United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
El Paso, TX, Employer
__________________________________________

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

Docket No. 16-1217
Issued: October 11, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On May 18, 2016 appellant filed a timely appeal from an April 14 and two May 11, 2016
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received a
$118,568.17 overpayment of compensation; (2) whether OWCP properly determined that
appellant was at fault in the creation of the overpayment of compensation, thereby precluding
waiver of recovery of the overpayment; and (3) whether OWCP properly modified its
October 21, 2011 loss of wage-earning capacity determination and properly calculated
appellant’s present loss of wage-earning capacity.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 29, 2009 appellant, then a 26-year-old border patrol agent trainee, filed a
traumatic injury claim (Form CA-1) alleging that on January 27, 2009 he sustained a knee injury
when he landed on his left knee during a take-down training exercise at work. Under File No.
xxxxxx461, OWCP accepted his claim for several left knee conditions, including sprains of the
cruciate and medial collateral ligaments, knee contusion, and lateral meniscus tear. It authorized
appellant’s request for left knee surgery and he stopped work on March 12, 2009 to undergo
reconstruction revision surgery on his left anterior cruciate ligament.2 Appellant received
disability compensation on the daily rolls beginning April 25, 2009. Appellant received
disability compensation on the daily rolls through May 9, 2009. He then received disability
compensation on the periodic rolls from May 10 through June 6, 2009 and again on the daily
rolls from July 15 through August 29, 2009.
In a May 1, 2009 letter, OWCP notified appellant of his continuing compensation
payments and his responsibility to return to work if he no longer was totally disabled. It also
informed him that, if he filed for or received other compensation or disability benefits, i.e.,
(black lung or veterans’ benefits) from any federal employing establishment, he must advise
OWCP of the name of the federal employing establishment and the nature of the disability
involved.
Appellant returned to light-duty work on May 20, 2009 and was terminated effective
August 13, 2009 as his medical restrictions prevented him from completing mandatory training.3
Appellant was returned to the periodic rolls effective August 30, 2009.
In a September 10, 2009 letter, OWCP again notified appellant of his continuing
compensation payments and his responsibility to return to work if he no longer was totally
disabled. It reiterated that if he filed for or received other compensation or disability benefits
from any federal employing establishment, he must advise OWCP of the name of the federal
employing establishment and nature of the disability involved.
On September 30, 2009 appellant filed a claim for a schedule award (Form CA-7) and
responded in the affirmative to a question asking whether he had applied for or received
disability benefits from the DVA. On the same form an employing establishment official noted

2

OWCP previously accepted (under File No. xxxxxx042) that on October 1, 2007 appellant sustained several left
knee conditions, including tears of his lateral and medial menisci, and sprain of his cruciate ligament. On
November 15, 2007 appellant underwent OWCP-approved left knee surgery in the form of arthroscopic lateral
meniscus repair and arthroscopic anterior cruciate ligament reconstruction with allograft. The files for the
October 1, 2007 and January 27, 2009 injuries have been combined, with the file for the January 27, 2009 injury
being designated as the master file. Prior to sustaining the October 1, 2007 and January 27, 2009 work injuries,
appellant was receiving benefits from the Department of Veterans Affairs (DVA) for 20 percent disability related to
a left knee condition caused by his military service.
3

On August 13, 2007 appellant had entered duty under a conditional appointment subject to satisfactory
completion of a two-year trial period.

2

that appellant was receiving a payment of $674.00 each month from the DVA for disability due
to his left knee condition.
On October 1, 2010 OWCP requested that the Denver Regional Office of the Veterans
Benefits Administration, a subdivision of the DVA, complete and respond to questions regarding
appellant’s military service awards, nature of disability, monthly benefits rate, and dates of any
increase in benefits. On November 2, 2010 it received a completed form indicating that
appellant had a DVA claim number, that he received $973.00 each month for left knee disability,
and that no increase in monthly benefits had been made as a result of his on-the-job injury.
On September 19, 2011 OWCP received an August 7, 2009 DVA rating decision, finding
that appellant’s left knee disability rating would be increased from 20 to 100 percent for the
period March 12, 2009 to April 30, 2010, due to his March 12, 2009 surgical treatment
necessitating convalescence. The decision noted that appellant’s left knee disability rating would
be 30 percent beginning May 1, 2010.
OWCP requested that appellant complete and return EN1032 forms which posed various
questions about his income and employment activities. In EN1032 forms signed on
September 14, 2010 and September 10, 2011, appellant indicated that he had not received an
increase in the DVA’s award for his left knee.4
On July 24, 2014 OWCP received a copy of a DVA award letter dated March 15, 2013 in
which the DVA indicated that appellant’s monthly award amount was $1,024.00 for a serviceconnected evaluation of 50 percent disability.
In a December 3, 2014 letter, OWCP notified appellant that FECA prohibits dual benefits
for a given federal civilian employment-related injury and advised that an increase in a veteran’s
service-connected disability, brought about by an injury sustained while in federal civilian
employment, is considered a dual payment when the veteran is also receiving FECA wage-loss
benefits. It noted that appellant was receiving a disability rating from the DVA for his left knee
prior to sustaining his January 27, 2009 work-related injury and that his disability with the DVA
was increased, effective March 12, 2009 to April 30, 2010, from 20 percent to 100 percent to
reflect the additional impairment caused by surgery for the work-related injury. OWCP advised
that, during the same time period, appellant was receiving wage-loss benefits from OWCP and
that, therefore, he received a dual benefit. It requested that appellant make an election of
benefits within 30 days5 and enclosed an election of benefits form. OWCP advised appellant
that, once he had made his election, it was irrevocable.
On December 30, 2014 OWCP received appellant’s response in which he elected to
receive DVA benefits effective December 30, 2014.
4

Appellant later indicated that he had not received an increase in the DVA’s award for his left knee in the forms
he signed on September 25, 2012, September 22, 2013, October 1 and November 9, 2014, and October 7, 2015.
5

OWCP advised appellant that, because he had received and was receiving increased DVA benefits, he had to
make an election between the entire amount received from OWCP since March 12, 2009 and the amount of the
increase he had received from the DVA, over the original impairment percentage, since March 12, 2009.

3

On February 5, 2015 OWCP forwarded another letter regarding the required election of
benefits. It noted that the election date of December 30, 2014 could not be accommodated
because the election of benefits, whether for FECA or DVA benefits, had to start on the date of
the increase of the DVA award, i.e., March 12, 2009. OWCP provided appellant further
instructions for making a corrected election.
On March 2, 2015 OWCP received a form, completed on February 23, 2015 in which
appellant corrected the effective date of the election of DVA disability benefits to
March 12, 2009.6
In a February 16, 2016 notice, OWCP advised appellant of its preliminary determination
that he received an overpayment of compensation in the amount of $118,568.17 for the period
April 25, 2009 to February 6, 2016 because he received prohibited dual DVA and OWCP
payments.7 It also made a preliminary determination that he was at fault in the creation of the
overpayment because he was aware or should have reasonably been aware that he was not
entitled to receive benefits from the DVA military service award and OWCP disability benefits
for the same period of time. OWCP advised appellant that he could submit evidence challenging
the fact, amount, or finding of fault, and request waiver of the overpayment. It informed
appellant that he could submit additional evidence in writing or at a prerecoupment hearing, but
that a prerecoupment hearing must be requested within 30 days of the date of the written notice
of overpayment. OWCP requested that appellant complete and return an enclosed overpayment
recovery questionnaire (Form OWCP-20) within 30 days even if he was not requesting waiver of
the overpayment.
Appellant submitted an undated letter discussing the circumstances of the claimed
overpayment and a Form OWCP-20, signed on March 17, 2016, in which he provided figures for
monthly income, monthly expenses, and assets. He asserted that he was not at fault in the
creation of the claimed overpayment and requested waiver of recovery of the overpayment.
Appellant argued that he had always provided the information requested from OWCP, including
information about the amount of income he received and the sources of the income. He asserted
that his family would face financial hardship if the overpayment had to be repaid.
In an April 14, 2016 decision, OWCP finalized the overpayment of compensation in the
amount of $118,568.17. It found that he was at fault in the creation of the overpayment, thereby
precluding waiver of recovery of the overpayment.
While OWCP was developing the overpayment and fault issues, it also began receiving
evidence relevant to the third issue of this case, i.e., whether a prior loss of wage-earning
capacity determination should be modified.
6

During this period of time, appellant was also requesting schedule award compensation benefits based on his
physician’s calculations for permanent partial impairment of 12 percent permanent impairment of the left lower
extremity. On April 10, 2015 OWCP advised him that his claim for schedule award benefit entitlement was closed
due to his election to receive DVA benefits.
7

Payment documents in the evidence of record show that appellant first received OWCP disability compensation
on April 25, 2009 and last received it on February 6, 2016. Overpayment calculation documents show that he
received $118,568.17 in OWCP disability compensation during this period.

4

By decision dated October 21, 2011, OWCP had adjusted appellant’s compensation
effective that date based on its determination that he had the capacity to earn wages of $414.00
per week in the constructed position of administrative clerk.8 It noted that appellant’s vocational
rehabilitation counselor had indicated that appellant was vocationally capable of performing the
position9 and that it was reasonably available in his commuting area at wages of $414.00 per
week. OWCP indicated that the physical duties of the position were within the work duties
recommended by Dr. Grant McKeever, the Board-certified orthopedic surgeon, who served as an
impartial medical specialist.
Appellant advised OWCP that he had been working on a full-time basis since
February 24, 2014 for a private employer, Pride Industries. He submitted pay stubs from Pride
Industries which noted that, for each week during the period May 17 to June 27, 2017, he earned
$18.33 per hour and $733.20 per week (working 40 hours). In EN1032 forms signed on
October 1 and November 9, 2014, appellant indicated that his employment as a general
maintenance worker at Pride Industries began on February 24, 2014 and that the job paid $18.38
per hour.
In an undated statement received on March 24, 2016, appellant advised that he was now
working at the ADP Corporation as a human resources benefits consultant for $17.25 per hour.
He indicated that he initially started working for the ADP Corporation as a contractor (earning
between $10.00 and $14.00 per hour) and that the position became permanent on
February 1, 2016. Appellant advised that he took a pay cut from his prior job in order to pursue
work in his field of study.10
In an April 7, 2016 letter, OWCP advised appellant that it proposed to modify the
October 21, 2011 loss of wage-earning capacity determination. It noted that this formal loss of
wage-earning capacity determination should be modified because the evidence of record
substantiated that appellant had been vocationally rehabilitated as he now was employed in a
new job, obtained with additional training, education, or qualifications, which paid 25 percent
more than the current pay of the job in which his wage-earning capacity was previously
determined on October 21, 2011. OWCP advised that the evidence of record substantiated that
appellant was previously rated as an administrative clerk and that he was employed as a general
maintenance worker with Pride Industries effective February 24, 2014. It noted that he
successfully performed the physical demands of this new job for more than 60 days. OWCP
indicated that the evidence of record also reflected that appellant had additional training or
8

The administrative clerk position involved such duties as compiling and maintaining records of business
transactions and office activities, tabulating data and copying it into record books, and computing wages, taxes,
premiums, commissions, and payments. The position also involved recording orders for merchandise or services,
paying out cash, and giving information to customers, claimants, employees, and sales personnel.
9

In late-2009 appellant began participating in an OWCP-sponsored vocational rehabilitation program and, in
connection with that program, he started taking business administration classes at El Paso Community College. He
later took classes at the University of Texas at El Paso and, in December 2013, he completed a bachelor’s degree in
human resources at that institution
10

Appellant also noted that he had previously advised OWCP that, after graduating from school, he had worked
as a general maintenance worker for Pride Industries.

5

acquired specific education or qualifications prior to starting this new position as demonstrated
by vocational rehabilitation reports and by his statement received on March 24, 2016. It noted
that this new job paid $737.67 per week.11 OWCP indicated that the current pay of the job for
which appellant’s wage-earning capacity was previously determined in the October 21, 2011 loss
of wage-earning decision (administrative clerk) was $414.00 a week, and noted that $737.67 per
week was at least 25 percent more than $414.00 a week. It provided him 30 days to submit
evidence and argument challenging the proposed action. Appellant did not respond to OWCP’s
April 7, 2016 letter.
In a May 11, 2016 decision, OWCP modified its October 21, 2011 wage-earning capacity
determination to reflect appellant’s earnings as a general maintenance worker. It noted that, after
reviewing all available evidence, it had determined that the evidence substantiated that he was
employed in a new job as a general maintenance worker, obtained with additional training,
education, or qualifications. OWCP further indicated that appellant earned $737.67 as a general
maintenance worker and that this amount was 25 percent more than the current pay of the
administrative clerk job which served as the basis for the October 21, 2011 loss of wage-earning
capacity determination. It noted that another decision addressing appellant’s current wageearning capacity would be issued under separate cover.
In another decision dated May 11, 2016, OWCP indicated that appellant was reemployed
as a general maintenance worker for Pride Industries with wages of $737.67 per week and that
the position fairly and reasonably represented his wage-earning capacity. It noted that, since
appellant demonstrated the ability to perform the duties of the job for 60 days or more, it was
considered suitable to his partially disabling condition. OWCP indicated that it was reducing
appellant’s monetary compensation effective May 11, 2016 based upon on his earnings in this
position and that an enclosed document explained the method of calculating his entitlement to
monetary compensation. In the enclosed document, it performed a Shadrick calculation to
determine appellant’s loss of wage-earning capacity.12 OWCP indicated that appellant was
capable of earning $737.67 per week, that the current pay rate for his date-of-injury job (border
patrol agent trainee) job was $812.22,13 and that his loss of wage-earning capacity was nine
percent. It noted that appellant’s new gross compensation rate was $233.00 every four weeks.14
LEGAL PRECEDENT -- ISSUE 1
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. While an
11

OWCP obtained the figure $737.67 by multiplying appellant’s pay of $18.38 per hour times 2,087 annual hours
and dividing the resulting figure by 52 weeks. It also noted that the current pay for appellant’s date-of-injury job,
i.e., border patrol agent trainee, was $662.54 per week.
12

See infra note 43.

13

In providing the $812.22 figure, OWCP noted that it was correcting an error for the current pay of a border
patrol agent trainee that it had made in its April 7, 2016 letter.
14

Appellant last received disability compensation on February 6, 2016 and has not received any additional
disability compensation after OWCP issued its May 11, 2016 decision.

6

employee is receiving such compensation, however, he or she may not receive salary, pay, or
remuneration of any type from the United States, except in return for service actually performed
or for certain payments related to service in the Armed Forces. The latter includes benefits
administered by the DVA, unless such benefits are payable for the same injury being
compensated for under FECA.15 The prohibition against dual payment of FECA and veterans
benefits extends to cases in which: (1) the disability or death of an employee resulted from an
injury sustained while in federal civilian employment and the DVA held that the same disability
or death was caused by military service; or (2) an increase in a veteran’s service-connected
disability award was brought about by an injury sustained while in federal civilian
employment.16
An election between these benefits is required under both scenarios.17 An overpayment
of compensation under FECA may occur when a claimant is not entitled to the amount already
paid.18
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
in the amount of $118,568.17. Beginning April 25, 2009, appellant received FECA benefits for
disability resulting from a January 27, 2009 left knee injury.19 He also had been receiving DVA
disability benefits for his left knee condition.20 Once OWCP learned that appellant was
receiving increased DVA disability benefits, it required him to make an election of benefits. On
March 2, 2015 OWCP received a form in which appellant indicated an election of DVA
disability benefits effective March 12, 2009.
OWCP determined that, at the time of the overpayment, appellant was on its disability
rolls and received compensation every 28-calendar days. However, appellant retroactively
elected to receive benefits from his DVA military service award in lieu of OWCP disability
benefits effective March 12, 2009. He received FECA benefits through February 6, 2016.
Following his election of DVA benefits, appellant was no longer entitled to FECA benefits.21
Appellant’s receipt of increased DVA disability benefits for his left knee condition beginning
March 12, 2009 became a prohibited dual benefit under 5 U.S.C. § 8116 when he received FECA
15

5 U.S.C. §§ 8102(a), 8116(a). See also S.G., Docket No. 12-0779 (issued September 17, 2012).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.8b (December 1997).

17

See id. at Chapter 2.1000.8a(5).

18

See id. at Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2d (May 2004).

19

Appellant previously received disability compensation for brief periods in 2007 and 2008 due to a work-related
October 1, 2007 left knee injury.
20

OWCP received an August 7, 2009 DVA rating decision finding that appellant’s left knee disability rating
increased from 20 to 100 percent beginning March 12, 2009 due to his OWCP-approved March 12, 2009 surgical
treatment necessitating convalescence.
21

See supra notes 15 through 18.

7

disability compensation for the same left knee condition beginning effective April 25, 2009 and
thereafter through February 6, 2016, the date his FECA compensation stopped.22 The Board has
previously found overpayments of compensation when created retroactively as in the present
case.23 OWCP correctly calculated the amount of the overpayment as $118,568.17 for the period
of prohibited dual payment, i.e., April 25, 2009 to February 6, 2016.24
The Board therefore affirms the finding that appellant received an overpayment in the
amount of $118,568.17.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled.25 The only exception to this requirement is a situation which
meets the tests set forth as follows in section 8129(b): “Adjustment or recovery by the United
States may not be made when incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.”26 No waiver of payment is possible if the claimant is not
“without fault” in helping to create the overpayment.27
In determining whether an individual is not “without fault” or alternatively “at fault” in
the creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations
provides in relevant part, that a recipient who has done any of the following will be found to be
at fault with respect to creating an overpayment:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be
incorrect….”28
22

See id.

23

See J.R., Docket No. 15-0387 (issued September 15, 2016); B.G., Docket No. 14-2002 (issued August 13,
2015) concerning the retroactive creation of overpayments of compensation.
24

Payment documents and overpayment calculation documents show that appellant received $118,568.17 in
OWCP disability compensation during the period April 25, 2009 to February 6, 2016.
25

5 U.S.C. § 8129(a).

26

Id. at § 8129(b).

27

L.J., 59 ECAB 264 (2007).

28

20 C.F.R. § 10.433(a).

8

Section 10.433(b) of OWCP’s regulations provides that whether or not OWCP
determines that an individual was at fault with respect to the creation of an overpayment depends
on the circumstances surrounding the overpayment. The degree of care expected may vary with
the complexity of those circumstances and the individual’s capacity to realize that he or she is
being overpaid.29
ANALYSIS -- ISSUE 2
The Board finds that appellant was at fault in the creation of the $118,568.17
overpayment in that he accepted a payment which he knew or reasonably should have known
was incorrect.30 Appellant knew or should have known that he could not accept benefits from an
increased DVA military service award for a period already covered by his FECA disability
payments.
In a May 1, 2009 letter, OWCP notified appellant of his continuing compensation
payments and his responsibility to return to work if he no longer was totally disabled. It
informed appellant that if he filed for or received other compensation or disability benefits (i.e.,
black lung or veterans’ benefits) from any federal employing establishment, he must advise
OWCP of the name of the federal employing establishment and the nature of the disability
involved.31 In a December 3, 2014 letter, OWCP again notified appellant that FECA prohibits
dual benefits for a given federal civilian employment-related injury and advised that an increase
in a veteran’s service-connected disability, brought about by an injury sustained while in federal
civilian employment, is considered a dual payment when the veteran is also receiving FECA
disability benefits.
In an August 7, 2009 rating decision, the DVA found that appellant’s left knee disability
rating would be increased from 20 to 100 percent commencing as of March 12, 2009 due to his
March 12, 2009 surgical treatment necessitating convalescence. As noted, appellant made an
election in March 2015 to receive DVA disability benefits retroactive to March 12, 2009. His
receipt of increased DVA disability benefits commencing as of March 12, 2009 became a
prohibited dual benefit under 5 U.S.C. § 8116 as he was also receiving FECA disability benefits
beginning April 25, 2009 and thereafter through February 6, 2016, the date his FECA
compensation stopped.32 At the time he accepted the DVA disability benefits, appellant knew or
reasonably should have known, based on past notice provided by OWCP, that he was not
permitted to receive both FECA disability benefits and increased DVA disability benefits for the

29

Id. at § 10.433(b).

30

See supra note 26.

31

In a September 10, 2009 letter, OWCP provided similar information to appellant.

32

See notes 15 through 16.

9

same period.33 He is therefore at fault in the creation of the $118,568.17 overpayment based on
the fact that he accepted payments which he knew or should have known to be incorrect.34
The Board will therefore affirm OWCP’s April 14, 2016 decision on the issue of fault.
As appellant was not without fault in creating the overpayment, he is not eligible for waiver.35
OWCP must therefore recover the debt.36
LEGAL PRECEDENT -- ISSUE 3
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.37 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.38
Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity. Generally, wages actually earned are the best measure of wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.39 A determination
regarding whether actual earnings fairly and reasonably represents one’s wage-earning capacity
should be made only after an employee has worked in a given position for more than 60 days.40
After a given employee’s capacity to earn wages is determined, application of the principles set
forth in the Shadrick decision will result in the percentage of the employee’s loss of wageearning capacity.41
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
33

See H.T., Docket No. 16-0482 (issued July 14, 2016).

34

See supra note 26. On appeal appellant argues that he was not at fault in the creation of the overpayment
because he had disclosed the benefits he received from the DVA. He asserts that he was not advised that he could
not receive OWCP compensation and increased DVA benefits related to his left knee condition at the same time, but
the Board has explained how he was informed that he could not receive such prohibited dual payments.
35

See supra note 25.

36

A.P., Docket No. 15-0586 (issued June 6, 2016).

37

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

38

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

39

E.W., Docket No. 14-0584 (issued July 29, 2014); Dennis E. Maddy, 47 ECAB 259, 262 (1995).

40

See supra note 16 at Determining Wage-Earning Capacity Based on Actual Earnings, Chapter 2.815.5
(June 2013).
41

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Albert C. Shadrick, 5 ECAB 376 (1953).

10

rehabilitated or the original determination was, in fact, erroneous.42 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.43
With respect to modification of wage-earning capacity, OWCP’s procedure manual
provides:
“Vocationally Rehabilitated. It may be appropriate to modify the [loss of wageearning capacity] rating on the grounds that the claimant has been vocationally
rehabilitated if the claimant is employed in a new job (a job different from the job
for which he or she was rated) obtained with additional training which pays at
least 25 [percent] more than the current pay of the job for which the claimant was
rated.
“See W.G., Docket No. 06-0367 (issued December 27, 2006). [The Board] held
that the psychology technician position was proper for a modification of an
existing wage-earning capacity determination, because appellant was vocationally
rehabilitated and employed in a new job earning at least 25 [percent] more than
the position in which he was rated. However, [the Board] has held that without a
showing of additional qualifications obtained by appellant through retraining, it is
improper to make a new loss of wage-earning capacity determination based solely
on increased earnings. See Mary Miklosz, Docket No. 05-1672 (issued
June 9, 2006).
“(1) If there is evidence of increased earnings as outlined above, and these
earnings have continued for at least 60 days, the CE [claims examiner] should:
(a) Determine the duration, exact pay, duties, and responsibilities of the
current job.
(b) Determine whether the claimant underwent training or vocational
preparation to earn the current salary.
(c) Assess whether the actual job differs significantly in duties,
responsibilities, or technical expertise from the job at which the claimant
was rated.
“(2) If the results of this investigation establish that the claimant is rehabilitated or
self-rehabilitated, or if the evidence shows that the claimant was retrained for a
different job, compensation may be redetermined using the Shadrick formula.
Any modification of compensation should be preceded by a 30-day prereduction
notice and be made prospectively so that no overpayment results.”44

42

C.R., Docket No. 14-0111 (issued April 4, 2014); Sharon C. Clement, 55 ECAB 552 (2004).

43

See T.M., Docket No. 08-0975 (issued February 6, 2009).

44

Supra note 16 at Modification of Loss of Wage Earning Capacity Decisions, Chapter 2.1501.5c (June 2013).

11

ANALYSIS -- ISSUE 3
By decision dated October 21, 2011, OWCP had adjusted appellant’s compensation,
effective that date, based on its determination that he had the capacity to earn wages in the
constructed position of administrative clerk.
In December 2013, appellant completed a bachelor’s degree in human resources at the
University of Texas at El Paso.45 In March 2016, he advised OWCP that on February 24, 2014
he began working on a full-time basis as a general maintenance worker for a private employer,
Pride Industries. In this position, appellant earned wages of $18.38 per hour.
In a May 11, 2016 decision, OWCP modified the October 21, 2011 wage-earning
capacity determination to reflect appellant’s earnings in the general maintenance worker
position. It noted that the evidence substantiated that he was employed in a new job as a general
maintenance worker, obtained after additional training, education, or qualifications, which paid
25 percent more than the current pay of the job for which his wage-earning capacity was
previously determined in the October 21, 2011 loss of wage-earning capacity determination (i.e.,
administrative clerk). OWCP indicated that appellant earned $737.67 as a general maintenance
worker for more than 60 days and that this amount was 25 percent more than $414.00 per week,
the current pay of the administrative clerk job. It thereby modified its October 21, 2011 loss of
wage-earning capacity determination based on the second prong of the above-noted test for
modifying such formal determinations, i.e., that appellant had been retrained or otherwise
vocationally rehabilitated.46 OWCP noted that another decision addressing appellant’s current
wage-earning capacity would be issued under separate cover.
In the separate May 11, 2016 decision, OWCP indicated that appellant’s job as a general
maintenance worker for Pride Industries fairly and reasonably represented his wage-earning
capacity. It conducted a Shadrick calculation47 and indicated that appellant was capable of
earning $737.67 per week, that the current pay rate for his date of injury job (border patrol agent
trainee) job was $812.22, and that his loss of wage-earning capacity was nine percent. OWCP
noted that appellant’s new gross compensation rate would be $233.00 every four weeks.48
The Board finds that OWCP met its burden of proof to modify its October 21, 2011 loss
of wage-earning capacity determination.49 As noted above, OWCP modified its October 21,
2011 loss of wage-earning capacity determination based on the second prong of the test for

45

Supra note 9

46

See supra note 42.

47

See supra note 41.

48

Although this calculation was made, due to the DVA election, appellant received no compensation. He last
received disability compensation on February 6, 2016 and he had not received any additional disability
compensation after OWCP issued its May 11, 2016 decision.
49

See supra note 43.

12

modifying such formal determinations, i.e., that appellant had been retrained or otherwise
vocationally rehabilitated.50
The evidence of record reflects that appellant was vocationally rehabilitated after OWCP
determined his loss of wage-earning capacity in its October 21, 2011 decision. In addition to the
fact that appellant received significant additional education after that determination, the Board
notes that the position of general maintenance worker clearly represented a new job from the
administrative clerk position that was the basis for the October 21, 2011 wage-earning capacity
determination. The general maintenance job differed in its duties and responsibilities from the
administrative clerk job. Moreover, appellant worked more than 60 days in the position.51 The
general maintenance worker job also paid at least 25 percent more than the administrative clerk
job. The current wages for the administrative clerk job were $414.00 per week and the general
maintenance worker job paid $737.67 per week.52
The Board accordingly finds that OWCP properly determined that appellant was
vocationally rehabilitated. Appellant was employed in a different job from that job on which the
October 21, 2011 wage-earning capacity was originally determined, with different duties and
responsibilities, and had greater than 25 percent increased earnings for more than 60 days.53
For these reasons, OWCP met its burden of proof to modify its October 21, 2011 loss of
wage-earning capacity determination and; therefore, the Board will affirm its first May 11, 2016
decision.54
In its second May 11, 2016 decision, OWCP calculated appellant’s present loss of wageearning capacity under the principles of the Shadrick case.55 The Board finds that OWCP
properly conducted this calculation, which incorporated figures derived from the new loss of
wage-earning capacity determination. Therefore, the Board will also affirm OWCP’s second
May 11, 2016 decision concerning appellant’s present loss of wage-earning capacity.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $118,568.17 and that he was at fault in the creation of the
50

See supra note 42.

51

See supra notes 36 and 40 and the W.G. and Mary Miklosz cases OWCP cited in Chapter 2.1501.5c of its
procedures. See also C.S., Docket No. 12-1221 (issued February 11, 2013).
52

See G.S., Docket No. 07-0021 (issued April 10, 2007).

53

See S.J., Docket No. 16-0445 (issued May 20, 2016).

54

See supra note 52.

55

See supra note 53.

13

overpayment of compensation, thereby precluding waiver of recovery of the overpayment. The
Board further finds that OWCP properly modified its October 21, 2011 loss of wage-earning
capacity determination and properly calculated appellant’s present loss of wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the two May 11, 2016 decisions and the April 14,
2016 decision of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 11, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.E., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
NATIONAL PROTECTION & PROGRAMS
DIRECTORATE, Arlington, VA, Employer
__________________________________________

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

Docket No. 19-1020
Issued: November 5, 2019

Case Submitted on the Record

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

JURISDICTION
On April 9, 2019 appellant filed a timely appeal from a February 27, 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 April 6, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s February 7, 2019 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 5, 2012 appellant, then a 53-year-old management analyst, filed a traumatic injury
claim (Form CA-1) alleging that on June 1, 2012 she broke a bone in her right foot and hurt her
lower back and left knee when she slipped and fell down while in the performance of duty. She
reportedly tripped on a board that was covered while walking to the parking garage. Appellant
stopped work on June 4, 2012 and returned to full duty on July 23, 2012.
In a June 5, 2012 report, Dr. Jorge A. Mondino, an orthopedic surgeon, described the
June 1, 2012 employment incident and provided examination findings. He noted swelling of the
right ankle and tenderness on palpation and tenderness over the superolateral aspect of appellant’s
left knee. Dr. Mondino reported that examination of appellant’s lumbar spine showed tenderness,
mostly on the right paraspinal area and negative straight leg raise testing. He diagnosed acute
lumbar strain, left knee sprain, and right ankle sprain.
OWCP accepted appellant’s claim for lumbar sprain, left knee lateral ligament sprain, and
right ankle sprain.
On October 20, 2016 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record to Dr. Donald B. Haskins, a Board-certified orthopedic surgeon,
for a second-opinion evaluation. In a November 22, 2016 report, Dr. Haskins indicated that he
had reviewed the SOAF and discussed her history of injury. He noted that appellant’s claim was
accepted for lumbar sprain, left knee lateral ligament sprain, and right ankle sprain. Upon
examination of appellant’s lumbar spine, Dr. Haskins reported her complaints of pain in the left
buttock area. He observed normal gait and negative straight leg raise testing. Examination of
appellant’s left knee revealed full range of motion without effusion. Dr. Haskins also reported
tenderness about the tarosmetatarsal articulation and mild supination of the right foot. He
diagnosed resolved lumbar sprain, resolved ankle sprain, resolved left knee sprain, degenerative
disc disease of the lumbar spine, and mid-foot pain. Dr. Haskins noted that there were no
significant abnormal objective findings and indicated that the conditions of degenerative disc
disease of the lumbar spine and foot arthritis were not related to the June 1, 2012 employment
injury. He concluded that appellant no longer required medical treatment for her accepted lumbar
sprain, left knee sprain, and right ankle sprain conditions and that she was capable of working full
time.
On December 22, 2016 OWCP proposed to terminate appellant’s medical benefits. It
found that the weight of the medical evidence rested with the opinion of Dr. Haskins, the secondopinion examiner, who opined in a November 22, 2016 report that appellant no longer had
residuals of her accepted June 1, 2012 employment injury. OWCP provided appellant 30 days to
submit additional evidence and/or argument if she disagreed with the proposed termination.
OWCP received additional medical evidence. An August 27, 2016 report of a lumbar spine
MRI scan showed intervertebral disc degeneration and facet osteoarthritis with mild spinal stenosis
at L4-5.
In reports dated October 27 and December 19, 2016, Dr. Teresa M. Kerge, a Boardcertified physiatrist, recounted appellant’s complaints of low back pain radiating down her lower

2

extremities following a June 1, 2012 employment injury. She reported examination findings of
tenderness to palpation of the lower lumbar facet joints, slight tenderness to palpation of the lower
lumbar spine, tenderness to palpation of the bilateral greater trochanteric bursae, and tenderness to
palpation of the bilateral sacroiliac (SI) joints. Dr. Kerge diagnosed low back, right knee, left
knee, and right shoulder pain, lumbosacral spondylosis, and bilateral trochanteric bursitis.
In a January 4, 2017 report, Dr. David A. Zijerdi, a Board-certified orthopedic surgeon,
noted right shoulder examination findings of full range of motion and positive Hawkin’s and
Neer’s tests. He diagnosed right shoulder rotator cuff tendinitis and impingement.
In a January 11, 2017 report, Dr. Aaron J. Greenberg, a Board-certified orthopedic
surgeon, related that appellant was treated for follow up of lumbar spondylosis, SI joint pain,
trochanteric bursitis, and neuropathy. He recommended SI injections.
On February 7, 2017 OWCP finalized the termination of appellant’s wage-loss
compensation and medical benefits, effective February 8, 2017. It found that the weight of the
medical evidence rested with the November 22, 2016 second opinion report of Dr. Haskins who
determined that appellant no longer had residuals or disability causally related to her accepted
June 1, 2012 employment injury.
Following the termination decision, OWCP received a series of additional medical reports
from Dr. Kerge dated February 6, 2017 to December 26, 2018 regarding her treatment of appellant
for her right shoulder and lumbar conditions. Dr. Kerge provided examination findings and
diagnosed right shoulder pain, right shoulder lesions, sacral and sacrococcygeal disorders,
spondylosis without myelopathy or radiculopathy, and sacroiliitis.
In an April 17, 2017 report, Dr. Zijerdi also examined appellant for complaints of right
upper extremity pain and numbness and diagnosed right shoulder rotator cuff tendinitis and
impingement and right cubital tunnel syndrome.
On February 7, 2019 appellant, through counsel, requested reconsideration of the
February 7, 2017 termination decision. In a February 6, 2019 letter, counsel requested
reinstatement of appellant’s medical benefits and compensation for residuals of her accepted injury
and compensation for terminated benefits since February 8, 2017. She asserted that the June 1,
2012 emergency room hospital records showed that appellant had a chipped bone in her right foot
and that even after appellant returned to work, she continued to receive medical treatment for
ankle, foot, back, and knee pains, which were residuals of the June 1, 2012 employment injury.
Counsel argued that OWCP should not rely on Dr. Haskins’ November 22, 2016 second-opinion
report as he failed to acknowledge appellant’s chipped bone in her right foot. She also contended
that Dr. Haskins could not provide an opinion on appellant’s work-related residuals or disability
as he did not evaluate appellant before the June 1, 2012 injury to determine what her baseline was
at the time.
In a January 3, 2019 letter, Dr. Kerge related that she had treated appellant since
October 2016 for complaints of low back pain radiating to her bilateral lower extremities, bilateral
knee pain, right shoulder pain, and right elbow pain following a 2012 work injury. She noted that
appellant’s initial diagnoses were low back pain, lumbosacral spondylosis, sacral and

3

sacrococcygeal disorders, sacroiliitis, right and left knee pain, right shoulder pain, and greater
trochanteric bursitis, bilaterally. Dr. Kerge described a September 22, 2016 work injury that
aggravated appellant’s June 1, 2012 initial injury and also caused issues with her right shoulder
and elbow. She explained that she was unable to determine residuals of appellant’s work injuries
because she did not evaluate appellant prior to the injury to determine what her baseline was at the
time.
In a January 18, 2019 letter, Dr. Raymon Aggarwal, a Board-certified internist, indicated
that appellant had been his patient from 2004 to 2011. He related that as of her last visit in 2011,
appellant was in good health and had no complaints regarding low back pain, bilateral right/left
knee pain, right/left shoulder pain, right/left elbow pain, right/left calf pain, and right/left ankle
pain.
By decision dated February 27, 2019, OWCP denied appellant’s reconsideration request
finding that it was untimely filed and failed to demonstrate that OWCP’s February 7, 2017 decision
was issued in error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.3 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.4
Timeliness is determined by the document receipt date of the request for reconsideration as is
indicated by the “received date” in the integrated Federal Employees’ Compensation System
(iFECS).5
OWCP will consider an untimely request for reconsideration only if the request
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision.6 The
request must establish on its face that such decision was erroneous.7 Where a request is untimely

2

This section provides in pertinent part: [t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.607; S.C., Docket No. 18-0126 (issued May 14, 2019).

4

Id. at § 10.607(a); L.W., Docket No. 18-1475 (issued February 7, 2019). For merit decisions issued on or after
August 29, 2011, a request for reconsideration must be received by OWCP within one year of OWCP’s decision for
which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(February 2016).
5

Federal (FECA) Procedure Manual, id. at Chapter 2.1602.4(b).

6

20 C.F.R. § 10.607(b).

7

Id.

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and fails to demonstrate clear evidence of error, OWCP will deny the request for reconsideration
without reopening the case for a review of the merits.8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error.9 It is not enough merely to show that the evidence
could be construed so as to produce a contrary conclusion.10 The evidence submitted must not
only be of sufficient probative value to create a conflict in medical opinion or demonstrate a clear
procedural error, but must be of sufficient probative value to shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.11
The Board has held that even a report such as a detailed, well-rationalized medical report which,
if submitted before the denial was issued, would have created a conflict in medical evidence
requiring further development is insufficient to demonstrate clear evidence of error.12 OWCP
procedures further provide that the term clear evidence of error is intended to represent a difficult
standard.13
The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s February 7, 2019 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
On February 7, 2019 appellant requested reconsideration of the February 7, 2017
termination decision. As previously noted, OWCP’s regulations and procedures establish a oneyear time limit for requesting reconsideration, which begins on the date of the original OWCP
decision.15 As the last merit decision on this issue was the February 7, 2017 decision, appellant
had one year from the date of this decision, which was February 7, 2018, to make a timely request
for reconsideration with OWCP. Because appellant’s reconsideration request was received on
February 7, 2019, some two years after the February 7, 2017 OWCP decision, the Board finds that

8

Id. at § 10.608(b).

9

20 C.F.R. § 10.607(b); P.L., Docket No. 18-0813 (issued November 20, 2018); Fidel E. Perez, 48 ECAB 663,
665 (1997).
10

See Leona N. Travis, 43 ECAB 227, 240 (1991).

11

V.L., Docket No. 17-1493 (issued September 12, 2018); Annie L. Billingsley, 50 ECAB 210 (1998).

12

A.R., Docket No. 15-1598 (issued December 7, 2015).

13

Federal (FECA) Procedure Manual, supra note 4 at Chapter 2.1602.5a (October 2011).

14

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

15

Supra notes 4 and 5.

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her request for reconsideration was untimely filed.16 Consequently, appellant must demonstrate
clear evidence of error by OWCP in the termination of her medical compensation benefits.17
The Board has reviewed the record and finds that appellant’s arguments on reconsideration
do not raise a substantial question as to the correctness of OWCP’s February 7, 2017 merit decision
or shift the weight of the evidence of record in her favor.
OWCP terminated appellant’s compensation and medical benefits finding that the weight
of the evidence rested with the November 22, 2016 second-opinion report of Dr. Haskins, who
opined that appellant’s accepted June 1, 2012 employment injuries had resolved. On
reconsideration, counsel argued that OWCP improperly relied on Dr. Haskins’ November 22,
2016 second-opinion report because he failed to acknowledge appellant’s chipped bone in her right
foot and he did not evaluate her before the June 1, 2012 employment injury to determine what her
baseline was at the time. The Board finds, however, that Dr. Haskins provided a well-rationalized
opinion that appellant’s accepted June 1, 2012 injuries had resolved, which was based on a
complete factual background, a review of the medical record, and physical examination findings.
Therefore, at the time of OWCP’s February 7, 2017 decision, the medical evidence of record was
sufficient to justify the termination of appellant’s compensation benefits.18 Appellant’s argument
on reconsideration, therefore, did not raise a substantial question concerning the correctness of
OWCP’s termination decision, and thus, failed to demonstrate clear evidence of error.19
The evidence submitted to the record following OWCP’s February 7, 2017 merit decision
consisted of several medical reports. To demonstrate clear evidence of error in the termination of
appellant’s medical benefits, the new evidence has to establish her continued need for medical
treatment in order to treat her accepted June 1, 2012 lumbar, left knee, and right ankle sprain. The
series of reports by Dr. Kerge from 2017 to 2019 and January 3, 2019 letter, Dr. Zijerdi’s April 17,
2017 report, and Dr. Aggarwal’s January 18, 2019 letter did not address the relevant issue of
whether appellant had any continuing residuals or disability causally related to her accepted June 1,
2012 employment injury. Thus, these reports are insufficient to demonstrate error by OWCP.20
Appellant has not submitted medical evidence sufficient to shift the weight of the evidence
in her favor or raise a substantial question as to the correctness of OWCP’s decision.
Consequently, the Board finds that she has failed to demonstrate clear evidence of error on the part
of OWCP such that it abused its discretion in denying merit review.

16

See L.C., Docket No. 18-1407 (issued February 14, 2019).

17

Supra notes 6 and 8.

18

See L.T., Docket No. 17-0954 (issued January 12, 2018).

19
Supra note 4 at Chapter 2.1602.5 (February 2016) (the term clear evidence of error is intended to represent a
difficult standard); see also A.F., Docket No. 18-0645 (issued October 26, 2018); Dean D. Beets, 43 ECAB
1153 (1992).
20
See E.B., Docket No. 18-1091 (issued December 18, 2018); B.C., Docket No. 16-1404 (issued April 14, 2017);
F.R., Docket No. 09-0575 (issued January 4, 2010).

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Appellant further contends on appeal that the factual and medical evidence of record is
sufficient to establish continuing employment-related residuals and disability and that
Dr. Haskins’ report did not constitute the weight of the medical opinion evidence. However, as
noted, the Board does not have jurisdiction over the merits of the claim. Appellant has not
presented evidence or argument that raises a substantial question as to the correctness of OWCP’s
termination decision for which review is sought.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s February 7, 2019 request
for reconsideration was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF STATE, BUREAU OF
DIPLOMATIC SECURITY, Washington, DC,
Employer
__________________________________________

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

Docket No. 17-0926
Issued: July 12, 2018

Case Submitted on the Record

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

JURISDICTION
On March 23, 2017 appellant, through counsel, filed a timely appeal from a December 13,
2016 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 claim.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its December 13, 2016 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board lacks jurisdiction to review this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has met his burden of proof to establish intermittent periods
of disability commencing September 3, 2013 causally related to his November 16, 2011
employment injury.
FACTUAL HISTORY
On November 21, 2011 appellant, then a 35-year-old Diplomatic Security Special Agent,
filed a traumatic injury claim (Form CA-1) alleging that he sustained injury to his left wrist, left
lower leg, and bilateral ankles when he was struck by a U.S. embassy vehicle on November 16,
2011 at Malacagnan Palace in Manila, Philippines while in the performance of his federal
employment duties. He returned to the United States the next day and first received medical care
on November 18, 2011.
The claim was administratively handled to allow for a limited amount of medical expenses,
as it appeared to be a minor injury that resulted in minimal or no lost time from work. Once the
medical bills exceeded $1,500.00, OWCP formally adjudicated the claim. On July 21, 2015 it
accepted the claim for left bone bruise medial and lateral malleolus, resolved.
In July 1 and 8, 2015 letters, counsel requested that the acceptance of the claim be expanded
to include impingement syndrome and intra-articular injury to the right ankle.
On September 29, 2015 OWCP received a claim for compensation (Form CA-7) for the
periods September 3 to 13, 2013 and November 1, 2013 to August 24, 2014, and continuing.
Medical evidence from 2011 consisted of magnetic resonance imaging (MRI) scans of the
bilateral ankles dated December 9, 2011. The right ankle MRI scan indicated moderate
degenerative changes of the tibiotalar joint, mild degenerative changes of the posterior facet of the
subtalar joint, and thickening of the anterior talofibular and calcaneofibular ligaments consistent
with old sprain. The left ankle MRI scan showed bone bruise in the medial and lateral malleolus
and the posterior aspect of the calcaneus with a possible subacute fracture of posterior process of
talus, and an os trigone with degenerative changes. A complete tear of the anterior talofibular
ligament and calcaneofibular ligaments was also noted.
In a January 13, 2012 report, Dr. John Cohen, a Board-certified orthopedic surgeon related
that appellant was seen for bilateral leg pain or stiffness at both ankles, left worse than right. He
noted that appellant was hit by a car as a pedestrian in Manila, Philippines on November 16, 2011.
Dr. Cohen reported the results of the left ankle MRI scan and noted x-ray of the ankle was normal.
He indicated that appellant may have posterior tendinitis of his left ankle.
In a February 6, 2013 report, Dr. Cohen noted that appellant had bilateral ankle pain as a
result of his November 16, 2011 work injury. He reported that appellant was last seen in July 2012
and that his left ankle condition had resolved. Dr. Cohen noted that appellant had recurrent,
intermittent right ankle pain which occurred while standing and walking. He advised that appellant
may have impingement syndrome and intraarticular injury to the right ankle.

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In a February 21, 2013 report, Dr. Evan Argintar, a Board-certified orthopedic surgeon,
reported that appellant had chronic bilateral ankle pain, right greater than left, stemming from an
accident in the Philippines about a year ago. He noted that appellant’s medial joint tenderness
correlated to his MRI scan, which showed a large osteochondral injury to the medial distal tibia
articular surface. Dr. Argintar recommended a right ankle arthroscopy as appellant had failed
conservative treatment. In March 8 and June 10, 2013 reports, he diagnosed an osteochondritis
dissecans (OCD) distal talus and a subtalar cyst. Dr. Argintar discussed the injections which had
been administered.
On September 2, 2013 appellant underwent a right ankle arthroscopy, micro fracture with
open drilling of the medial malleolus. This procedure was not authorized by OWCP.
In a September 9, 2013 report, Dr. Argintar related that he had taken appellant off work the
entire month of September 2013 to recover from his right ankle arthroscopy. In a September 16,
2013 report, he indicated that appellant was to remain nonweight bearing for two more weeks. On
October 14, 2013 Dr. Argintar released appellant to weight bearing as tolerated.
OWCP received July 31, 2014 MRI scans of appellant’s thoracic and lumbar sacral spine.
These studies indicated no significant thoracic disc disease. Degenerative changes in the lumbar
spine and a mild L5-S1 retrolisthesis with multilevel foraminal narrowing, most marked at L5-S1
with compromise of the bilateral existing L5 nerve root, were noted.
There are no treatment records on file from October 14, 2013 until May 26, 2015.
In a May 26, 2015 report, Dr. Zacharia Isaac, an internist and physiatrist, indicated that
appellant had several lumbar spine conditions, including bilateral foraminal stenosis at L5-S1,
which caused lumbar radiculopathy bilaterally. He also indicated that appellant had spinal
stenosis, a degenerative condition, which could be exacerbated with abrupt movement or trauma.
Dr. Isaac discussed appellant’s job responsibilities and opined that appellant was no longer capable
of performing the essential duties of a special agent.
On May 26, 2015 appellant also underwent a bilateral L5 lumbar selective nerve root block.
A May 27, 2015 MRI scan of the lumbar spine showed similar findings to the July 31, 2014 report.
In an October 28, 2015 development letter, OWCP reviewed the evidence received in
support of the claimed periods of disability from September 3, 2013. It indicated that the medical
evidence submitted did not substantiate that the disability was caused by the accepted
November 16, 2011 employment injury. OWCP requested that appellant submit a complete and
comprehensive narrative report from his physician as to how he had a worsening of his accepted
work-related condition during the period of compensation claimed. Appellant was afforded 30
days to submit the requested information.
In a November 17, 2015 report, Dr. Edmond J. Zaccaria, a family practitioner, noted that
he was appellant’s primary care physician. He indicated that he had read the initial accident report
prepared by appellant regarding the November 16, 2011 employment injury, reviewed MRI scans
and electromyogram (EMG) reports, reviewed medical records and reports from several
physicians, and reviewed appellant’s work requirements. Dr. Zaccaria noted that on November 16,
2011, appellant was on a protective detail in Manila, Philippines. He indicated that appellant was
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standing with his back to the vehicle and that the front of the vehicle made contact with appellant
at a low rate of speed, which caused him to bend backwards. The vehicle continued moving
forward and appellant fell forward and under the vehicle, running over his right leg. Dr. Zaccaria
noted that appellant returned to the United States the next day. He noted that during the 20-hour
transit, appellant experienced pain and stiffness in his back and both legs. Dr. Zaccaria indicated
that appellant was diagnosed with bilateral ankle sprain and lumbosacral spine sprain/strain. He
noted appellant’s course of conservative treatment and discussed MRI scan findings of
December 9, 2011. Dr. Zaccaria indicated that appellant was given an orthopedic referral and
continued to see a chiropractor for his back soreness and tightness.
Dr. Zaccaria discussed appellant’s care under Dr. Cohen from January 12, 2012 through
February 6, 2013. He noted that appellant’s pain was constant and it made it difficult for him to
do some of his work duties and that the pain worsened during travel. Dr. Zaccaria noted that
appellant was placed on a “no running” restriction until further notice. He reported that the left
ankle responded well to treatment, but the right ankle did not. Dr. Zaccaria discussed the results
of the right ankle MRI scan and that appellant was under the care of Dr. Argintar for bilateral ankle
sprain from February 19 through October 20, 2013. He discussed appellant’s treatment, including
injections and the September 2, 2013 right ankle arthroscopy. Dr. Zaccaria indicated that appellant
had weight bearing restrictions as part of his recovery and was on a knee walker for six weeks.
Appellant began physical therapy on October 7, 2013 and began full weight bearing on
October 24, 2013.
Dr. Zaccaria reported that appellant’s lumbosacral symptoms began again and his condition
rapidly deteriorated once he started weight bearing on his right leg. He reported that on
October 30, 2013 appellant was in transit to Washington, DC and began experiencing pain and
paralysis. On October 31, 2013 appellant was taken to the George Washington University Hospital
Emergency Room and was diagnosed with right lumbar radiculopathy. He was sent home and
flew back to Boston, MA with medical assistance. On November 6, 2013 appellant was
hospitalized at Framingham Union Hospital because he was unable to stand or sit. He was
transferred to Massachusetts General Hospital on November 10, 2013 and on November 20, 2013,
right L5-S1 nerve root impingement was diagnosed.
Dr. Zaccaria discussed appellant’s care from Dr. Isaac since December 10, 2013. He noted
that appellant required a walker for support while walking. An EMG conducted on August 20,
2015 revealed nerve damage to the nerves in question and one on the right calf. Dr. Zaccaria
discussed the claimant’s limitations and that he was a candidate for surgery.
Dr. Zaccaria opined that appellant’s bilateral ankle sprain was causally related to the
November 16, 2011 employment injury. He explained that the traumatic nature of the injury,
complicated by subsequent exposure to extended periods of standing as required by appellant’s
job worsened and aggravated the injury. The osteochondritis dissecans (OCD) and subtalar cyst,
which were not present in the December 9, 2011 MRI scan, were direct progressions of this injury.
Regarding the lumbosacral spine sprain/strain, Dr. Zaccaria also opined that the
mechanism of injury and point of contact being the lumbar spine, established that the
November 16, 2011 employment injury was the proximate cause of this injury. He explained that
while the initial injury responded well to a regimen of conservative care, appellant’s subsequent

4

exposure to extended periods of standing, and extensive seated travel time led to the worsening.
Further, the extended use of a knee walker that maintained his leg suspended and bent at the same
time, was the proximate cause of the L5-S1 nerve root impingement that has led to appellant’s
incapacitated state.
In an October 20, 2015 report, Dr. Isaac provided an impression of bilateral L5 radiculitis
due to foraminal narrowing, history of work-related injury, physically demanding occupation,
lumbar degenerative changes at L5-S1, facet arthropathy at L5-S1, balance issues with weakness
in the leg and foot swelling, soft tissue tightness. In an October 20, 2015 progress note, he
diagnosed bilateral L5 radiculitis.
A May 27, 2015 MRI scan of the lumbosacral spine was noted to be similar to the prior
study of July 31, 2014.
By decision dated December 1, 2015, OWCP denied appellant’s claim for compensation
for the claimed periods of wage loss. It noted that appellant had not claimed a back injury on his
CA-1 form and that the medical evidence of record did not establish a causal relationship between
the lumbar spine sprain/strain diagnosis and the accepted November 16, 2011 employment injury.
Appellant was advised that he could file a new injury claim if a new injury had occurred.
On December 9, 2015 counsel requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on August 9, 2016. During the hearing
and in a February 25, 2016 letter, counsel requested that the acceptance of the claim be expanded
to include other medical conditions concerning the right ankle and back. The hearing
representative advised counsel that the only issue to be decided from the hearing was appellant’s
entitlement to wage-loss compensation for the period claimed.
In an October 12, 2016 progress report, Dr. Isaac noted that appellant was last seen in
December 2015 and was looking for work in a modified capacity as he could not work as a federal
agent due to his standing and sitting intolerance, chronic back, and sciatic symptoms. He provided
an impression of bilateral L5 radiculitis due to foraminal narrowing, history of work-related injury,
physically demanding occupation, lumbar degenerative changes at L5-S1, facet arthropathy at L5S1.
By decision dated December 13, 2016, an OWCP hearing representative affirmed OWCP’s
December 1, 2015 decision. She found that there was no medical evidence which supported
appellant’s claims for compensation for leave buy back or wage-loss compensation for the claimed
periods causally related to the accepted November 16, 2011 employment injury. The hearing
representative indicated that no action had been taken on counsel’s July 1, 2015 and February 25,
2016 requests to expand the acceptance of the claim to include additional conditions, and that on
return of the case record appellant should be provided due process regarding this issue. She further
advised appellant that he could file a claim for an occupational disease (Form CA-2), if he believed
that his current conditions were related to work activities associated with his occupation.

5

LEGAL PRECEDENT
Section 8102(a) of FECA4 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”5 This meaning, for brevity, is expressed as disability from work.6
For each period of disability claimed, the employee has the burden of proving that he or
she was disabled from work as a result of the accepted employment injury.7 Whether a particular
injury caused an employee to be disabled from employment and the duration of that disability are
medical issues which must be proven by the preponderance of the reliable, probative, and
substantial medical evidence.8
Disability is not synonymous with physical impairment, which may or may not result in an
incapacity to earn wages. An employee who has a physical impairment causally related to his or
her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA and is not entitled
to compensation for loss of wage-earning capacity. The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability for
intermittent periods commencing September 3, 2013.
While OWCP accepted that appellant sustained left bone bruise medial and lateral
malleolus, resolved, on November 16, 2011, appellant bears the burden of proof to establish,
through rationalized medical evidence, that he was disabled from work during the claimed time
periods and that his disability was causally related to his accepted conditions.10

4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
6

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

7

See William A. Archer, 55 ECAB 674 (2004).

8

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

9

Id.

10

See supra notes 7 and 8. See also V.P., Docket No. 09-0337 (issued August 4, 2009).

6

For the period commencing September 3, 2013, the evidence reflects that appellant
underwent a right ankle arthroscopic surgery on September 2, 2013, which OWCP did not
authorize. The accepted condition was of the left ankle, not the right. Where an employee claims
that a condition not accepted or approved by OWCP was due to an employment injury, he or she
bears the burden of proof to establish that the condition was causally related to the employment
injury.11
While appellant claimed injury to both ankles on his CA-1 form, there is no examination
records for treatment of record contemporaneous to the work injury. In his February 6, 2013
report, Dr. Cohen indicated that appellant had bilateral ankle pain as a result of the employment
injury. However, it is not possible to establish the cause of a medical condition if the physician
has not provided a diagnosis, but only notes pain.12 The Board has consistently held that pain is a
symptom and not a compensable medical diagnosis.13 While Dr. Cohen ultimately opined that
appellant may have impingement syndrome and intraarticular injury to the right ankle, he did not
provide a rationalized opinion explaining whether and how those diagnoses were related to the
November 16, 2011 employment injury. The Board has found that medical opinions unsupported
by rationale are of little probative value.14
Medical notes from Dr. Argintar dated February 21 to October 14, 2013 fail to provide an
opinion regarding the causality of the right ankle conditions. Reports lacking such an opinion are
of diminished probative value.15 In his February 21, 2013 report, Dr. Argintar reported that
appellant had chronic bilateral ankle pain, right greater than left, stemming from the employment
injury. While he indicated that appellant’s clinical picture correlated to his MRI scan, which
showed a large osteochondral injury to the medial distal tibia articular surface, Dr. Argintar did
not provide any rationale supporting this conclusion or identify which MRI scan he was referring
to when providing his opinion.16 He provided no rationale as to why this condition was not seen
on the December 9, 2011 right ankle MRI scan, which indicated moderate degenerative changes
of the tibiotalar joint, mild degenerative changes of the posterior facet of the subtalar joint, and
thickening of the anterior talofibular and calcaneofibular ligaments consistent with old sprain.
Dr. Argintar’s opinion is insufficiently rationalized and therefore his opinion is insufficient to
support that appellant’s right ankle condition arose from the accepted November 11, 2015
employment injury.17 In a September 9, 2013 report, Dr. Argintar related that he had taken
appellant off work for the entire month of September due to his right ankle surgery. As appellant’s

11

G.M., Docket No. 15-1645 (issued December 7, 2015).

12

See A.C., Docket No. 16-1587 (issued December 27, 2016).

13

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).

14
M.P., Docket No. 14-1289 (issued September 26, 2014); F.T., Docket No. 09-0919 (issued December 7, 2009);
Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).
15

See Mary E. Marshall, 56 ECAB 420 (2005).

16

Supra note 14.

17

See V.M., Docket No. 15-0601 (issued May 19, 2015).

7

right ankle condition was not an accepted, appellant has not established that he was disabled to the
accepted employment injury.18
Dr. Zaccaria related in his November 17, 2015 report that appellant’s right leg had been
run over by the vehicle during the November 16, 2011 incident. However, there is no accident
report or initial examination report which notes this mechanism of injury. While Dr. Zaccaria
related that appellant had been placed on a “no running” restriction he did not explain whether this
was related to appellant’s accepted left ankle injury and whether it caused appellant to be disabled
for work for any specific period of time. As previously noted, whether a particular injury caused
an employee to be disabled for employment and the duration of that disability are medical issues
which must be proven by the preponderance of the reliable, probative, and substantial medical
evidence.19
The remaining evidence of record, which include multiple treatment notes from Dr. Isaac
and diagnostic testing, are insufficient to establish appellant’s burden of proof as none of these
reports contain an opinion regarding a specific date of disability due to the accepted left ankle
condition. Reports lacking such an opinion are of diminished probative value.20
In so far as the evidence pertains to conditions which have not been accepted by OWCP,
but for which counsel has requested expansion of the acceptance of the claim, the Board notes that
OWCP’s hearing representative found in the December 13, 2016 decision that OWCP had not
taken any action on counsel’s request to expand the acceptance of the claim. As OWCP has not
adjudicated this issue, the Board does not have jurisdiction. Issues in an interlocutory status are
not before the Board.21
Appellant has not met his burden of proof because the medical opinion evidence in this
case is insufficient to establish that he was disabled from work commencing September 3, 2013
causally related to the accepted condition which arose from the November 16, 2011 employment
injury.
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 intermittent
disability commencing September 3, 2013 causally related to his November 16, 2011 employment
injury.

18

Supra note 7.

19

Supra note 8.

20

Id.

21

See 20 C.F.R. § 501.2(c)(2). See also R.O., Docket No. 17-0894 (issued January 26, 2018).

8

ORDER
IT IS HEREBY ORDERED THAT the December 13, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 12, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0053
Issued: October 25, 2021

Case Submitted on the Record

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

JURISDICTION
On October 16, 2020 appellant filed a timely appeal from a September 14, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit
decision was a Board decision dated June 6, 2018, which became final 30 days after issuance, and
is not subject to further review. 1 As there was no merit decision issued by OWCP within 180 days
of 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 the claim. 3

1

20 C.F.R. § 501.6(d); see P.H., Docket No. 19-1354 (issued March 13, 2020); G.G., Docket No. 18-1074 (issued
January 7, 2019).
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.
3

ISSUE
The issue is whether OWCP properly denied appellant’s July 11 and August 8, 2019
requests for reconsideration, finding that they were untimely filed and failed to demonstrate clear
evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances of the case
as set forth in the Board’s prior decisions and an order are incorporated herein by reference. The
relevant facts are as follows.
On November 15, 1995 appellant, then a 39-year-old modified mail processor, filed an
occupational disease claim (Form CA-2) alleging that on November 6, 1995 she experienced
discomfort in her hands and right shoulder due to repetitive motions required while casing mail.
OWCP assigned this claim OWCP File No. xxxxxx340. At that time, appellant had a previouslyaccepted claim for aggravation of chondromalacia of the right knee in OWCP File No. xxxxxx731
and she was working in a modified sedentary position. 5 She stopped work on November 9, 1995
and returned to work on November 25, 1995. OWCP accepted appellant’s claim for bilateral
sprain/strain of the hands, wrists, and right shoulder.
On April 25, 1997 appellant filed a traumatic injury claim (Form CA-1) alleging that she
sustained left shoulder, arm, and hand injuries while throwing mail on April 19, 1997. OWCP
assigned this claim File No. xxxxxx601 and accepted the claim for left shoulder sprain and
tendinitis of the left forearm. Appellant stopped work on April 19, 1997 and OWCP paid her
wage-loss compensation through November 17, 1999. On November 18, 1999 OWCP terminated
her wage-loss compensation as she failed to accept an offer of suitable emp loyment, pursuant to
5 U.S.C. § 8106(c)(2).
On June 9, 2016 appellant filed a claim for compensation (Form CA-7) for wage loss for
the period April 19, 1997 to June 9, 2016. By decision dated August 23, 2016, OWCP denied her
claim for wage-loss compensation.
On September 19, 2016 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. By decision dated June 29, 2017, the hearing representative
affirmed OWCP’s August 23, 2016 decision.
Appellant appealed to the Board on August 14, 2017. By decision dated June 6, 2018, the
Board affirmed the June 29, 2017 OWCP decision. 6

4

Order Remanding Case, Docket No. 20-0426 (issued July 27, 2020); Docket No. 19-0029 (issued June 21, 2019),
Docket No. 17-1761 (issued June 6, 2018); Docket No. 12-0471 (issued October 2, 2012).
5

OWCP File No. xxxxxx340 has been administratively combined with OWCP File No. xxxxxx601, with the latter
serving as the master file.
6

Docket No. 17-1761 (issued June 6, 2018).

2

On July 3, 2018 appellant requested reconsideration. She detailed her history of complaints
of severe pain in her hands and right shoulder dating back to 1995 and no ted that she worked until
April 1997, when she could no longer move her hands. Appellant also argued that the employing
establishment provided her with offers to return to work based upon inaccurate and incomplete
medical reports. She argued that OWCP committed error, as her physicians provided detailed
medical reports, and her injuries were caused by work at the employing establishment. Appellant
submitted a number of medical reports from various physicians dating from 1995 to 2018.
By decision dated September 20, 2018, OWCP denied appellant’s request for
reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
Appellant appealed to the Board on October 3, 2018. By decision dated June 21, 2019, the
Board affirmed OWCP’s September 20, 2018 decision, finding that OWCP properly denied
appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).7
On July 11, 2019 appellant requested reconsideration. She argued that OWCP committed
error when it administratively combined her claims. Appellant indicated that she was attaching a
seven-page report from Dr. Marvin H. Lucas, a Board-certified internist, which established that
her injuries had never resolved. Dr. Lucas’ report was not attached.
On August 1, 2019 OWCP denied appellant’s request for reconsideration, finding that the
request was untimely filed and failed to demonstrate clear evidence of error.
Appellant again requested reconsideration on August 8, 2019 and argued that Dr. Michael
Pordy, a Board-certified internist, believed that the termination of her compensation benefits was
made in error. She stated that she was resubmitting four reports from Dr. Pordy that had not been
properly reviewed by OWCP in the past. Appellant specifically noted that OWCP needed to
consider Dr. Pordy’s September 25, 2016 report and also referenced submission of a report from
Dr. Lucas. She also alleged that OWCP administratively combined her current claim with OWCP
File No. xxxxxx601, never paid her compensation for her 1995 injury, and did not resolve the
conflict in medical evidence prior to the termination of her compensation benefits.
By letter dated September 27, 2019, appellant provided additional argument. She again
alleged that OWCP had committed error as it deliberately continued to confuse her claim numbers.
Appellant submitted a copy of her August 3, 2019 letter requesting reconsideration, with an
addendum in which she alleged that OWCP had previously referred to a June 30, 2019 request for
reconsideration, but this was error as she had requested reconsideration on June 18, 2018. She
argued that returning to work in 1995 worsened and exacerbated her condition. Appellant noted
that she was forwarding reports dated March 6, 2006, April 21, 2008, December 14, 2012, and a
September 25, 2016 report from Dr. Pordy. She argued these reports established her condition
was work related. Appellant also referred to a September 25, 2019 report from Dr. Tara Adhikari,
a Board-certified rheumatologist, and a September 25, 2019 after visit summary and medication
list. In an addendum dated August 7, 2019, she noted that she requested reconsideration on
June 18, 2018 pertaining to Docket No. 17-1761, and that she had submitted 44 enclosures.

7

Docket No. 19-0029 (issued June 21, 2019).

3

OWCP received a copy of the September 25, 2016 report from Dr. Pordy. It also received
a September 25, 2019 after-visit summary from Dr. Adhikari, which noted that appellant was seen
for primary osteoarthritis involving multiple joints. In a letter dated September 25, 2019,
Dr. Adhikari related that appellant required a disability parking permit as she could not walk more
than 200 feet without resting.
By decision dated October 30, 2019, OWCP denied appellant’s request for reconsideration,
finding that the request was untimely filed and failed to demonstrate clear evidence of error. It did
not address the evidence or argument submitted with the reconsideration request.
On December 16, 2019 appellant filed a timely appeal to the Board from the August 1and
October 30, 2019 nonmerit decisions.
By decision dated July 27, 2020, the Board issued an order remanding case, setting aside
the August 1 and October 30, 2019 decisions. 8 The Board found that OWCP failed to analyze
appellant’s arguments and the evidence submitted. The Board remanded the case for findings of
fact and a statement of reasons, followed by an appropriate decision.
By decision dated September 14, 2020, OWCP again denied appellant’s July 11 and
August 8, 2019 requests for reconsideration of the merits of her claim, finding that they were
untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.9 This discretionary authority, however, is subject to certain restrictions. OWCP’s
regulations establish a one-year time limitation for requesting reconsideration, which begins on
the date of the original OWCP merit decision.10 A right to reconsideration within one year also
accompanies any subsequent merit decision on the issues. 11 Timeliness is determined by the
document receipt date, the received date in OWCP’s Integrated Federal Employees’ Compensation
System (iFECS). 12 Imposition of this one-year filing limitation does not constitute an abuse of
discretion.13
When a reconsideration request is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s final merit decision was
8

Docket No. 20-0426 (issued July 27, 2020).

9

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
10

20 C.F.R. § 10.607(a); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a
(February 2016).
11

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert F. Stone, 57 ECAB 292 (2005).

12

Supra note 10 at Chapter 2.1602.4(b) (February 2016).

13

A.M., Docket No. 20-0143 (issued October 28 2020); S.T., Docket No. 18-0925 (issued June 11, 2019); E.R.,
Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

4

in error.14 Its procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s
request for reconsideration demonstrates clear evidence of error on the part of OWCP. 15 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.16
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 17 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. 18 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. 19 It is not enough merely to demonstrate that the evidence could be
construed so as to produce a contrary conclusion. 20 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP. 21 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.22 The Board makes an
independent determination of whether a claimant has demonstrated clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review in the face of such
evidence.23
ANALYSIS
The Board finds that OWCP properly denied appellant’s July 11 and August 8, 2019
requests for reconsideration, finding that they were untimely filed and failed to demonstrate clear
evidence of error.

14

L.N., Docket No. 20-0742 (issued October 26, 2020); C.V., Docket No. 18-0751 (issued February 22, 2019);
B.W., Docket No. 10-0323 (issued September 2, 2010); Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma
Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).
15

D.G., Docket No. 18-1038 (issued January 23, 2019); Gladys Mercado, 52 ECAB 255 (2001).

16

E.P., Docket No. 18-0423 (issued September 11, 2018); Nelson T. Thompson, 43 ECAB 919 (1992).

17

W.H., Docket No. 20-0395 (issued October 23, 2020); Darletha Coleman, 55 ECAB 143 (2003).

18

S.T., supra note 13; Pasquale C. D’Arco, 54 ECAB 560 (2003).

19

L.B., Docket No. 19-0635 (issued August 23, 2019); Leon J. Modrowski, supra note 14.

20

W.H., supra note 17; V.G., Docket No. 19-0038 (issued June 18, 2019).

21

L.B., supra note 19; V.G., id.

22

D.G., supra note 15.

23

See P.A., Docket No. 20-0061 (issued January 29, 2021); George C. Vernon, 54 ECAB 319 (2003); Gregory
Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

5

In this case, the most recent merit decision was issued by the Board on June 6, 2018.
OWCP received appellant’s requests for reconsideration on July 11 and August 8, 2019, which
was more than one year after the Board’s June 6, 2018 merit decision.24 The Board, therefore,
finds that OWCP properly determined that appellant’s requests for reconsideration were untimely
filed.
Consequently, appellant must demonstrate clear evidence of error by OWCP in denying
her claim for wage-loss compensation for the period August 19, 1997 to June 9, 2016, causally
related to the accepted November 6, 1995 employment injury.25
In support of her July 11 and August 8, 2019 requests for reconsideration, appellant argued
that OWCP committed error in the handling of her claims, that she was never paid compensation
for her 1995 injury, that her return to work in 1995 worsened and exacerbated her conditions, and
that OWCP did not resolve the conflict in the medical evidence prior to the termination of her
wage-loss compensation benefits. She, however, made substantially similar arguments in her
September 19, 2016 letter, which was reviewed by the Board in its June 6, 2018 decision. Findings
made in prior Board decisions are res judicata absent any further review by OWCP under section
8128 of FECA. 26
Appellant also alleged that Dr. Lucas supported her opinion that her injuries had never
resolved, and that she was attaching his report for review. OWCP, however, did not receive the
referenced new report from Dr. Lucas. Appellant also argued that Dr. Pordy believed that OWCP
erroneously terminated her compensation benefits. She indicated that she was submitting four
reports from Dr. Pordy; however, she only resubmitted his September 25, 2016 report, which was
previously reviewed by OWCP and the Board.
OWCP received September 25, 2019 reports from Dr. Adhikari; however, these reports are
not relevant as they did not address the underlying issue, appellant’s alleged entitlement to wageloss compensation from August 19, 1997 to June 9, 2016.
The Board, therefore, finds that appellant’s arguments and evidence submitted on
reconsideration failed to demonstrate that OWCP’s last merit decision dated June 29, 2017 was
incorrect at the time it was issued. 27 Appellant’s arguments and evidence were not positive,
precise, and explicit in manifesting on its fact that OWCP committed an error,28 nor did they shift
the weight of the evidence in appellant’s favor.29 Clear evidence of error is intended to represent

24

S.T., supra note 13; Pasquale C. D’Arco, supra note 18; Leona N. Travis, 43 ECAB 227 (1991).

25

See P.A., supra note 23; B.C., Docket No. 20-0465 (issued November 19, 2020);

26

A.G., Docket No. 18-0329 (issued July 26, 2018); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

27

See E.R., Docket No. 19-1553 (issued April 22, 2021); M.P., Docket No. 17-0367 (issued March 12, 2018);
Leona N. Travis, supra note 24.
28

See E.R., id.; R.C., Docket No. 17-0198 (issued January 28, 2019); A.S., Docket No. 16-0902 (issued
September 28, 2016).
29

Supra note 22.

6

a difficult standard.30 Even a detailed, well-rationalized medical report which, if submitted before
the denial was issued, would have created a conflict in medical evidence requiring further
development is insufficient to demonstrate clear evidence of error. It is not enough to show that
evidence could be construed so as to produce a contrary conclusion. 31
Accordingly, the Board finds that OWCP properly denied appellant’s July 11 and
August 8, 2019 reconsideration requests, as they were untimely filed and failed to demonstrate
clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s July 11 and August 8, 2019
requests for reconsideration, finding that they were untimely filed and failed to demonstrate clear
evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the September 14, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2021
Washington, DC

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

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

30

See Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.1602.5(a) (February 2020); see also J.S.,
Docket No. 16-1240 (issued December 1, 2016).
31

M.E., Docket No. 18-1442 (issued April 22, 2019).

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