United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1380
Issued: October 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 2, 2014 appellant, through her representative, filed a timely appeal from the
January 16, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish disability due to her
January 30, 2008 work injury from October 17, 2012 to January 18, 2013.
FACTUAL HISTORY
OWCP accepted that on January 30, 2008 appellant, then a 45-year-old distribution
process worker, sustained sprains of her right shoulder and upper arm, a right glenoid labral tear
1

5 U.S.C. §§ 8101-8193.

and right shoulder impingement due to pushing a cart at work. Appellant stated that the cart
“jam[med] up” when she was pushing it and that she felt something pop in her right shoulder.
She stopped work on January 30, 2008 but returned to limited-duty work for the employing
establishment.2 On April 24, 2008 Dr. Robert Kaneda, an attending osteopath and Boardcertified orthopedic surgeon, performed arthroscopic surgery on appellant’s right shoulder,
including repair of glenoid labral tear, subacromial decompression and acromioplasty. On
September 25, 2008 he performed a repeat subacromial decompression and acromioplasty of her
right shoulder. The procedures were authorized by OWCP. From the date of her first surgery,
appellant received disability compensation on the daily rolls.
Effective September 4, 2009, appellant was terminated from the employing establishment
for misconduct.3
On October 17, 2012 Dr. Matthew J. Kelly, an attending Board-certified orthopedic
surgeon, performed right shoulder surgery, including arthroscopic rotator cuff debridement,
subacromial decompression and acromioplasty.4 The procedure was authorized by OWCP.
In an October 26, 2012 report, Dr. Kelly discussed appellant’s progress since he
performed surgery on her right shoulder on October 17, 2012. He advised that she had a minor
amount of ecchymosis in her right arm and that her condition was progressing steadily.
Dr. Kelly recommended that appellant start physical therapy that included pendulum exercises
with the aim of weaning her from her right arm sling.
On November 5, 2012 appellant filed a claim for compensation (Form CA-7) for the
period October 17 to 31, 2012. On November 14, 2012 she filed a Form CA-7 for the period
November 1 to 15, 2012.5
In a letter dated November 14, 2012, OWCP advised appellant that a recurrence of
disability was a work stoppage caused by withdrawal of a light-duty assignment made
specifically to accommodate a claimant’s condition due to a work-related injury, but that the
withdrawal must have occurred for reasons other than misconduct or nonperformance of job
duties.6 It noted that her October 17, 2012 surgery was authorized and that she remained entitled
to medical care for treatment related to her January 30, 2008 injury, but that she was not entitled
to monetary compensation for disability or a schedule award if her employment was terminated
2

OWCP had denied appellant’s claim on May 13 and September 2, 2008, but she later submitted additional
medical evidence supporting a January 30, 2008 work injury.
3

The Board notes that there is no evidence from the time of appellant’s September 4, 2009 work stoppage that it
occurred due to a work-related medical condition.
4

Dr. Kelly had previously indicated that diagnostic testing from July 24, 2012 showed a high-grade partial or
full-thickness tear of appellant’s right rotator cuff.
5

Appellant later filed a Form CA-7 for the period October 17, 2012 to January 18, 2013.

6

OWCP cited Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3b(1)(c)
(May 1997). It also cited two cases of the Board: Bruce Johnson, Docket No. 00-145 (issued December 22, 2000)
and John W. Normand, 39 ECAB 1378 (1988).

2

for cause. OWCP asked appellant if she had evidence that her termination on September 4, 2009
was not for cause and, if so, to submit such evidence together with a detailed statement
addressing the circumstances of her termination.7
On February 1, 2013 Dr. Kelly noted that appellant was three and a half months post right
shoulder surgery. Appellant reported that, after he released her to work, she began working for a
private employing establishment but was later laid off from work. Dr. Kelly diagnosed “slow
improving right shoulder status post arthroscopic rotator cuff debridement three and a half
months ago.”8
In an April 23, 2013 decision, OWCP denied appellant’s claim for wage loss for the
period October 17 to November 15, 2012. It noted that its procedure provides that a recurrence
of disability is a work stoppage caused by withdrawal of a light-duty assignment made
specifically to accommodate a claimant’s condition due to a work-related injury, but that the
withdrawal must have occurred for reasons other than misconduct or nonperformance of job
duties.9 Appellant was advised that the surgery performed on October 17, 2102 was authorized
and that she remained entitled to medical care for treatment related to her January 30, 2008
injury, but that she was not entitled to compensation for disability or a schedule award as her
employment was terminated for cause. OWCP stated:
“To date the claimant has not provided evidence to support that the termination of
her employment on September 4, 2009 was not for cause or in error on the part of
her employing establishment. Therefore, as of this date, evidence is insufficient
to support claimant’s entitlement to monetary benefits.”
On April 25, 2013 appellant spoke to an OWCP employee on the telephone and asserted
that her September 4, 2009 termination was not for cause.
On May 13, 2013 appellant, through her representative, requested a hearing before an
OWCP hearing representative.
In a January 16, 2014 decision, an OWCP hearing representative affirmed the
April 23, 2013 decision denying appellant’s claim for compensation from October 17, 2012 to
January 18, 2013. Regarding the reason for the denial of appellant’s claim, the hearing
representative stated:
“FECA Procedural Manual notes that the definition of a recurrence of disability is
a work stoppage caused by ‘withdrawal of a light[-]duty assignment made
7

OWCP stated, “While the surgery performed on October 17, 2012 was authorized by OWCP and you remain
entitled to medical care for treatment related to your injury sustained on January 30, 2008, you are not entitled to
compensation for disability or schedule award if your employment was terminated for cause.”
8

In a May 31, 2013 report, Dr. Kelly noted that appellant reported that she had returned to her full duties as a
picker in a warehouse for a private employing establishment.
9

OWCP cited the same portion of its procedure manual that it cited in its November 14, 2012 letter. See supra
note 6.

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specifically to accommodate the claimant’s condition due to the work-related
injury. This withdrawal must have occurred for reasons other than misconduct or
nonperformance of job duties.’
“Although the [d]istrict [o]ffice authorized the claimant’s November 2012
shoulder surgery and subsequent therapy, the payment of medical benefits does
not constitute acceptance of a claim. Therefore, in the instant case, the
authorization of shoulder surgery did not imply coverage for wage-loss benefits.
“The evidence of file demonstrates that the claimant stopped working on
September 4, 2009, when she was terminated for cause; therefore, she has failed
to establish a recurrence of disability due to withdrawal of a light-duty
assignment.
The claimant has no entitlement to compensation after
September 4, 2009.”10 (Citation omitted.)
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.11 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.12 Whether a particular
employment injury causes disability for employment and the duration of that disability are
medical issues, which must be proved by a preponderance of reliable, probative and substantial
medical evidence.13
In cases where employment has in fact been terminated for misconduct and disability is
subsequently claimed, the Board has noted that in general the term “disability” under FECA
means “incapacity because of injury in employment to earn the wage which the employee was
receiving at the time of such injury.”14 Where employment is terminated for misconduct,
disability benefits would be payable if the evidence of record established that the claimant was
10

OWCP’s hearing representative indicated that appellant claimed that her September 4, 2009 termination was
not for cause, but asserted that she did not submit evidence supporting this assertion.
11

J.F., Docket No. 09-1061 (issued November 17, 2009).

12

See E.J., Docket No. 09-1481 (issued February 19, 2010).

13

W.D., Docket No. 09-658 (issued October 22, 2009).

14

Ralph Dennis Flanagan, Docket No. 94-1569 (issued May 28, 1996).

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terminated due to injury-related physical inability to perform assigned duties or the medical
evidence of record established that the claimant was unable to work due to an injury-related
disabling condition.15
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.16
ANALYSIS
OWCP accepted that on January 30, 2008 appellant sustained sprains of her right
shoulder and upper arm, right glenoid labral tear and right shoulder impingement due to pushing
a cart at work. On April 24, 2008 Dr. Kaneda, an attending osteopath and Board-certified
orthopedic surgeon, performed arthroscopic surgery on her right shoulder, including repair of
glenoid labral tear, subacromial decompression and acromioplasty. On September 25, 2008 he
performed a repeat subacromial decompression and acromioplasty of appellant’s right shoulder.
The procedures were authorized by OWCP and appellant received compensation for periods of
disability. Effective September 4, 2009, appellant was terminated from the employing
establishment for cause.
On October 17, 2012 Dr. Kelly, an attending Board-certified orthopedic surgeon,
performed right shoulder surgery for arthroscopic rotator cuff debridement, subacromial
decompression and acromioplasty.17 The procedure was authorized by OWCP. Appellant filed
CA-7 forms for monetary compensation for the period October 17, 2012 to January 18, 2013.
OWCP denied her claim for work-related disability in decisions dated April 23, 2013 and
January 16, 2014.
The Board finds that this case is not in posture for decision regarding whether appellant
met her burden of proof to establish that she had disability due to her January 30, 2008 work
injury for the period October 17, 2012 to January 18, 2013. In connection with its denial of
appellant’s claim, OWCP failed to adequately consider the medical evidence submitted by her in
support of her claim. In a November 14, 2012 informational letter and its April 23, 2013 and
January 16, 2014 decisions, it improperly suggested that the fact that she was terminated from
the employing establishment for misconduct effective September 4, 2009 served as a bar to her
receipt of disability compensation after that point. The Board has held that, even if a claimant

15

Id.

16

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

17

Dr. Kelly had previously indicated that diagnostic testing from July 24, 2012 showed a high-grade partial or
full-thickness tear of appellant’s right rotator cuff.

5

were terminated for misconduct, disability benefits would be payable if the evidence of record
established that the claimant was unable to work at some point thereafter due to a work-related
disabling condition.18
The Board finds that OWCP failed to adequately address the medical evidence that
appellant submitted in connection with her claim for disability for the period October 17, 2012 to
January 18, 2013. OWCP’s January 16, 2014 decision will be set aside and the case remanded
for consideration of her claim for disability. After such development, it shall issue an
appropriate decision on appellant’s disability claim.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met her burden of proof to establish that she had disability due to her January 30, 2008 work
injury for the period October 17, 2012 to January 18, 2013.

18

See supra note 15. OWCP cited its procedure manual in support of its position. However, it failed to note that
the same portion of its procedure manual states that disability could be established when inability to work was
caused by a “spontaneous material change, demonstrated by objective findings, in the medical condition which
resulted from a previous injury or occupational illness without an intervening injury or new exposure to factors
causing the original illness.” See supra note 6 at Chapter 2.1500.3b(1)(a). OWCP also cited the cases Bruce
Johnson and John W. Normand, but both cases note that disability could be established despite termination for cause
if medical evidence were submitted to establish that the claimant could not work due to the accepted work injury for
a given period after the termination. See supra note 6.

6

ORDER
IT IS HEREBY ORDERED THAT the January 16, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: October 22, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 14-1190
Issued: October 16, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 28, 2014 appellant filed a timely appeal of an April 1, 2014 Office of Workers’
Compensation Programs’ (OWCP) merit decision finding an overpayment of compensation.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $31,526.25 for the period July 1, 2008 through May 5, 2012; and (2) whether
appellant was at fault in the creation of the overpayment and not entitled to waiver of recovery
thereof.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on appeal. The relevant facts follow. On
May 6, 1996, appellant, then a 47-year-old air traffic controller, filed two traumatic injury claims
alleging he developed an emotional condition after witnessing two fatal airplane crashes on
April 12 and 16, 1996. OWCP accepted his claim for post-traumatic stress disorder (PTSD) and
authorized compensation benefits beginning May 6, 1996. Appellant returned to work on
March 16, 1998 working four hours a day.
By decision dated May 22, 1998, OWCP found that his light-duty position fairly and
reasonably represented his wage-earning capacity. Appellant returned to full duty on
August 1, 1999. On August 30, 1999 OWCP reduced his compensation effective August 15,
1999 based on his actual earnings. By decision dated October 6, 1999, it found that appellant’s
full-time employment as an air traffic control support specialist fairly and reasonably represented
his wage-earning capacity. OWCP reduced his compensation benefits to $536.00 every four
weeks. It informed appellant that receipt of OWCP benefits for loss of wage-earning capacity
and receipt of an annuity from the Office of Personnel Management (OPM) constituted a dual
benefit and that he should advise OWCP immediately if he received OPM benefits.
On August 29, 2006 OWCP made a preliminary determination that appellant received an
overpayment of compensation as his dependent graduated from high school on June 9, 2004. It
finalized the overpayment decision on January 5, 2007. Appellant requested review by the
Board and by decision dated August 6, 2007, the Board found that he received an overpayment
of compensation in the amount of $640.36 as he improperly received augmented compensation,
that he was at fault in the creation of the overpayment and that OWCP properly required
recovery by deducting $400.00 from his continuing compensation payments every 28 days.2 The
facts and circumstances of the case as set out in the Board’s prior decision are adopted herein by
reference.
Appellant completed a Form CA-1032 on May 15, 2008 and indicated that he had not
received OPM benefits in the last 15 months. He completed a Form CA-1032 on May 15, 2009
and indicated that he had been assigned a CSA number and had received a regular retirement
check. On May 25, 2010 appellant completed a Form CA-1032 and indicated that he worked
from January 1 through December 31, 2009. He stated that he received a regular retirement
check during the past 15 months.
The employing establishment notified OWCP on December 29, 2010 that appellant had
voluntarily retired effective June 30, 2008. Appellant completed a Form CA-1032 on May 17,
2011 and indicated that he had been employed since January 1, 2010. He also stated that he had
received regular retirement checks.
OWCP conducted a telephone conference with appellant on August 16, 2011. Appellant
stated that he married on June 8, 2008. He further stated that he was receiving OPM benefits and
that these benefits began on July 1, 2008. Appellant completed a Form CA-1032 on May 7,
2

Docket No. 07-862 (issued August 6, 2007).

2

2012 and indicated that he had worked from January 1, 2011 to the present and that he was
receiving regular retirement benefits.
On May 24, 2012 OWCP provided appellant with an election of benefits to choose
between OWCP and OPM benefits.
By decision dated June 28, 2012, OWCP terminated appellant’s compensation benefits
on the grounds that he refused to make an election between OPM and OWCP benefits and
therefore presumptively chose OPM. On July 5, 2012 it received appellant’s election of benefits
form in which he selected OPM benefits effective July 1, 2008.
OWCP determined on July 11, 2012 that appellant had received an overpayment of
compensation in the amount of $31,540.20 for the period July 1, 2008 through May 5, 2012 and
requested reimbursement from OPM.
In a letter dated February 28, 2013, OWCP found that appellant had received an
overpayment of compensation in the amount of $2,977.50 because he received dual benefits
between January 1 and May 5, 2012 while receiving both OPM and OWCP benefits. It found
that appellant was without fault in the creation of the overpayment. Appellant requested a
prerecoupment hearing on March 12, 2013.
An OWCP hearing representative remanded the case on June 10, 2013 finding that an
overpayment had occurred, but that the period of the overpayment began on July 1, 2008. The
hearing representative further found that appellant was at fault in the creation of the overpayment
as he was advised in the October 6, 1999 decision that receipt of OWCP and OPM benefits
constituted dual benefits and that an election was necessary. The hearing representative
remanded the case for a new preliminary finding with the corrected period, amount and finding
of fault.
OWCP issued a preliminary finding of overpayment on June 12, 2013 and found that
appellant received an overpayment of compensation in the amount of $31,526.25 for the period
July 1, 2008 through May 5, 2012 because he simultaneously received payments from OWCP
and OPM retirement benefits. OWCP found that appellant was at fault in the creation of the
overpayment because he accepted a payment which he knew or should have known was
incorrect.
Appellant requested a prerecoupment hearing on July 9, 2013. He stated that he believed
that the overpayment occurred through no fault of his own and that he had notified all parties
annually after his retirement. Appellant argued that the employing establishment should have
notified OWCP of his OPM retirement benefits and that the notification of October 6, 1999 was
not sufficient for him to realize that he was receiving dual benefits. As a part of this process
appellant completed an overpayment recovery questionnaire and indicated that his monthly
income was $8,759.00 and that his civil service benefits were $10,000.00 per month for a total
monthly income of $18,759.00. He indicated that he supported his wife and paid his ex-wife
$1,500.00 a month. Appellant stated that he paid a monthly rent or mortgage of $5,727.00, that
food was $1,200.00 per month, and that he spent $400.00 on clothing as well as $1,700.00 on
utilities and $200.00 on miscellaneous expenses. In addition to his court ordered spousal support

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of $1,500.00, he also had credit card and automobile expenses of $2,650.00 for total monthly
expenses of $13,327.00. Appellant listed his assets as cash of $13,000.00, checking account
balance of $3,600.00, savings account of $5,200.00, stocks and bonds of $101,000.00 and
personal property of $50,000.00 for total assets of $172,800.00.
By decision dated April 1, 2014, OWCP’s hearing representative found that appellant
failed to notify OWCP of his election of OPM benefits on July 1, 2008. He informed OWCP on
May 15, 2009 that he was receiving OPM benefits. On May 24, 2012 OWCP provided appellant
with an election form and explained that he had received dual benefits resulting in an
overpayment. It terminated compensation benefits effective June 28, 2012. OWCP found an
overpayment of compensation in the amount of $31,526.25 for the period July 1, 2008 through
May 5, 2012 for which appellant was at fault. The hearing representative affirmed the amount of
the overpayment and further found that appellant received a letter from OWCP dated October 6,
1999 which informed him that he was not entitled to receive both OWCP and OPM benefits.
She found that appellant knew or should have known that he was not entitled to keep both OPM
and OWCP benefits, resulting in a finding of fault.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA3 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.4 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
may not receive salary, pay or remuneration of any type from the United States.5 The
implementing regulations provide that a beneficiary may not receive wage-loss compensation
concurrently with a federal retirement or survivor annuity.6 The beneficiary must elect the
benefit that he or she wishes to receive.7
ANALYSIS -- ISSUE 1
Appellant’s claim was accepted for PTSD and he was paid wage-loss compensation
benefits under FECA. He applied for OPM retirement that became effective on July 1, 2008.
Appellant continued to receive OWCP benefits through May 5, 2012 totaling $31,526.25. He
thus received simultaneous OPM and FECA benefits for the period July 1, 2008 through
May 5, 2012. This constituted payment of dual benefits that is prohibited by statute. OWCP
properly determined that an overpayment of compensation in the amount of $31,526.25 had been
created for this period. The Board therefore finds that appellant has received an overpayment of
compensation as he received prohibited dual benefits for the period July 1, 2008 through
3

5 U.S.C. §§ 8101-8193, 8102.

4

Id.

5

Id. at § 8116(a).

6

20 C.F.R. § 10.421(a).

7

Id.

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May 5, 2012. Appellant did not dispute this amount, instead arguing that he was not at fault in
the creation of the overpayment.
The clear language of section 8116(a) of FECA and section 10.421(a) of OWCP’s
implementing regulations prohibit the receipt of FECA wage-loss benefits and a federal annuity.8
As appellant received $31,526.25 in FECA benefits while concurrently receiving OPM
retirement benefits for the period July 1, 2008 through May 5, 2012 an overpayment of
compensation in that amount was created.9
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA10 provides that, where an overpayment of compensation has
been made “because of an error of fact of law,” adjustment shall be made by decreasing later
payments to which an individual is entitled. 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 FECA or would be
against equity and good conscience.”11 Accordingly, no waiver of an overpayment is possible if
the claimant is with fault in helping to create the overpayment.
In determining whether an individual is with fault, section 10.320(b) of OWCP’s
regulations12 provide in relevant part:
“An individual is with fault in the creation of an overpayment who:
(1) Made an incorrect statement as to a material fact which the individual
knew or should have known to be incorrect; or
(2) Failed to furnish information which the individual knew or should
have known to be material; or
(3) With respect to the overpaid individual only, accepted a payment
which the individual knew or should have been expected to know was
incorrect.”
ANALYSIS -- ISSUE 2
In this case, OWCP applied the third standard in determining that appellant was at fault in
creating the overpayment. It held that he accepted a payment that he knew of should have
8

5 U.S.C. § 8116; 20 C.F.R. § 10.421(a).

9

J.A., Docket No. 14-134 (issued May 1, 2014).

10

5 U.S.C. §§ 8101-8193, 8129(a).

11

Id. at § 8129(b).

12

20 C.F.R. § 10.320(b).

5

known was incorrect. For OWCP to establish that appellant was at fault in creating the
overpayment of compensation, it must establish that, at the time appellant received the
compensation check in question, he knew or should have known that the payment was
incorrect.13
OWCP found that appellant was at fault in the creation of the overpayment as he was
aware or should have been aware that he was not entitled to dual benefits. The record establishes
that on October 6, 1999 he was informed in writing that receipt of OWCP payments for loss of
wage-earning capacity and receipt of an annuity from OPM constituted a dual benefit and he was
instructed to immediately contact OWCP if he did receive such benefits from OPM. Appellant
began receiving both OPM and OWCP benefits on July 1, 2008. Therefore the record indicates
that he knew of should have known that acceptance of both benefits was improper. As appellant
continued to accept compensation benefits from both OWCP and OPM through May 5, 2012, the
Board finds that he was at fault in the creation of the overpayment and is not entitled to waiver.14
With respect to recovery of an overpayment, the Board’s jurisdiction is limited to
reviewing those cases where OWCP seeks recovery from continuing compensation benefits
under FECA. Where appellant is no longer receiving wage-loss compensation, the Board does
not have jurisdiction with respect to OWCP’s recovery of an overpayment under the Debt
Collection Act.15
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
$31,526.25 for the period July 1, 2008 through May 5, 2012 because he received dual
compensation benefits from OPM and under FECA. The Board further finds that OWCP
properly found that he was at fault in the creation of the overpayment and that he is therefore not
entitled to waiver of recovery of the overpayment.

13

Linda E. Padilla, 45 ECAB 768, 772 (1994).

14

A.F., Docket No. 13-2038 (issued February 10, 2014).

15

See Lewis George, 45 ECAB 144, 154 (1993).

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ORDER
IT IS HEREBY ORDERED THAT the April 1, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Saint Louis, MO, Employer
__________________________________________

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

Docket No. 13-598
Issued: May 8, 2013

Case Submitted on the Record

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

JURISDICTION
On January 8, 2013 appellant filed a timely appeal from a July 13, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established permanent impairment due to her workrelated injuries.

1

Because using the date of delivery, January 15, 2013, as the date of filing would render the appeal untimely, the
appeal is considered to have been filed as of the date of postmark, January 8, 2013. 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 16, 2009 appellant, then a 53-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on that same date she sustained a lower back and right
shoulder injury as a result of lifting a tray of mail. By decision dated July 23, 2009, OWCP
accepted the claim for sprain of back, lumbar region. By decision dated May 7, 2010, it
expanded the claim to include permanent aggravation of lumbosacral radiculitis, permanent
aggravation of degeneration of lumbar intervertebral disc and permanent aggravation of
lumbosacral spondylosis.
OWCP authorized surgery for left L4-5 laminectomy for stenosis on June 28, 2010.3
Appellant returned to full duty on August 23, 2010.
On January 6, 2012 appellant filed a claim for a schedule award.
In a January 25, 2011 medical report, Dr. Jose M. Arias, a Board-certified neurological
surgeon, reported that appellant returned for a follow up of her left L4-5 laminectomy for
stenosis procedure performed on June 28, 2010. He reported that she had improved with
basically no significant problems in regards to the left leg. Dr. Arias stated that appellant had no
pain, whatsoever, and the numbness that she was experiencing before had improved
significantly. He noted minor tingling sensation proximally in the leg on a rare basis. Dr. Arias
noted that appellant experienced occasional back pain in association with prolonged standing.
He stated that physical examination of the cranial nerves revealed that appellant was able to
elevate both shoulders symmetrically. A peripheral neural examination revealed deep tendon
reflexes as symmetric in the upper and lower extremities. A musculoskeletal examination
revealed full range of motion in the back and neck and that strength was full in all groups of
muscles in the lower extremities. Dr. Arias concluded that appellant had reached maximum
medical improvement from her June 28, 2010 surgery.
In a January 25, 2011 attending physician’s report (Form CA-20), Dr. Arias diagnosed
left leg radiculopathy and L4-5 stenosis. He checked the box marked “yes” when asked if he
believed that appellant’s condition was caused or aggravated by the employment activity.
In a February 17, 2012 functional capacity evaluation (FCE), Mark Vance, a physical
therapist, reported that appellant related low back pain and left leg numbness before, during and
after the FCE. The FCE found no lower extremity weakness and the examination revealed
normal findings.
On June 5, 2012 OWCP routed Dr. Arias’ report, the FCE, a series of questions, a
statement of accepted facts and the case file to an OWCP medical adviser for review and a
determination as to whether appellant sustained a permanent impairment and the date of
maximum medical improvement. In the June 10, 2012 report, the medical adviser reported that
3

In a May 10, 2010 report, an OWCP medical adviser reported that, upon review of appellant’s medical record,
she suffered from right lower extremity radicular symptoms in an L4-5 distribution. A magnetic resonance imaging
scan revealed disc herniation at the level of pathology. The medical adviser opined that appellant’s requested
surgery of L4-5 laminectomy/discectomy was related to the employment injury.

2

her claim was accepted for aggravation of lumbar degenerative disc disease, lumbosacral
radiculopathy and lumbosacral spondylosis. Appellant had undergone surgical intervention. The
medical adviser noted that the FCE stated, “no lower extremity weakness is noted.” He also
noted that Dr. Arias’ January 25, 2011 medical report stated that appellant had basically no
significant problems in regards to the left leg with no pain whatsoever and the numbness that she
was experiencing before had improved significantly. The medical adviser further noted that
Dr. Arias’ report stated that she did not have motor or sensory deficits. Thus, appellant would
not have a ratable lower extremity impairment. He concluded that she had a zero percent
permanent impairment of both the right and left lower extremities. Maximum medical
improvement was noted as January 25, 2011, the date that Dr. Arias reported no lower extremity
pain or weakness.
By decision dated July 13, 2012, OWCP denied appellant’s claim for a schedule award as
the evidence was not sufficient to establish that she sustained any permanent impairment to a
member or function of the body.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.4 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (6th ed. 2009) has been adopted by the implementing regulations
as the appropriate standard for evaluating schedule losses.5
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.6
OWCP’s procedures provide that, to support a schedule award, the file must contain competent
medical evidence which shows that the impairment has reached a permanent and fixed state and
indicates the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail so that it can be visualized on review and computes the
percentage of impairment in accordance with the A.M.A., Guides.7

4

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

5

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
6

Tammy L. Meehan, 53 ECAB 229 (2001).

7

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

3

Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.9
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment.10 For peripheral nerve impairments to the upper
or lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment using the sixth edition
(July/August 2009) is to be applied.11 FECA approved methodology is premised on evidence of
radiculopathy affecting the upper and/or lower extremities.12
ANALYSIS
OWCP accepted appellant’s claim for sprain of lumbar back, permanent aggravation of
lumbosacral radiculitis, permanent aggravation of degeneration of lumbar intervertebral disc and
permanent aggravation of lumbosacral spondylosis. The Board notes that a schedule award is
not payable under FECA for injury to the spine13 or based on whole person impairment.14
However, a claimant may be entitled to a schedule award for permanent impairment to an
extremity even though the cause of the impairment originated in the spine.15 Appellant must
establish impairment to a scheduled member caused by the accepted condition before an
impairment due to a preexisting condition can be assessed.16 The instant record is not sufficient
to establish that she has any impairment caused by her accepted sprain of lumbar back,
permanent aggravation of lumbosacral radiculitis, permanent aggravation of degeneration of
lumbar intervertebral disc and permanent aggravation of lumbosacral spondylosis conditions.

8

Pamela J. Darling, 49 ECAB 286 (1998).

9

Thomas J. Engelhart, 50 ECAB 319 (1999).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
11

See G.N., Docket No. 10-850 (issued November 12, 2010); see also supra note 10 at Chapter 3.700, Exhibit 1,
note 5 (January 2010). The Guides Newsletter is included as Exhibit 4.
12

Supra note 7 at Chapter 2.808.6a(3) (January 2010).

13

Supra note 8.

14

N.M., 58 ECAB 273 (2007).

15

Supra note 9.

16

See generally Thomas P. Lavin, 57 ECAB 353 (2006).

4

In his January 25, 2011 medical report, Dr. Arias reported that, following appellant’s left
L4-5 laminectomy for stenosis, she improved with basically no significant problems in regards to
the left leg. He noted no pain, whatsoever, that numbness had improved significantly and that
appellant only experienced a minor tingling sensation proximally in the leg on a rare basis.
Dr. Arias noted occasional back pain associated with prolonged standing. Physical examination
of the cranial nerves revealed that appellant was able to elevate both shoulders symmetrically. A
peripheral neural examination revealed deep tendon reflexes as symmetric in the upper and lower
extremities. A musculoskeletal examination revealed full range of motion in the back and neck
and that strength was full in all groups of muscles in the lower extremities. Dr. Arias concluded
that appellant had reached maximum medical improvement from her June 28, 2010 surgery.
The Board notes that OWCP’s procedures provide that maximum medical improvement
must be reached before a schedule award can be made.17 In this case, Dr. Arias found that
appellant reached maximum medical improvement as of January 25, 2011; however, he advised
that she had no significant problems in regards to the left leg, no pain whatsoever, no motor or
sensory deficits and that strength was full in all groups of muscles in the lower extremities. He
did not provide any permanent impairment rating for the lower extremity.18 A February 17, 2012
FCE noted that appellant complained of low back pain and left leg numbness before, during and
after the FCE. The FCE, however, found no lower extremity weakness and the examination
revealed normal findings.
OWCP forwarded the medical evidence and record to an OWCP medical adviser for
review. The medical adviser reviewed Dr. Arias’ reports and the FCE and properly concluded
that appellant had no impairment of an extremity. He provided a well-reasoned report based on a
proper factual and medical history and included detailed findings and rationale supporting his
opinion. Based on the findings of Dr. Arias and the FCE, the examinations performed revealed
normal sensory and motor findings in both lower extremities.19 As previously noted, FECA does
not allow for permanent impairment ratings of the back without evidence of extremity
impairment.20 Thus, the record does not provide any medical opinion finding that appellant
sustained permanent impairment of an extremity as a result of her employment injury. The
Board finds that OWCP properly denied her claim for a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish entitlement to
a schedule award for permanent impairment.
17

Supra note 10 at Chapter 3.700.3(a)(1) (October 1990).

18

E.D., Docket No. 10-967 (issued January 7, 2011).

19

L.W., Docket No. 12-1613 (issued February 19, 2013).

20

Supra note 12.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 13, 2012 is affirmed.
Issued: May 8, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF THE AIR FORCE, LOS
ANGELES AIR FORCE BASE, El Segundo, CA,
Employer
__________________________________________

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

Docket No. 12-1287
Issued: October 4, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 25, 2012 appellant filed a timely appeal from a January 30, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration as untimely and insufficient to establish clear evidence of error. As the last merit
decision was issued on May 1, 2009, the Board lacks jurisdiction to review the merits of this case
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely and did not show clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

“Appellant requested an oral argument. The clerk of the Board mailed a letter to her to confirm a continuing
desire for an oral argument in Washington, DC. No written confirmation was received; thus the Board has decided
the appeal on the record.”

FACTUAL HISTORY
OWCP accepted that appellant, then a 40-year-old budget financial analyst, sustained
bilateral wrist sprain, left shoulder tendinitis and cervical strain due to factors of her federal
employment. Appellant sustained intermittent periods of disability until December 27, 2001,
when she stopped work and did not return.3 OWCP paid her compensation beginning
June 16, 2002.
By decision dated May 1, 2009, OWCP terminated appellant’s compensation and
authorization for medical benefits effective May 10, 2009. It found that the opinion of
Dr. Bunsri T. Sophon, a Board-certified orthopedic surgeon, who provided a second opinion
examination, represented the weight of the evidence and established that she had no further
disability or need for medical treatment due to her accepted work injury. OWCP recited the
statutory provisions, which provide that an employee whose recovery took more than one year is
entitled to priority consideration, provided they apply for reemployment within 30 days after
compensation ends.4
On July 30, 2009 appellant requested reconsideration. In a decision dated August 13,
2009, OWCP denied her reconsideration request after determining that she had not submitted
evidence or raised an argument sufficient to warrant reopening her case for further merit review
under 5 U.S.C. § 8128.
On October 26, 2011 appellant requested reconsideration.5 She argued that the
employing establishment failed to comply with OWCP’s instructions in its May 1, 2009 decision
to provide her with priority reemployment and ignored letters that she sent in June 2009 in her
effort to obtain another position. Appellant described in detail her efforts to obtain
reemployment and her attempt to get the employing establishment to respond to her applications
for positions. She asserted that the employing establishment treated her unfairly and asked
OWCP to assist her to get rehired. Appellant maintained that her employer did not receive
OWCP’s May 1, 2009 decision terminating her compensation until May 19, 2009 and never
received the August 13, 2009 decision denying her request for reconsideration. She alleged that
OWCP “poorly reviewed” her prior request for reconsideration and maintained that physicians
provided false medical reports. Appellant requested both current and retroactive disability and
medical benefits.
Accompanying her request for reconsideration, appellant submitted June 3 and 10, 2009
correspondence that she sent to the employing establishment inquiring about reinstatement.
Copies of OWCP decisions, a complaint of discrimination by OWCP, a dismissal of the
complaint by the Department of Labor and certificates recognizing her work performance. On
December 18, 2010 appellant received treatment after police brought her to the emergency room
3

By decision dated June 18, 2002, OWCP denied appellant’s claim for compensation from January 14 to
February 14, 2000 after finding that she was suspended as part of disciplinary action by the employing establishment
and was not totally disabled.
4

5 U.S.C. § 8151(b)(2).

5

Appellant also requested reconsideration of another file number and raised arguments pertaining to that claim.

2

following her eviction from her home. In a letter dated April 1, 2011, the employing
establishment advised her that priority placement was valid for one year and noted that it told her
in May 2009 to apply for positions and attach her résumé. In letters dated February 23 and
April 7 2011, the employing establishment indicated that it was inquiring about priority
placement and sent appellant a list of open positions.
By decision dated January 30, 2012, OWCP denied appellant’s request for
reconsideration after finding that it was untimely and did not establish clear evidence of error.
On appeal, appellant argues that OWCP failed to adequately review her request for
reconsideration and the supporting evidence and argument. She further contends that OWCP
violated various state and federal laws.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.6 It will not review a decision denying or terminating a
benefit unless the application for review is filed within one year of the date of that decision.7
When an application for review is untimely, it undertakes a limited review to determine whether
the application presents clear evidence that its final merit decision was in error.8 OWCP’s
procedures state that it will reopen a claimant’s case for merit review, notwithstanding the oneyear filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review
shows “clear evidence of error” on the part of OWCP.9 In this regard, it will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.10
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence which does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error.11 It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. 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. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
6

Supra note 1.

7

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

8

Veletta C. Coleman, 48 ECAB 367 (1997).

9

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “[OWCP] will consider an untimely
application for reconsideration only if the application demonstrates clear evidence of error on the part of [it] in its
most recent decision. The application must establish, on its face, that such decision was erroneous.” 20 C.F.R.
§ 10.607(b).
10

See Nelson T. Thompson, 43 ECAB 919 (1992).

11

Leon J. Modrowski, 55 ECAB 196 (2004); Dorletha Coleman, 55 ECAB 143 (2003).

3

a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to raise a substantial question as to the correctness of OWCP’s decision.12 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that it improperly denied merit review in the face of such
evidence.13
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.14 A right to reconsideration within one year
also accompanies any subsequent merit decision on the issues.15 As appellant’s October 26,
2011 request for reconsideration was submitted more than one year after the last merit decision
of record, it was untimely. Consequently, she must demonstrate clear evidence of error by
OWCP in terminating her compensation.16
Appellant primarily argued on reconsideration that the employing establishment and
OWCP erred in failing to provide her with priority reemployment. She described difficulties
communicating with the employing establishment in attempting to apply for positions.
Appellant submitted correspondence between herself and the employing establishment
addressing possible priority reemployment. OWCP’s May 1, 2009 decision terminating her
compensation notified her of her restoration rights under 5 U.S.C. § 8151(b).17 The issue of
appellant’s restoration rights is for the employing establishment or Office of Personnel
Management to address as OWCP lacks the authority to order priority consideration.18 As
neither OWCP nor the Board have jurisdiction over this issue,19 appellant’s contentions do not
establish any error by OWCP in the last merit decision.
Appellant maintained that the employing establishment did not receive the May 1, 2009
termination decision until May 19, 2009 and failed to receive the August 13, 2009 decision
12

Id.

13

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

14

20 C.F.R. § 10.607(a).

15

Robert F. Stone, 57 ECAB 292 (2005).

16

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

17

Supra note 4. This section of FECA provides an injured employee with the right to resume her former or an
equivalent position if she overcomes her injury or disability within one year after the date of commencement of
compensation. 5 U.S.C. § 8151(b)(1). For an employee who recovers from her injury or disability more than one
year after the date of commencement of compensation, the employing establishment must make all reasonable
efforts to place and accord priority to placing the employee in her former or equivalent position. Supra note 4.
18

See Pedro Beltran, 44 ECAB 222 (1992); Charles J. McCuistion, 37 ECAB 193 (1985) (claims for job
restoration are not within the scope of FECA).
19

See Nathan Stelly, 46 ECAB 396, 401 (1995).

4

denying her request for reconsideration under section 8128. Both decisions, however, were
properly addressed and mailed in the ordinary course of business and thus presumed received in
due course by the intended recipient.20
Appellant generally alleged that OWCP erred in terminating her compensation and failed
to properly review her request for reconsideration. She further maintained that physicians did
not provide accurate medical reports. Appellant, however, did not identify any specific error by
OWCP in evaluating either the medical evidence or her request for reconsideration. It is not
enough to merely allege that the evidence could be construed to produce a different conclusion.
Appellant must submit evidence or raise an argument that manifests on its fact that OWCP
committed an error in terminating her compensation benefits.21 She did not raise any substantial
question concerning OWCP’s prior decision and thus failed to establish clear evidence of error.
Appellant submitted copies of OWCP decisions, recognition of performance by the
employing establishment, a complaint against OWCP and a December 18, 2010 report regarding
her treatment in an emergency room after she was evicted from her home. The underlying issue
in this case, however, is whether she has further employment-related disability due to her
accepted bilateral wrist sprain, left shoulder tendinitis and cervical strain. Appellant did not
submit any evidence addressing this issue. In order to establish clear evidence of error, a
claimant must submit evidence relevant to the issue which was decided by OWCP.22
On appeal, appellant contends that OWCP did not properly review her request for
reconsideration and violated state and federal laws. She did not, however, specify any particular
legal or factual error or violation of the law by OWCP. In order to establish clear evidence of
error, the evidence submitted must raise a substantial question as to the correctness of OWCP’s
decision.23 The evidence appellant submitted on reconsideration fails to meet this standard.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely and did not show clear evidence of error.

20

See Kenneth E. Harris, 54 ECAB 502 (2003). This presumption is commonly referred to as the mailbox rule.
It arises when the record reflects that correspondence was properly addressed and duly mailed.
21

See Robert G. Burns, 57 ECAB 657 (2006).

22

See Howard Y. Miyashiro, 51 ECAB 253 (1999).

23

See Veletta C. Coleman, supra note 8.

5

ORDER
IT IS HEREBY ORDERED THAT the January 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 4, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.D., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, Marietta, GA, Employer
__________________________________________

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

Docket No. 10-2312
Issued: July 25, 2011

Case Submitted on the Record

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

JURISDICTION
On September 10, 2010 appellant filed a timely appeal from May 24 and August 16, 2010
merit decisions of the Office of Workers’ Compensation Programs (OWCP) which denied his
occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
bilateral carpal tunnel syndrome, left elbow tendinitis and bilateral shoulder impingement in the
performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 11, 2010 appellant, then a 50-year-old claims representative, filed an
occupational disease claim alleging shoulder and neck pain, bursitis, carpal tunnel syndrome and
tennis elbow due to constant computer work, filing, writing applications, typing, faxing
documents, lifting folders, faxing and stapling documents. He first became aware of his
conditions on March 1, 2009 and realized that it resulted from his work duties on
March 23, 2009.
In a February 9, 2009 report, Dr. Glenn J. Jonas, a Board-certified orthopedic surgeon,
reviewed appellant’s background and noted his complaints of bilateral epicondylitis, shoulder
impingement and bilateral mild carpal tunnel syndrome. Appellant described his left elbow as
painful and achy when lifting and carrying and his arm was painful with overhead use. Dr. Jonas
noted full range of motion of both shoulders in all planes and negative results for Yergason sign
and O’Brien test. Upon examination, he observed bilateral shoulder impingement with internal
rotation and forward elevation at 100 degrees. On examination, appellant’s hands revealed mild
Phalen’s maneuver at approximately one minute, normal radial and ulnar pulses and good
vascularity. Magnetic resonance imaging (MRI) scans did not reveal glenohumeral arthritis or
acromioclavicular (AC) joint spurring in his left shoulder nor periostitis and ulnohumeral
arthritis in his left elbow. It also demonstrated well-maintained midcarpal and radiocarpal joints
in his left hand. Dr. Jonas recommended a rehabilitation protocol for appellant’s bilateral
shoulder complaints and bilateral wrist splints for mild carpal tunnel syndrome.
In a March 23, 2009 report, Dr. Jonas stated that appellant was doing some laundry over
the weekend, when he started to experience pain in his right shoulder, which became aggravated
with overhead use. The examination revealed mild impingement sign but no evidence of deltoid
atrophy, internal or external rotation, decreased range of motion, weakness or AC joint pain.
Appellant’s adduction test was also negative.
In a May 29, 2009 report, Dr. Luis Naranjo, a chiropractor, noted appellant’s complaints
of back and neck pain with radiation to the right upper extremity and the right lower extremity,
with shoulder spasm, left/right wrist pain and left elbow pain. The examination revealed
tenderness to palpation and muscle spasm of his paracervical, paradorsal, and paralumbar
muscles, upper and lower extremity right side, left elbow and both wrists. Dr. Naranjo
diagnosed radiculopathy and/or neuropathy of the cervical and lumbosacral spine, carpal tunnel
syndrome, right shoulder and left elbow tendinitis, sacroiliac segmental dysfunction, lumbar
segmental dysfunction, radiculitis lumbosacral, sciatic radiculitis, myofibrositis, myofascitis and
cervicocranial syndrome.
In treatment notes dated June 4 to 23, 2009, Dr. Naranjo reported appellant’s complaints
of neck and back pain with radiation to the upper extremity right side and lower extremity left
side. He observed decreased range of motion in appellant’s flexion extension left rotation, right
rotation, left lateral flexion and right lateral flexion of the cervical lumbodorsal spine with pain.
In an April 9, 2010 letter, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim and requested additional information. It requested a
comprehensive medical report from his treating physician, including a description of his

2

symptoms, results of his examination and tests, diagnosis, treatment provided and a physician’s
opinion, with medical reasons, explaining how his claimed conditions were caused by factors of
his employment.
In an April 23, 2010 report, Dr. Thomas M. McQuail, a Board-certified orthopedic
surgeon, examined appellant for right shoulder and left elbow pain and reviewed his medical and
social history. Appellant first experienced shoulder problems the prior year and described his
pain through the shoulder, with minimal radiation and along the lateral aspect of the elbow.
Appellant noted that he also had carpal tunnel syndrome, but Dr. McQuail stated that no nerve
conduction study was obtained to verify that diagnosis. The examination revealed that
appellant’s cervical spine range of motion was intact and his back was also tender to
supraspinatus and biceps tendon. Appellant’s Hawkins and impingement signs were positive but
Tinel’s and compression tests over the median nerve of the right wrist were negative.
Dr. McQuail reported that appellant’s right elbow had full range of motion, was tender to the
lateral epicondyle, and resulted in no pain with resisted wrist and finger extension. X-rays also
revealed slight type II acromion of his shoulder and normal elbow and lateral cervical spine.
Dr. McQuail diagnosed right shoulder impingement and frozen shoulder. In an addendum that
same day, he reported that appellant’s repetitive work at a desk could contribute to any carpal
tunnel syndrome or the elbow problems. Dr. McQuail did not believe that appellant’s shoulder
condition resulted from his job.
By decision dated May 24, 2010, OWCP denied appellant’s occupational disease claim.
It accepted that his job as a claims representative involved constant typing, filing papers, faxing
and stapling documents, and lifting folders, but the medical evidence did not establish that his
claimed medical conditions resulted from the accepted work factors.
On June 28, 2010 appellant submitted a request for reconsideration. He also submitted
various physical therapy notes dated February 18, 2009 to May 27, 2010 by Kari Jacobs, a
physical therapist, who diagnosed right shoulder impingement, right lateral epicondylitis and
cervical radiculopathy. Appellant also resubmitted Dr. McQuail’s April 23, 2010 medical report.
In a June 14, 2010 medical report, Dr. McQuail reevaluated appellant’s right shoulder
and noted that it was possible that his right shoulder pain was due to his cervical spine.
Appellant also complained of right-sided foot pain and stated that he sustained a fracture three
years prior at the base of the 5th metatarsal. An examination of his shoulder revealed an intact
cervical spine range of motion and an examination of the foot revealed full ankle and subtalar
range of motion. Dr. McQuail opined that appellant’s right shoulder pain was probably due to
his cervical spine.
In a decision dated August 16, 2010, OWCP denied modification of the May 24, 2010
decision.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative and substantial evidence2
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3 In an occupational disease claim, appellant’s burden requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
specified employment factors or incident.6 The opinion of the physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
employee.7 The mere fact that work activities may produce symptoms revelatory of an
underlying condition does not raise an inference of an employment relation. Such a relationship
must be shown by rationalized medical evidence of a causal relation based upon a specific and
accurate history of employment conditions which are alleged to have caused or exacerbated a
disabling condition.8
Section 8101(2) of FECA9 provides that the term physician, as used therein, includes
chiropractors only to the extent that their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist and subject to regulations by the Secretary. Without diagnosing a subluxation from
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued
November 25, 2010).
4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000); D.U., Docket No. 10-144 (issued
July 27, 2010).
5

D.I., 59 ECAB 158 (2007); I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658
(issued October 22, 2009).
6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

7

B.B., 59 ECAB 234 (2007); D.S., Docket No. 09-860 (issued November 2, 2009).

8

Patricia J. Bolleter, 40 ECAB 373 (1988).

9

5 U.S.C. § 8101(2).

4

x-ray, a chiropractor is not a physician under FECA and his opinion on causal relationship does
not constitute competent medical evidence.10
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an injury in the performance of duty. OWCP accepted that his employment involved
working with a computer, filing and processing applications. The Board finds that appellant
failed to submit sufficient medical evidence to establish that he sustained his claimed medical
conditions from performing the accepted work duties.
Regarding appellant’s alleged bilateral carpal tunnel syndrome, he first related his
complaints regarding this condition to Dr. Jonas. The Board notes that Dr. Jonas generally
described appellant’s complaints while lifting, carrying, during overhead use of his arms and
during computer use, but did not relate a history which acknowledged with any specificity the
employment duties accepted by OWCP. In a February 9, 2009 report, Dr. Jonas noted a mild
finding during the Phalen’s maneuver, (without specifying whether this finding was bilateral) but
normal radial and ulnar pulses and good vascularity. He also related that the 2009 MRI scan of
appellant’s left hand revealed a well-maintained midcarpal and radiocarpal joints. While
Dr. Jonas ultimately recommended bilateral wrist splints for mild carpal tunnel, he never
explained the medical basis of his diagnosis, given the findings upon examination. Furthermore,
he offered no opinion regarding the cause of the mild carpal tunnel syndrome. Dr. Jonas’ reports
lacked an adequate history regarding appellant’s accepted employment duties, an explanation
with a firm medical diagnosis and no opinion regarding causal relationship. They are of limited
probative value in establishing appellant’s bilateral carpal tunnel claim.
Similarly, Dr. McQuail did not relate a history of appellant’s accepted employment duties
in his reports of April 23 or June 14, 2010. Regarding the diagnosis, he noted that a nerve
conduction study was never obtained to verify the claimed carpal tunnel syndrome and that his
Tinel’s and compression tests over the median nerve were negative. In an addendum dated
April 23, 2010, Dr. McQuail stated that “appellant’s repetitive work at a desk can contribute to
any carpal tunnel syndrome.” The Board finds this opinion of limited probative value because
the Dr. McQuail failed to identify any specific repetitive work activities and he never diagnosed
carpal tunnel syndrome.
Although Dr. Naranjo diagnosed carpal tunnel syndrome and left elbow tendinitis, his
opinion is of limited probative value because the term “physician” includes chiropractors only to
the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.11
Dr. Naranjo’s diagnoses regarding carpal tunnel syndrome and left elbow tendinitis were not for
spinal subluxation, therefore for these diagnoses he is not a physician under FECA and his
opinion cannot be considered medical evidence.

10

See generally Theresa K. McKenna, 30 ECAB 702 (1979).

11

5 U.S.C. § 8101(2); Paul Foster, 56 ECAB 208 (2004).

5

The medical evidence of record evaluating appellant’s left tennis elbow, consists of
Dr. Jonas who noted that appellant had complaints regarding the left elbow. He concluded that
the 2009 MRI scan did not show any periostitis or ulnohumeral arthritis of the left elbow.
Dr. Jonas did not diagnose or discuss any cause of this condition. Dr. McQuail noted appellant’s
complaints of left elbow pain, but then only made findings of tenderness of the lateral condyle of
the right elbow and noted that x-rays revealed a “normal elbow.” The Board has generally held
that pain in the absence of objective findings is not a firm medical diagnosis and is not
compensable.12 While Dr. McQuail concluded that appellant’s “repetitive work at a desk” could
contribute to his “elbow problems,” he did not specify the repetitive duties involved in this
process or offer any medical rationale supporting causal relationship.
As to any bilateral shoulder condition, the Board finds that the medical reports and
findings support a diagnosis of bilateral shoulder impingement. Dr. Jonas observed bilateral
shoulder impingement signs with internal rotation and forward elevation at 100 degrees.
Similarly, Dr. McQuail reported that appellant’s Hawkins and impingement signs were positive
and x-rays revealed slight type II acromion of the shoulder. The medical evidence is insufficient
to establish that appellant’s bilateral shoulder condition is causally related to the accepted work
factors. Dr. Jonas diagnosed bilateral shoulder impingement, but he did not provide any opinion
regarding the cause of the condition or explain whether the condition resulted from the accepted
employment duties. The Board has held that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.13 Dr. McQuail’s medical reports also fail to establish causal relationship. In
his April 23, 2010 medical report, he stated that he did not think that appellant’s shoulder
condition resulted from his job. In a June 14, 2010 medical report, Dr. McQuail further noted
that it was possible that appellant’s right shoulder pain was probably due to cervical spine and
makes no reference to his employment. Thus, the medical evidence of record fails to establish
that appellant’s shoulder condition was causally related to factors of his employment.
On appeal, appellant contends that he experiences pain continuously without any
improvement. The question of causal relationship, however, is a medical one and must be
resolved by probative medical evidence.14 Appellant failed to submit such probative medical
evidence which explained, with medical rationale, how his accepted employment factors caused
his right shoulder condition. Thus, he did not meet his burden of proof to establish his claim.
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.

12

See Ruth Seuell, 48 ECAB 188 (1996); see also P.H., Docket No. 10-212 (October 4, 2010).

13

K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997).

14

D.I., 59 ECAB 158 (2007); Margaret Carvello, 54 ECAB 498 (2003).

6

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained carpal tunnel syndrome, elbow tendinitis and bilateral shoulder impingement in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 16 and May 24, 2010 merit decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: July 25, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________________________________________ )
W.S., Appellant

Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0969
Issued: October 5, 2015

Case Submitted on the Record

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

On March 20, 2015 appellant, through counsel, filed a timely appeal from a February 5,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP), claim number
xxxxxx830. OWCP granted appellant a schedule award for 11 percent permanent impairment of
binaural hearing loss.1 The appeal was docketed as No. 15-0969.
The Board has duly considered the matter and finds that the case is not in posture for
decision. On October 19, 2005 appellant filed an occupational disease claim (Form CA-2)
alleging that he developed hearing loss due to factors of his federal employment. OWCP
accepted appellant’s claim for noise-induced binaural hearing loss on January 17, 2006. On
June 19, 2013 appellant filed a claim for a schedule award. In its February 5, 2015 decision,
OWCP granted appellant a schedule award for 11 percent binaural hearing loss, based on a
December 12, 2005 report and accompanying audiometric testing from Dr. Richard Dawson, a
Board-certified otolaryngologist, and an OWCP medical adviser’s January 12, 2006 report.
However, it appears that appellant also has another hearing loss claim pending before OWCP,
claim number xxxxxx654, and that appellant underwent a second opinion examination in that
1

The February 5, 2015 decision does not actually list a percentage of hearing loss. However, the number of
weeks of compensation granted, 22, comports with 11 percent of the maximum number of weeks of compensation
for a 100 percent, or complete loss of hearing, in both ears, 200 weeks. See 5 U.S.C. § 8107(c)(13)(b).

claim on March 14, 2013. The record for this other claim is not before the Board in the present
appeal.
On appeal, appellant’s counsel maintains that appellant is entitled to a greater impairment
rating based on a March 14, 2013 second opinion evaluation. It appears that claim number
xxxxxx654 contains evidence pertinent to the present claim. Under its procedures, OWCP has
determined that cases should be combined where a new injury case is reported for an employee
who previously filed an injury claim for a similar condition or the same part of the body.2 In the
instant appeal, for a full and fair adjudication, appellant’s hearing loss claims should be
combined pursuant to OWCP’s procedures. This will allow OWCP to consider all relevant claim
files in developing appellant’s claim. Moreover, to consider appellant’s appeal at this stage
would involve a piecemeal adjudication of the issues in this case and raise the possibility of
inconsistent results. It is the Board’s policy to avoid such an outcome.3
Accordingly, the Board will remand the case to OWCP for doubling of claim number
xxxxxx654 with the current claim number xxxxxx830. Following this and such other
development as deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for
hearing loss.
IT IS HEREBY ORDERED THAT the February 5, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)(1)
(February 2000).
3

See William T. McCracken, 33 ECAB 1197 (1982).

2

Issued: October 5, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3