United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, PACIFIC BEACH
POST OFFICE, San Diego, CA, Employer
__________________________________________

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

Docket No. 20-0961
Issued: December 9, 2020

Case Submitted on the Record

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

JURISDICTION
On March 30, 2020 appellant filed a timely appeal from an October 30, 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 September 13, 2018, 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 September 16, 2019 request for
reconsideration of the merits of his claim, finding that it was untimely filed and failed to
demonstrate clear evidence of error.
FACTUAL HISTORY
On February 22, 2016 appellant, then a 23-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed neck and left arm conditions due to factors
1

5 U.S.C. § 8101 et seq.

of his federal employment, including carrying mail and the satchel. He noted that he first became
aware of his conditions and their relationship to factors of his federal employment on
February 2, 2016.
In an undated narrative statement, appellant related that on February 2, 2016 he cased his
assigned mail route, loaded up his satchel, and put it over his left shoulder, placed the swing of
flats on his left forearm and the delivery point sequence mail in his left hand. Shortly thereafter,
he reported experiencing pain and numbness in his left arm to his supervisor.
On February 24, 2016 Dr. Michael S. Duffy, an osteopath, reported treating appellant on
February 15 and 19, 2016 for left arm and shoulder pain that began on February 2, 2016 while
carrying his mail satchel at work. He diagnosed lateral epicondylitis and weakness of lumbosacral
spine, left arm and shoulder and performed a lidocaine injection.
In a March 1, 2016 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence necessary to establish his
claim and attached a questionnaire for his completion. OWCP afforded appellant 30 days to submit
the requested factual and medical evidence.
On March 7, 2016 Dr. David Davis, a Board-certified family practitioner, evaluated
appellant for left arm and left upper extremity pain that began on February 2, 2016, while carrying
mail at work. He diagnosed left elbow pain and returned appellant to work with restrictions.
By decision dated May 23, 2016, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that his neck and left arm
conditions were causally related to the accepted factors of his federal employment.
In a report dated May 24, 2016, Dr. Sidney H. Levine, a Board-certified orthopedist, noted
evaluating appellant on May 12, 2016 for a left elbow and forearm condition. Appellant reported
delivering mail on February 2, 2016 and carrying a mailbag weighing approximately 25 pounds
across his left shoulder and magazines weighing about 6 pounds on his left forearm when he felt a
pinching and a numb sensation throughout the entire left upper extremity. Dr. Levine diagnosed
lateral epicondylitis of the left elbow, left carpal tunnel syndrome (CTS), and overuse syndrome
of the left upper extremity. He opined that within reasonable medical certainty appellant sustained
an injury to his left upper extremity as a result of his work activities performed in the course of his
employment. In an undated doctor’s first report of occupational injury or illness, Dr. Levine
returned appellant to limited duty. In primary treating physician’s progress reports dated May 26
and June 9, 2016, he diagnosed other synovitis and tenosynovitis of the hand and sprain of the
elbow.
On February 24, 2017 appellant requested reconsideration.
By decision dated April 5, 2017, OWCP denied modification of the May 23, 2016 decision.
In reports dated May 16 and August 4, 2017, Dr. Levine noted examining appellant for
persistent right elbow pain. He noted tenderness of the supinator, and decreased sensation of the
thumb, index finger, and dorsal radial aspect of the left hand.
On May 26, 2017 appellant requested reconsideration.
2

By decision dated August 24, 2017, OWCP denied modification of the April 5, 2017
decision.
On January 29, 2018 appellant requested reconsideration. He asserted that, over time,
carrying too much mail and trying to keep up with management’s expectations caused his work
injury. Appellant referenced reports from Dr. Levine in support of his claim.
By decision dated April 16, 2018, OWCP denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
In a supplemental report dated August 14, 2018, Dr. Levine reiterated the history, findings,
and diagnoses noted in his May 24, 2016 report. He further noted that the findings on examination
and diagnoses were consistent with appellant’s account of the injury and he had no prior history
of left elbow or left upper extremity injury. Dr. Levine opined that appellant’s conditions were
causally related to the accepted employment factors.
On August 29, 2018 appellant requested reconsideration.
By decision dated September 13, 2018, OWCP denied modification of the August 24, 2017
decision.
Appellant submitted reports from Dr. Levine dated May 24, 2016, May 16, 2017, and
August 14, 2018 and unsigned primary treating physician’s progress reports dated May 26 and
June 9, 2016, all previously of record.
In a primary treating physician’s progress report dated July 11, 2016, Dr. Levine diagnosed
complication of surgical and medical care unspecified and pain in elbow. He returned appellant
to modified duty. In an attending physician’s report (Form CA-20) dated August 15, 2016,
Dr. Levine noted improvement in appellant’s condition and that he could lift up to 15 pounds.
OWCP received a supplemental report from Dr. Levine, dated November 20, 2018, who
noted that the findings on examination were consistent with those of lateral epicondylitis, overuse
syndrome, and CTS. Dr. Levine opined that appellant’s symptoms arose as a result of his
employment and affirmed a causal relationship between appellant’s work activities and the injury
sustained. He noted that medical treatment was appropriate and necessary. Dr. Levine released
appellant from medical care and returned him to regular duty.
In an undated statement entitled “Description of New Documents,” appellant reiterated a
history of injury and subsequent treatment.
On May 21, 2019 appellant requested reconsideration.
OWCP, by decision dated June 13, 2019, denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a), finding that the request neither raised
substantive legal questions, nor included relevant and pertinent new evidence.
In a statement dated September 9, 2019, appellant reiterated the history of injury and
subsequent medical treatment. He asserted that his injury was work related and referenced a
November 20, 2018 report from Dr. Levine in support of his claim.
3

On September 16, 2019 appellant again requested reconsideration.
By decision dated October 30, 2019, OWCP denied appellant’s request for reconsideration,
finding that it was 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.2 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.3 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).4
Imposition of this one-year filing limitation does not constitute an abuse of discretion.5
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request presents clear evidence that OWCP’s most recent merit decision
was in error.6 Its procedures state 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 shows “clear evidence of error” on the part of OWCP.7
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.8 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.9 Evidence which does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error.10 It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion.11 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
2
See 5 U.S.C. § 8128(a); M.E., Docket No. 18-1497 (issued March 1, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
3

20 C.F.R. § 10.607(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

5

F.N., Docket No. 18-1543 (issued March 6, 2019); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

L.C., Docket No. 18-1407 (issued February 14, 2019); Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma
Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).
20 C.F.R. § 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 merit decision. The application
must establish, on its face, that such decision was erroneous.” See W.R., Docket No. 18-1042 (issued February 12,
2019); see Gladys Mercado, 52 ECAB 255 (2001).
7

8

F.N., supra note 5; see Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

9

M.E., supra note 2; see Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

10

See Leon J. Modrowski, supra note 6; Jesus D. Sanchez supra note 6.

11

See Leona N. Travis, supra note 9.

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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.12
The Board makes an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit
review in the face of such evidence.13
ANALYSIS
The Board finds that OWCP properly denied appellant’s request of reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
OWCP received appellant’s request for reconsideration on September 16, 2019, which was
more than one year after OWCP’s September 13, 2018 merit decision, which had denied
modification of the prior decision dated April 16, 2018. The Board thus finds that appellant’s
request for reconsideration was untimely filed. As appellant’s request was untimely filed, he must
demonstrate clear evidence of error on the part of OWCP.14
The Board further finds that appellant has not demonstrated clear evidence of error. The
underlying issue is whether OWCP properly denied his occupational disease claim because the
evidence of record was insufficient to establish that his left arm condition was causally related to
the accepted factors of his federal employment. The Board finds that the arguments and evidence
submitted by appellant in support of his request for reconsideration did not raise a substantial
question as to the correctness of the denial of his claim.
In support of his untimely request for reconsideration, appellant submitted a statement
dated September 9, 2019, asserting that he developed a left arm condition due to carrying a mail
satchel while in the performance of duty. The Board finds that his narrative statement merely
reiterates the arguments previously of record. Appellant also submitted a medical report from
Dr. Levine dated November 20, 2018. This evidence is duplicative of evidence previously
considered by OWCP on June 13, 2019 and found insufficient. Appellant did not otherwise
explain how the resubmission of this evidence raised a substantial question regarding the
correctness of OWCP’s September 13, 2018 decision.
The Board has held that the term clear evidence of error is intended to represent a difficult
standard. None of the evidence submitted demonstrates on its face that OWCP committed an error
in denying appellant’s claim for an occupational disease in its September 13, 2018 decision. The

12

W.K., Docket No. 18-1260 (issued February 5, 2019); Leon D. Faidley, Jr., supra note 5.

13

See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied,
41 ECAB 458 (1990).
14

20 C.F.R. § 10.607(b).

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Board thus finds that the evidence and arguments submitted on reconsideration do not demonstrate
clear evidence of error on the part of OWCP in its September 13, 2018 merit decision.15
On appeal appellant asserts that he timely filed his reconsideration request and had a
certified return receipt proving that his reconsideration was received and signed for on
September 13, 2019. However, as the Board found and explained above, appellant’s request for
reconsideration was untimely filed. Appellant also asserts that he submitted sufficient evidence to
support that he developed a left arm condition causally related to factors of his employment. The
Board notes that it does not have jurisdiction over the merits of his claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim as it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the October 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2020
Washington, DC

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

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

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

15

W.R., supra note 7.

6


United States Department of Labor
Employees, Compensation Appeals Board
__________________________________________
W.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

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

Docket No. 10-1450
Issued: May 5, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 28, 2010 appellant filed a timely appeal from a November 2, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration.1 As the last merit decision dated October 15, 2008 was issued more than one
year prior to the filing of this appeal, the Board lacks jurisdiction to review the merits of this

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of the Office’s decision. See 20 C.F.R. § 501.3(f)(2). As the Office’s
decision was issued November 2, 2009, the 180-day computation begins November 3, 2009. Since using May 4,
2010, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date
of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is April 28, 2010,
which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

case.2 Pursuant to the Federal Employees’ Compensation Act3 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the November 2, 2009 nonmerit decision.
ISSUE
The issue is whether the Office properly denied appellant’s request to reopen her case for
further review of the merits pursuant to 5 U.S.C. § 8128.
FACTUAL HISTORY
The Office accepted that on January 4, 1992 appellant, then a 38-year-old letter carrier,
sustained a left thigh contusion, low back strain and a herniated nucleus pulposus at L5-S1.4
Appellant worked limited duty with intermittent periods of total and partial disability.
By decision dated April 20, 2007, the Office found that appellant failed to establish a
recurrence of disability on December 12, 2006 causally related to her employment injury. It
determined that the medical evidence was insufficient to establish that she could not work four
hours a day in her light-duty position.
In a decision dated November 14, 2007, a hearing representative affirmed the April 20,
2007 decision. She found that appellant had not submitted sufficient medical evidence to
establish that she was disabled from employment.
Appellant requested reconsideration. By decision dated April 16, 2008, the Office denied
modification of its November 14, 2007 decision. It again found the medical evidence
insufficient to show that appellant’s injury-related condition worsened such that she had to stop
work on December 12, 2006.
On July 14, 2008 appellant requested reconsideration. In a decision dated October 15,
2008, the Office denied modification of its prior merit decision. It determined that appellant’s
attending physician, Dr. Christopher Lutz, a Board-certified physiatrist, did not provide
sufficient clinical findings to establish that her accepted condition worsened.
The Office subsequently determined that a conflict arose between Dr. Lutz and a second
opinion examiner, Dr. Andrew Hutter, a Board-certified orthopedic surgeon, regarding
appellant’s current condition and work restrictions. It referred her to Dr. Norman Heyman, a
Board-certified orthopedic surgeon, for an impartial medical examination.

2

For final adverse decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to the
Board. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19, 2008, a
claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).
3

5 U.S.C. § 8101 et seq.

4

The Office also accepted that appellant sustained a low back and left shoulder contusion due to a traumatic
injury on January 8, 1990 assigned file number xxxxxx223. The case was combined with the current case number.

2

In a report dated August 31, 2009, Dr. Heyman diagnosed chronic lumbosacral sprain and
strain, a lumbar laminectomy and discectomy at L5-S1, a rotator cuff tear of the supraspinatus
and infraspinatus on the right side and a contusion of the right knee with patellofemoral
syndrome. He disagreed with Dr. Hutter’s finding that appellant could work and concluded that
she could not perform even sedentary employment given her difficulty walking and sitting.
Dr. Heyman attributed her right rotator cuff tear to an indirect injury resulting from her prior
back injuries. He found it likely that, when “[appellant’s] back goes into spasm and her leg gives
away, she loses her balance because of the weakness of her leg and falls injuring her right
shoulder and right knee.” Dr. Heyman recommended a dorsal column stimulator and rotator cuff
surgery.
On September 28, 2009 appellant requested reconsideration. She related that on
December 12, 2006 she experienced “excruciating pain” radiating from her low back into her left
leg. Dr. Lutz advised appellant to remain off work. Appellant asserted that she sustained a
consequential injury to her right shoulder when she fell and tore her rotator cuff. She contended
that the opinion of the impartial medical examiner supported the opinion of her attending
physician. Appellant maintained that she was unable to work due to a recurrence of disability
and her consequential employment injury.
Appellant submitted numerous progress reports dated 2008 and 2009, from Dr. Lutz and
Dr. Chu-Kuang Chen, a Board-certified anesthesiologist, who specializes in pain management.
By decision dated November 2, 2009, the Office found that the evidence submitted was
insufficient to warrant reopening appellant’s case for further merit review. It determined that she
had not made any relevant new argument and that the medical evidence failed to support that she
was disabled from work on or after December 12, 2006.
On appeal, appellant argues that the reports of Dr. Lutz and Dr. Heyman establish that her
condition has changed such that she is disabled from employment.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,5
the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.6 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.7 When a claimant fails to meet one of the above

5

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.607(a).

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standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.8
The requirements for reopening a claim for merit review do not include the requirement
that a claimant submit all evidence which may be necessary to discharge his burden of proof.9
The requirements pertaining to the submission of evidence in support of reconsideration only
specifies that the evidence be relevant and pertinent and not previously considered by the
Office.10 If the Office should determine that the new evidence submitted lacks substantive
probative value, it may deny modification of the prior decision, but only after the case has been
reviewed on the merits.11
ANALYSIS
The Office found that appellant had not submitted sufficient evidence to show that she
sustained a recurrence of disability on or after December 12, 2006 causally related to her
accepted employment injury. On reconsideration and on appeal, appellant argued that the report
of Dr. Heyman, the impartial medical examiner, supported her contention that she is disabled.
She further asserted in her reconsideration request that she was unable to work due to a
consequential injury to her right shoulder. Dr. Heyman, in his August 31, 2009 report, opined
that appellant was totally disabled and found that she likely sustained a right rotator cuff tear as a
consequence of her employment injury. Appellant’s argument that the Office should have
considered his report in determining whether she established a recurrence of disability is
relevant, not previously considered and pertinent to the issue of whether she is unable to work
due to her employment injury. As she has advanced a legal argument not previously considered
by the Office, she is entitled to a review of the merits of her claim under section 10.606(b).12
The case will be remanded for this purpose.13
CONCLUSION
The Board finds that the case is not in posture for decision.

8

Id. at § 10.608(b).

9

Donald T. Pippin, 53 ECAB 631 (2003).

10

Id.

11

See Annette Louise, 53 ECAB 783 (2003).

12

Joyce A. Fasanello, 49 ECAB 490 (1998); see R.B., Docket No. 09-1241 (issued January 14, 2010).

13

Appellant also submitted medical evidence on reconsideration; however, as the medical reports do not address
the relevant issue of causation, they are insufficient to warrant reopening the case for further merit review.

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ORDER
IT IS HEREBY ORDERED THAT the November 2, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: May 5, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0585
Issued: June 13, 2018

Case Submitted on the Record

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

JURISDICTION
On January 24, 2017 appellant, through counsel, filed a timely appeal from a
September 15, 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 this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established a right knee injury causally related to an
accepted September 4, 2015 employment incident.
FACTUAL HISTORY
On September 4, 2015 appellant, then a 38-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, her right knee “popped and gave out” while
in the performance of duty. She stopped work on September 4, 2015. The employing
establishment did not controvert the claim.
Dr. Mitesh K. Patel, Board-certified in family practice, evaluated appellant on
September 10, 2015 for right knee pain that began on September 4, 2015 when she turned while
loading mail in a truck at work and experienced a “pop followed by excruciating pain.” He noted
that x-rays obtained on that date at the emergency room were negative for fractures and showed a
right knee arthroplasty with “good anatomic alignment.” Dr. Patel diagnosed right knee pain and
a medial meniscal tear.3
By letter dated September 22, 2015, OWCP requested that appellant submit additional
factual and medical information in support of her claim, including a detailed report from her
attending physician addressing the cause of any diagnosed condition and its relationship to the
identified work incident.
In an emergency room report dated September 4, 2015, received by OWCP on
September 24, 2015, Dr. Reva Dubin, Board-certified in emergency medicine, evaluated appellant
for right knee pain. She noted that the pain began after she pivoted with her foot planted and her
knee popped. Dr. Dubin advised that appellant had a history of a right knee replacement 15 years
earlier. On examination she found mild edema and pain with motion. Dr. Dubin diagnosed no
apparent fracture or dislocation, status post knee replacement with an intact prosthesis and good
alignment, and mid joint effusion.
In a September 29, 2015 report, Dr. Jess H. Lonner, a Board-certified orthopedic surgeon,
discussed appellant’s history of a total right knee arthroplasty in 2002 following a return to work
without restrictions. On September 4, 2015 she twisted while sorting mail and her right knee
locked. Dr. Lonner related that appellant had been unable to unlock her knee. He noted that xrays did not demonstrate loosening or wear of the arthroplasty. Dr. Lonner diagnosed other
mechanical complication of a prosthetic joint implant and acute knee pain. He related:
“[Appellant] seems to have a locked knee. She might have disassociated or fractured polyethylene
versus loosening.”4

3

In a work status report, Dr. Patel opined that appellant could not work from September 10 to 24, 2015. On
September 16, 2015 he advised that she could not work until October 1, 2015 due to an injury to her knee.
4
In a February 29, 2015 workers’ compensation quick note form, Dr. Lonner found that appellant was totally
disabled and required a right knee exploration and possible revision.

2

Dr. Lonner, on October 6, 2015, diagnosed mechanical complication of an internal
orthopedic device, noting that appellant had “mechanical dissociation of the knee, possibly
polyethylene fracture versus dissociation versus wear causing the knee to be locked and painful
and swollen.”5 He recommended surgical reconstruction.
By decision dated November 2, 2015, OWCP denied appellant’s traumatic injury claim. It
found that she had established the occurrence of the September 4, 2015 work incident, but had not
submitted medical evidence from a physician supporting that the incident caused an injury.
Counsel, on November 11, 2015, requested an oral hearing before an OWCP hearing
representative.
On November 6, 2015 Dr. Lonner related that he began treating appellant on September 29,
2015 for a “painful and locked right knee” subsequent to a previous 2002 right knee arthroplasty.
He noted that following the arthroplasty she worked without limitation until September 4, 2015,
when she twisted her right knee and experienced pain and swelling. Appellant sought treatment
at the emergency room and received crutches. Dr. Lonner recommended surgery to determine the
cause of her locked knee. He related, “This injury occurred at work; [appellant’s] locked knee and
the need for this surgery are directly related to her work injury. The knee was perfectly fine and
functioning well before this work injury.”
Dr. Lonner, on November 23, 2015, performed a revision of a tibial insert, right total knee
arthroplasty.6
During a video hearing, held on February 3, 2016, appellant described the September 4,
2015 work incident and her subsequent medical treatment.
By decision dated March 17, 2016, OWCP’s hearing representative affirmed the
November 2, 2015 decision. He found that appellant had not submitted rationalized medical
evidence establishing a diagnosed condition as a result of the accepted employment incident.
In a March 8, 2016 report, received by OWCP on June 20, 2016, Dr. Lonner reviewed
appellant’s history of a 2002 arthroplasty of the right knee and the September 4, 2015 work
incident.7 On examination he found minimal swelling and reasonable stability with guarding on
motion. Dr. Lonner advised that he performed a right knee exploration because he believed that
she might have mechanical dissociation due to her work injury, noting that she had no problems
subsequent to her 2002 arthroplasty. Surgery revealed findings of polyethylene wear and he
performed a revision. Dr. Lonner related:

5

Dr. Lonner performed a preoperative examination on October 6, 2015 and provided a workers’ compensation
quick note form, indicating that appellant was totally disabled.
6

In a February 2, 2016 worker compensation quick note form, Dr. Lonner advised that appellant was totally
disabled.
7

Dr. Lonner provided progress reports dated March 8 and April 5, 2016.

3

“It is my opinion within a reasonable degree of medical certainty that, during the
course of work as a result of a twisting injury, [appellant] sustained a mechanical
dissociation of her right knee. [She] came to me with a locked knee which was a
direct result of a twisting injury that she had at work. There was no way that we
could unlock this without surgical intervention. [Appellant] had a locked knee
which is in fact a surgical emergency and in her case, due to a clear description of
a work injury that occurred on the job, this injury was clearly related to her work
injury and surgery to correct this and to unlock her knee was necessary. Again, the
September 4, 2015 injury was the direct cause of her knee to lock up representing
a surgical emergency and requiring synovectomy to free up the joint followed by
polyethylene exchange to get her knee bending and functioning better.”
On June 20, 2016 appellant, through counsel, requested reconsideration.
By decision dated September 15, 2016, OWCP denied modification of its March 17, 2016
decision. It found that the submitted medical evidence failed to explain how the September 4,
2015 work incident resulted in a diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA8 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.9 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.10
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.11 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.12
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
8

5 U.S.C. § 8101 et seq.

9

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

10

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

11

Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

12

See T.H., 59 ECAB 388 (2008); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

4

OWCP shares responsibility to see that justice is done.13 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.14
ANALYSIS
Appellant alleged that on September 4, 2015 she injured her right knee in the performance
of duty. OWCP accepted that the employment incident occurred as alleged, but denied her claim
after finding that the medical evidence was insufficient to show that she sustained a diagnosed
right knee condition causally related to the September 4, 2015 employment incident.
The Board finds that this case is not in posture for decision. In a September 29, 2015
report, Dr. Lonner noted that on September 4, 2015 appellant’s knee locked when she twisted
while sorting mail. Dr. Lonner reviewed her history of a 2002 total right knee arthroplasty and
diagnosed acute knee pain and other mechanical complications of a prosthetic joint implant. On
October 6, 2015 he recommended a surgical reconstruction of the right knee.
On November 23, 2015 Dr. Lonner performed a revision of a tibial insert, right total knee
arthroplasty. In a March 8, 2016 report, he again reviewed the September 4, 2015 work incident.
Dr. Lonner related that, due to appellant’s twisting injury at work, she experienced a right knee
mechanical dissociation that could be treated only through surgery. He advised that her locked
knee constituted a surgical emergency requiring a synovectomy and a polyethylene exchange.
Dr. Lonner directly attributed appellant’s locked knee to her twisting at work, noting that she
provided a clear history of injury.
Dr. Lonner’s reports contain a history of the work incident, a diagnosis, a review of the
mechanism of injury, and he provided an opinion that appellant’s locked right knee was causally
related to the September 4, 2015 employment incident. The Board finds that, although
Dr. Lonner’s opinion is insufficiently rationalized to meet appellant’s burden of proof in
establishing causal relationship, it is uncontroverted and of sufficient probative quality to warrant
additional development.15 Dr. Lonner’s opinion is based on a proper history of injury and
supported by findings on examination. His opinion is of convincing probative quality. OWCP,
however, did not undertake further development of the medical record, such as referring the record
to an OWCP medical adviser, or referring appellant for a second opinion examination.16
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.17 On remand OWCP should prepare a statement and accepted facts and further
13

Jimmy A. Hammons, 51 ECAB 219 (1999).

14

20 C.F.R. § 10.121.

15

See J.S., Docket No. 16-0777 (issued January 3, 2017); V.B., Docket No. 16-0883 (issued October 17, 2016).

16

See R.N., Docket No. 17-0497 (issued May 19, 2017).

17

See Jimmy A. Hammons, supra note 13; Marco A. Padilla, 51 ECAB 202 (1999).

5

develop the medical evidence. Following this and any further development deemed necessary, it
should issue a de novo decision on the case.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 15, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: June 13, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
(Widow of P.K.S.)
and
DEPARTMENT OF THE NAVY, NORTH
ISLAND NAVAL BASE, Coronado, CA,
Employer
__________________________________________
Appearances:
Steven E. Brown, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1400
Issued: March 14, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 23, 2021 appellant, through counsel, filed an appeal from a purported
decision of the Office of Workers’ Compensation Programs (OWCP) dated August 24, 2019. The
Clerk of the Appellate Boards assigned the appeal Docket No. 21-1400.
The Board has duly considered the matter and concludes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2
This jurisdiction encompasses any final adverse decision issued by OWCP within 180 days of the
date appellant filed her appeal. 3 The case record as transmitted to the Board does not contain a
final adverse decision of OWCP issued within 180 days from the date of docketing of the current
1

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

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
3

appeal.4 As there is no final adverse decision issued by OWCP over which the Board may properly
exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-1400 must be
dismissed.5 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as Docket No. 21-1400 is
dismissed.
Issued: March 14, 2022
Washington, DC

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

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

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

4

Id. The most recent decision of record was issued by this Board on August 24, 2021, under Docket No. 20-0215.
See Docket No. 20-0215 (issued August 24, 2021). Appellant, through counsel, filed a timely petition for
reconsideration from that Board decision. An order on appellant’s petition for reconsideration will be issued under a
separate order.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
5

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 10-372
Issued: September 7, 2010

Case Submitted on the Record

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

JURISDICTION
On November 23, 2009 appellant filed a timely appeal from the October 28 and
November 2, 2009 decisions of the Office of Workers’ Compensation Programs that denied her
claim for wage-loss compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that she was disabled from work
from June 20, 2009 to present, causally related to her accepted employment injury and
(2) whether the Office properly terminated appellant’s medical benefits as of November 2, 2009.
FACTUAL HISTORY
On April 6, 2009 appellant, a 34-year-old city carrier filed a traumatic injury claim (Form
CA-1) for a “possible fracture to [her] right ankle” that she allegedly sustained on April 3, 2009,
when, while delivering mail to a residence, she encountered two dogs. The homeowner stated
that she had two dogs on a leash when she opened the door and that one of the dogs “frightened”

appellant who, in response, ran down the homeowner’s front steps, tripped and “hurt her ankle.”
The Office accepted appellant’s claim for right ankle strain and sprain.
Appellant submitted an April 3, 2009 report in which Dr. Jonathan Crisp, who is Boardcertified in emergency medicine, diagnosed ankle fracture.
On April 3, 2009 Dr. Richard H. Gold, a Board-certified radiologist, reported that x-rays
of appellant’s right ankle revealed no evidence of fracture. However, he also noted that the
x-rays revealed that she may have had an acute trauma or an old trauma.
Appellant submitted form reports bearing illegible signatures from the Progressive
Medical Group excusing appellant from work May 13 through July 15, 2009, April 13 through
August 31, 2009 and September 9 through 28, 2009.
On July 10, 2009 appellant filed a claim for compensation (Form CA-7) for June 20
through July 3, 2009. On July 20, 2009 she filed another claim for compensation (Form CA-7)
for the period July 4 through 17, 2009.
By letter dated July 27, 2009, the Office informed appellant that further evidence was
required. Appellant was informed that she should submit a medical report from her treating
physician who explained why she was disabled on the dates in question.
On September 30, 2009 appellant filed a claim seeking compensation for the dates
July 18 through September 25, 2009.
By decision dated October 14, the Office denied the claims because the evidence of
record did not demonstrate that appellant’s alleged disability during the periods claimed was
causally related to her accepted employment injury. On November 2, 2009 it again denied the
claim for disability compensation and terminated authorization for further medical treatment.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Compensation Act,1 the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time
of the injury, i.e., an impairment resulting in loss of wage-earning capacity.2 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.3 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.4

1

5 U.S.C. §§ 8101-8193.

2

See S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008); Prince E. Wallace, 52 ECAB 357 (2001).

3

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Gary J. Watling, 52 ECAB 278 (2001).

2

The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his disability and
entitlement to compensation.5
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for right ankle strain and sprain. Appellant’s
burden is to demonstrate that her disability for the periods claimed is causally related to her
accepted employment injury. She has not submitted medical opinion evidence supporting her
claims for disability compensation and, consequently, the Board finds she has not established
that she was disabled from work from June 20, 2009 to present, causally related to her accepted
employment injury.
The reports and notes from the Progressive Medical Group bearing illegible signatures
are of limited probative value for several reasons. The Board notes initially that it is unable to
ascertain that these notes were in fact prepared by a “physician” as defined by the Act.6
Furthermore, these notes contain no diagnosis and no explanation as to why appellant was
disabled. As such, these notes are of no probative medical value in establishing that appellant
was disabled from June 20, 2009 and continuing, due to the accepted employment injury.
The reports signed by Drs. Gold and Crisp do not address the dates of disability in
question and are therefore of little probative value regarding this issue.
An award of compensation may not be based on surmise, conjecture or speculation.7
Because appellant has not submitted medical opinion evidence that explains how her alleged
disability during the period claimed was causally related to her accepted employment injury, the
Board finds she has not met her burden of proof to establish entitlement to wage-loss
compensation after June 20, 2009.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that a claimant no longer has residuals of an employment-related condition, which
require further medical treatment.8

5

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Vickey C. Randall, 51 ECAB 357 (2000); Merton J. Sills, 39 ECAB 572 (1988) (reports not signed by a
physician lack probative value)
7

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
8

Mary A. Lowe, 52 ECAB 223 (2001).

3

ANALYSIS -- ISSUE 2
The Office has accepted appellant’s claim for an April 3, 2009 ankle strain and sprain.
An April 3, 2009 x-ray report revealed no evidence of ankle fracture. Since April 3, 2009 the
Office did not receive any medical report which substantiated an ongoing diagnosis of her ankle
condition, or need for further medical treatment. It advised appellant that the claim would be
closed for further medical treatment, as a minor ankle strain injury, however, she could reopen
the claim if she sustained a recurrence of worsening of the condition. The Board thus finds that
the Office properly terminated authorization for medical treatment as of November 2, 2009.
CONCLUSION
The Board finds appellant has not established that she was disabled from work from
June 20, 2009 to present, causally related to her accepted employment injury. The Board also
finds that the Office properly terminated her medical benefits for the April 3, 2009 ankle sprain.
ORDER
IT IS HEREBY ORDERED THAT the November 2 and October 28, 2009 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 7, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, New Orleans, LA,
Employer
__________________________________________

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

Docket No. 08-132
Issued: May 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 16, 2007 appellant filed a timely appeal from the December 26, 2006
decision of an Office of Workers’ Compensation Programs’ hearing representative finding that
she had abandoned her hearing. The most recent merit decision in the case is the January 20,
2005 decision of the Office denying her emotional condition claim. Because appellant filed her
appeal more than one year after this merit decision, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has no jurisdiction over the merits of this case. The only decision properly before the
Board is the nonmerit decision finding that she abandoned her oral hearing.
ISSUE
The issue is whether the Office properly found that appellant abandoned her request for
an oral hearing before an Office hearing representative. On appeal, appellant contends that she
did not receive notice of the hearing.

FACTUAL HISTORY
On August 11, 2004 appellant, then a 41-year-old mail processor, filed an occupational
disease claim, Form CA-2, alleging that she developed post-traumatic stress syndrome as a result
of constant harassment from management about her attendance. On the CA-2 form she provided
a home address in Gretna, Louisiana.
On September 3, 2004 the Office requested additional factual and medical information
about the claim. On September 23, 2004 appellant responded with a written statement alleging a
variety of improper actions on the part of the employing establishment.
By decision dated January 20, 2005, the Office denied appellant’s claim on the grounds
that she had identified no compensable factors of employment and had not adequately supported
her claims of harassment.
On February 17, 2005 appellant requested an oral hearing.1 On the appeal form, she
provided a new mailing address in New Orleans, Louisiana. The Office did not acknowledge
receipt of this request.
On December 30, 2005 appellant notified the Office by telephone that she had been
displaced by Hurricane Katrina. She indicated that she was now in Las Vegas, New Mexico and
provided a new address. Appellant also requested information about the status of her oral
hearing.
Appellant telephoned the Office again on June 15, 2006 to check the status of her case.
On October 30, 2006 the Office hearing representative notified appellant that an oral
hearing on her claim would be held on December 7, 2006 in New Orleans, Louisiana. The letter
was mailed to the address in New Orleans that appellant had provided in February 2005. On
November 15, 2006 the letter was returned as undeliverable.
On November 28, 2006 the Office hearing representative placed a memorandum in the
file noting that she had telephoned the employing establishment to determine appellant’s current
address. She was notified that appellant had moved from New Mexico to Los Angeles,
California, but that a new street address was not available. The Office hearing representative
called the numbers listed for appellant and discovered that they were all disconnected.
By decision dated December 26, 2006, the Office hearing representative found that
appellant had abandoned her request for a hearing. She noted that an oral hearing had been
scheduled for December 7, 2006. The Office hearing representative stated that appellant had
“received written notification of the hearing 30 days in advance” of December 7, 2006, but had
not appeared. She stated that there was no evidence that appellant had contacted the Office prior
to or after the hearing to explain her failure to attend. The Office hearing representative mailed

1

The Board notes that, in addition to checking the line for “Hearing – Oral,” appellant checked the line for
“Reconsideration.” However, in the attached letter, she explicitly stated that she wanted an oral hearing.

2

the decision to appellant’s New Orleans address. On January 4, 2007 the letter was returned as
undeliverable.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act and its implementing regulations, a
claimant who has received a final adverse decision by the Office is entitled to receive a hearing
upon writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.2 Unless otherwise directed in writing by the claimant, the Office
hearing representative will mail a notice of the time and place of the hearing to the claimant and
any representative at least 30 days before the scheduled date.3 The Office has the burden of
proving that it mailed notice of a scheduled hearing to appellant.4
The authority governing abandonment of hearings rests with the Office’s procedure
manual,5 which provides as follows:
“A hearing can be considered abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not
requested a postponement; the claimant has failed to appear at a scheduled
hearing; and the claimant has failed to provide any notification for such failure
within 10 days of the scheduled date of the hearing.
“Under these circumstances, [the Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the [district Office].”6
ANALYSIS
Appellant challenged the Office’s finding that she had abandoned her request for an oral
argument on the basis that she did not receive the notice of hearing.
The Board finds that the record does not establish that the notice of hearing was properly
addressed and mailed to appellant. On December 30, 2005 appellant informed the Office that
she was no longer living in New Orleans and provided an address in Las Vegas, New Mexico.
However, on October 30, 2006, the Office did not mail the notice of hearing to that address.
Instead, the notice was mailed to the New Orleans address that appellant provided with her
February 15, 2005 request for hearing. Although the Office hearing representative made efforts
to notify appellant of the hearing after the notice was returned as undeliverable, she did not
2

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

3

20 C.F.R. § 10.617(b).

4

See Michelle R. Littlejohn, 42 ECAB 463, 465 (1991).

5

See Claudia J. Whitten, 52 ECAB 483 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999).

3

resend the notice to appellant’s last known address. As the record demonstrates that the Office
did not mail the notice of oral hearing to appellant at her last known address, the presumption
inherent in the “[m]ailbox [r]ule,” that a notice mailed to an individual in the ordinary course of
business was received by that individual is rebutted.7 Thus, the Board finds that the record
contains no evidence that appellant was properly notified of the oral hearing scheduled for
December 7, 2006. Therefore, the Office has not met its burden of proof that it mailed appellant
notice of the scheduled hearing.
CONCLUSION
The Board finds that the Office did not properly determine that appellant abandoned her
hearing request. The case will be remanded to provide appellant the opportunity for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 26, 2006 is set aside and the case is remanded for
action consistent with this decision.
Issued: May 9, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7

See Joseph R. Giallanza, 55 ECAB 186, 191 (2003); see also Samuel R. Johnson, 51 ECAB 612 (2000).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
DISTRIBUTION DEPOT, Richmond, VA,
Employer
__________________________________________

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Appearances:
Stephen Domenic Scavuzzo, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0400
Issued: January 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 December 12, 2016 appellant, through counsel, filed a timely appeal from a June 14,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). The 180th day from June 14, 2016, the date of OWCP’s last merit decision, was December 11, 2016.
The Board notes, however, that December 11, 2016 fell on a Sunday. It is well established that, when a time
limitation expires on a nonbusiness day, the limitation is extended to include the next business day. Therefore,
because the time limitation for filing an appeal fell on a Sunday, the time period did not expire until the next
business day, which was Monday, December 12, 2016, rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(2); M.H., Docket No. 13-1901 (issued January 8, 2014); Debra McDavid, 57 ECAB 149, 150 (2005);
Angel M. Lebron, Jr., 51 ECAB 488, 490 (2000); Gary J. Martinez, 41 ECAB 427, 427-28 (1990).

the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $60,029.20 overpayment of
compensation for the period July 1, 2005 through July 25, 2015; and (2) whether OWCP
properly determined that appellant was at fault in the creation of the overpayment, thereby
precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
On April 23, 1997 appellant, then a 57-year-old hazardous materials packer, filed a
traumatic injury claim (Form CA-1) alleging that on April 2, 1997 she sustained a right knee and
back injury when she slipped and fell while carrying boxes. OWCP accepted the claim for
chondromalacia of the right knee and aggravation of degenerative disc disease of the spine.
Appellant stopped work following her injury and received intermittent wage-loss compensation.
On March 18, 1998 she underwent surgery, stopped work, and did not return. OWCP paid
appellant wage-loss compensation on the supplemental rolls and then placed her on the periodic
rolls beginning July 10, 2005.
By letter dated January 18, 2005, OWCP informed appellant that federal regulations
required her to make an affidavit of any earnings and employment during the previous year and
that a CA1032 form was enclosed for that purpose. It notified her that she had to completely
answer all questions on the CA1032 form and return the statement within 30 days or her benefits
would be suspended. Appellant signed a Form CA1032 on January 30, 2005 indicating that she
did not receive any retirement benefits from the Social Security Administration (SSA) as part of
an annuity for federal service. She continued to submit CA1032 forms dated March 14, 2006
through February 12, 2015 indicating that she did not receive any retirement benefits from SSA.4
In a December 13, 2005 action request, the employing establishment notified OWCP that
appellant was currently 65 years and 10 months old. It reported that any SSA benefits she was
receiving must now be considered as retirement benefits. Since appellant was an employee
under the Federal Employees Retirement System (FERS), the employing establishment reported
that her compensation payments must now be offset by any part of her SSA retirement benefit
that was calculated using her federal employment earnings. It requested OWCP send an SSA
FERS offset questionnaire to SSA to inquire as to the proper offset based upon their records.
On August 23, 2006 OWCP received a FERS/SSA Dual Benefit Calculation Form which
related that appellant had been under the FERS retirement system since June 25, 1985.

3

5 U.S.C. § 8101 et seq.

4

OWCP had regularly requested that appellant complete these CA1032 forms commencing in December 1999.

2

In a September 7, 2014 FERS/SSA Dual Benefits Calculations worksheet, SSA provided
appellant’s SSA rate with FERS and SSA rate without FERS from July 2005 through
December 2013.5
By letter dated August 25, 2015, OWCP informed appellant that she had been receiving
dual FERS and SSA retirement benefits. It noted that her FECA benefits must be adjusted based
on the FERS portion of her SSA retirement benefits which were attributable to federal service.
OWCP reported that appellant’s current 28-day benefit amount was $2,474.00, but that SSA had
determined an offset in the amount of $538.21, the amount of SSA retirement benefits
attributable to her federal service.
In an overpayment calculation worksheet, OWCP determined that appellant received an
overpayment of compensation in the amount of $60,029.20 because the FERS offset had not
been properly deducted from July 1, 2005 through July 25, 2015. In an accompanying
August 10, 2015 FERS/SSA Dual Benefits Calculations worksheet, SSA provided her SSA rate
with FERS and SSA rate without FERS from July 2005 through December 2014.
By letter dated February 22, 2016, the employing establishment notified OWCP that,
while the FERS retirement offset was implemented beginning July 26, 2015, OWCP had not
formally addressed the overpayment of compensation. It noted that OWCP calculated an
overpayment of compensation in the amount of $60,029.20 which occurred from July 1, 2005
through July 25, 2015, the period in which the offset was applicable, but not previously
deducted.
The employing establishment requested that OWCP formally address the
overpayment and also noted that appellant was at fault for the overpayment as she did not report
her receipt of SSA benefits on the requisite CA1032 forms.
By notice dated March 22, 2016, OWCP made a preliminary determination that a
$60,029.20 overpayment of compensation was created for the period July 1, 2005 through
July 25, 2015 as appellant was paid prohibited dual benefits, having received FECA
compensation benefits and SSA retirement benefits without an appropriate offset.6 It found that
she was at fault in the creation of the overpayment because she knew or reasonably should have
known that she was accepting compensation to which she was not entitled and was aware that
she must report any additional federal benefits she was receiving via the requested CA1032
forms. OWCP provided her with a memorandum calculating the overpayment which showed
monthly compensation amounts with FERS and without the FERS offset from July 1, 2005
through July 25, 2015.7

5

Appellant was born in January 1940 and reached her SSA full retirement age of 66 years and 6 months in
July 2006.
6
The preliminary determination incorrectly noted the period of the overpayment as July 1 through
November 30, 2005.
7

In the accompanying memorandum to the file, OWCP showed that it had calculated that for the period July 1,
2005 through November 30, 2015 the FERS offset total amounted to $61,488.31. It then subtracted $1,459.11, the
equivalent of three periodic rolls 28-day cycles at $486.37 per cycle, as representing a paid FERS offset for the
period July 26 to October 17, 2015. This total resulted in the $60,029.20 overpayment of compensation.

3

OWCP requested that appellant complete the enclosed overpayment recovery
questionnaire (OWCP-20 form) and submit supporting financial documents. It notified her that
she had 30 days to request a telephone conference, a final decision based on the written evidence,
or a prerecoupment hearing. OWCP further informed appellant to contact the district office if
she had any questions or required assistance in responding to the letter. If a reply was not
received within 30 days, it would issue a final decision based on the information of record.
In a March 29, 2016 overpayment action request, appellant requested a prerecoupment
telephone conference on the issues of fault and waiver of recovery of the overpayment.
In an accompanying letter dated April 4, 2016, appellant contested the overpayment
decision and finding of fault. She argued that she never made an incorrect statement as alleged
by OWCP. Appellant noted that she received social security disability benefits as of 2002 in the
amount of $937.00 every four weeks, and that her case worker informed her that she could
receive both workers’ compensation and SSA benefits. She argued that she was informed that
the amount should remain the same as long as she remained partially disabled. Appellant further
argued that every year she provided OWCP authorization to obtain earnings data from the SSA
and, as such, believed that she was being paid properly because OWCP was checking to make
sure everything was up to date. With respect to her responses on the CA1032 forms, she
reported that the only funds received were workers’ compensation and SSA. Appellant stated
that any payment provided in error was the fault of OWCP because she answered all of the
questions presented to her. She argued that throughout the years she attempted to contact case
workers who would not return her calls or written requests for information. Appellant assumed
that the payments and benefits were in compliance with all government laws and procedures.
Appellant reported that she could not repay the overpayment as she lived month-tomonth. She further reported that she and her husband were in poor health with costly medication
payments. Appellant concluded that the overpayment occurred through no fault of her own and
should be waived as repayment would cause her severe financial hardship. In support of her
statement, she provided an OWCP-20 form which documented her monthly expenses to
document financial hardship.
A conference call was held on May 17, 2016. Appellant requested information regarding
the social security offset. The claims examiner advised her that the amount being deducted from
her periodic rolls was the result of her receiving social security retirement benefits. Appellant
was advised that the overpayment was the result of her compensation not being offset once she
reached SSA retirement age in July 2005. She indicated that the creation of the overpayment
was OWCP’s fault as it was their responsibility to determine the correct payments.
On June 14, 2016 appellant submitted an updated Form OWCP-20 with information
regarding her finances and supporting documentation.
By decision dated June 14, 2016, OWCP finalized the preliminary determination of a
$60,029.20 overpayment of compensation. It determined that appellant was at fault in the
creation of the overpayment because in July 2005 she reached her full retirement age and
received social security retirement benefits under FERS, which she failed to report.

4

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.8 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”9
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service.10 If an employee
receives SSA benefits based on federal service, his or her compensation benefits shall be reduced
by the amount of SSA benefits attributable to his or her federal service.
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.11 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA
will also provide a hypothetical SSA benefit computed without FERS covered earnings. OWCP
will then deduct the hypothetical benefit from the actual benefit to determine the amount of
benefits which are attributable to federal service and that amount will be deducted from FECA
benefits to obtain the amount of the overpayment.12
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained chondromalacia of the right knee and
aggravation of degenerative disc disease causally related to the accepted April 2, 1997
employment injury. The record supports that she received FECA wage-loss compensation from
March 18, 1998 and that she received SSA disability benefits from 2002 until July 2005 when
her disability benefits were converted to SSA retirement benefits. The portion of the SSA
benefits appellant earned as a federal employee was part of her FERS retirement package, and
8

5 U.S.C. § 8102(a).

9

Id. at § 8129(a).

10

Id. at § 8116(d). See N.R., Docket No. 12-1853 (issued June 10, 2013).

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995);
Chapter 2.1000.4(e)(2) (February 1995); Chapter 2.1000.11 (February 1995); OWCP does not require an election
between FECA benefits and SSA benefits except when they are attributable to the employee’s federal service. See
also R.C., Docket No. 09-2131 (issued April 2, 2010).
12

See L.B., Docket No. 11-2076 (issued August 29, 2012).

5

the receipt of benefits under FECA and federal retirement benefits concurrently is a prohibited
dual benefit.13 Appellant’s FECA compensation was not offset until July 26, 2015. SSA notified
OWCP of the applicable SSA rates for that period and their effective dates. Based on these rates,
OWCP calculated the dual benefit appellant had received from July 1, 2005 through July 25,
2015, which yielded an overpayment of compensation in the amount of $60,029.20. The record
includes an overpayment worksheet explaining the overpayment calculation.
The Board has reviewed OWCP’s calculations of the dual benefits appellant received and
finds that OWCP properly determined an overpayment of compensation in the amount of
$60,029.20 from July 1, 2005 through July 25, 2015.
Appellant asserted before OWCP and contends on appeal that she had been told that she
was entitled to receive social security benefits as well as FECA benefits.
As noted above, FECA benefits must be reduced by SSA benefits paid on the basis of age
and attributable to the employee’s federal service.14
LEGAL PRECEDENT -- ISSUE 2
Under OWCP regulations, waiver of the recovery of an overpayment may be considered
only if the individual to whom it was made was not at fault in accepting or creating the
overpayment.15 The fact that the overpayment was the result of error by OWCP or another
government employing establishment does not by itself relieve the individual who received the
overpayment of liability for repayment if the individual also was at fault for receiving the
overpayment.16 Each recipient of compensation benefits is responsible for taking all reasonable
measures to ensure that payments he or she received from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events that may affect
entitlement to or the amount of benefits. 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; (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.17
With respect to whether an individual is without fault, section 10.433(b) of OWCP
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

13

5 U.S.C. § 8116(d).

14

Supra note 10.

15

20 C.F.R. § 10.433(a).

16

Id. at § 10.435(a).

17

Supra note 15; see Kenneth E. Rush, 51 ECAB 116 (1999).

6

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.18
ANALYSIS -- ISSUE 2
The Board finds that appellant was at fault in creating the $60,029.20 overpayment of
compensation.
The record reflects that appellant accepted payments covering the period July 1, 2005
through July 25, 2015 which she knew or should have known to be incorrect.19 She was advised
on multiple occasions that receipt of SSA retirement benefits would affect her entitlement to
FECA compensation, but she continued to accept full FECA benefits during the period July 1,
2005 through July 25, 2015 in addition to her SSA retirement benefits.
Commencing December 13, 1999 on CA1032 forms through February 12, 2015,
appellant was repeatedly asked if she received SSA retirement benefits as part of an annuity
under FERS benefits from federally-assisted disability or benefit programs as this would affect
her benefits from OWCP. She continually answered “no.” By signing these forms, appellant
certified that all of the statements made in response to the questions on the form were true,
complete, and correct to the best of her knowledge and belief.
Despite being given notice that receipt of SSA benefits would reduce her entitlement to
FECA compensation, appellant continued to accept full FECA benefits during the period July 1,
2005 until July 25, 2015. The Board thus finds her at fault under the third standard, as she
accepted compensation which she knew or should have known that she was not entitled to
receive and, as such, recovery of the overpayment of compensation in the amount of $60,029.20
may not be waived.20
On appeal, appellant continues to allege that she was not at fault in the creation of the
overpayment as she always provided OWCP with correct information, but as noted above she did
not inform OWCP on multiple CA1032 forms issued during the relevant time period that she was
in fact receiving SSA retirement benefits based upon her FERS annuity.
The Board, therefore, concludes that OWCP properly determined that appellant was at
fault in the creation of the overpayment and that waiver of recovery of the overpayment is
therefore precluded.
CONCLUSION
The Board finds that OWCP properly determined that appellant received a $60,029.90
overpayment of compensation for the period July 1, 2005 through July 25, 2015 and that she was

18

Id. at § 10.433(b).

19

See J.C., Docket No. 16-1889 (issued May 17, 2017).

20

5 U.S.C. § 8129(b); supra note 15.

7

at fault in the creation of the overpayment, thereby precluding waiver of recovery of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the June 14, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITY, Cherry Point, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1763
Issued: March 19, 2010

Case Submitted on the Record

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

JURISDICTION
On June 29, 2009 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated May 20, 2009, denying his claim for compensation as
untimely. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant’s claim for compensation was timely filed.
FACTUAL HISTORY
In a Form CA-1 (claim for traumatic injury) dated November 5, 2008 and received by the
Office on December 23, 2008, appellant claimed compensation for a back injury from lifting on
November 2, 1977. In a December 19, 2008 letter, the employing establishment challenged the
claim on the grounds it was not timely filed. The employing establishment indicated that
appellant had retired from federal employment on September 30, 2004.

Appellant submitted a statement indicating that he had injured his back, neck, right arm,
shoulder and leg a “number of times” during his federal employment. He identified an injury on
November 2, 1977, a back and leg injury on January 19, 1988 for which he was “put on
compensation” and an August 29, 1988 back injury. Appellant also identified a June 14, 1990
employment incident where he injured his back lifting a pallet “and that pains me to this day.”
The record indicates that appellant had filed a traumatic injury claim on November 14,
1977 for a back injury on November 2, 1977. In a letter dated March 23, 2009, the Office noted
that appellant had previously filed a claim for a November 2, 1977 injury. It indicated that
appellant was now claiming ongoing back problems since June 14, 1990, and indicated the
evidence did not establish the claim was timely filed. The Office requested additional
information regarding the claim.
In response appellant submitted medical evidence regarding his prior treatment.1 The
record indicates that appellant received treatment on January 19, 1988 for back complaints
following a lifting incident, and received treatment on June 5, 1990 when he reported lifting
moderately heavy boxes the previous day. A June 14, 1990 note reported that appellant injured
his back lifting a pallet at the employing establishment. A February 10, 1997 treatment note
indicated that appellant was treated for back pain, which appellant stated was from a June 1990
employment injury. By decision dated May 20, 2009, the Office found appellant’s claim for
compensation was not timely filed.
LEGAL PRECEDENT
Section 8122(a) of the Federal Employees’ Compensation Act states, “An original claim
for compensation or death must be filed within three years after the injury or death.”2 This
section also indicates that a claim not filed within three years will not be allowed unless the
immediate supervisor had actual knowledge of the injury or death within 30 days or written
notice of injury was given within 30 days.3 Section 8122(b) provides that in latent disability
cases, the time limitation does not begin to run until the claimant is aware, or by the exercise of
reasonable diligence should have been aware, of the causal relationship between his employment
and the compensable disability.4
ANALYSIS
The claim form dated November 5, 2008 was for a traumatic injury on
November 2, 1977. The Board notes that appellant had previously filed a timely claim for an
injury on this date. It appeared, however, that the November 5, 2008 claim was not for a

1

It appears the treatment notes were from the employing establishment health unit.

2

5 U.S.C. § 8122(a).

3

Id.

4

Id. at § 8122(b).

2

traumatic injury but an occupational disease or illness claim.5 Appellant did not provide a
detailed explanation, but his statement indicated that he felt a continuing back condition was
causally related to incidents of his federal employment on November 2, 1977, January 19 and
August 29, 1988 and June 14, 1990. The Office considered the claim to be an occupational
claim and determined that it was untimely filed.
As noted above, the claim for compensation must be filed within three years of the injury.
The initial question is when the time limitation period begins to run in this case. The Office
indicated that appellant would have three years from each of the specific dates of injury noted by
him. This would be true if appellant was filing traumatic injury claims for each of these
incidents, but since appellant is claiming a back condition resulting from the cumulative effect of
these incidents, the question is when he knew or should have known of causal relationship
between the claimed injury and the employment incidents. The Board notes that the medical
evidence from February 1997 indicated that appellant was aware, or reasonably should have been
aware, that his continuing back problems were related to prior employment incidents. The
February 1997 treatment note from the employing establishment health unit indicated that
appellant himself related his current back pain to a prior June 1990 employment incident.
Based on the evidence of record relating to the claim for injury filed on November 5,
2008, the three-year time period began to run as of February 1997.6 Appellant’s claim therefore
was not filed within the three-year time limitation of 5 U.S.C. § 8122. In addition, there was no
evidence presented that the immediate supervisor had actual knowledge within 30 days or
evidence of written notice of injury within 30 days. While a supervisor may be held to have
constructive knowledge based on treatment at the employing establishment, the evidence must
establish that the supervisor knew or reasonably should have known of an injury causally related
to employment.7 The treatment notes do not provide a medical opinion regarding an
employment injury. Moreover, appellant’s claim in this case is not for a specific traumatic
injury. It is an occupational claim based on several alleged incidents. The medical evidence
from the employing establishment is not sufficient to establish constructive knowledge within 30
days of the alleged employment injury in this case. The Board accordingly finds that the
November 5, 2008 claim for compensation was not timely filed in this case based on the current
evidence of record.
CONCLUSION
The Board finds that the November 5, 2008 occupational claim for compensation was not
timely filed pursuant to 5 U.S.C. § 8122.

5

A traumatic injury is an injury caused by incidents occurring within one workday or shift. 20 C.F.R. § 10.5(ee).
An occupational disease or illness is a condition produced by incidents occurring over more than one workday or
shift. 20 C.F.R. § 10.5(q).
6

The Board notes that, even if appellant implicated continuing job duties until his retirement, he did not file a
claim within three years of September 2004.
7

David R. Morey, 55 ECAB 642 (2004).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 20, 2009 is affirmed.
Issued: March 19, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4