United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
U.S. POSTAL SERVICE, NORTH CARRIER
ANNEX, Long Beach, CA, Employer
__________________________________________

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

Docket No. 19-1883
Issued: April 2, 2021

Case Submitted on the Record

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

JURISDICTION
On September 11, 2019 appellant filed a timely appeal from a March 25, 2019 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 received an overpayment of compensation in the
amount of $2,318.48 during the period March 7, 2015 to January 7, 2017, for which he was without
fault, because postretirement basic life insurance (PRBLI) premiums were not deducted from his
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 25, 2019 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.

FECA wage-loss compensation; (2) whether appellant received an overpayment of compensation
in the amount of $21,363.55 during the period July 1, 2016 to June 23, 2018, for which he was
without fault, because he concurrently received FECA wage-loss compensation and Social
Security (SSA) age-related retirement benefits without an appropriate offset; (3) whether OWCP
properly denied waiver of recovery of the overpayments; and, (4) whether it properly required
recovery of the overpayments by deducting $500.00 from appellant’s continuing compensation
payments every 28 days.
FACTUAL HISTORY
On January 9, 2014 appellant, then a 62-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his right shoulder the previous day while in the
performance of duty. On the reverse side of the claim form, appellant’s supervisor noted
appellant’s retirement coverage as Federal Employees Retirement System (FERS). On
February 24, 2014 OWCP initially accepted right shoulder sprain and later expanded its
acceptance of the claim to include impingement syndrome and bursitis of right shoulder.
Appellant stopped work on the date of injury and did not return. He received continuation
of pay from January 9 to February 22, 2014. OWCP then paid appellant wage-loss compensation
on the supplemental rolls, effective February 24, 2014 and on the periodic rolls, effective
May 4, 2014.
The record includes a life insurance election form signed by appellant on July 17, 1991 in
which he elected basic life insurance. On a continuation of life insurance coverage form, signed
by appellant on April 20, 2015, he indicated with a check mark that he wanted to continue basic
life insurance with no reduction, and Option A in retirement.
By letter dated June 9, 2015, the Office of Personnel Management (OPM) informed OWCP
that appellant was eligible to continue basic life insurance, Option A, and elected no reduction
postretirement. It indicated that his postretirement deductions commenced March 7, 2015. On a
continuation of life insurance coverage form, signed by appellant on May 24, 2016, he indicated
by a check mark that he was electing basic life insurance Option A (75 percent reduction) and that
he wanted to continue it after retirement age.
On January 31, 2017 OWCP issued a preliminary determination, finding that an
overpayment of compensation had been created for the period March 7, 2015 to January 7, 2017
in the amount of $2,813.48. It explained that the overpayment occurred because OPM had
informed OWCP that PRBLI deductions should have commenced effective March 7, 2015, but no
deductions were made until January 8, 2017. OWCP found appellant without fault. It provided
an overpayment action request form and an overpayment recovery questionnaire (Form OWCP20). OWCP requested that appellant provide documentation including income tax returns, bank
account statements, bills and cancelled checks, pay slips, and any other records which supported
income and expenses listed. It afforded him 30 days to respond.
On February 23, 2017 appellant requested a prerecoupment hearing before a representative
of OWCP’s Branch of Hearings and Review. In an attached letter dated February 22, 2017, he
maintained that OWCP had not informed him of the increase in life insurance premiums until the

2

January 31, 2017 preliminary overpayment letter and, had he known, he would not have elected to
continue the life insurance. Appellant submitted the first page of a Form OWCP-20,
correspondence from the employing establishment, an earnings and leave statement, the
continuation of life insurance election forms signed by him on April 20, 2015 and May 24, 2016,
an application for retirement dated September 30, 2016, and OWCP benefit statements for the
period February 8, 2015 to February 4, 2017. These showed that for the period February 8, 2015
to April 2, 2016, $30.00 deductions for life insurance were made; for the period April 3, 2016 to
January 7, 2017, no deduction for life insurance was made; and beginning January 8, 2017 a
deduction of $121.90 for life insurance was made.
By letter dated February 29, 2017, OPM informed appellant that any annuity would be
suspended while he was receiving FECA compensation and advised him regarding continuation
of life insurance. It informed him that deductions for standard optional life insurance would
continue to be made from his compensation payments and advised him to contact OWCP if
deductions were not being made. Appellant elected FECA compensation on March 8, 2017. In
an attached letter of even date, he requested that his life insurance policy be cancelled as of that
day. On a life insurance election form signed by appellant on March 17, 2017, he wrote “please
cancel ins[urance] policy.”
On July 2, 2018 OWCP received a FERS/SSA dual benefits calculation form from SSA.
The form provided appellant’s SSA benefit rates with and without FERS offset. It indicated that:
beginning in July 2016 his SSA rate with FERS was $1,900.40 and without FERS $1,011.30;
beginning in December 2016, his rate with FERS was $1,906.10 and without FERS $1,014.30;
and beginning December 2017, his SSA rate with FERS was $1,944.20 and without FERS
$1,034.50.
OWCP prepared a FERS offset calculation worksheet verifying its calculations. This
worksheet showed that during the period July 1 to November 30, 2016 appellant received an
overpayment of compensation in the amount of $4,484.58; during the period December 1, 2016 to
November 30, 2017 he received an overpayment of compensation in the amount of $10,731.00;
and during the period December 1, 2017 to June 23, 2018 he received an overpayment of
compensation in the amount of $6,147.97, for a total overpayment of $21,363.55.
In a letter dated July 17, 2018, OWCP notified appellant that, based on information
provided by SSA regarding the amount of his SSA benefit that was attributable to federal service,
his FECA wage-loss compensation had been adjusted.
On July 27, 2018 a hearing was held regarding the January 31, 2017 preliminary
overpayment determination regarding the lack of deductions for PRBLI. Appellant maintained
that an overpayment did not exist, and OWCP’s hearing representative informed him of the
documentation he needed to submit.
On August 8, 2018 OWCP issued a preliminary determination, finding that an overpayment
of compensation in the amount of $21,363.55 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA age-related retirement benefits that he received for
the period July 1, 2016 to June 23, 2018 was based on credits earned while working in federal
service, and that this portion of his SSA benefit was a prohibited dual benefit. OWCP found him
3

not at fault in the creation of the overpayment. It explained its calculation of the overpayment,
attached its calculation worksheet, and informed appellant of the actions he could take. OWCP
provided an overpayment action request form and a Form OWCP-20. It again requested that
appellant provide documentation including income tax returns, bank account statements, bills and
cancelled checks, pay slips, and any other records which supported income and expenses listed,
and allotted 30 days for him to respond.
On September 4, 2018 appellant requested a prerecoupment hearing before a representative
of OWCP’s Branch of Hearings and Review. In an attached letter, he maintained that he had never
been informed by SSA, OWCP, or OPM of an offset of benefits and requested waiver. Appellant
submitted two pages of a completed Form OWCP-20 form, correspondence from SSA, portions
of EN1032 forms in which he indicated “Yes” that he received monthly SSA benefits, checking
account bank statements, his application for retirement dated September 30, 2016, life insurance
information, benefit statements from June 26 to October 15, 2016, and May 27 to July 21, 2018,
financial information regarding purchase of an automobile, money market account statements, an
insurance payment to appellant and his wife for loss of a vehicle, and sale of stock information.
By decision dated October 5, 2018, an OWCP hearing representative set aside the
January 31, 2017 decision regarding the PRBLI deduction overpayment and returned the record
for OWCP to recalculate the amount of any overpayment for the period March 7, 2015 to
January 7, 2017.
On an October 29, 2018 worksheet, OWCP noted that appellant turned 65 on April 6, 2016,
and that he had elected no reduction of PRBLI on June 9, 2015. It found an overpayment of
compensation in the amount of $774.95 for the period April 6 to September 30, 2016. OWCP
noted that appellant changed his election to 75 percent PRBLI free with basic and free optional
life insurance (OLI) on October 1, 2016, and deductions were made correctly for the period
October 1, 2016 to January 7, 2017 but deductions were improperly made for the period January 8
to April 29, 2017 for four payment cycles such that appellant was underpaid $487.60. Effective
April 30, 2017, appellant’s compensation was adjusted such that no additional overpayment was
created after that date.
On October 29, 2018 OWCP issued a preliminary determination, finding that an
overpayment of compensation had been created for the period March 7, 2015 through
September 30, 2016 in the amount of $2,382.48. It again explained that the overpayment occurred
because OPM informed OWCP that, effective March 7, 2015, PRBLI deductions should have
commenced but that no deductions were made until January 8, 2017 onward. OWCP provided an
explanation of the calculation of the overpayment, noting that the overpayment was calculated for
two separate time periods, from March 7, 2015 to April 5, 2016, before appellant turned 65 on
April 6, 2016 and for the period April 6 to September 30, 2016, after he turned 65. It indicated
that, according to his compensation history, no PRBLI premiums were deducted during the period
March 7, 2015 to April 5, 2016, for a total of $1,607.53 when he had elected no reduction effective
March 7, 2015 based on a June 9, 2015 OPM memorandum. OWCP further found that after
appellant turned 65 on April 6, 2016, $774.95 in PRBLI premiums should have been deducted for
the period April 6 to September 30, 2016. It concluded that an overpayment of compensation was
created in the amount of $2,382.48. OWCP found appellant without fault and informed him of the
actions he could take. It provided an overpayment action request form and a Form OWCP-20.

4

OWCP again requested that appellant provide documentation including income tax returns, bank
account statements, bills and cancelled checks, pay slips, and any other records which supported
income and expenses listed. It allotted 30 days for him to respond.
On November 24, 2018 appellant requested a prerecoupment hearing from the October 29,
2018 overpayment decision. In an attached letter, he maintained that, based on his benefit
statements, $30.00 was being deducted through 14 compensation periods during the period
March 7, 2015 to April 5, 2016, and that the overpayment after he turned 65 on April 5, 2016
should only be for one month, which yielded an overpayment of $1,316.69. Appellant requested
waiver of recovery of the overpayment and submitted a Form OWCP-20 indicating that he had a
$34,000.00 checking account balance and monthly income of $4,056.82. He did not list any
expenses. Appellant again submitted OWCP benefit statements for the period February 8, 2015
to February 4, 2017. These indicated that for the period to April 2, 2016, a $30.00 deduction for
life insurance was made each compensation period, for the period April 3, 2016 to January 7, 2017,
no deduction was made for life insurance, and beginning January 8, 2017 a deduction of $121.90
was made. Appellant also submitted bank checking account statements. An undated, unidentified
statement, presumably from appellant, entitled “facts for waiver” indicated that it was not his fault
that the SSA overpayment occurred. He wrote that he spent the money on a new vehicle in
May 2018 because of a motor vehicle accident (MVA).
During the hearing held in regard to both overpayments on January 28, 2019, appellant’s
representative argued that recovery of the overpayments would be against equity and good
conscience and requested waiver of recovery. She asserted that, had appellant known of the SSA
age-related retirement benefits offset requirement, he would not have elected SSA benefits.
Appellant testified that he was not claiming financial hardship, indicating that he had the financial
resources to repay the overpayment, but that the overpayment was against equity and good
conscience. He maintained that he had detrimentally relied on the compensation when he
purchased a more expensive vehicle after the MVA when his car was totaled. The hearing
representative advised him of the documentation needed to claim financial hardship and noted that
appellant was entitled to receive a refund of $487.60. No documentation was received.
By decision dated March 25, 2019, OWCP’s hearing representative finalized both
preliminary overpayment determinations. As to the October 29, 2018 preliminary determination,
he found that because no deductions for PRBLI were made for the periods March 7, 2015 to
April 5, 2016 and April 6, 2016 to January 7, 2017, an overpayment of compensation in the amount
of $2,382.48 was created. With regard to the August 8, 2018 preliminary determination, the
hearing representative found that appellant had received an overpayment of compensation in the
amount of $21,363.55 for the period July 1, 2016 to June 23, 2018 because a portion of his SSA
age-related retirement benefits was based on credits earned while working in federal service, and
that this portion of his SSA benefit was a prohibited dual benefit. He further found that appellant
was without fault in the creation of the overpayments, but denied waiver of recovery. The hearing
representative noted that appellant did not claim financial hardship and found that recovery of the
overpayments would not be against equity and good conscience. He required recovery of the
overpayments by deducting $500.00 from appellant’s continuing compensation every 28 days.

5

LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of his or her duty.3
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.4
Under the Federal Employee’s Group Life Insurance (FEGLI) program, most civilian
employees of the Federal Government are eligible to participate in basic life insurance (BLI) and
one or more of the options.5 The coverage for BLI is effective unless waived,6 and premiums for
basic and optional life coverage are withheld from the employee’s pay.7 Upon retirement or upon
separation from the employing establishment or being placed on the periodic FECA compensation
rolls, an employee may choose to continue basic and OLI coverage, in which case the schedule of
deductions made will be used to withhold premiums from his or her annuity or compensation
payments.8
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. Regulations at 5
C.F.R. § 870.701 (December 5, 1980) provided that an eligible employee had the option of
choosing no life insurance; Option A -- basic coverage (at no additional cost) subject to continuous
withholdings from compensation payments that would be reduced by two percent a month after
age 65 with a maximum reduction of 75 percent; Option B -- basic coverage (at an additional
premium) subject to continuous withholdings from compensation payments that would be reduced
by one percent a month after age 65 with a maximum reduction of 50 percent; or Option C -- basic
coverage subject to continuous withholdings from compensation payments with no reductions after
age 65 (at a greater premium).9
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible, unless, during earlier
employment, he or she filed an election or waiver that remained in effect.10 An employee who
does not file a life insurance election form with his or her employing office, in a manner designated
3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

5

Id. at § 8702(a).

6

Id. at § 8702(b).

7

Id. at § 8707.

8

Id. at § 8706.

9

See D.H., Docket No. 19-0384 (issued August 12, 2019).

10

20 C.F.R. § 870.504(a)(1).

6

by OPM, specifically electing any type of optional insurance, is considered to have waived it and
does not have that type of optional insurance.11
When an under withholding of life insurance premiums occurs, the entire amount is
deemed an overpayment of compensation because OWCP must pay the full premium to OPM upon
discovery of the error.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for the period March 7, 2015 to January 7, 2017 with regard to OWCP’s failure
to deduct PRBLI premiums from appellant’s wage-loss compensation.
OWCP placed appellant on the periodic compensation rolls, effective May 4, 2014. The
record includes a PRBLI election form signed by appellant on April 20, 2015 in which he chose
with a check mark “Yes” that he wanted to continue basic life with no reduction, and Option A in
retirement. It also included undated correspondence from OPM reflecting this selection. On a
second form signed by appellant on May 24, 2016, he also indicated by a check mark “Yes” that
he was electing basic life insurance Option A and wanted to continue it after retirement age. Thus,
OWCP has established fact of overpayment.
However, the Board finds that this case is not in posture for decision with regard to the
amount of the overpayment concerning OWCP’s failure to deduct PRBLI premiums. In finding
the $2,382.48 overpayment, OWCP reviewed the fiscal record and determined that the election
form signed by appellant on April 20, 2015 indicated his PRBLI selection. Appellant’s
compensation payment history does not indicate that specific premiums for PRBLI were deducted
for the period March 7, 2015 to January 7, 2017. However, benefit statements of record show that
for a number of periods, $30.00 was deducted for “life insurance.” Although the hearing
representative noted in the March 25, 2019 decision that this deduction was for other life insurance
and not PRBLI, there is no documentation of record to substantiate this. The Board therefore finds
that the record does not include sufficient documentation to support the specific amounts of the
PRBLI premiums that were not deducted.
The case will therefore be remanded to OWCP with regard to the overpayment concerning
OWCP’s failure to deduct PRBLI premiums. On remand OWCP shall provide supporting
evidence identifying the source of each PRBLI premium used in its calculations, and explain the
$30.00 life insurance deductions made from the employee’s wage-loss compensation. After this
and such other further development as OWCP deems necessary, it shall issue a de novo decision
regarding this specific overpayment.

11

Id. at § 870.504(b).

12
5 U.S.C. § 8707(d); see also D.R., widow of G.R., Docket No. 19-1675 (issued October 8, 2020); D.H., supra
note 9.

7

LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.13 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.14 When an overpayment of compensation
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.15
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.16 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.17
ANALYSIS -- ISSUE 2
The Board finds that appellant received an overpayment of compensation in the amount of
$21,363.55, for which he was not at fault, as he received FECA wage-loss compensation benefits
and SSA age-related retirement benefits for the period July 1, 2016 to June 23, 2018 without an
appropriate offset.
The record indicates that while appellant was receiving compensation for total disability
under FECA, he also received SSA age-related retirement benefits. A claimant cannot receive
concurrent FECA wage-loss compensation and SSA retirement benefits attributable to federal
service for the same period.18 OWCP therefore properly determined that an overpayment of
compensation occurred in this case.
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits received for the period July 1, 2016 to June 23, 2018 that were attributable to federal
service must be calculated. OWCP received evidence from SSA with respect to the specific
amount of age-based SSA retirement benefits that were attributable to appellant’s federal service.
SSA provided the SSA rate with FERS and without FERS for specific periods commencing in
13

5 U.S.C. § 8102(a).

14

Id. at § 8116.

15

Id. at § 8129(a).

16

20 C.F.R. § 10.421(d); see J.S., Docket No. 19-0824 (issued October 4, 2019); S.M., Docket No. 17-1802 (issued
August 20, 2018).
17

FECA Bulletin No. 97-09 (issued February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

18

Supra notes 13 and 14.

8

July 2016 through June 2018. OWCP provided its calculations for each relevant period based on
the SSA worksheets.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period July 1, 2016 to June 23, 2018 and finds that an overpayment of compensation in the amount
of $21,363.55 was created.19
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that an overpayment of compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.20 Section 10.438 of OWCP’s regulations provides that the individual who received
the overpayment is responsible for providing information about income, expenses and assets as
specified by OWCP. This information is needed to determine whether or not recovery on an
overpayment would defeat the purpose of FECA or be against equity and good conscience. Failure
to submit the requested information within 30 days of the request shall result in denial of waiver.21
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.434
to 10.437 of OWCP’s regulations.22
Section 10.436 provides that recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.23 For waiver under
the defeat the purpose of FECA standard, appellant must show that he or she needs substantially
all of his or her current income to meet current ordinary and necessary living expenses, and that
assets do not exceed the resource base.24 An individual is deemed to need substantially all or his
or her current income to meet current ordinary and necessary living expenses if monthly income
does not exceed monthly expenses by more than $50.00.25

19

See M.H., Docket No. 19-1497 (issued September 9, 2020); M.B., Docket No. 18-1101 (issued January 17, 2019).

20

5 U.S.C. § 8129.

21

20 C.F.R. § 10.438.

22

Id. at §§ 10.434-10.437.

23

Id. at. § 10.436.

24

Id.

25
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.400.4a(3) (September 2018).

9

OWCP’s procedures provide that the assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for
each additional dependent.26 An individual’s liquid assets include but are not limited to cash, the
value of stocks, bonds, saving accounts, mutual funds and certificate of deposits. Nonliquid assets
include but are not limited to the fair market value of an owner’s equity in property such as a
camper, boat, second home, and furnishings/supplies.27
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.28
OWCP regulations provide that the individual who received the overpayment is responsible
for providing information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment would defeat the
purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.29
ANALYSIS -- ISSUE 3
The Board finds that the issue of waiver of recovery with regard to the overpayment
regarding OWCP’s failure to deduct PRBLI premiums is not in posture for decision as the case is
remanded for the determination of the amount of the overpayment.
The Board further finds that OWCP properly denied waiver of recovery of the $21,363.55
overpayment with regard to his SSA age-related retirement benefits.
At the January 28, 2019 hearing, appellant testified that he was not claiming financial
hardship because he could repay the overpayment. Rather, he maintained that he would not have
begun SSA benefits if he had known of the offset and thus, he detrimentally relied on these SSA
age-related retirement benefits and purchased a more expensive vehicle than he otherwise would
have following an MVA.
To establish that a valuable right has been relinquished, it must be shown that the right was
in fact valuable, that it cannot be regained, and that the action was based chiefly or solely in
reliance on the payments or on the notice of payment.30 The arguments that appellant would not

26

Id. at Chapter 6.400.4a(2).

27

Id.

28

20 C.F.R. § 10.437(a)(b).

29

Id. at § 10.438(a).

30

See P.B., Docket No. 20-0862 (issued November 25, 2020); L.B., Docket No. 12-1202 (issued February 6, 2013).

10

elected SSA benefits or have purchased a specific vehicle are insufficient to establish that a
valuable right has been relinquished.31
The Board finds the evidence of record does not establish that recovery of the overpayment
would defeat the purpose of FECA, or be against equity and good conscience. Therefore, OWCP
properly denied waiver of recovery of the $21,363.55 overpayment.32
LEGAL PRECEDENT -- ISSUE 4
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.33
Section 10.441 of OWCP’s regulations provides in pertinent part: “When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as the error is discovered or his or her attention is called to
the same. If no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.”34
ANALYSIS -- ISSUE 4
The Board finds that the case is not in posture for decision as to whether OWCP properly
required recovery of both overpayments by deducting $500.00 every 28 days from appellant’s
continuing compensation.
By decision dated March 25, 2019, OWCP’s hearing representative finalized both the
August 8 and October 29, 2018 preliminary overpayment determinations and required one rate of
recovery for both overpayments by ordering that $500.00 be deducted from appellant’s continuing
compensation every 28 days. However, in light of the Board’s disposition of Issue 1, the issue of
recovery of both overpayments is not in posture for decision. On remand OWCP shall determine
the rate of recovery for each overpayment and following any further development as deemed
necessary, issue a de novo decision.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for the period March 7, 2015 to January 7, 2017 with regard to OWCP’s failure
to deduct PRBLI premiums from appellant’s wage-loss compensation; however, the case is not in
posture for decision regarding the amount of this overpayment. The Board further finds that
OWCP properly determined that appellant received an overpayment of compensation in the
31

See H.F., Docket No. 17-0101 (issued September 5, 2017).

32

Id.

33

20 C.F.R. § 10.441; see C.B., Docket No. 20-0031 (issued July 27, 2020).

34

Id.

11

amount of $21,363.55, for which he was not at fault, as he received FECA wage-loss compensation
benefits and SSA age-related retirement benefits for the period July 1, 2016 to June 23, 2018
without an appropriate offset. The Board also finds that the case is not in posture for decision with
regard to waiver of recovery of the PRBLI overpayment and that OWCP properly denied waiver
of recovery of the overpayment with respect to the SSA overpayment. Additionally, the Board
finds that the case is not in posture for decision with regard to the rate of recovery for both
overpayments.
ORDER
IT IS HEREBY ORDERED THAT the March 25, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in the part, and the case is
remanded to OWCP for proceedings consistent with this decision of the Board.
Issued: April 2, 2021
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
DEPARTMENT OF THE ARMY, WOMAC
MEDICAL CENTER, FORT BRAGG, NC,
Employer
__________________________________________

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

Docket No. 08-375
Issued: May 23, 2008

Case Submitted on the Record

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

JURISDICTION
On September 27, 2007 appellant filed a timely appeal from the September 27, 2006
decision of an Office of Workers’ Compensation Programs’ hearing representative affirming the
denial of her request for wage-loss compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she was disabled from February 20 to
March 14, 2006 due to her accepted employment condition.
FACTUAL HISTORY
On April 1, 2005 appellant, then a 46-year-old librarian, filed an occupational disease
claim alleging that repetitive lifting caused injury to her right arm, shoulder, back, neck and leg.
She began working light duty on April 4, 2005 and was separated from employment on
May 6, 2005. On May 10, 2005 Dr. Christopher Barnes, a Board-certified orthopedic surgeon,

conducted a rotator cuff repair and subacromial decompression surgery on appellant’s right
shoulder. He kept appellant out of work until October 3, 2005, when he noted near-symmetric
range of motion in the shoulders and negative impingement signs. On November 15, 2005 the
Office accepted appellant’s claim for partial right rotator cuff tear.
On March 1, 2006 appellant filed a compensation claim for leave without pay taken from
February 20 to March 14, 2006. She stated that the leave was used to attend therapy, physician
visits and illness. Appellant provided a February 13, 2006 note from Dr. Billy Smith, a Boardcertified physiatrist, who stated that appellant had a diagnosis of nontraumatic rupture of the
rotator cuff tendon and fibromyalgia. Dr. Smith stated that she would be unable to work until
she was evaluated on March 14, 2006.
In response to the Office’s request for additional information about her claimed
disability, appellant submitted diagnostic reports, disability slips, billing records and physical
therapy progress notes dated April 2005 to March 2006. On December 5, 2005 Dr. Smith
completed a series of disability slips removing appellant from work through April 11, 2006. On
these slips he noted the diagnosed conditions of 727.3 (bursitis), 720.2 (inflammation of the
sacroiliac joint), 715.16 (lower leg osteoarthritis), 840 (upper extremity sprain/strain), sacroiliac
joint pain, shoulder pain and fibromyalgia. There were no medical reports addressing the
claimed period of disability.
By decision dated April 27, 2006, the Office denied appellant’s claim for compensation
on the grounds that the medical evidence was insufficient to establish her disability during the
claimed period was due to her accepted condition.
On May 10, 2006 appellant requested a review of the written record before an Office
hearing representative. She contended that it was her shoulder injury alone that kept her from
working.
On July 13, 2006 appellant submitted a report from Dr. Barnes dated February 1, 2006.
Dr. Barnes stated that she had full range of motion with a minimal painful arc, good strength
with supraspinatus testing, and mild tenderness on the back of her shoulder and near the scapula.
He opined that appellant’s right shoulder was at maximum medical improvement and that she
had permanent impairment of 15 percent because of the ongoing stiffness.
On August 8, 2006 the employing establishment controverted appellant’s claim for
compensation. It provided a November 23, 2005 report from Dr. Barnes, who noted that
appellant had full range of motion in the right shoulder and good strength with rotator cuff
testing, but that she experienced pain with both maneuvers. Dr. Barnes indicated that appellant
may have reinjured her right shoulder when she fell on July 4, 2005. He recommended a
magnetic resonance imaging (MRI) scan to determine whether the rotator cuff tendon was torn.
On November 29, 2005 Dr. Smith advised that appellant had pain in her right shoulder, right hip
and both legs. He noted that she was able to work 40 hours per week. Dr. Smith found full
functional strength and motion in both upper extremities. On April 5, 2006 Dr. Barnes reported
that appellant continued to have pain in the lateral aspect of her right shoulder, but that both
x-ray and MRI scan showed normal structures, including a healed rotator cuff tendon. He stated
that she had no structural pathology that could be treated with surgery or other aggressive

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intervention. Dr. Barnes was unsure whether appellant’s fibromyalgia was affecting her
shoulder, but suggested that she continue treatment with Dr. Smith to address this problem.
By decision dated September 27, 2006, the Office hearing representative affirmed the
April 27, 2006 decision. She found that the medical evidence did not establish that appellant was
disabled for work due to residuals of her accepted condition during the claimed period.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proving the essential elements of his claim by the weight of the evidence presented.2
Compensation for wage loss is available only for periods during which an employee’s accepted
condition prevents her from earning her wages.3 Even if the Office has accepted that appellant
sustained an injury in the performance of duty, appellant still has the burden of establishing that
her accepted condition resulted in disability during the specific periods for which she is claiming
compensation.4 The duration of a disability is a medical issue that must be proved by a
preponderance of the reliable, probative and substantial evidence.5
When an employee claims compensation for leave used because of an alleged injury or
disability, the Office has the responsibility of determining whether the employee was disabled
during those periods.6 The Board will not require the Office to pay compensation for disability
in the absence of any medical evidence directly addressing the particular periods of disability for
which compensation is claimed. To do so would have the effect of allowing employees to selfcertify their disability and entitlement to compensation.7 When dealing with an accepted
employment injury, a narrative medical opinion directly addressing the dates of claimed
disability is generally sufficient to demonstrate disability for those periods.8
ANALYSIS
Appellant’s claim was accepted for a partial rotator cuff tear of the right shoulder for
which she underwent surgery. She must establish that her torn rotator cuff caused her to be
disabled from work for the period February 20 through March 14, 2006.

1

5 U.S.C. §§ 8101-8193.

2

Nathaniel Milton, 37 ECAB 712 (1986).

3

Judith A Cariddo, 55 ECAB 348 (2004); see also 20 C.F.R. § 10.500(a).

4

Dorothy J. Bell, 47 ECAB 624 (1996).

5

Edward H. Horton, 41 ECAB 301 (1989).

6

Glen M. Lusco, 55 ECAB 148 (2003); Laurie S. Swanson, 53 ECAB 517 (2002).

7

Fereidoon Kharabi, 52 ECAB 291 (2001).

8

See William Archer, 55 ECAB 674 (2004).

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On October 2, 2005 appellant was released to work after recovering from her surgery.
Dr. Barnes, a Board-certified orthopedic surgeon, found that the range of motion in her shoulders
was nearly symmetrical and that she had negative impingement signs. On November 29, 2005
Dr. Smith, a Board-certified physiatrist, stated that appellant was able to work 40 hours per week
and had full functional strength and motion in her right shoulder. However, beginning
December 5, 2005 he removed appellant from work with the diagnoses of bursitis, upper
extremity sprain/strain, torn rotator cuff, shoulder pain, inflammation of the sacroiliac joint,
sacroiliac joint pain, lower leg osteoarthritis and fibromyalgia. The Board notes that these
conditions have not been accepted by the Office as employment related. Dr. Smith provided no
rationalized medical reports addressing appellant’s ongoing disability from work. On
February 1, 2006 Dr. Barnes stated that appellant’s shoulder had full range of motion with a
minimal painful arc, good strength, and mild tenderness on the back and near the scapula. He
opined that her right shoulder was at maximum medical improvement and had permanent
impairment because of ongoing stiffness. Dr. Barnes did not find that appellant was disabled for
work.
On review of the record, the Board finds that the only medical evidence directly
addressing the claimed period of disability from February 20 to March 14, 2006 is Dr. Smith’s
February 13, 2006 disability slip. Although Dr. Smith provided diagnoses of a torn rotator cuff
and fibromyalgia, he provided no objective findings related to appellant’s physical condition and
no description of her disability. Further, he did not explain how the accepted torn rotator cuff
caused or contributed to her disability during the claimed period. This is important because
fibromyalgia, which was also listed on the slip, is not an accepted condition under appellant’s
claim and any disability related to that condition would not be covered under the Act. As such,
appellant has the burden of proof to establish that the fibromyalgia is employment related. The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of little probative value on the issue of causal relationship.9 Because
Dr. Smith provided no rationalized opinion as to whether appellant’s disability was related to her
accepted employment injury, the Board finds that his February 13, 2006 disability slip is
insufficient to establish appellant’s claim.
Appellant presented no rationalized medical evidence supporting her claim, and therefore
has not met the burden of proof to establish a period of employment-related disability.
CONCLUSION
The Board finds that appellant has not established that her claim for disability from
February 20 to March 14, 2006 was due to the accepted employment condition.

9

Ellen L. Noble, 55 ECAB 530 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 27, 2006 is affirmed.
Issued: May 23, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, DALLAS-FORT WORTH
AIRPORT, Coppell, TX, Employer
__________________________________________

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

Docket No. 07-1717
Issued: December 28, 2007

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 June 13, 2007 appellant filed a timely appeal from the March 8, 2007 merit decision
of the Office of Workers’ Compensation Programs wherein the Office denied appellant’s claim
for compensation. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of this claim.
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty on January 16, 2007.
FACTUAL HISTORY
On January 16, 2007 appellant, then a 26-year-old transportation security screener, filed a
traumatic injury claim alleging that on that date at 16:28, “I was carrying some bins to the front
of checkpoint when I heard a (pop) from my lower back and sharp pain down my leg. I

proceeded to put bins in place and when I bent my leg cramped and back hurt.” She listed the
nature of her injury as sharp needle pain in lower back and down left leg to ankle.
By letter dated January 29, 2007, the Office requested that appellant submit further
information, including a description of what she was doing at the time the injury occurred and
medical evidence in support of her claimed injury.
In response, appellant submitted records from her emergency room visit to Harris
Methodist HEB on January 16, 2007. The hospital’s intake form indicates that appellant was
seen by emergency room personnel at 19:07. Appellant was treated by Dr. Jeff Peebles, an
emergency room physician, who diagnosed appellant with a lumbar sprain and appellant was
given prescriptions for Vicodin and Naproxen. Appellant was instructed, “Do not work for two
days until released.” Nursing notes and other forms were also submitted from the hospital. In
one form the person recording the history indicated that appellant stated she slipped and twisted
her back on the job. In another form during the same visit, a nurse indicated that appellant
complained of low back pain, noting that appellant stated that she slipped and popped her back
and got shooting pain to left leg. During the same visit, another person listed under initial
assessment that appellant complained of low back pain as she slipped at work. On the same
form, under additional findings, this same person indicated that appellant complained of lower
back pain from falling at work.
In a Form CA-16 regarding authorization for examination and/or treatment completed on
January 16, 2007, the date of the alleged incident, appellant indicated that she was carrying bins
to the front of the checkpoint when she heard her back pop and felt sharp pain from lower back
down left leg. This form was signed by an authorizing official at the employing establishment.
The record also contains three Texas Workers’ Compensation Work Status Reports
completed by Dr. Richard A. Montes, a chiropractor, on January 18, February 7 and 21, 2007.
These reports list appellant’s description of the incident as “slipped while bending, lifting,
twisting, carrying stack of bins.” Dr. Montes diagnosed lumbar sprain with disc path myalgia.
By memoranda dated February 13, 2007, the employing establishment controverted the
claim. The employing establishment noted that there were discrepancies in the descriptions with
regard to the alleged incidents. The employing establishment argued that, in her claim, appellant
stated that she heard a pop in her lower back when carrying some bins to the front of a
checkpoint but that Dr. Montes indicated that appellant injured herself while bending, lifting
twisting and carrying a stack of bins. The employing establishment also noted that appellant
sought care from a chiropractor despite the fact that no subluxation was diagnosed.
In a decision dated March 8, 2007, the Office denied appellant’s claim, finding that there
were significant discrepancies with regard to how the alleged incident occurred.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that an
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.3 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.4
With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place and in the manner alleged, by a
preponderance of the reliable, probative and substantial evidence.5 An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, but the employee’s statements must be consistent with the surrounding
facts and the circumstances and his subsequent course of action.6 An employee has not met his
burden of proof in establishing the occurrence of an injury when there are such inconsistencies in
the evidence as to cast serious doubt upon the validity of the claim.7 Such circumstances as late
notification of injury, lack of confirmation of injury, continuing to work without apparent
difficult following the alleged injury and failure to obtain medical treatment may, if otherwise
unexplained, cast sufficient doubt on an employee’s statements in determining whether a prima
facie case has been established.8 However, an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.9
1

5 U.S.C. § 8122(a).

2

Id.

3

John J. Carlone, 41 ECAB 345 (1989).

4

Shirley A. Temple, 48 ECAB 404 (1997).

5

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

6

Charles B. Ward, 38 ECAB 667, 670 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

7

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

8

Samuel J. Chiarella, 38 ECAB 667, 670 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

9

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

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ANALYSIS
The Board finds that the evidence is sufficient to establish that appellant experienced the
incident at the time, place and in the manner alleged. An employee’s statement alleging that an
injury occurred at a given manner is of great probative value and will stand unless refuted by
strong or persuasive evidence.10 In the instant case, appellant showed a consistent pattern of
behavior with regard to the report of the alleged work incident. She alleged that an incident
occurred at 16:28 on June 16, 2007 when she was carrying some bins to the front of a checkpoint
and heard a pop in her lower back and sharp pain down her leg. Appellant completed her claim
form on the same date as the alleged incident. She received an authorization for treatment form
from the employing establishment on that date containing a history consistent with that on the
claim form. Appellant was seen at a local emergency room at 19:07 on the day of the alleged
incident. There was no late notification of injury, no evidence that appellant continued to work
the day of the injury and she obtained medical treatment approximately two and a half hours
after the incident occurred. The minor discrepancies in the accounts of how the incident
occurred were made in reports by hospital personnel, not in direct statements by appellant. The
hospital records indicate that appellant clearly stated that she was injured on the job on that date
when she heard a pop in her back and experienced lower back pain while carrying bins.
Dr. Montes indicated that appellant slipped while bending, lifting, twisting and carrying a stack
of bins. His report, obtained two days following the incident, does not constitute strong or
persuasive evidence sufficient to cast serious doubt on the validity of the claim.11 This is
especially true considering appellant’s claim and treatment on the date of the alleged incident.
Accordingly, the Board finds that appellant met the first criterion for establishing fact of
injury, i.e., that she experienced the employment incident at the time, place and in the manner
alleged. The case is remanded for the Office to consider whether the medical evidence
establishes that the employment incident caused a personal injury.
CONCLUSION
This case is not in posture for decision.

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Id.

11

See Betty J. Smith, 54 ECAB 174 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 8, 2007 is modified to reflect that appellant established
that an employment incident occurred as alleged and this case is remanded for further action
consistent with this opinion.
Issued: December 28, 2007
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.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Wilmington, DE, Employer
__________________________________________

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

Docket No. 15-0872
Issued: September 28, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION
On March 9, 2015 appellant, through counsel, filed a timely appeal from October 6 and
December 15, 2014 merit decisions 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.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective April 6, 2014; and (2) whether appellant
established any continuing employment-related disability after April 6, 2014.
On appeal counsel challenges OWCP’s evaluation of the medical evidence.
FACTUAL HISTORY
On June 16, 2011 appellant, then a 59-year-old food service worker, filed a traumatic
injury claim (Form CA-1) alleging that on June 13, 2011, while lifting three crates of milk
weighing 60 pounds, he suffered low back strain/pain. On August 17, 2011 OWCP accepted
appellant’s claim for sprain of the thoracic and lumbar regions of his back. It paid wage-loss
compensation and medical benefits.
Appellant began treatment with Dr. Conrad K. King, a physiatrist and pain management
specialist, on June 21, 2011, at which time he diagnosed acute thoracic strain and sprain, acute
lumbar strain and sprain, and rule out lumbar herniated nucleus pulposus. He continued to
receive treatment from Dr. King and his associates. In a September 12, 2011 report, Dr. Damon
Cary, an osteopath and associate of Dr. King, diagnosed thoracic and lumbar spine strain and
sprain improved but not resolved -- rule out radiculitis. He noted that appellant remained
disabled. In an October 10, 2011 report, Dr. Cary noted that appellant had been involved in a
motor vehicle accident “last Friday.” Appellant told Dr. Cary that he was stopped in a parking
lot when another vehicle backed into the passenger’s side of the vehicle. At that time, he noted
that he had some “irritation” of his mid and low back and some pain in his neck, but no further
complaints. Dr. Cary assessed appellant with acute flare-up of thoracic spine strain and sprain
and acute flare-up of lumbar spine strain and sprain with left L4 and left L5 radiculopathy. In
reports dated April 24 and May 15, 2012, Dr. King indicated that appellant continued to
ambulate with a cane.
In a May 30, 2012 letter a human resources specialist, G.G., with the employing
establishment reported that appellant had been placed under surveillance for several days, and it
appeared “that he had no debilitating conditions and that he is quite capable of doing some type
of work.” She contended that he could move about, bend, and twist in his everyday functions.
G.G. requested a second opinion. The record also contains the summary report from the
investigation conducted from March 12 through April 18, 2012. The investigator noted that
appellant was observed operating a motor vehicle with no apparent hindrances, and observed
walking to and from his vehicle numerous times with no apparent hindrances and without the
assistance of any walking devices.
In an October 4, 2012 response to queries from OWCP, Dr. King noted that he had
treated appellant since June 21, 2011 for injuries he sustained while working on June 13, 2011.
He noted that, despite treatment, appellant continued to experience mild and low back pain and
when seen in follow up on September 12, 2011 he was still experiencing ongoing back pain
which clinically correlated with objective evidence on physical examination of persistent
paradorsal and paralumbar myospasm. Dr. King also noted that appellant was experiencing

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ongoing lower extremity radicular pain. He noted that a subsequent electromyogram (EMG)
performed on September 28, 2011 revealed electrodiagnostic evidence of left L4 and L5
radiculopathy. Dr. King indicated that these objective findings clinically correlated with
appellant’s subjective complaints of lower extremity radicular pain. He noted that appellant had
completed a functional capacity evaluation (FCE) on November 30, 2011 which revealed that
appellant was capable of sedentary to medium-duty work depending on the activity involved.
However, Dr. King noted that since that time appellant has reached a clinical plateau and in his
most recent follow up on October 2, 2012 his back pain and left lower extremity radicular
symptoms had increased in frequency and intensity and his pain level was 10/10. He noted that
appellant remained limited in his ability to tolerate activities of daily living.
Dr. King opined that as a direct result of the employment injury of June 13, 2011
appellant sustained thoracic and lumbar strain and sprain aggravating preexisting lumbar
degenerative disc disease with left L4-5 radiculopathy. He opined that as a result of his injuries,
appellant was permanently partially disabled. Dr. King noted that appellant was incapable of
returning to his preinjury position, but could resume working in a light-duty capacity.
In a December 11, 2012 report, Dr. King noted ongoing low back pain and lower
extremity radicular symptoms. He listed his impression as acute flare-up of chronic residuals of
thoracic and lumbar strain and sprain with L4-5 radiculopathy. Dr. King determined that
appellant could continue his treatment regimen to maximum benefit but that, given the severity
of his symptoms and his poor sitting tolerance, he did not believe that appellant would be able to
perform even sedentary duties on a part-time basis, since prolonged sitting would exacerbate his
symptoms and cause him to miss inordinate amounts of time from work. He therefore opined
that appellant was totally disabled as he was unable to sustain even part-time sedentary duty on a
day-in day-out, week-in week-out basis.
In a February 26, 2013 note, Dr. King advised that appellant continued to experience
back discomfort though he did have some improvement in his mid and low back pain following
his massage therapy sessions. On April 30, 2013 he reported that appellant’s mid and low back
pain continued to occur on a daily basis, and that his sitting tolerance was poor. Dr. King noted
that he was going to discontinue all formal treatment and that appellant would be switched to a
self-directed home treatment regimen, including heat and ice applications, stretching, and range
of motion exercise. He concluded that appellant remained totally disabled.
An addendum statement of accepted facts (SOAF) dated April 16, 2013 OWCP noted as
follows:
On May 21, 2012 the Veterans Affairs Medical Center Police provided a report of
surveillance of the claimant from March 12 to April 1, 2012. During the
surveillance period, the claimant was observed operating a motor vehicle with no
apparent hindrances. He maintained proper speed, signaled and tracked in the
lane normally. The claimant was additionally observed walking to and from his
vehicle numerous times with no apparent hindrances and without the assistance of
any walking devices. He was observed making regular stops and conducting
daily activities.

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On April 18, 2013 OWCP referred appellant to Dr. Robert Allen Smith, a Board-certified
orthopedic surgeon, for a second opinion. In a May 13, 2013 report, Dr. Smith diagnosed soft
tissue injures to the neck and back. He opined that, with regard to the accepted conditions of soft
tissue sprains and strains of the mid and low back areas, appellant was at maximum medical
improvement. Dr. Smith noted that, within the medical file, there was a series of surveillance
reports generated by the employing establishment. He related: “According to a note dated
May 30, 2012 written by G.G., the surveillance reports that lasted several days indicate that
[appellant] ‘has no debilitating conditions and that he is quite capable of doing some type of
work. It appears that he can move about, bend, twist, and perform his everyday functions.”
Dr. Smith further noted that he could find no evidence that appellant had any active
radiculopathy in his lower extremities and that this was never an accepted condition. He opined
that given the benign findings on the magnetic resonance imaging (MRI) scan of August 3, 2011,
he determined that the EMG results were obviously false positives or a reflection of his
degenerative changes rather than anything post-traumatic related to his federal employment.
Dr. Smith further opined that since appellant did not continue to suffer any discernible objective
residuals with regard to the employment injury of June 13, 2011, it was his opinion that appellant
had fully recovered and would not require any additional treatment, testing, or activity
modification in that regard. He noted that there appeared to be no identifiable ongoing organic
pathology in his back preventing him from returning to regular-duty work as a food service
worker with the employing establishment. Dr. Smith further indicated that, according to the
treating physician’s notes, appellant had an intervening injury when he was in a motor vehicle
accident in October 2011.
In a September 3, 2013 letter, Dr. King responded to questions from OWCP’s claims
examiner. He noted that at the time of his initial examination on October 4, 2012, he believed
that appellant was permanently partially disabled, but that he was subsequently placed on social
security disability and it was his opinion that at that time he was totally and permanently disabled
from any and all employment. Dr. King indicated that appellant’s prognosis was poor, and that
his treatment plan at this time was self-directed home exercises as well as heat and ice
applications at home and intermittent use of over-the-counter analgesics for pain control. He
also completed a work-capacity evaluation wherein he indicated that appellant was totally and
permanently disabled due to back pain radiating into left leg and poor sitting tolerance.
In an accompanying September 10, 2013 report, Dr. King listed his impression as acute
flare-up of chronic residuals of lumbar strain and sprain superimposed upon preexisting
discogenic disease with left L4-5 radiculopathy. He noted that appellant’s low back pain
continued to flare up and that he was ambulating with a cane since he was having difficulty
walking due to the left lower extremity radicular pain and bilateral lower extremity weakness.
In a November 5, 2013 report, Dr. King noted that appellant’s low back pain persisted,
and that he was having weakness in both legs which was worsening. He noted that appellant
derived relief of his back pain and left lower extremity radicular pain with the use of pain
medication. Dr. King noted that he would refer appellant to Dr. Pawan Rastogi, a Boardcertified neurosurgeon, for an evaluation. In a November 26, 2013 report, he listed his
impressions as, “Chronic residuals of lumbar strain and sprain with disc protrusions at L3-4 and
L4-5 as well as left L4-5 radiculopathy; rule out new right lumbar radiculopathy and worsening

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of left L4-5 radiculopathy; rule out new right lumbar radiculopathy and worsening of left L4-5
radiculopathy.”
In a November 20, 2013 report, Dr. Rastogi diagnosed significant lower extremity
weakness. He recommended a cervical and thoracic spine MRI scan to rule out any compression
and recommended that he continue physical therapy. Dr. Rastogi referred appellant to
Dr. Emmanuel Devotta, a Board-certified anesthesiologist with a Board-certified subspecialty in
pain medicine, for a consultation.
In a January 8, 2014 report, Dr. Devotta listed his impression as lumbar radiculopathy
and lumbar facet joint syndrome. He planned to schedule appellant for a lumbar epidural steroid
injection.
In a January 9, 2014 letter to Dr. King, Dr. Rastogi wrote that appellant had significant
cervical myelopathy. With regard to appellant’s lower back, he recommended conservative
management. In response to questions posed by OWCP in a January 17, 2014 letter, Dr. King
replied that appellant required surgery, and that he was totally disabled pending surgery.
On February 11, 2014 OWCP proposed terminating appellant’s medical benefits and
wage-loss compensation as the weight of the medical evidence established that he no longer had
any residuals or continuing disability from work stemming from his accepted thoracic and
lumbar sprain injuries. It found that the weight of the evidence rested with the opinion of the
second opinion physician, Dr. Smith.
In a February 18, 2014 letter responding to the proposed termination of benefits, Dr. King
noted that Dr. Rastogi, a Board-certified neurosurgeon, opined that appellant had ongoing
pathology related to his lower back and made recommendations regarding an updated MRI scan
and EMG study following his evaluation. He disagreed with Dr. Smith’s conclusion that the
EMG on January 6, 2014 had a “false positive.” Dr. King noted that the EMG was objective
evidence of radiculopathy involving the lower extremities bilaterally which clinically correlated
to appellant’s subjective complaints of lower extremity radicular pain. He further noted that
appellant had consistently demonstrated on physical examination objective evidence of
paralumbar myospasm. Dr. King concluded that appellant had objective evidence of ongoing
residuals of his injuries of June 13, 2011 and remained totally and permanently disabled. He
asked OWCP to reconsider their decision to terminate appellant’s compensation. Dr. King
submitted a copy of the December 19, 2013 MRI scan of appellant’s cervical spine which
showed multilevel degenerative changes.
In a January 6, 2014 EMG, Dr. Cary found results consistent with left L4 radiculopathy,
right and left L5 radiculopathy, and right and left S1 radiculopathy. He also found right and left
superficial peroneal nerve and right and left tibia nerve generalized peripheral neuropathy.
On January 15 and 29, 2014 Dr. Devotta administered a caudal epidural steroid block on
appellant for his low back pain.
On March 31, 2014 OWCP terminated appellant’s medical benefits and wage-loss
compensation, effective April 6, 2014. It found that the weight of the medical evidence rested

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with Dr. Smith and established that appellant had no employment-related residuals or disability
due to the June 13, 2011 employment injuries.
On April 8, 2014 appellant requested review of the written record by an OWCP hearing
representative.
In an April 3, 2014 note, Dr. Devotta explained that the two epidural injections had not
helped appellant. Accordingly, he referred appellant to Dr. Rastogi to determine whether
appellant was a surgical candidate.
On May 15, 2014 counsel requested a copy of the case record.
In a June 3, 2014 report, Dr. King reiterated his impression of chronic residuals of lumbar
strain and sprain with disc protrusions at L3-4 and L4-5 and bilateral multilevel lumbar
radiculopathy.
In a June 10, 2014 report, Dr. King discussed his treatment of appellant, including his
consultations with his nurse case manager. He opined within a reasonable degree of medical
certainty that as a direct result of the employment accident of June 13, 2011, appellant sustained
lumbar strain and sprain with multilevel disc protrusions of the lumbar spine as well as bilateral
lumbar radiculopathy. Dr. King noted that appellant continued to manifest ongoing subjective
complaints of debilitating low back pain with lower extremity radicular symptoms and these
subjective complaints clinically correlated with objective evidence on physical examination of
persistent paralumbar myospasm and objective evidence on MRI scan and EMG studies. He
noted that given the consistency of appellant’s subjective complaints with objective physical
findings and objective MRI scan and EMG findings, it was his opinion within a reasonable
degree of medical certainty that this confirmed residual impairment was directly related to the
injury which occurred on June 13, 2011.
OWCP responded to counsel’s request for a copy of the case record on June 13, 2014. It
stated that it was providing a complete copy of the imaged portion of the case record.
In an August 22, 2014 letter, counsel argued that Dr. King had clearly established that
appellant continued to suffer from residuals of the employment injury, and that OWCP had
improperly terminated appellant’s compensation benefits. He argued that there remained a
conflict of medical evidence between Drs. King and Smith which required referral of the matter
to a referee physician.
By decision dated October 6, 2014, the hearing representative affirmed OWCP’s
March 31, 2014 decision.
On December 3, 2014 appellant, through counsel, requested reconsideration. In support
thereof, counsel submitted a November 25, 2014 report wherein Dr. Rastogi noted that he was
currently treating appellant for cervical myelopathy and chronic low back pain. He described the
work injury. Dr. Rastogi noted that at this point appellant continued to have significant pain in
his lower back with radiation into both legs. He noted that his EMG showed significant
radiculopathy bilaterally at the L5 and S1 levels, and that his MRI scan showed a bulging disc
with some narrowing of the foramen with no frank disc herniation. Dr. Rastogi opined that the
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employment injury exacerbated his underlying lumbar pathology and has led to his persistent
symptoms. He further opined that in terms of his employment status, appellant was totally
disabled and unable to work. As he remained symptomatic, Dr. Rastogi opined that “he will
remain on total disability.” He further noted that appellant has other factors that are contributing
to his total disability, i.e., his cervical spine with residual cervical myelopathy.
By decision dated December 15, 2014, OWCP denied modification. It found that the
opinion of Dr. Smith remained the weight of the medical evidence and established that it met its
burden of proof in terminating compensation benefits as of April 6, 2014. OWCP also found that
appellant had not submitted sufficient medical evidence to establish continuing disability.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3 Following a
proper termination of compensation benefits, the burden of proof shifts back to the claimant to
establish continuing employment-related disability.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.5 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which requires further medical treatment.6
Where there exist opposing medical reports of virtually equal weight and rationale, the
case should be referred to an impartial medical specialist for the purpose of resolving the
conflict.7
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to justify termination of
benefits.
OWCP accepted appellant’s claim for sprain of the thoracic and lumbar regions of the
back. It terminated appellant’s wage-loss compensation and medical benefits, effective April 6,
2014 because the weight of the medical evidence established that he no longer had any residuals
or continuing disability from work stemming from his employment-related injuries. In
evaluating the medical evidence, OWCP determined that the weight of the medical evidence
rested with the second opinion physician, Dr. Smith.
3

Mohamed Yunis, 42 ECAB 325, 334 (1991); see also J.P., Docket No. 13-1049 (issued August 16, 2013).

4

John F. Glynn, 53 ECAB 155 (2001).

5

See T.P., 58 ECAB 524 (2007).

6

See I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

See Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

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The Board finds, however, that there is an unresolved conflict in the medical evidence
between the opinions of appellant’s treating physicians and the second opinion physician.
Dr. King started treating appellant on June 21, 2011, shortly after the June 13, 2011 employment
injury. He submitted multiple reports since his initial report. Dr. King noted in his
December 11, 2012 report that, although appellant had been treated with medication and physical
therapy, he had chronic residuals of lumbar and thoracic strain and sprain. He opined that due to
the severity of appellant’s symptoms and his poor sitting tolerance, he did not believe that
appellant would be able to perform even sedentary duties on a part-time basis. Dr. King noted
continuing residuals from appellant’s employment injury in his follow-up reports of February 6
and April 30, 2013.
In a May 13, 2013 report, the second opinion physician, Dr. Smith, opined that since
appellant did not continue to suffer discernible objective residuals with regard to the June 13,
2011 employment injury, it was his opinion that appellant had fully recovered and would not
require any additional treatment, testing, or activity modification. He opined that there was no
identifiable ongoing organic pathology in his back that would prevent him from returning to
regular-duty work as a food service worker with the employing establishment.
Appellant submitted multiple reports from treating physicians following Dr. Smith’s
second opinion report supporting continuing employment-related residuals. Dr. King completed
a work capacity evaluation, which he forwarded with his September 3, 2013 response, indicating
that appellant was totally and permanently disabled due to back pain which radiated down to his
left leg and which caused difficulty for him when seated. He noted on September 10, 2013 that
appellant required assistance with a cane to ambulate resulting from left lower extremity
radicular pain and bilateral lower extremity weakness. In his November 5, 2013 report, Dr. King
reported that low back pain persisted and that he was experiencing weakness in both legs as a
result. He referred appellant for consultation to Dr. Rastogi.
In a November 20, 2013 report, Dr. Rastogi assessed appellant with significant lower
extremity weakness, and referred appellant to Dr. Devotta for a consultation. Dr. Devotta listed
his impression as lumbar radiculopathy and lumbar facet joint syndrome, and gave appellant
lumbar epidural steroid injections on January 15 and 29, 2014.
A January 6, 2014
electromyogram by Dr. Cary was interpreted as showing results consistent with left L4
radiculopathy and right and left L5 radiculopathy and right and left S1 radiculopathy. Dr. Cary
also found right and left superficial peroneal nerve and right and left tibia nerve generalized
peripheral neuropathy.
Accordingly, at the time OWCP terminated appellant’s compensation on April 6, 2014,
there remained an unresolved conflict in the medical opinion evidence as to whether appellant
had residuals from the accepted employment injury. Dr. Smith concluded that appellant had no
residuals. As discussed, his opinion was disputed by Dr. King, Dr. Rastogi, Dr. Devotta, and
Dr. Cary, all of whom found ongoing symptoms. Drs. King and Rastogi noted that appellant
remained totally disabled. Although OWCP noted that Dr. Smith was a Board-certified
orthopedic surgeon, the Board notes that Dr. King, a physiatrist and specialist in pain
management, began treating appellant shortly after the claimed incident, and has submitted
multiple well-rationalized reports wherein he discussed appellant’s continuing symptomatology
and objective tests. Furthermore, Dr. King sought consultations with Dr. Rastogi, a Board-

8

certified neurosurgeon, and Dr. Devotta, who has a Board-certification in pain management. The
reports of Drs. Rastogi and Devotta were in agreement with the report of Dr. King.
It is well established that where there exist opposing medical reports of virtually equal
weight and rationale, the case should be referred to an impartial medical specialist for the
purpose of resolving the conflict.8 OWCP should have properly resolved the conflict prior to
termination of compensation.9 As OWCP failed to resolve the conflicting medical opinion
evidence, the Board finds that it did not meet its burden of proof to terminate benefits.10
In light of the disposition of the first issue, the second issue is moot.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective April 6, 2014.

8

Supra note 7.

9

R.R., Docket No. 15-380 (issued April 10, 2015).

10

See V.Y., Docket No. 14-828 (issued November 14, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 15 and October 6, 2014 are reversed.
Issued: September 28, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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