014. Thereafter, it referred
appellant to a referee physician, Dr. Carney, for an impartial medical examination and then relied
upon his opinion finding that no further work-related disability had been established. Based on
the findings and reasons stated above, the Board finds that appellant’s argument is not
substantiated.

12

See supra note 10.

13

See T.M., Docket No. 08-975 (issued February 6, 2009) (for conditions not accepted or approved by OWCP as
being due to an employment injury, the claimant bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence).
14

See Jaja K. Asaramo, 55 ECAB 200 (2004); Dorothy Sidwell, 41 ECAB 857 (1990).

15

See supra note 13.

16

See Dorothy Sidwell, supra note 14.

17

See supra note 13.

8

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
benefits effective May 12, 2014. The Board further finds that he has not met his burden of proof
to establish any continuing employment-related residuals or disability thereafter.
ORDER
IT IS HEREBY ORDERED THAT the May 11, 2015 and December 23, 2014
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 8, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

9


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

)
)
)
)
)
)
)
)

Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1790
Issued: March 11, 2020

Case Submitted on the Record

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

JURISDICTION
On August 26, 2019 appellant, through counsel, filed a timely appeal from a February 26,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated February 9, 2018, to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.

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 OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 18, 2017 appellant, then a 55-year-old lead clerk, filed a traumatic injury
claim (Form CA-1) alleging that on October 12, 2017, while in the performance of duty, he
sustained injury to multiple parts of the right side of his body when he was assaulted by his
coworker who threatened to kill him. He stopped working on the date of injury. On the reverse
side of the claim form, appellant’s supervisor noted that appellant was not injured in the
performance of duty and that the employing establishment was controverting the claim.
In an undated handwritten statement, appellant related that on October 12, 2017 he was
working on an automated flat sorting machine (AFSM) while his coworker, J.H. was working on
another AFSM. He indicated that when he moved to help pull down the other machine J.H. initially
walked off and refused to help pull down the machine. Appellant alleged that J.H. subsequently
came up to him and hit him in the chest with his shoulder and elbow, while cursing and shouting
that he would kill him. He noted that he was scared for his life and K.G., another coworker,
stepped in between them before J.H. could hit him again. However, when appellant tried to move
away, J.H. hit him in the chest. He set out immediately to his supervisor, J.C., stopping along the
way to speak to L.M., another coworker, about the incident. Appellant alleged that J.H. later came
up to J.C.’s desk and started yelling at him, threatening to kill and beat him up, while using racial
slurs. He further alleged that his supervisor did nothing to protect him, despite telling her that J.H.
had assaulted him three to four times. Appellant asserted that he told J.C. that he was hurt and
needed to go to the hospital. He also asked her to call the police and the postal inspector, but she
refused. Instead, appellant was told to go to the South Dock office.
Appellant explained that he was trying to write a statement detailing the assault when J.C.
and his other supervisor, R.B., walked into the South Dock office and told him to leave the
property. He asserted that both of them refused to help him and became hostile towards him. On
his way out of the building, appellant told his supervisors that he was hurt and needed medical
attention, but R.B. directed him to leave the property right away. He noted that he left work
because he feared for his life. Appellant concluded by alleging that J.H. was close friends with
the members of management and that J.C. treated white employees more favorably.
In a December 5, 2017 Certificate of Disability, Dr. Robert E. Groble, a Board-certified
psychiatrist, noted that appellant was under his care and had not sufficiently recovered to return to
full-time work until March 2, 2018.
In a December 6, 2017 witness statement, K.G. noted that she was walking to a different
machine on October 12, 2017 when she heard appellant and another coworker, J.H., hollering back
and forth at one another. She immediately turned around and walked towards them “as they were
getting a little too close.” K.G. related that she put her hand on appellant’s chest and pushed him
back, stepping in between he and J.H before she and another coworker ultimately separated the

2

two. She noted that they were both name calling and therefore, were both at fault for the
altercation.
In another witness statement of even date, L.M. attested that she was not scheduled or
present in the area when the dispute between appellant and J.H. occurred on October 12, 2017.
She noted that on the day of the dispute appellant approached her and began telling her that he and
J.H. had words over the pull-down rotation. Appellant told her that J.H. refused to go to the other
side of the machine when it became appellant’s turn to take up the rotation, an argument then
ensued and J.H. bowed up at him, making bodily contact at his stomach or chest area and
threatened to beat him up. He indicated that J.H. then left the area and must have told their
supervisor something because she paged him instructing him to report to her desk.
Appellant’s supervisor, J.C., noted in her witness statement dated December 6, 2017 that
J.H., not appellant, approached her first on October 12, 2017 and was explaining what happened
when appellant came and provoked a heated argument. She asserted that appellant did not mention
anything about being assaulted or that J.H. threatened to kill him when they were baiting each
other with insults, cursing, name calling, and threatening to beat each other up. J.C. observed that
neither appeared injured and appellant only brought up that he was hurt when she and another
supervisor instructed him to gather his belongings and escorted him out of the building. Appellant
only then told them that his shoulder and chest hurt, and that his arm was numb before picking up
his backpack and throwing it over the shoulder that he claimed was injured. J.C. further noted that
appellant did not need any assistance getting to the parking lot and driving off the property. She
also denied appellant’s racial remarks and contended that appellant had been untruthful about what
happened for his own benefit. J.C. indicated that he was previously involved in several arguments,
where he was the one that escalated the situation each time. In a subsequent statement dated
December 22, 2017, she affirmed her earlier statements, claiming that appellant had made a lot of
accusations that were “only partly true and partly a vivid imagination.”
In a letter dated December 27, 2017, the employing establishment controverted appellant’s
claim.
In a development letter dated January 2, 2018, OWCP advised appellant that the evidence
of record was not sufficient to establish that he actually experienced the incident alleged to have
caused injury on October 12, 2017. It further noted that he submitted no evidence showing a
medical diagnosis of any condition resulting from his injury. OWCP provided appellant a factual
questionnaire for completion and afforded him 30 days to respond.
By decision dated February 9, 2018, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the October 12, 2017 employment incident
occurred as alleged. It noted that he had not responded to the January 2, 2018 questionnaire nor
did he provide any witness statements to support that he was threatened or physically struck by his
coworker. OWCP therefore, found that the requirements had not been met to establish an injury
as defined by FECA.
OWCP continued to receive additional medical evidence, including an October 12, 2017
emergency room report from Dr. Kevin Gysling, Board-certified in emergency medicine.
Dr. Gysling noted that appellant reported being assaulted at work when he was pushed back and

3

his arms were forced above his head. An x-ray of the right shoulder performed that day showed
degenerative changes with no acute abnormalities. X-rays of the right hand and wrist were normal.
On February 8, 2019 appellant requested reconsideration of the February 9, 2018 decision.
In an October 24, 2017 magnetic resonance imaging (MRI) scan of the cervical spine,
appellant was noted to have findings, including disc bulges and herniation, throughout the cervical
spine that when compared to prior examinations revealed no significant changes. An MRI scan of
the right shoulder of even date revealed moderate supraspinatus and infraspinatus tendinitis,
degenerative changes and joint effusion.
By decision dated February 26, 2019, OWCP denied appellant’s request for
reconsideration of the merits of his claim, noting that he had not responded to the January 2, 2018
factual questionnaire and that the medical documentation submitted in support of his request was
insufficient to establish the factual component of his claim.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.6 If the request is timely, but fails to meet at least one of the

3

5 U.S.C. § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued
February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
4

20 C.F.R. § 10.606(b)(3); see also E.W., Docket No. 19-1393 (issued January 29, 2020); L.D., id.; B.W., Docket
No. 18-1259 (issued January 25, 2019).
5
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
6
Id. at § 10.608(a); see also Y.H., Docket No. 18-1618 (issued January 21, 2020); R.W., Docket No. 18-1324 (issued
January 21, 2020); M.S., 59 ECAB 231 (2007).

4

requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant has not advanced a relevant legal argument
not previously considered. As such, he is not entitled to a review of the merits of his claim based
on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).8
In support of his request for reconsideration, appellant submitted October 12, 2017 x-rays
of the right hand and wrist and October 24, 2017 MRI scans of his right shoulder and cervical
spine. These reports cannot alone establish the factual basis for appellant’s claim.9 As noted, the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a claim.10 While, in his October 12, 2017 medical report,
Dr. Gysling noted that appellant reported being assaulted that day while at work, he did not provide
the specific details needed to establish that the claimed injury occurred at the time, place, and in
the manner alleged. Additionally, appellant has yet to respond to OWCP’s January 2, 2018
development letter requesting specific details of the alleged October 12, 2017 employment
incident. Thus, he is not entitled to a review of the merits of his claim based on the third abovenoted requirement under 20 C.F.R. §10.606(b)(3).11
The Board accordingly finds that as appellant has not satisfied any of the three
requirements under 20 C.F.R. §10.606(b)(3) to warrant further merit review of his claim, OWCP
properly denied his request for reconsideration.12
On appeal counsel argues that OWCP improperly denied review when appellant presented
evidence of compensability. As previously noted, the Board does not have jurisdiction over the
February 9, 2018 merit decision.

7

Id. at § 10.608(b); D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., Docket No. 19-0291 (issued
June 21, 2019).
8

E.W., supra note 4; T.V., Docket No. 19-1504 (issued January 23, 2020).

9

B.V., Docket No.18-1473 (issued April 23, 2019); C.F., Docket No. 17-1611 (issued December 13, 2017).

10

S.W., Docket No. 19-1498 (issued January 9, 2020); E.J., Docket No. 19-1509 (issued January 9, 2020); M.E.,
Docket No. 18-0553 (issued November 5, 2018).
11

S.B., Docket No. 19-1320 (issued January 17, 2020); J.M., Docket No. 19-0252 (issued January 8, 2020).

12

C.A., Docket No. 19-0160 (issued January 16, 2020); L.E., Docket No. 19-0470 (issued August 12, 2019).

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2020
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bedford Park, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1974
Issued: March 23, 2018

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 September 22, 2017 appellant, through counsel, filed a timely appeal from a May 24,
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 the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $2,248.55 for the period February 9 through March 4, 2017 because she continued to
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.

receive monetary compensation after the expiration of a schedule award; and (2) whether OWCP
properly found appellant at fault in the creation of the overpayment, thereby precluding waiver of
the recovery of the overpayment.
FACTUAL HISTORY
On October 8, 2011 appellant, then a 59-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral foot conditions due to the
performance of her federal employment duties over 23 years. OWCP accepted bilateral lower
extremity conditions of metatarsophalangeal sprain of foot, plantar fibromatosis, Achilles
tendinitis, and tenosynovitis of foot and ankle. Appellant stopped work on January 24, 2012 and
did not return. She received continuous wage-loss compensation beginning April 30, 2012 on the
supplemental roll, and was placed on the periodic compensation rolls in November 2014.3
On June 14, 2016 appellant filed a schedule award claim (Form CA-7). On an OWCP
EN1032 form, signed by her on November 7, 2016, she reported that she was not receiving benefits
from the Office of Personnel Management (OPM), but was receiving monthly benefits from the
Social Security Administration (SSA). At that time she remained on the periodic compensation
rolls.
Following appropriate medical development, by decision dated December 21, 2016,
OWCP granted appellant a schedule award for two percent permanent impairment of the right
lower extremity and one percent permanent impairment of the left lower extremity. The award
was for 8.64 weeks and was paid from December 11, 2016 through February 9, 2017.
Appellant telephoned OWCP on April 3, 2017 and inquired if her periodic rolls
compensation would resume. A claims examiner informed appellant that her case would be
reviewed regarding her return to the periodic rolls, and that she would be contacted once a
determination was made.
On April 19, 2017 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $2,248.55 for the period February 9 through
March 4, 2017 because she continued to receive schedule award compensation after its expiration
on February 9, 2017. Appellant was found to be at fault in the creation of the overpayment.
OWCP explained that a payment was released through March 4, 2017, and she was only entitled
to compensation for a partial day on February 9, 2017. It advised appellant of the steps to be taken
if she disagreed with the preliminary determination and provided her an overpayment action
request form and overpayment recovery questionnaire (Form OWCP-20). An overpayment
worksheet of record explained the calculation of the overpayment.
On May 5, 2017 appellant requested a review of the written record by an OWCP hearing
representative. She indicated on the overpayment action request that a claims examiner informed
her that her periodic rolls payment would restart two months after expiration of the schedule award.
3

By decision dated March 19, 2013, OWCP denied appellant’s claim for wage-loss compensation for October 24
and 25, 2011. The record indicates that appellant has three additional FECA claims accepted for back and upper
extremity conditions. These claims have not been combined.

2

On the overpayment recovery questionnaire appellant listed income of $2,035.00 in monthly SSA
benefits, and expenses totaling $3,153.47 with savings of $2,300.00.
On May 24, 2017 OWCP finalized the overpayment of compensation. It determined that
the preliminary determination that appellant was at fault was correct and, therefore, she was not
entitled to waiver of recovery of the overpayment. OWCP requested repayment in full.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA4 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. Section 10.404 of OWCP
regulations states that compensation is provided for specified periods of time for the permanent
loss or loss of use of certain members.6
OWCP procedures provide that an overpayment is created when a schedule award expires,
but compensation continues to be paid.7
The procedures also provide that, if temporary total disability is interrupted to pay a
schedule award, such payments must be resumed at the end of the schedule award if the claimant
has not been reemployed or rated for a loss of wage-earning capacity at the time the award ends.
It further notes that it may be necessary to obtain an election if the claimant is also receiving an
annuity from OPM.8
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision regarding whether an
overpayment of compensation was created.
The record supports that appellant was receiving compensation on the periodic rolls at the
time that her schedule award compensation began on December 11, 2016. As noted, OWCP
procedures provide that, if temporary total disability is interrupted to pay a schedule award, such
payments must be resumed at the end of the schedule award if the claimant has not been
reemployed or rated for a loss of wage-earning capacity at the time the award ends.9 There is no
evidence of record that OWCP followed these procedures in this case, even though appellant
telephoned OWCP inquiring on the matter. The Board thus finds that fact of overpayment is not
4

5 U.S.C. § 8107

5

20 C.F.R. § 10.404.

6
Id. Effective May 1, 2009, OWCP began using the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009). See J.L., Docket No. 14-0898 (issued March 26, 2015).
7

Federal (FECA) Procedure Manual, Part 6 -- Initial Overpayment Actions, Chapter 6.200.2(c) (May 2004).

8

Id. at Part 2 -- Claims, Chapter 2.808.7(5) (February 2013).

9

Supra note 6.

3

in posture for decision, as OWCP has not considered whether to reinstate appellant’s temporary
total disability after the expiration of her schedule award.
The Board will set aside the May 24, 2017 decision and remand the case to OWCP to
follow its procedures regarding appellant’s claim for resumption of periodic rolls compensation
due to disability.10 Following this and such further development as deemed necessary, OWCP
should render a de novo overpayment decision.
Based on the Board’s finding regarding Issue 1, Issue 2 is rendered moot.
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether an
overpayment of compensation was created.
ORDER
IT IS HEREBY ORDERED THAT the May 24, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for proceedings consistent
with this opinion of the Board.
Issued: March 23, 2018
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

10

Goldie Washington, 31 ECAB 239 (1979).

4