United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, BOWLING GREEN
STATION, New York, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1544
Issued: April 10, 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 July 6, 2017 appellant, through counsel, file a timely appeal from a January 30, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of 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 back injury causally related to the accepted
December 22, 2014 employment incident.
FACTUAL HISTORY
On December 24, 2014 appellant, then a 49-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 22, 2014 he injured his low back when he slipped
and fell on steps in the front entrance lobby. He stopped work on December 23, 2014. The
employing establishment asserted that appellant’s injury resulted from his own willful misconduct,
as the area was dry and appellant should not have used that entrance.
By development letter dated January 5, 2015, OWCP requested that appellant submit
additional factual and medical information in support of his claim, including a detailed description
of the alleged work incident and a reasoned report from his attending physician addressing causal
relationship between any diagnosed condition and the identified work incident. It afforded him 30
days within which to submit the requested information.
The record indicates that appellant received treatment at a hospital emergency room on
December 22, 2014 for acute back pain.
In a report dated December 26, 2014, received by OWCP on January 12, 2015, Dr. Diara
Gross, an osteopath, evaluated appellant for low back pain. She obtained a history of a slip and
fall on wet stairs on December 22, 2014. Appellant was transported by ambulance to the hospital.
He complained of low back pain radiating into the right lower extremity, weakness in the right
lower extremity, and right foot numbness. Dr. Gross noted that appellant had herniated discs in
his back 15 years earlier. She diagnosed status post an employment-related slip and fall on
December 22, 2014, lumbar strain/sprain, a possible lumbar disc herniation, possible lumbar
radiculopathy, and post-traumatic anxiety. Dr. Gross related, “If the above history is correct, then
there is a causal relationship between [appellant’s] accident on December 22, 2014, and his above
complaints.” She opined that he was totally disabled from work.3
The employing establishment, by letter dated January 12, 2015, controverted the claim. It
indicated that appellant told a supervisor that he had injured his back falling down steps on
December 22, 2014. Appellant initially advised that he was “okay,” but a few minutes later
“changed his mind” and management telephoned for an ambulance. The employing establishment
noted that appellant had a prior history of a back injury.
In a January 6, 2015 attending physician’s report (Form CA-20), Dr. Gross related that
appellant experienced low back pain due to an injury while working. She advised that he had a
previous back injury from 15 years earlier that had “improved completely prior to [the] current
injury.” Dr. Gross diagnosed lumbar spine myofascial strain and possible herniated discs and
checked a box marked “yes,” indicating that the condition was caused or aggravated by
3
Dr. Gross, in a January 5, 2015 work capacity evaluation (OWCP-5c), found that appellant was totally disabled
from work.

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employment. She found that appellant was totally disabled from December 22, 2014 to the
present.
A magnetic resonance imaging (MRI) scan, obtained on January 23, 2015, revealed a
bulging disc at L2-3 with a left foraminal herniation component and impingement upon the exiting
L2 root.
Dr. Gross, in a January 23, 2015 disability certificate, found that appellant was totally
disabled from work from January 23 to February 23, 2015.
By decision dated February 9, 2015, OWCP denied appellant’s traumatic injury claim. It
found that he had not factually established the occurrence of the December 22, 2014 employment
incident, noting that he had not responded to its January 5, 2015 request for a statement describing
in detail the circumstances surrounding the work incident.
Appellant submitted additional medical evidence subsequent to OWCP’s February 9, 2015
decision. A December 22, 2014 emergency room report indicated that he received treatment on
that date for back pain after he slipped and fell, landing on his back.
In a progress report dated January 23, 2015, received by OWCP on February 13, 2015,
Dr. Gross advised that she was treating appellant following a “work-related slip and fall accident
on December 22, 2014.” She diagnosed status post a December 22, 2014 work-related slip and
fall, lumbar strain/sprain, a possible lumbar disc herniation, and possible lumbar radiculopathy.
Dr. Gross found that appellant was disabled from employment.
Dr. Paul M. Brisson, a Board-certified orthopedic surgeon, evaluated appellant on
January 26, 2015 for low back pain with right leg weakness and numbness of the right foot and
calf. He noted that appellant had experienced a December 22, 2014 employment injury when he
hit his back after he slipped and fell. Dr. Brisson indicated that he had a history of a prior injury.
He interpreted the MRI scan as showing disc height narrowing and desiccation from L2 to S1,
canal stenosis and moderate bilateral foraminal stenosis at L2-3, severe spinal stenosis and severe
bilateral foraminal stenosis at L3-4, and moderate bilateral foraminal stenosis at L4-5 and L5-S1.
Dr. Brisson related, “My assessment of [appellant] is that he injured his lumbar spine in a workrelated accident on December 22, 2014. Appellant has multilevel lumbar spondylosis. He has a
focal lumbar radiculopathy within the right lower extremity.”
Dr. Brisson submitted reports on April 1 and July 13, 2015 containing similar findings and
conclusions. He opined in his April 1, 2015 report that appellant could resume modified
employment no more than four hours per day. Dr. Brisson advised on July13, 2015 that
APPELLANT should continue working with restrictions.
On July 20, 2015 appellant related that he slipped walking down steps on December 22,
2014 and fell on his back. He submitted statements from witnesses who saw him fall.
On January 19, 2016 appellant, through counsel, requested reconsideration. In a
January 11, 2016 statement, counsel contended that he had submitted sufficient factual and
medical evidence to establish his claim. He maintained that Dr. Bisson’s January 26, 2015 report

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contained an accurate description of the work incident, examination findings, and a reasoned
opinion on causation.
By decision dated January 30, 2017, OWCP modified its February 9, 2015 decision to
reflect that appellant had factually established the occurrence of the December 22, 2014
employment incident. However, it denied his claim, finding that the medical evidence of record
was insufficient to establish a diagnosed condition causally related to his fall on
December 22, 2014.
On appeal counsel contends that he submitted sufficient factual and medical evidence to
establish that he sustained a back injury on December 22, 2014.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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.5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he actually experienced the employment incident at the time,
place, and in the manner alleged.7 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.8
ANALYSIS
Appellant alleged that he sustained an injury to his low back when he slipped and fell on
December 22, 2014. He has established that the December 22, 2014 incident occurred at the time,
place, and in the manner alleged. The issue, consequently, is whether the medical evidence
establishes that he sustained an injury as a result of the accepted employment incident.

4

5 U.S.C. § 8101 et seq.

5

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

6

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

7

See Bonnie A. Contreras, 57 ECAB 364 (2006); Gary J. Watling, 52 ECAB 278 (2001).

8

See T.H., 59 ECAB 388 (2008); Deborah L. Beatty, 54 ECAB 340 (2003).

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The Board finds that appellant has not established that the December 22, 2014 employment
incident resulted in an injury. Causal relationship is a medical question that must be established
by a probative medical opinion from a physician.9
Appellant received treatment for acute low back pain at the emergency room on
December 22, 2014. The emergency room report, however, does not contain an opinion by a
physician addressing causation and thus, is of diminished probative value.10
On December 26, 2014 Dr. Gross related that appellant experienced low back pain with
pain and weakness radiating into the right lower extremity after he fell on stairs on
December 22, 2014. She noted that he had a history of a back injury more than a decade earlier.
Dr. Gross diagnosed status post a December 22, 2014 slip and fall, lumbar strain/sprain, a possible
disc herniation, and possible lumbar radiculopathy. She opined that there was a causal relationship
between appellant’s complaints and the December 22, 2014 employment incident. Dr. Gross did
not, however, identify a specific diagnosis as resulting from the work incident. She further did not
fortify her general causation finding with medical rationale. A physician must provide a narrative
description of the employment incident and a reasoned opinion on whether the employment
incident described caused or contributed to a diagnosed medical condition.11
In a Form CA-20 dated January 6, 2015, Dr. Gross diagnosed lumbar myofascial strain and
possible herniated discs. She checked a box marked “yes,” indicating that the condition was
caused or aggravated by employment. The Board has held, however, that when a physician’s
opinion on causal relationship consists only of checking a box marked yes to a form question,
without explanation or rationale, that opinion has little probative value and is insufficient to
establish a claim.12
On January 23, 2015 Dr. Gross noted that she was treating appellant for a slip and fall at
work on December 22, 2014. She diagnosed status post a December 22, 2014 slip and fall, lumbar
strain/strain, a possible disc herniation, and possible lumbar radiculopathy. Dr. Gross found that
appellant was totally disabled from work. While she indicated that she was treating him for a
work-related slip and fall, she did not specifically attribute a diagnosed condition to the
December 22, 2014 employment incident, and consequently her report is of diminished probative
value.13 Additionally, Dr. Gross did not provide any rationale for her opinion. A well-rationalized
report is particularly warranted in this case given appellant’s history of a preexisting back
condition.14

9

See C.W., Docket No. 17-0399 (issued June 19, 2017).

10

The issue of causal relationship is a medical one and must be resolved by probative medical evidence. See
Luis M. Villanueva, 54 ECAB 666 (2003)
11

John W. Montoya, 54 ECAB 306 (2003).

12

See Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, supra note 8.

13

See T.D., Docket No. 16-1600 (issued March 23, 2017).

14

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

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Dr. Brisson, on January 26, 2015, reviewed the lumbar MRI scan and indicated that it
showed disc desiccation from L2 to S1 and bilateral foraminal stenosis at multiple levels. He
discussed the December 22, 2014 slip and fall and noted that appellant had a history of a prior
injury. Dr. Brisson opined that he sustained an injury to his lumbar spine on December 22, 2014.
He indicated that appellant had lumbar spondylosis at multiple levels and right lower extremity
focal lumbar radiculopathy. Dr. Brisson submitted substantially similar reports on April 1 and
July 13, 2015. While he opined that appellant sustained a lumbar injury on December 22, 2014,
he did not attribute any specific diagnosed lumbar condition to the work incident, and thus his
report is of diminished probative value.15 Dr. Brisson further did not provide any rationale for his
opinion. Medical reports not containing rationale on causal relationship are of limited probative
value.16 As noted, such rationale is particularly important given appellant’s history of a preexisting
back condition.17
On appeal counsel contends that appellant submitted sufficient evidence to establish his
claim. In order to establish causal relationship, however, he must submit an opinion from a
physician based on a complete and accurate factual and medical background, finding that the
claimed condition is causally related to federal employment and supporting such causation finding
with affirmative evidence and medical rationale.18 Appellant has not submitted a medical report
sufficient to show a diagnosed condition causally related to the December 22, 2014 employment
incident, and thus has not met his burden of proof.
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a back injury causally related to the
accepted December 22, 2014 employment incident.

15

See supra note 13.

16

See Jimmie H. Duckett, 52 ECAB 332 (2001).

17

See K.B., Docket No. 17-1363 (issued February 14, 2018).

18

See J.W., Docket No. 17-0870 (issued July 12, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the January 30, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 10, 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

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

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

Docket No. 14-1063
Issued: July 20, 2015

Case Submitted on the Record

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

JURISDICTION
On April 7, 2014 appellant, through his counsel, filed a timely appeal from a
December 10, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective May 23, 2012 as the accepted injuries
and conditions had ceased without residuals; and (2) whether appellant has established
continuing disability on and after May 23, 2012 due to his accepted injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. Pursuant to the first appeal, the Board
issued a November 18, 2011 decision and order under File No. xxxxxx382, setting aside
OWCP’s October 29, 2010 decision finding that appellant had not established that he sustained a
bilateral knee condition in the performance of duty.2 The Board remanded the case to OWCP for
further development of the medical evidence. Pursuant to the second appeal, the Board issued an
order on August 12, 2013 setting aside a December 4, 2012 OWCP decision affirming the prior
termination of appellant’s claim.3 The Board directed that OWCP double File No. xxxxxx382
with the present claim as both matters concerned the same part of the body. The law and facts of
the case as set forth in the prior Board decisions and orders are incorporated by reference and the
relevant facts are repeated herein.
OWCP accepted that on October 11, 2011 appellant, then a 55-year-old city carrier,
sustained a left knee contusion, cervical spine sprain, thoracic spine strain, and brachial neuritis
when his postal delivery vehicle was struck by a car. Appellant stopped work on the date of the
accident and received compensation through May 22, 2012.
Following emergency room treatment on the date of the accident, appellant was followed
by Dr. Colin A. Campbell, an attending osteopathic physician Board-certified in internal
medicine. In reports from October 19, 2011 to February 13, 2012, Dr. Campbell held appellant
off work due to continued cervical radiculopathy, and internal derangement of the left knee with
meniscal tears, and osteoarthritis with osteophyte formation demonstrated by a February 17,
2012 magnetic resonance imaging (MRI) scan.
Dr. Campbell referred appellant to Dr. Marc L. Kahn, a Board-certified orthopedic
surgeon. Dr. Kahn opined on December 15, 2011 that appellant had preexisting degenerative
knee problems that were not permanently worsened by the accepted contusion. On February 27,
2012 he stated that appellant required a left knee arthroscopy to repair the meniscal tears.
On March 16, 2012 OWCP obtained a second opinion from Dr. Askin, a Board-certified
orthopedic surgeon, who reviewed the medical record and a statement of accepted facts.
Dr. Askin noted that he had previously examined appellant regarding another compensation
claim. On examination, he found limited cervical motion and slightly restricted motion of the
left knee. Dr. Askin opined that appellant could resume full duty as the accepted left knee
contusion had resolved without residuals. He attributed appellant’s ongoing knee symptoms to
preexisting degenerative disease.
By notice dated April 9, 2012, OWCP advised appellant that it proposed to terminate his
wage-loss and medical compensation benefits because the accepted injury had ceased without
residuals, based on Dr. Askin’s opinion as the weight of the medical evidence.

2

Docket No. 11-692 (issued November 18, 2011).

3

Docket No. 13-924 (issued August 12, 2013).

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In response, appellant submitted January 3 and April 30, 2012 reports from
Dr. Campbell, finding appellant totally disabled for work due to meniscal tears in the left knee,
and continued cervical and thoracic radiculitis.
By decision dated May 30, 2012, OWCP terminated appellant’s wage-loss and medical
benefits effective May 23, 2012, based on Dr. Askin’s opinion as the weight of the medical
evidence.
In a January 9, 2012 letter, counsel requested a hearing, held on September 10, 2012. At
the hearing, appellant contended that an accepted 2003 left knee strain remained symptomatic
through the time of the October 10, 2011 motor vehicle accident. Counsel asserted that
Dr. Askin’s opinion was too vague to represent the weight of the medical evidence.
Alternatively, he contended that Dr. Askin’s opinion created a conflict with appellant’s
physicians.
Counsel submitted October 11, 2011 x-ray reports showing no abnormalities of the left
knee. He also provided a July 3, 2012 report from Dr. Campbell, noting restricted flexion and
extension of the left knee.
On October 5, 2012 OWCP obtained a supplemental report from Dr. Askin, who noted
that he was constrained by the limitations of the statement of accepted facts, which accepted
“diagnoses which may or may not have any relatedness to the facts.” Dr. Askin opined that
appellant “repeatedly walking steps” while delivering mail was “not in and of itself an injury that
explain[ed] the presence of arthritis.” He explained that because the human body was built for
ambulatory activity, such activities were not injurious in and of themselves. Dr. Askin found
that appellant’s history and the statement of accepted facts did not support that his “employment
activities should be charged with causing, aggravating, accelerating, or precipitating [appellant’s]
knee conditions.”
By decision dated and finalized December 4, 2012, an OWCP hearing representative
affirmed OWCP’s May 30, 2012 decision, finding that the additional evidence submitted was
insufficient to outweigh Dr. Askin’s opinion. Appellant then filed an appeal with the Board,
resulting in the issuance of the Board’s August 12, 2013 order setting aside the December 4,
2012 OWCP decision and directing that OWCP double File No. xxxxxx382 with the present
claim.
On September 9, 2013 OWCP doubled appellant’s claim for a bilateral knee condition
under File No. xxxxxx382 with the present claim under File No. xxxxxx345.4 In a July 5, 2012
addendum originally submitted under File No. xxxxxx382, Dr. Askin explained that he had not
considered whether prolonged stair-climbing in the performance of duty would aggravate or
accelerate osteoarthritis of the left knee as OWCP had not included the diagnosis of osteoarthritis
in the statement of accepted facts. Dr. Campbell provided a November 18, 2012 report asserting
4

In a September 9, 2013 letter, counsel requested to participate in the selection of an impartial medical examiner
should OWCP select one. OWCP denied the request by decision dated September 9, 2013 on the grounds that
appellant did not provide a valid reason to participate in selecting an impartial medical specialist. Counsel did not
appeal the September 9, 2013 decision.

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that Dr. Askin had failed to explain why he thought appellant did not have osteoarthritis of the
left knee when the February 16, 2012 MRI scan clearly showed degenerative changes and
osteophyte formation in addition to the two meniscal tears. He opined that the October 11, 2011
accident aggravated, and accelerated osteoarthritis of the left knee.
OWCP obtained a November 28, 2012 supplemental report from Dr. Askin to clarify the
issue of causal relationship. Dr. Askin equated appellant walking up and down stairs in the
performance of duty to him having “pebbles in his shoes on his way to work, such that when he
gets to work it would hurt to stand, walk, climb stairs, and so forth.” He opined that
stair-climbing at work would cause discomfort but did not affect the underlying degenerative
condition. OWCP requested a second supplemental report addressing causal relationship. In a
December 11, 2012 addendum, Dr. Askin noted reviewing an updated statement of accepted
facts that included the December 2003 left knee injury. He opined that, based on the revised
statement of accepted facts, climbing stairs at work and the October 11, 2011 motor vehicle
accident caused symptoms of knee discomfort which did not significantly alter the underlying
osteoarthritis.
By decision dated December 10, 2013, OWCP denied modification of the December 4,
2012 decision on the grounds that the additional evidence submitted was insufficient to outweigh
Dr. Askin’s opinion. It found that Dr. Askin agreed with Dr. Kahn that the accepted contusion
had resolved without residuals, there was no conflict of opinion.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.6
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a left knee contusion, cervical spine sprain,
thoracic spine strain, and brachial neuritis in an October 11, 2011 motor vehicle accident.
Appellant stopped work on October 11, 2011 and received compensation for total disability
through May 22, 2012.
Dr. Campbell, an attending osteopathic physician Board-certified in internal medicine,
held appellant off work through April 30, 2012 due to meniscal tears, internal derangement, and
osteoarthritis of the left knee, and cervical radiculopathy. Dr. Kahn, an attending Board-certified
orthopedic surgeon, opined that appellant had preexisting degenerative knee problems. He
explained that the accepted left knee contusion did not permanently worsen these conditions.

5

Bernadine P. Taylor, 54 ECAB 342 (2003).

6

Id..

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As appellant’s attending physicians provided inconsistent opinions regarding the nature
and extent of appellant’s injury-related conditions, OWCP obtained a second opinion from
Dr. Askin, a Board-certified orthopedic surgeon. Based on a clinical examination, review of the
medical record, and statement of accepted facts, Dr. Askin opined that the accepted left knee
injury had resolved without residuals. He explained that appellant’s continuing left knee
symptoms were due only to preexisting degenerative processes.
OWCP terminated appellant’s wage-loss and medical benefits effective May 23, 2012,
based on Dr. Askin’s opinion as the weight of the medical evidence. Following an oral hearing,
counsel submitted additional reports from Dr. Campbell noting restricted left knee motion, and
imaging studies. OWCP obtained a supplemental report from Dr. Askin, explaining that walking
and stair-climbing while delivering mail did not cause or aggravate the degenerative processes
affecting appellant’s left knee. It affirmed its prior decision on December 4, 2012.
The Board finds that OWCP properly accorded the weight of the medical evidence to
Dr. Askin, who based his opinion on the complete medical record, a statement of accepted facts,
and a thorough clinical examination. Dr. Askin explained repeatedly that appellant’s work
duties, as well as the accepted left knee contusion, did not alter the course of preexisting,
idiopathic degenerative disease of the left knee. Also, he specified the objective clinical findings
and pathophysiologic principles that supported his opinion. In contrast, Dr. Campbell did not
provide his reasons for attributing appellant’s left knee condition to work factors. His opinion is
therefore of diminished probative value, and of insufficient weight to create a conflict with that
of Dr. Askin.7 Additionally, Dr. Kahn opined that the accepted left knee contusion did not
permanently worsen appellant’s left knee. Therefore, OWCP’s December 4, 2012 decision
terminating appellant’s wage-loss and medical compensation benefits is appropriate under the
law and facts of the case.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to the claimant. In order to
prevail, the claimant must establish by the weight of reliable, probative, and substantial evidence
that he or she had an employment-related disability that continued after termination of
compensation benefits.8 For conditions not accepted by OWCP as being employment related, it
is the employee’s burden to provide rationalized medical evidence sufficient to establish causal
relation.9 The fact that a condition’s etiology is unknown or obscure neither relieves appellant of
the burden of establishing a causal relationship by the weight of the medical evidence nor shifts
the burden of proof of OWCP to disprove an employment relationship.10

7

Deborah L. Beatty, 54 ECAB 340 (2003).

8

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101(1992).

9

Alice J. Tysinger, 51 ECAB 638 (2000).

10

Judith J. Montage, 48 ECAB 292, 294-95 (1997).

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ANALYSIS -- ISSUE 2
In its December 4, 2012 decision affirming the termination of appellant’s compensation,
OWCP directed that appellant’s occupational disease claim accepted for bilateral knee arthritis
under File No. xxxxxx382 be doubled with the present claim. It doubled the claims, then
obtained July 5, November 28, and December 11, 2012 addenda from Dr. Askin, a Boardcertified orthopedic surgeon and second opinion physician. When requesting the third
addendum, OWCP provided Dr. Askin with a revised statement of accepted facts that included
all accepted occupational incidents regarding appellant’s knees. On review of the revised
statement, Dr. Askin explained that climbing steps produced symptomatic discomfort, but not a
significant alteration of the preexisting knee conditions. His addendum report reiterates his prior
statements that stair-climbing and walking at work did not cause an organic change in appellant’s
left knee condition.
The Board finds that OWCP properly accorded the weight of the evidence to the medical
opinion of Dr. Askin. Dr. Askin’s reports contained detailed medical reasoning, based on the
complete medical record and statement of accepted facts, explaining that work factors did not
aggravate or accelerate appellant’s underlying osteoarthritis of the left knee. Appellant’s
physicians did not find that the accepted cervical and thoracic strains or the brachial neuritis
were sufficient to disable appellant for work on and after May 23, 2012. OWCP’s December 10,
2013 decision was therefore correct under the law and facts of the case.
On appeal, counsel asserts that Dr. Askin’s opinion was insufficiently rationalized to
represent the weight of the medial evidence. Alternatively, he argues that there is a conflict of
medical opinion between Dr. Askin and appellant’s physicians regarding causal relationship.
The Board has considered this adjustment and finds that Dr. Askin’s opinion outweighs the
opinions of appellant’s physicians. Dr. Askin also supported his opinion with extensive
reasoning, explaining why appellant’s job duties, and the accepted injuries, did not alter the
underlying osteoarthritis. Therefore, OWCP properly accorded hiss opinion the weight of the
medical evidence. There is no conflict of medical evidence because the opinions, while they
disagree, are not of equal weight.
Counsel also contends that OWCP did not properly consider all of the medical evidence
relating to appellant’s multiple knee injury claims. The Board notes, however, that the record
demonstrates that OWCP doubled the case record under File No. xxxxxx382 with the present
claim as directed. OWCP provided Dr. Askin with the complete record, and a statement of
accepted facts revised to encompass the evidence in both claims.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to show that the accepted injuries
and conditions had ceased without residuals and to terminate appellant’s wage-loss and medical
compensation benefits effective May 23, 2012. The Board further finds that appellant has not

6

established that he was disabled for work on and after May 23, 2012 due to accepted injuries of
the left knee and cervical and thoracic spine.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 10, 2013 is affirmed.
Issued: July 20, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Columbia, MO, Employer
__________________________________________

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Appearances:
Barbara J. Baney, for the appellant
Office of Solicitor, for the Director

Docket No. 10-1394
Issued: February 23, 2011

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 April 27, 2010 appellant, through her representative, filed a timely appeal from the
Office of Workers’ Compensation Programs’ December 23, 2009 overpayment decision.
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 received an overpayment in the amount of
$5,231.93 for the period February 19 through May 13, 2006; (2) whether the Office properly
determined that appellant was at fault in the creation of the overpayment; and (3) whether the
Office abused its discretion in setting the rate of recovery.

FACTUAL HISTORY
Appellant’s February 28, 2002 occupational disease claim was accepted for right carpal
tunnel syndrome and right shoulder impingement.1 On November 5, 2002 she returned to work
without restrictions.
On August 8, 2005 appellant submitted a claim for a schedule award. She listed her 54year-old nephew, Bill Coats, as a dependent.
In a letter dated February 8, 2006, the Office informed appellant that her claim was being
processed. It advised her that the Federal Employees’ Compensation Act did not provide for
augmented compensation for dependents other than spouses or children.
On February 13, 2006 the Office granted appellant a schedule award for a four percent
permanent impairment of the right shoulder. The amount of the award was $6,125.04, covering
the period November 9, 2005 to February 18, 2006.2 The Office informed appellant that the
payment of the award would end when she had been paid for February 18, 2006.
On May 22, 2006 appellant forwarded benefit statements to the Office reflecting
payments received subsequent to February 18, 2006. She asked the Office whether the payments
were part of her schedule award and, if so, when she would receive the last payment.
On June 2, 2006 the Office informed appellant that her schedule award for a four percent
impairment to the right shoulder ran from November 9, 2005 to February 18, 2006, and that her
benefit checks should have terminated effective on February 19, 2006. It stated that it had
erroneously made payments to her for the period February 19 to June 10, 2006. Noting that it
was too late to prevent the latest check for the period May 14 to June 10, 2006 from being
issued, the Office asked that appellant return that check, together with any prior uncashed checks
for the overpayment period.
On June 6, 2006 appellant advised the Office that she was confused as to what her
schedule award was supposed to be, noting that she had also received a schedule award for a five
percent impairment of the right wrist. She asked the Office to advise her as to how to proceed.
The record contains a copy of a check dated June 10, 2006, payable to appellant in the
amount of $1,751.00 for the period May 14 to June 20, 2006. The check was received by the
Office on July 12, 2006.

1

This case was previously before the Board. By order dated December 5, 2007, the Board set aside an April 10,
2007 overpayment decision on procedural grounds and remanded the case for proper service. Docket No. 07-1854
(issued December 5, 2007). On August 10, 2009 the Board set aside a September 28, 2008 overpayment decision,
which found that appellant had abandoned her hearing request. The Board remanded the case for further
development. Docket No. 09-101 (issued August 10, 2009).
2

In another decision dated February 13, 2006, the Office granted a schedule award for a five percent impairment
of the right wrist. The amount of the award was $6,281.39, covering the period November 18, 2002 to
March 7, 2003. The record reflects that appellant was paid a lump-sum amount of $6,281.39, by check dated
February 17, 2006.

2

In a preliminary overpayment decision dated November 21, 2006, the Office found that
appellant had incorrectly received compensation in the amount of $5,231.93 for the period from
February 19 through May 13, 2006, due to the fact that she continued receiving payments
following the expiration of her schedule award on February 18, 2006. It also made a preliminary
determination of fault in the creation of the overpayment, finding that she retained payments that
she knew or should have known were erroneous. The Office advised appellant of actions
available to her if she believed that she should receive a waiver instead of repaying the
overpayment, including requesting that the Office issue a final decision based on the written
evidence currently of record. It further advised her to submit a detailed explanation of her
reasons for seeking a waiver; a completed Form OWCP-20; and supporting documents, to
include copies of tax returns, bank account statements, bills and cancelled checks and pay slips.
An automated computer payment system (ACPS) form, bearing a “run date” of
November 21, 2006, reflected schedule award payments for the period November 9, 2005
through May 13, 2006. Appellant received a check, dated February 24, 2006, in the amount of
$6,125.04 for the period November 9, 2005 through February 18, 2006. She also received a
check dated March 18, 2006 in the amount of $1,692.00 for the period February 19 through
March 18, 2006; a check dated April 15, 2006 in the amount of $1,788.00 for the period
March 19 through April 15, 2006; and a check dated May 13, 2006 in the amount of $1,751.00
for the period April 16 through May 13, 2006, for a total net amount of $5,231.93.
Appellant submitted an overpayment recovery questionnaire reflecting monthly income
of $1,586.32 and monthly expenses of $2,190.48. In a December 15, 2006 letter, she stated that
she was confused as to how and why she was overpaid. Appellant believed the second check she
received was for her qualified dependent and that she was entitled to receive multiple payments
because she had two injuries.
In an April 10, 2007 decision, the Office finalized its preliminary determination of
overpayment, finding that appellant was at fault in its creation and demanding payment in full.
Appellant sought review by the Board. In an order dated December 5, 2007, the Board
set aside the April 10, 2007 decision on the grounds that neither the preliminary determination of
overpayment nor the final decision had been properly served on appellant’s representative. The
case was remanded for proper service.3
In a preliminary overpayment determination dated March 4, 2008, the Office found that
appellant had received an overpayment of compensation in the amount of $5,231.93 for the
period February 19 through May 13, 2006, due to the fact that she continued receiving payments
following the expiration of her schedule award on February 18, 2006. It also made a preliminary
determination of fault in the creation of the overpayment, finding that appellant retained
payments that she knew or should have known were erroneous.
On March 28, 2008 appellant requested a prerecoupment hearing, which was scheduled
for August 7, 2008 in St. Louis, MO. On July 23, 2008 counsel requested that the hearing be
postponed or rescheduled to a telephone hearing, due to her inability to attend the scheduled
hearing for medical reasons. The hearing representative denied the request.
3

Docket No. 07-1854 (issued December 5, 2007).

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By decision dated September 25, 2008, a hearing representative found that appellant had
abandoned her request for an oral hearing, as she failed to appear at the scheduled hearing. She
found that appellant had received an overpayment in the amount of $5,231.93 and was at fault in
its creation. The representative instructed appellant to repay the overpayment amount in full.
Appellant appealed the overpayment decision to the Board. In an August 10, 2009
decision, the Board set aside the September 25, 2008 decision, finding that the hearing
representative had failed to follow proper procedures in denying appellant’s request to
reschedule the oral hearing. The Board remanded the case for further development.4
On remand, a telephone hearing was scheduled for October 20, 2009. At the hearing,
counsel contended that appellant was not at fault in creating the overpayment because she was
unaware that she was not entitled to the funds. She argued that the Office was at fault for
continuing to make payments erroneously and that appellant’s nephew should be considered a
dependent for purposes of augmented compensation. The hearing representative advised
appellant to submit updated financial information within 30 days.
Appellant submitted a completed overpayment recovery questionnaire reflecting that she
had monthly income of $1,947.04 and monthly expenses of $2,470.06. She also indicated that
she had personal property and other funds valued at $20,150.00.
By decision dated December 23, 2009, an Office hearing representative found that an
overpayment existed in the amount of $5,231.93 and that appellant was at fault in its creation,
thereby precluding waiver. She noted that appellant’s nephew was not a dependent under the
Act and that, therefore, she had been correctly compensated at the 2/3 rate. The representative
further determined that appellant should repay the overpayment amount by submitting payment
in full.
LEGAL PRECEDENT -- ISSUE 1
The Act5 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.6 When an overpayment has been made to an individual 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 the individual is entitled.7
The Office’s procedure manual identifies various situations when overpayments of
compensation may occur, including when a claimant receives schedule award compensation after
the expiration of the award.8
4

Docket No. 09-101 (issued August 10, 2009).

5

5 U.S.C. §§ 8101-8193.

6

Id. at § 8102(a).

7

Id. at § 8129(a).

8

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

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ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $5,231.93 for the period February 19 through
May 13, 2006, due to the fact that she continued receiving payments following the expiration of
her schedule award.
The record reflects that, in satisfaction for her schedule award, appellant received a
lump-sum payment in the amount of $6,125.04 for the period November 9, 2005 through
February 18, 2006. An overpayment arose when the Office continued to make schedule award
payments for subsequent periods of time through May 13, 2006. In addition to receiving the
lump sum of $6,125.04, appellant received additional payments of $1,692.00 for the period
February 19 through March 18, 2006; a payment in the amount of $1,788.00 for the period
March 19 through April 15, 2006; and a payment in the amount of $1,751.00 for the period
April 16 through May 13, 2006, for a total net amount of $5,231.93. As appellant was not
entitled to receive schedule award compensation for any period subsequent to February 18, 2006,
the Office properly determined that she received an overpayment of compensation in the amount
of $5,231.93.
Appellant contended that her nephew should be considered a dependent for purposes of
augmented compensation and that, therefore, she was incorrectly compensated at the 2/3 rate.
The Act, however, does not provide for augmented compensation for dependents other than
spouses or children. Therefore, the Office properly determined that appellant should be paid at
the 2/3 rate.9
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act provides that adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of this subchapter or would be against
equity and good conscience.10
Section 10.433 of the Office’s implementing regulations provide that in determining
whether a claimant is at fault, the Office will consider all pertinent circumstances. An individual
is with fault in the creation of an overpayment who made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; failed to provide information
which he or she knew or should have known to be material; or accepted a payment which he or
she knew or should have known to be incorrect.11

9

See 5 U.S.C. § 8110, which provides that, for purposes of that section, “dependent” means a wife, husband, an
unmarried child or a parent under specific circumstances.
10

Id. at § 8129(b).

11

20 C.F.R. § 10.433.

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ANALYSIS -- ISSUE 2
The Board finds that appellant was at fault in creating the overpayment that occurred
between February 19 and May 13, 2006. Therefore, appellant is not entitled to a waiver of the
overpayment amount.
The February 13, 2006 schedule award specified the amount and duration of the schedule
award. Therefore, appellant was on notice that she would receive the amount of $6,125.04 for
the period November 9, 2005 through February 18, 2006. She was also informed that the
payment of the award would end when she had been paid for February 18, 2006. On
February 24, 2006 appellant was issued a check in the full amount of the schedule award. The
Office, however, erroneously continued to issue checks to her, which she accepted and cashed.
Under these circumstances, the Board finds that the Office properly found that appellant was at
fault in the creation of the overpayment. Therefore, the overpayment was not subject to waiver.
Appellant contended that she was not at fault in creating the overpayment because she
was unaware that she was not entitled to the funds. She argued that the Office was at fault for
continuing to make payments erroneously. The Board has consistently held that the Office’s
erroneous payment of benefits does not excuse an employee from accepting a payment that she
knew or should have known to be incorrect.12 In this case, appellant was on notice that she was
not entitled to payments in excess of $6,125.04 relating to her schedule award or for payments
for any period subsequent to February 18, 2006. She should also have known that she was not
entitled to augmented compensation for her nephew, as she received written notice to that effect
in a February 8, 2006 letter. The Board finds that appellant knew or should have known that any
payments dated after February 18, 2006 were in error.13
LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of the Act provides that where an overpayment of compensation has
been made because of an error of fact or law, adjustment shall be made by decreasing later
payments to which an individual is entitled.14 However, where no further compensation benefits
are due an individual, the Board does not have jurisdiction and the recovery of an overpayment
remains within the discretion of the Office. The Board’s jurisdiction over recovery is limited to
reviewing those cases where the Office seeks recovery from continuing compensation under the
Act.15

12

See Ricky Greenwood, 57 ECAB 462 (2006).

13

As noted appellant received another schedule award on February 13, 2006 for a five percent impairment of the
right wrist. The amount of the award was $6,281.39, covering the period from November 18, 2002 to
March 7, 2003. Appellant was paid a lump sum amount of $6,281.39 on February 17, 2006, in full satisfaction of
the award. Therefore, she could not reasonably have expected to receive any further payments pursuant to the
schedule award for the right wrist.
14

5 U.S.C. § 8129(b).

15

Joan Ross, 57 ECAB 694 (2006); see also Albert Pineiro, 51 ECAB 310 (2000).

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ANALYSIS -- ISSUE 3
With respect to the recovery of the overpayment in compensation, the Board’s
jurisdiction is limited to reviewing those cases where the Office seeks recovery from continuing
compensation benefits under the Act.16 As appellant is no longer receiving wage-loss
compensation, the Board does not have jurisdiction with respect to recovery of the overpayment
under the Debt Collection Act.17
CONCLUSION
The Board finds that appellant received an overpayment in the amount of $5,231.93 for
the period February 19 through May 13, 2006. The Board also finds that the Office properly
determined that she was at fault in creating the overpayment and not entitled to waiver. The
Board further finds that, as appellant was not in receipt of continuing compensation at the time
the final decision was entered in this matter, it lacks jurisdiction to review recovery of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed as to the fact and amount of overpayment and
determination of fault.
Issued: February 23, 2011
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

16

Terry A. Keister, 56 ECAB 559 (2005); see also Cheryl Thomas, 55 ECAB 610 (2004).

17

Cheryl Thomas, id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Vincennes, IN,
Employer
__________________________________________

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

Docket No. 09-2083
Issued: May 11, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 11, 2009 appellant filed a timely appeal from the March 31, 2009 merit
decision of the Office of Workers’ Compensation Programs, which denied his schedule award
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of the case.
ISSUE
The issue is whether appellant is entitled to a schedule award.
FACTUAL HISTORY
On June 13, 2007 appellant, then a 56-year-old coal mine inspector, sustained an injury in
the performance of duty when he used his arms to pull himself out of a mantrip.1 The Office
accepted his claim for left rotator cuff tear, left ruptured biceps tendon and sprain of the left
1

A train-like vehicle that brings the miners down to and up from the coal mine.

shoulder, upper arm and rotator cuff. On February 28, 2008 appellant underwent arthroscopic
subacromial decompression with rotator cuff repair.
Appellant claimed a schedule award. On September 2, 2008 Dr. Terry Fenwick, the
attending orthopedic surgeon, examined appellant’s left shoulder and found that appellant had
pain with end range of motion. A supraspinatus isolation test showed 5-/5 biceps strength.
There was medial mid-substance tenderness from a prior rupture. Dr. Fenwick diagnosed left
bicep tendon muscle tear or rupture and sprains and strains of the shoulder and upper arm. He
indicated that appellant was at maximum medical improvement. On December 16, 2008
Dr. Fenwick stated that appellant had a six percent impairment of his left arm based on loss of
strength and pain.
On February 26, 2009 Dr. Richard T. Katz, a physiatrist, professor of clinical neurology
and Office referral physician, provided a second opinion. He related appellant’s history of
injury, reviewed an imaging study and noted appellant’s complaints. Dr. Katz described his
findings on physical examination. There was no pain upon palpating the acromioclavicular joint
or subdeltoid bursa. There was no pain over the proximal insertion of the biceps muscle, but
there was tenderness in the mid portion of the biceps medially, and Yergason’s sign was positive
at the mid portion of the biceps. There was no focal tenderness over the medial or lateral
epicondyles and no epicondylar pain with provocative maneuvers. Dr. Katz reported normal
ranges of left shoulder motion and no weakness postarthroscopic surgery for a partial rotator cuff
tear. He also reported normal ranges of left elbow motion with no evidence of loss of biceps
function proximally or distally.
On March 10 2009 an Office medical adviser reviewed the medical evidence and
determined that Dr. Katz found no impairment to the left upper extremity.
In a decision dated March 31, 2009, the Office denied appellant’s schedule award claim.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act2 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.3
ANALYSIS
To support his claim for a schedule award, appellant submitted a December 16, 2008
rating from Dr. Fenwick, his orthopedic surgeon, who found that appellant had a six percent
impairment of his left upper extremity based on loss of strength and pain; however, he did not
explain the basis for his rating. On September 2, 2008 Dr. Fenwick reported 5-/5 biceps strength
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

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with medial mid-substance tenderness from a prior pain with end of range of motion. He failed
to address how he calculated his impairment rating using specific tables or figures in the A.M.A.
Guides.
The A.M.A., Guides cautions against the use of strength evaluations and places a burden
on the evaluating physician to show that loss of strength represents an impairing factor that has
not been considered adequately by other methods, that the loss of strength is based on unrelated
etiologic or pathomechanical causes, and that decreased motion or painful conditions do not
prevent effective application of maximal force in the region being evaluated.4 Because
Dr. Fenwick did not show that appellant was one of those rare cases that justified a rating for
strength, his impairment rating carries little probative value.
Dr. Katz, the second opinion physiatrist, reported some positive findings on
February 26, 2009. There was tenderness in the mid portion of the biceps medially, and
Yergason’s sign was positive at the mid portion of the biceps. Dr. Katz concluded there was
normal range of motion and no weakness or loss of biceps function, but he did not address
appellant’s complaint of pain, the finding of biceps tenderness or the positive Yergason’s sign.
The Board finds that this case is not in posture for decision as further medical
development is warranted. The Office should obtain clarification from Dr. Katz or the Office
medical adviser on whether appellant has permanent impairment based on his complaint of pain,
tenderness in the mid portion of his biceps or his positive Yergason’s sign. The clarification
should be well reasoned and based on the protocols of the A.M.A., Guides. After such further
development as may be necessary, the Office shall issue an appropriate final decision on
appellant’s entitlement to a schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision.

4

A.M.A., Guides 507-08 (5th ed. 2001).

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ORDER
IT IS HEREBY ORDERED THAT the March 31, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: May 11, 2010
Washington, DC

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

Michael E. Groom, Alternate 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
__________________________________________
J.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FCI MEMPHIS,
Memphis, TN, Employer
__________________________________________

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Appearances:
Daniel DeCiccio, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 21-0301
Issued: March 3, 2022

Case Submitted on the Record

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

JURISDICTION
On December 24, 2020 appellant, through counsel, filed a timely appeal from a
December 3, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to expand the acceptance
of the claim to include additional conditions of left knee primary osteoarthritis and a right medial
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 3, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

meniscus tear causally related to the accepted August 23, 2019 employment injury; and
(2) whether OWCP abused its discretion by denying appellant’s requests for authorization of a left
knee injection and right knee surgery.
FACTUAL HISTORY
On August 23, 2019 appellant, then a 49-year-old corrections officer, filed a traumatic
injury claim (Form CA-1) alleging that on that date he sustained injuries to his knees as a result of
a partial floor cave-in while in the performance of duty. OWCP accepted the claim for bilateral
knee contusions.
In a report dated September 5, 2019, Dr. Robert H. Miller, a Board-certified orthopedic
surgeon, diagnosed bilateral knee contusions. He noted that on August 23, 2019 appellant was
walking on an elevated floor when his right leg fell through the floor. Appellant landed on his
kneecaps. Since that time, he had significant pain in both knees, left worse than right. Appellant
told Dr. Miller that he had previous intermittent pain and swelling in the left knee requiring him
to use a cane and that he had been given a cane several years prior “for preexisting knee arthritis.”
A magnetic resonance imaging (MRI) scan of the left knee obtained on September 26, 2019
demonstrated a small free edge tear in the body of the lateral meniscus and mild and moderate
patellofemoral compartment osteoarthritis.
In a follow-up report dated January 30, 2020, Dr. Miller noted that an MRI scan of the left
knee demonstrated a small free edge tear in the body of the lateral meniscus and low -grade
chondral loss in the lateral compartment. He advised that appellant should treat his arthritis with
continued therapy, anti-inflammatories, a cortisone injection, and he would attempt to obtain
approval for a hyaluronic acid injection.
An MRI scan of appellant’s right knee obtained on February 13, 2020 demonstrated a
horizontal tear of the posterior horn and body of the medial meniscus and mild tricompartmental
osteoarthritis. It was also noted that the medial collateral ligament was thickened proximally
consistent with a remote injury.
In a follow-up report dated March 5, 2020, Dr. Miller noted that the MRI scan of
appellant’s right knee demonstrated a horizontal tear of the posterior horn body of the medial
meniscus and mild tricompartmental osteoarthritis. He recommended right knee surgery and a
hyaluronic acid injection to the left knee, to which appellant agreed.
On March 9, 2020 appellant requested authorization for right knee surgery.
In a development letter dated March 11, 2020, OWCP advised appellant that, at that time,
the proposed right knee surgery could not be approved. It found that the request for surgery did
not match his approved condition of right knee contusion. OWCP requested that appellant submit
a narrative report from his physician explaining how the new diagnosis of right knee meniscus tear
was causally related to the accepted traumatic injury. It afforded him 30 days to submit the
requested evidence.
On April 2, 2020 appellant requested authorization for a left knee injection.
2

In a development letter dated April 8, 2020, OWCP advised appellant that, at that time the
proposed left knee injections could not be approved. It found that the request for a left knee
injection did not match his approved condition of left knee contusion. OWCP requested that
appellant submit a narrative report from his physician explaining how the new diagnosis of left
knee osteoarthritis was causally related to the accepted traumatic injury. It afforded him 30 days
to submit the requested evidence. No response was received within the time allotted.
By decision dated May 18, 2020, OWCP denied appellant’s request to expand the
acceptance of his claim to include left knee primary osteoarthritis as causally related to the
accepted August 23, 2019 employment injury and denied his request for authorization for a left
knee injection.
By separate decision also dated May 18, 2020, OWCP denied appellant’s request to expand
the acceptance of his claim to include a right knee medial meniscus tear as causally related to the
accepted employment injury and denied his request for authorization for right knee surgery.
On June 2, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
On October 5, 2020, counsel submitted the results of a May 12, 2015 MRI scan, which
demonstrated minimal lateral compartment chondromalacia and minimal chondromalacia of the
patella and minimal signal in the posterior horn of the medial meniscus, likely reflecting
intrasubstance degeneration. He also enclosed a note dated September 30, 2020 from Dr. Miller
in which he described the results of the May 12, 2015 MRI scan.
A hearing was held on October 8, 2020. The hearing representative afforded appellant 30
days to submit additional medical evidence.
In a narrative report dated November 5, 2020, Dr. Miller noted that appellant’s claim was
currently accepted for bilateral knee contusions. He opined that the acceptance of the claim should
be expanded to include an aggravation of left knee primary osteoarthritis and a left la teral meniscus
tear, as well as a right horizontal tear of the posterior horn and body of the medial meniscus, which
was “possibly caused by the accident” and right knee osteoarthritis “possibly aggravated by the
accident.” Dr. Miller noted that, when appellant fell on August 23, 2019, he twisted his knees and
slammed into the floor, which due to appellant’s height and weight could have created sufficient
torque and force to tear the menisci in his knees and possibly aggravate his preexisting
degenerative arthritis. He noted that an MRI scan from 2015 did not show any tears in the menisci,
though there was a minimal signal in the posterior horn of the right medial meniscus. Dr. Miller
noted that there were no injuries between the 2015 MRI scan and the August 23, 2019 incident,
and no injuries after that incident. He stated that medical literature supported that trauma like the
type appellant experienced could make preexisting arthritis worse. Dr. Miller opined that the left
knee injections were necessary to avoid surgery.
By decision dated December 3, 2020, the hearing representative affirmed the May 18, 2020
decisions.

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LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.3
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 4 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and an accepted injury must be based on a complete factual and
medical background. 5 Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale which, explains
the nature of the relationship between the diagnosed condition and the accepted employment
injury.6
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of the monthly compensation. 7
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. 8 OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible in the shortest amount of
time. It, therefore, has broad administrative discretion in choosing means to achieve this goal.
The only limitation on OWCP’s authority is that of reasonableness.9 Abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deductions from established facts. It
is not enough to merely show that the evidence could be construed so as to produce a contrary
factual conclusion.10

3

A.A., Docket No. 19-1165 (issued December 16, 2019); M.B., Docket No. 19-0485 (issued August 22, 2019); R.J.,
Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).
4

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

5

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

Id.

7

5 U.S.C. § 8103.

8

M.C., Docket No. 17-1615 (issued August 23, 2018).

9

Id.

10

Id.

4

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to expand the acceptance of
the claim to include additional conditions of left knee primary osteoarthritis and a right medial
meniscus tear as causally related to the accepted August 23, 2019 employment injury.
In his September 5, 2019 report, Dr. Miller diagnosed bilateral knee contusions, and noted
that appellant had related he had been given a cane some years prior for preexisting left knee
arthritis. This report merely diagnosed the accepted bilateral knee contusions, but did not offer
Dr. Miller’s diagnosis of any other bilateral knee conditions. The Board has held that a medical
report lacking a firm diagnosis and a rationalized medical opinion that the medical condition is
causally related to the employment incident is of no probative value. 11 Therefore, Dr. Miller’s
report is insufficient to establish appellant’s request for expansion of the claim.
In a narrative report dated November 5, 2020, Dr. Miller noted that appellant’s claim was
currently approved for bilateral knee contusions. He opined that the acceptance of the case should
be expanded to include an aggravation of left knee primary osteoarthritis and a left lateral meniscus
tear, as well as a right horizontal tear of the posterior horn and body of the medial meniscus, which
was “possibly caused by the accident” and right knee osteoarthritis “possibly aggravated by the
accident.” Dr. Miller noted that, when appellant fell on August 23, 2019, he twisted his knees and
slammed into the floor, which due to appellant’s height and weight could have created sufficient
torque and force to tear the menisci in his knees and possibly aggravate his preexisting
degenerative arthritis. He noted that an MRI scan from 2015 did not show any tears in the menisci,
though there was a minimal signal in the posterior horn of the right medial meniscus. Dr. Miller
noted that there were no injuries between the 2015 MRI scan and the August 23, 2019 incident,
and no injuries after that incident. He stated that medical literature supported that trauma like the
type appellant experienced could make preexisting arthritis worse. Dr. Miller opined that the left
knee injections were necessary and could avoid surgery. The Board finds that Dr. Miller’s
November 5, 2020 report is insufficient to establish appellant’s request for expansion of the claim.
Dr. Miller’s explanation that appellant’s left knee osteoarthritis and right knee meniscal tear were
“possibly” secondary to the August 23, 2019 incident is speculative in nature. The Board has held
that medical opinions that are speculative or equivocal are of diminished probative value. 12 While
Dr. Miller provided a possible explanation as to how the incident of August 23, 2019 caused or
aggravated appellant’s left knee primary osteoarthritis and a right medial meniscus tear, his
opinion was couched in speculative terms, and did not fully address appellant’s history and
preexisting bilateral knee conditions. In any case where a preexisting condition involving the same
part of the body is present and the issue of causal relationship, therefore, involves aggravation,
acceleration or precipitation, the physician must provide a rationalized medical opinion that
differentiates between the effects of the work-related injury or disease and the preexisting

11

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.5(c)(3); D.S., Docket No. 20-0384 (issued October 8, 2020); H.A., Docket No. 18-1455 (issued
August 23, 2019).

5

condition.13 In addition, while Dr. Miller noted that medical literature supported a finding that
appellant’s diagnosed conditions could have been caused by the type of trauma he experienced,
the Board has held that reliance on medical literature has little probative value in resolving medical
questions unless a physician shows the applicability of the general medical principles discussed in
the articles to the specific factual situation at issue in the case. 14 Therefore, Dr. Miller’s
November 5, 2020 report is insufficient to meet appellant’s burden of proof. 15
OWCP also received MRI scan reports. The Board, however, has held that diagnostic tests,
standing alone, lack probative value as they do not provide a physician’s opinion on whether there
is a causal relationship between appellant’s accepted employment incident/exposure and a
diagnosed condition.16 This evidence is, therefore, insufficient to establish expansion of his claim.
As the evidence of record is insufficient to establish causal relationship between his
additional diagnosed medical conditions and the accepted employment injury, appellant has not
met his burden of proof to expand the acceptance of his claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA 17 provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances, and supplies prescribed
by or recommended by a qualified physician, which OWCP considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of the monthly
compensation. 18 While OWCP is obligated to pay for treatment of employment-related conditions,
the employee has the burden of proof to establish that the expenditure is incurred for treatment of
the effects of an employment-related injury or condition. 19
Section 10.310(a) of OWCP’s implementing regulations provide that an employee is
entitled to receive all medical services, appliances, or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work-related injury.20
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.B., Docket No. 20-1275 (issued January 29, 2021); see R.D., Docket No. 18-1551 (issued March 1, 2019).
14

S.J., Docket No. 20-0896 (issued January 11, 2021); R.G., Docket No. 18-0917 (issued March 9, 2020); T.S.,
Docket No. 18-1518 (issued April 17, 2019); K.U., Docket No. 15-1771 (issued August 26, 2016); Roger D. Payne,
55 ECAB 535 (2004).
15

See C.B., Docket No. 20-0464 (issued July 21, 2020).

16

See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).
17

Supra note 1 at § 8103(a).

18

Id.; see D.S., Docket No. 18-0353 (issued May 18, 2020); L.D., 59 ECAB 648 (2008); Thomas W. Stevens, 50
ECAB 288 (1999).
19

M.P., Docket No. 19-1557 (issued February 24, 2020); M.B., 58 ECAB 588 (2007).

20

20 C.F.R. § 10.310(a); see D.W., Docket No. 19-0402 (issued November 13, 2019).

6

In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness.21 OWCP has the general objective of ensuring that an employee recovers
from his or her injury to the fullest extent possible, in the shortest amount of time. It therefore has
broad administrative discretion in choosing means to achieve this goal. 22
Abuse of discretion is shown through proof of manifest error, clearly unreasonable exercise
of judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.23
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion by denying appellant’s request
for authorization for a left knee injection and right knee surgery.
On March 9, 2020 appellant requested authorization for right knee surgery. On April 2,
2020 appellant requested authorization for a left knee injection.
In a January 30, 2020 report, Dr. Miller noted that an MRI scan of the left knee
demonstrated a small free edge tear in the body of the lateral meniscus and low-grade chondral
loss in the lateral compartment. He advised that appellant should treat his arthritis with continued
therapy, anti-inflammatories, a cortisone injection, and he would attempt to obtain approval for a
hyaluronic acid injection.
In a follow-up report dated March 5, 2020, Dr. Miller noted that the MRI scan of
appellant’s right knee demonstrated a horizontal tear of the posterior horn body of the medial
meniscus and mild tricompartmental osteoarthritis. He recommended right knee surgery and a
hyaluronic acid injection to the left knee, to which appellant agreed.
In a narrative report dated November 5, 2020, Dr. Miller opined that the left knee
injections were necessary to avoid surgery.
As noted, the only restriction on OWCP’s authority to authorize medical treatment is one
of reasonableness. 24 In the instant case, appellant did not submit evidence to support that the
requested left knee injection and right knee surgery were medically necessary to treat his accepted
conditions. The Board thus finds that OWCP did not abuse its discretion by denying her request
21

B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding
that abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise
of judgment, or administrative actions which are contrary to both logic, and probable deductions from established
facts).
22

D.S., Docket No. 18-0353 (issued May 18, 2020).

23

Id.; P.L., Docket No. 18-0260 (issued April 14, 2020); L.W., 59 ECAB 471 (2008).

24

Supra note 22; see also A.W., Docket No. 14-0708 (issued January 2, 2015).

7

for authorization for physical therapy. 25 Appellant may submit new evidence or argument with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5
U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to expand the acceptance of
the claim to include additional conditions of left knee primary osteoarthritis a nd a right medial
meniscus tear as causally related to the accepted August 23, 2019 employment injury. The Board
further finds that OWCP did not abuse its discretion by denying appellant’s requests for
authorization of a left knee injection and right knee surgery.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

25

D.C., Docket No. 18-0080 (issued May 22, 2018); B.J., Docket No. 17-1825 (issued February 23, 2018).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Reno, NV, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1724
Issued: March 1, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 16, 2009 appellant filed a timely appeal from a June 4, 2009 merit decision of
the Office of Workers’ Compensation Programs suspending her compensation. 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 the Office properly suspended appellant’s entitlement to
compensation because she did not submit a Form CA-1032 as requested.
FACTUAL HISTORY
On May 17, 1983 appellant, then a 62-year-old nurse, filed a claim alleging that she
sustained an injury to her lower back on May 16, 1983 while moving a patient. The Office
accepted her claim for low back strain and an aggravation of a degenerative condition. The
Office placed appellant on the periodic rolls effective July 5, 1986.
On January 23, 2009 the Office informed appellant that federal regulations required her
to make an affidavit of any earnings and employment during the previous year and that a Form

CA-1032 was enclosed for that purpose. It notified her that she had to completely answer all
questions on the Form CA-1032 and return the statement within 30 days or her benefits would be
suspended. The letter was sent to appellant’s address of record.
On April 21, 2009 the Office noted that appellant had not returned the Form CA-1032 for
completion. It provided her with another Form CA-1032 to complete and again informed her
that she had to complete and return the forms within 30 days or have her benefits suspended.1
Appellant did not respond.
By decision dated June 4, 2009, the Office suspended appellant’s compensation for
failing to submit the Form CA-1032 as requested. It noted that she had not responded to either
its January 23 or April 21, 2009 correspondence.
LEGAL PRECEDENT
Section 8106(b) of the Federal Employees’ Compensation Act2 authorizes the Secretary
of Labor to require a partially disabled employee to report his or her earnings from employment
or self-employment, by affidavit or otherwise, in the manner and at the times the Secretary
specifies.3 Pursuant to this authority, as well as her authority under 5 U.S.C. § 8149 to prescribe
rules and regulations necessary for the administration and enforcement of the Act, the Secretary
has promulgated the following regulations at 20 C.F.R. § 10.528:
“[The Office] periodically requires each employee who is receiving compensation
benefits to complete an affidavit as to any work, or activity indicating an ability to
work, which the employee has performed for the prior 15 months. If an employee
who is required to file such a report fails to do so within 30 days of the date of the
request, his or her right to compensation for wage loss under 5 U.S.C. § 8105
[total disability] or 8106 [partial disability] is suspended until [it] receives the
requested report. At that time, [the Office] will reinstate compensation retroactive
to the date of suspension if the employee remains entitled to compensation.”
ANALYSIS
On January 23 and April 21, 2009 the Office provided appellant with a Form CA-1032
and explained that federal regulations required her to complete it and answer all questions
concerning her employment and earnings. It properly notified her that if she did not completely
answer all questions and return the statement within 30 days, her benefits would be suspended.4

1

The Office also requested updated medical evidence. It noted that a prior request for medical information was
returned as undeliverable. The April 21, 2009 letter was also sent to appellant’s address of record.
2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8106(b).

4

It is presumed that a notice mailed to an individual in the ordinary course of business was received by that
individual. Under the mailbox rule, evidence of a properly addressed letter together with evidence of proper mailing
may be used to establish receipt. See Joseph R. Giallanza, 55 ECAB 186 (2003).

2

Notwithstanding such notice, appellant did not return the forms within 30 days as
requested. As she did not complete the Form CA-1032 affidavits reporting all employment and
self-employment, as required by regulation. The Office properly suspended her right to
compensation for wage loss under section 10.528.5
CONCLUSION
The Board finds that the Office properly suspended appellant’s entitlement to
compensation because she did not submit a Form CA-1032 as requested.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 4, 2009 is affirmed.
Issued: March 1, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5

See James A. Igo, 49 ECAB 189 (1997).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Washington, DC, Employer
__________________________________________

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Appearances:
Jacqueline Shanahan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0038
Issued: February 8, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 13, 2015 appellant, through counsel, filed a timely appeal from an April 17,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed between March 12, 2014, the date of the most recent merit decision, and
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 appellant’s
claim.2

1
2

5 U.S.C. § 8101 et seq.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from April 17, 2015, the date of OWCP’s last decision, was
October 14, 2015. Since using October 15, 2015, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is October 13, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim as his request was untimely filed and failed to demonstrate clear
evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. OWCP accepted that on June 1, 2006
appellant, then a 63-year-old logistical support worker, sustained a tear of the horn of his right
knee posterior meniscus and a sprain/strain of his right knee. The accepted conditions were later
expanded to include cervical radiculopathy. Appellant stopped work on June 5, 2006 and did not
return.
In February 2010, appellant was referred to an OWCP-sponsored vocational
rehabilitation program. In a March 6, 2011 report, his vocational rehabilitation counselor found
him vocationally and physically capable of earning wages in the constructed position of
operations manager. In a March 11, 2011 form report, Dr. Robert Wood, an attending Boardcertified orthopedic surgeon, indicated that appellant could work eight hours per day in
“sedentary duty only.”
In a June 15, 2011 decision, OWCP reduced appellant’s compensation to zero effective
June 5, 2011 based on his ability to earn wages in the constructed position of operations
manager. It noted that the physical duties of the position were sedentary in nature and that they
were in accordance with the restrictions provided by his attending physician, and that his
rehabilitation counselor had determined that he was vocationally capable of performing the
position given his business degree and 27 years of experience in transportation operations.
Appellant disagreed with this decision and, through counsel, requested a hearing before
an OWCP hearing representative. In a March 1, 2012 decision, an OWCP hearing representative
affirmed OWCP’s June 15, 2011 decision, finding that appellant was physically and vocationally
capable of performing the selected position of operations manager.
In a February 15, 2013 decision,3 the Board affirmed OWCP’s March 1, 2012 decision,
finding that OWCP properly adjusted appellant’s compensation effective June 5, 2011 based on
his ability to earn wages in the constructed position of operations manager. The Board found
that OWCP properly relied on the professional assessment of appellant’s vocational
rehabilitation counselor when it determined that appellant could earn wages in the position. The
medical and vocational suitability of the position and the reasonable availability of the position
within appellant’s commuting area were determined to be sufficiently documented in the record.4

3

Docket No. 12-1218 (issued February 15, 2013).

4

In a June 14, 2013 order, the Board denied appellant’s petition for reconsideration of its February 15, 2013
decision.

2

In a letter dated July 11, 2013 and received by OWCP on July 15, 2013, appellant,
through counsel, requested reconsideration of his claim. In an August 29, 2013 decision, OWCP
again found that it had properly adjusted appellant’s compensation effective June 5, 2011 based
on his ability to earn wages in the constructed position of operations manager.
In a letter dated October 11, 2013 and received by OWCP on October 15, 2013,
appellant, through counsel, requested reconsideration of OWCP’s August 29, 2013 decision.
OWCP conducted a merit review of appellant’s claim and issued a March 12, 2014 decision
affirming its August 29, 2013 decision. It determined that it had properly adjusted appellant’s
compensation effective June 5, 2011 based on his ability to earn wages in the constructed
position of operations manager.
On March 9, 2015 OWCP received counsel’s request for reconsideration of his claim.
The letter contained argument from counsel in support of appellant’s claim that OWCP
improperly adjusted his compensation effective June 5, 2011 based on his ability to earn wages
in the constructed position of operations manager. A second copy of the request for
reconsideration was received by OWCP on March 19, 2015
In a decision dated April 17, 2015, OWCP refused to reopen appellant’s case for further
review of the merits of his claim because his request was untimely filed and failed to
demonstrate clear evidence of error. It found that appellant’s reconsideration request was
untimely, indicating that it was received on March 19, 2015, i.e., a period more than one year
after OWCP’s last merit decision dated March 12, 2014. OWCP then found that the evidence
and argument submitted by appellant in support of his reconsideration request did not establish
clear evidence of error in its March 12, 2014 decision.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant’s application for review must be received within one year of the date of that decision.5
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.6
OWCP, however, may not deny an application for review solely because the application
was not timely filed. When an application for review is not timely filed, it must nevertheless
undertake a limited review to determine whether the application establishes “clear evidence of
error.”7 OWCP regulations and procedure provide that it will reopen a claimant’s case for merit

5

20 C.F.R. § 10.607(a).

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

3

review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
appellant’s application for review shows “clear evidence of error” on the part of OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11
ANALYSIS
OWCP accepted that on June 1, 2006 appellant sustained a tear of the horn of his right
knee posterior meniscus and a sprain/strain of his right knee. The accepted conditions were later
expanded to include cervical radiculopathy. Appellant stopped work on June 5, 2006 and did not
return. In February 2010, he was referred to an OWCP-sponsored vocational rehabilitation
program. OWCP reduced appellant’s compensation to zero effective June 5, 2011 based on his
ability to earn wages in the constructed position of operations manager. In a February 15, 2013
decision, the Board affirmed OWCP’s reduction of appellant’s compensation effective
June 5, 2011. In decisions dated August 29, 2013 and March 12, 2014, OWCP affirmed its
reduction of appellant’s compensation effective June 5, 2011.
In a decision dated April 17, 2015, OWCP refused to reopen appellant’s case for further
review of the merits of his claim because his request was untimely filed and failed to
demonstrate clear evidence of error. It found that appellant’s reconsideration request was
untimely12 and then found that the evidence and argument submitted by appellant in support of
his reconsideration request did not show clear evidence of error in its March 12, 2014 decision.
The Board finds that, in its April 17, 2015 decision, OWCP improperly determined that
appellant filed an untimely request for reconsideration of its March 12, 2014 decision.
Appellant’s reconsideration request was timely because it was received on March 9, 2015, less
than one year after OWCP’s March 12, 2014 decision.

8

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5a
(October 2011). OWCP procedures further provide, “The term ‘clear evidence of error’ is intended to represent a
difficult standard. [Appellant] must present evidence which on its face shows that OWCP made a mistake. For
example, a claimant provides proof that a schedule award was miscalculated, such as a marriage certificate showing
that [appellant] had a dependent but the award was not paid at the augmented rate. Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued would have created a conflict in
medical opinion requiring further development, is not clear evidence of error.”
9

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

10

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

11

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

12

OWCP indicated that appellant’s reconsideration request was received on March 19, 2015, i.e., a period more
than one year after OWCP’s last merit decision dated March 12, 2014.

4

Because appellant filed a timely reconsideration request, OWCP improperly considered
his reconsideration under the clear evidence of error standard used for untimely reconsideration
requests.13 Therefore, the case shall be remanded to OWCP for consideration of appellant’s
timely reconsideration request under the standards for timely reconsideration requests.14
CONCLUSION
The Board finds that OWCP improperly refused to reopen appellant’s case for further
review of the merits of his claim. The case is remanded to OWCP for further development.
ORDER
IT IS HEREBY ORDERED THAT the April 17, 2015 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: February 8, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

See supra notes 7 and 8.

14

Supra note 1 at § 8128(a); 20 C.F.R. §§ 10.606(b)(3), 10.607(a).

5