United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Fort Dix, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-0472
Issued: August 17, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 26, 2013 appellant, through counsel, filed a timely appeal from a
September 18, 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 compensation for
wage loss and medical benefits effective March 4, 2013, and (2) whether appellant has
established a continuing employment-related condition or disability after March 4, 2013.
FACTUAL HISTORY
On October 5, 2011 appellant, was a 47-year-old corrections officer. On that date she
filed a traumatic injury claim (Form CA-1) alleging that she sustained a left arm injury on
1

5 U.S.C. § 8101 et seq.

September 28, 2011 while in the performance of duty, as a result of shooting firearms on that
date. The Board notes that appellant had prior claims involving the left arm that have been
consolidated with the present claim. Appellant filed an occupational claim (Form CA-2) dated
September 1, 2010, alleging that continuous use of the left arm for lifting items such as files and
mail buckets had resulted in a left elbow injury. On January 20, 2011 OWCP accepted the claim
for a left shoulder bursae and tendon disorder, and left elbow enthesopathy. Appellant also filed
a claim for a recurrence of disability (Form CA-2a) on September 8, 2010 from lifting files and
mail bins for five years. OWCP developed this incident as a separate occupational claim, and on
February 22, 2011 stated that the accepted conditions were: left shoulder impingement
syndrome, left lateral epicondylitis, left lateral extensor tendon tear and left elbow tendinitis.
The September 8, 2010 claim was designated the master file with respect to the consolidated
claims, and appellant began receiving compensation as of November 5, 2010.
In a prior appeal, the Board noted that OWCP had terminated compensation for wage loss
effective July 19, 2011. The Board affirmed a June 13, 2012 OWCP decision, finding the
medical evidence did not establish continuing disability after July 19, 2011.
By decision dated December 1, 2011, OWCP denied the claim for compensation on the
grounds that the medical evidence was insufficient to establish a traumatic injury claim.
Appellant requested a hearing before an OWCP hearing representative, which was held on
March 13, 2012. The hearing representative stated that an emergency room report established a
left elbow strain as causally related to the September 28, 2011 employment incident. In a
May 10, 2012 decision, she stated that the December 1, 2011 OWCP decision was reversed.
Appellant began receiving wage-loss compensation as of November 14, 2011.
The record indicates that effective April 8, 2012 appellant began working at the
employing establishment as a legal assistant. She continued to receive compensation for wage
loss, adjusted to reflect her earnings.2
In a report dated July 6, 2012, the attending osteopath, Dr. Laura Ross, provided results
on examination and diagnosed status post left elbow sprain with ulnar neuritis. In a form report
dated July 19, 2012, she diagnosed left lateral epicondylitis/ulnar neuritis and checked a box
“yes” the condition was causally related to using firearms.
In a report dated September 10, 2012, Dr. Ross discussed her treatment of appellant’s
condition. She opined: “The trauma and force of the use of her firearm, while qualifying for a
firearms test at work on September 28, 2011 directly caused the exacerbation of her underlying
lateral epicondylitis of her left elbow, as well as left elbow ulnar neuropathy.” Dr. Ross stated
that her findings were based on multiple physical examinations and diagnostic testing.
OWCP prepared a statement of accepted facts with respect to the left arm claims and
referred appellant for a second opinion examination by Dr. Stanley Askin, a Board-certified
orthopedic surgeon. It requested that Dr. Askin provide an opinion as to whether appellant
continued to have a left elbow sprain, whether a left lateral epicondylitis was related to the

2

OWCP did not issue a formal wage-earning capacity determination.

2

September 28, 2011 employment injury, and whether she could perform the corrections officer
position.
In a report dated December 21, 2012, Dr. Askin provided a history and results on
examination. With respect to the accepted left elbow condition, he stated that a sprain was a
partial tear of the ligament. Dr. Askin opined, “There is no description of any condition by
record or clinical presentation that suggests that she continues to have a partial tear of a ligament
at the left elbow and consequentially that condition is not still present.” As to a left lateral
epicondylitis, he stated “I do not find any anatomic condition consequential to her work
activities.” Dr. Askin indicated that appellant had an “intolerance for the nature of her
employment” that “is not anatomic, and it is nothing that would respond to interaction by any
healthcare provider as her past history has already amply documented.” He concluded, “There is
no work-related reason to prevent her from performing her regular duties as a correction officer.”
By letter dated February 1, 2013, OWCP advised appellant that it proposed to terminate
compensation for wage-loss and medical benefits based on the weight of the medical evidence of
record. In a letter dated February 11, 2013, appellant’s counsel argued that Dr. Ross had
maintained that appellant suffered residual disability and should create a conflict with Dr. Askin.
By decision dated March 4, 2013, OWCP terminated compensation for wage-loss and
medical benefits effective that date. It found the weight of the medical evidence was represented
by Dr. Askin.
Appellant requested a hearing before an OWCP hearing representative, which was held
on July 15, 2013. In a report dated May 24, 2013, Dr. Ross stated that she disagreed with the
findings of Dr. Askin. She opined that the injury on September 28, 2011 had exacerbated
underlying left lateral epicondylitis, and caused left ulnar neuropathy. Dr. Ross stated that
appellant continued to have residuals of these work-related conditions.
By decision dated September 18, 2013, the hearing representative affirmed the March 4,
2013 decision. She found that Dr. Askin represented the weight of the medical evidence.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his or her employment, OWCP may not terminate compensation without establishing that the
disability had ceased or that it was no longer related to the employment.3
ANALYSIS -- ISSUE 1
In the present case, the only accepted condition with respect to the September 28, 2011
employment incident was a left elbow strain. In this regard, the Board notes that Dr. Ross had
diagnosed status post left elbow “sprain” in her July 6, 2012 report, and the question posed to
Dr. Askin referred to the accepted condition as a left elbow sprain. The diagnoses are similar but
3

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

3

not identical, as a “strain” refers to a muscle or tendon, while a “sprain” refers to a ligament, as
noted by Dr. Askin.4 In this case the evidence indicates that, whether identified as a strain or
sprain, the accepted condition had resolved as of March 4, 2013. As noted, Dr. Ross refers to a
left elbow sprain as “status post” in her July 6, 2012 report, and her September 10, 2012 report
provides other diagnoses that will be discussed below. Dr. Askin clearly found no continuing
left elbow strain or sprain, and his report indicated that he found no physical condition related to
the September 28, 2011 employment injury.
Based on the probative evidence of record, the Board finds that OWCP met its burden of
proof to terminate compensation based on the accepted left elbow strain/sprain. On appeal,
appellant argues that Dr. Askin was not provided a proper background. However, the statement
of accepted facts was detailed in discussing all of the left elbow injury claims and states that the
September 28, 2011 injury was due to firing firearms. There is no evidence that Dr. Askin lacks
a proper background to render a decision on the issue presented.
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 appellant. In order to prevail,
appellant must establish by the weight of the reliable, probative and substantial evidence that he
had an employment-related disability which continued after termination of compensation benefits.5
ANALYSIS -- ISSUE 2
The attending physician, Dr. Ross, has opined in her reports of November 10, 2011 and
May 15, 2013 that the September 28, 2011 employment injury caused aggravation of left lateral
epicondylitis and ulnar neuritis. Her opinion was based on examination and electromyography
and other test results. The second opinion physician, Dr. Askin, opined in his report dated
December 21, 2012 that appellant did not have any continuing employment-related physical
conditions. He indicated that his opinion was based on the examination results and review of the
medical evidence.
The Board finds that a conflict in the medical evidence exists with respect to whether
appellant has established a left lateral epicondylitis or ulnar neuritis as causally related to the
September 28, 2011 employment injury.6 If there are additional employment-related conditions,
this raises the issues of whether there continued to be an employment-related condition or
4

See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (1988).

5

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

6

FECA provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a). The implementing regulations state that, if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion physician or OWCP medical
adviser, OWCP shall appoint a third physician to make an examination. This is called a referee or impartial
examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321(b).

4

disability after March 4, 2013. Appellant had returned to a light-duty job, but until March 4,
2013 was still receiving wage-loss compensation adjusted for her actual earnings. The case will
be remanded to OWCP to resolve the conflict in accord with established procedures for resolving
conflicts under 5 U.S.C. § 8123(a). After such further development as OWCP deems necessary,
it should issue an appropriate decision with findings as to whether there are additional
employment-related conditions and whether there was an employment-related disability after
March 4, 2013.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate compensation on
March 4, 2013 based on the accepted condition. The case is remanded to OWCP to resolve a
conflict with respect to whether appellant had a continuing employment-related condition or
disability after March 4, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 18, 2013 is affirmed with respect to termination of
compensation for the accepted condition, and is set aside and remanded with respect to a
continuing employment-related condition or disability after March 4, 2013.
Issued: August 17, 2015
Washington, DC

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

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

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 08-2067
Issued: June 9, 2009

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 July 21, 2008 appellant filed a timely appeal from the merit decision dated August 1,
2007 denying her claim for recurrence. Her appeal is also timely filed from the November 30,
2007 decision denying reconsideration of the merits. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction to review the merits and the nonmerit decision.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of disability causally related
to her accepted employment injury; and (2) whether the Office of Workers’ Compensation
Programs, pursuant to 5 U.S.C. § 8128(a), properly declined to reopen her case for further review
of the merits of her claim.
FACTUAL HISTORY
The record reveals that on August 16, 1993 appellant, a 31-year-old continuous flat
sorter, filed an occupational disease claim alleging that she sustained a medical condition as a

result of typing in the performance of duty commencing July 1, 1993.1 The Office accepted this
claim for bilateral tenosynovitis of hand and wrist. In a notice of recurrence dated October 2,
2006, but not received until June 26, 2007, appellant alleged a recurrence of disability
commencing March 1996. She indicated that she worked at a series of jobs from October 1,
1995 through February 13, 1998. Appellant claimed lost wages from February 14, 1998 to
present. She noted that she stopped work after the recurrence on February 13, 1998 and
indicated that she could not keep up with her work as her hand/finger coordination was slow.
The employing establishment controverted appellant’s claim, noting that she resigned from her
federal employment on May 9, 1994 and, accordingly, had not been employed by the employing
establishment for 13 years at the time she filed her claim for recurrence. Appellant filed a
second notice of recurrence on July 9, 2007.
In a report dated April 12, 2006, a nurse practitioner noted that appellant had upper back
pain, which radiated into the shoulder and neck. She opined that this was most likely related to
stress patterns and moderate to severe scoliosis. The nurse recommended a chiropractor and
massage therapy.
In a report dated June 19, 2006, Dr. Edward M. Bednarz, a chiropractor, noted that
appellant stated that her symptoms began after working as a postal delivery person but
Dr. Bednarz commented that the specifics of the onset of her pain was unclear. He conducted a
physical examination and reviewed her x-rays from May 12, 2003 and magnetic resonance
imaging (MRI) scan from August 21, 2003 and assessed her with “cervical and cervicothoracic
dysfunction complicated by C5-6 stenosis and C6-7 disc herniation/extrusion.” Dr. Bednarz also
assessed “Thoracic dysfunction complicated by thoracic scoliosis.” He noted that it was difficult
to come to a clear understanding of appellant’s problems because she had trouble focusing on the
present moment.
By decision dated August 1, 2007, the Office denied appellant’s claim for a recurrence.
By letter dated September 28, 2007, appellant requested reconsideration. In this letter she
alleged that her condition has continued with the same symptoms after leaving the employing
establishment and that she resigned because all the available positions required the same labor
with her hands. Appellant again noted that she could not keep up with her jobs because of slow
finger coordination and that it was hard sitting in a chair. She specifically requested that her case
be reconsidered because she was led to believe that this condition was preexisting from her
military service but that the military found that it was not service related. Appellant also noted
that she did not have legal representation and could not find or pay for doctors.
In support of her request for reconsideration, appellant submitted an April 19, 1994 report
by Dr. Charles A. Peterson, a Board-certified orthopedic surgeon, indicating that, although he
had no objection to appellant being sent back to her regular job, he believed that, if appellant
went back to her regular job, her condition would be aggravated and recommended that some
other kind of work be found. Appellant also submitted a May 6, 1994 report by Dr. Eric
Strandberg, a Board-certified family practitioner, indicating that he spoke with Dr. Peterson, who
agreed that appellant’s bilateral arm tendinitis has subsided and that she can be released to
1

As the Office had retired appellant’s file to the Federal Records Center on August 20, 1998, the actual claim
form is not contained in the current record.

2

regular duty, but he seemed certain that her symptoms may recur if she resumed her prior duties.
Finally, appellant submitted progress notes from CHEC Medical Center indicating that she was
treated by various physicians in 1993. In a September 12, 1993 note, Dr. Peterson noted
improving tendinitis and cervical/shoulder strain. An October 5, 1993 note indicated that
appellant had improving tendinitis. She was also seen on December 7, 1993 with regard to a
July 25 1993 injury. Dr. Peterson noted that appellant was treated for cervical/shoulder strain
and should continue labeling work eight hours a day and should type a maximum of three hours
a day. In a December 14, 1993 report, he indicated that appellant had improving hand/wrist
tendinitis and lumbar strain not related to the industrial injury. On April 19, 1994 Dr. Peterson
indicated that appellant had tendinitis in both arms and should not go back to regular-duty job
but should start modified duty. On December 7, 1997 he indicated that appellant could lift 10
pounds and stand for four hours and type three hours a day maximum. Dr. Peterson noted
appellant’s diagnosis as cervical shoulder strain and wrist tendinitis.
By decision dated November 30, 2007, the Office denied appellant’s request for
reconsideration of the merits of the case.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.2
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between her recurrence of disability and her
employment injury.3 This burden includes the necessity of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.4
ANALYSIS -- ISSUE 1
The Board finds that appellant has submitted no evidence linking her condition in
March 1996 to her prior accepted injury. Initially, the Board notes that nurse practitioners are
not physicians under the Act and accordingly, any note signed by a nurse practitioner does not
constitute medical evidence and has no weight or probative value.5 Furthermore, the Board does
not consider the report of Dr. Bednarz to constitute probative medical evidence, as a chiropractor
2

20 C.F.R. § 10.5(x).

3

Carmen Gould¸50 ECAB 504 (1999).

4

Mary A. Ceglia, 55 ECAB 626 (2004).

5

See Jan A. White, 34 ECAB 515, 518 (1983). See 5 U.S.C. § 8101(2). This subsection defines the term
physician. See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in
general, can only be given by a qualified physician).

3

is only considered a physician for purposes of the Act where he diagnoses subluxation by x-ray.6
As Dr. Bednarz did not diagnose a subluxation by use of an x-ray, he is not a physician under the
Act and his report does not constitute competent medical evidence. Accordingly, the Board finds
that appellant has not met her burden of proof to establish a recurrence of her accepted work
injury.
LEGAL PRECEDENT -- ISSUE 2
The Federal Employees’ Compensation Act7 provides that the Office may review an
award for or against payment of compensation at any time on its own motion or upon
application.8 The employee shall exercise this right through a request to the district Office. The
request, along with the supporting statements and evidence, is called the application for
reconsideration.9
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.10
An application for reconsideration must be sent within one year of the date of the Office
decision, for which review is sought.11 A timely request for reconsideration may be granted if
the Office determines that the employee has presented evidence or argument that meets at least
one of these standards. If reconsideration is granted, the case is reopened and the case is
reviewed on its merits. Where the request is timely but fails to meet at least one of these
standards, the Office will deny the application for reconsideration without reopening the case for
a review on the merits.12

6

Section 8101(2) of the Act provides that the term physician include chiropractors only if the treatment consists
of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist. 5 U.S.C. § 8101(2).
See Thomas W. Stevens, 50 ECAB 288 (19999); George E. Williams, 44 ECAB 530 (1993).
7

5 U.S.C. § 8101 et seq.

8

5 U.S.C. § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

9

20 C.F.R. § 10.605.

10

Id. at § 10.606. See Susan A. Filkins, 57 ECAB 630 (2006).

11

Id. at § 10.607(a). See Joseph R. Santos, 57 ECAB 554 (2006).

12

Id. at § 10.608(b). See Candace A. Karkoff, 56 ECAB 622 (2005).

4

ANALYSIS -- ISSUE 2
In connection with her request for reconsideration, appellant submitted numerous 1994
medical reports from Drs. Peterson and Strandberg, which had already been considered by the
Office. The Board has held that submission of evidence that repeats or duplicates that already of
record does not constitute a basis for reopening a claim for merit review.13 The Board also notes
that the reports from CHEC Medical Center are not signed by an identifiable person and
therefore lack credibility. Furthermore, the Board notes that most of the evidence submitted by
appellant on reconsideration concerns her condition prior to March 2006, when she alleged the
recurrence occurred. The only note submitted with regard to her condition after that date was a
medical status report by a physician with an illegible signature dated December 7, 1997 and this
does not state the origin of her injury but rather indicates her work limitations. Accordingly, this
report is not relevant to the question of whether appellant sustained a recurrence in
February 1998.
Appellant has not submitted any relevant and pertinent new evidence, advanced a legal
argument not previously neither considered by the Office nor argued that it erroneously
interpreted a specific point of law. She contended that she did not have legal counsel. Although
appellant may be represented by an attorney before the Office,14 there is no provision in the Act
requiring that it provide an attorney to appellant and section 10.702 of the implementing
regulations notes that appellant is solely responsible for paying legal fees and other charges.15
Thus, the Board finds that appellant has not met the criteria to have the Office reopen her case
for review on the merits.16
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability causally related to her accepted employment injury. Furthermore, the Board finds that
the Office properly declined to review appellant’s claim on the merits pursuant to
5 U.S.C. § 8128(a).

13

See L.H., 59 ECAB ___ (Docket No. 07-1191, issued December 10, 2007); James E. Norris, 52 ECAB
93 (2000).
14

See 20 C.F.R. § 10.700.

15

20 C.F.R. § 10.702.

16

M.E., 58 ECAB ___ (Docket No. 07-1189, issued September 20, 2007) (when an application for
reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on the merits).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 30 and August 1, 2007 are affirmed.
Issued: June 9, 2009
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Farmington, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0589
Issued: May 14, 2019

Case Submitted on the Record

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

JURISDICTION
On January 25, 2018 appellant filed a timely appeal from a November 30, 2017 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
ISSUE
The issue is whether appellant has met her burden of proof to establish disability
commencing September 13, 2017 causally related to the accepted July 30, 2017 employment
injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 30, 2017 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.

FACTUAL HISTORY
On August 1, 2017 appellant, then a 35-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on July 30, 2017, she injured her upper back and both sides of her neck
and shoulders when she lifted a package while in the performance of duty.
In an August 4, 2017 work activity status note and attending physician’s report (Form CA20), Dr. Anna Jonascu-Devine, Board-certified in emergency medicine, related that on July 30,
2017 appellant sustained an upper back injury when she lifted a wooden flat bed and felt pain in
her upper back and sides of the neck. She noted examination findings and diagnosed bilateral
trapezius strain and thoracic strain. Dr. Jonascu-Devine also indicated that appellant could return
to limited duty with restrictions of occasional lifting, pushing, and pulling up to 10 pounds up to
three hours per day and no reaching above the shoulders. She completed a duty status report (Form
CA-17) with the specified restrictions.
On August 4, 2017 appellant accepted a full-time modified city carrier assistant position.
By decision dated September 11, 2017, OWCP accepted appellant’s claim for: strain of
other muscles, fascia, and tendons at shoulder and upper arm level, right arm, initial encounter;
strain of other muscles, fascia, and tendons at shoulder and upper arm level, left arm, initial
encounter; and strain of muscle, fascia, and tendon at neck level, initial encounter.
On October 25, 2017 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period September 13 through October 13, 2017. On the reverse side of the Form CA-7 the
employing establishment reported that appellant had no hours in the system and that it therefore
could not verify her hours. On the time analysis form (Form CA-7a) appellant indicated that she
was not claiming any hours for the period September 13 to October 13, 2017.
By letter dated October 27, 2017, OWCP advised appellant that her Form CA-7 was
incomplete and requested that she resubmit the form which specifically set forth the hours that
were claimed.
On October 30, 2017 appellant filed another Form CA-7 claiming wage-loss compensation
for the period September 14 through October 27, 2017. On the reverse side of the claim form the
employing establishment reported that appellant stopped work on July 31, 2017 and received
continuation of pay (COP) until September 13, 2017. It indicated that appellant was in a leave
without pay (LWOP) status from September 14 through 27, 2017 and had claimed 256 hours.
Appellant continued to file additional CA-7 forms claiming wage-loss compensation for total
disability.
OWCP received handwritten work status notes by Dr. William Gonte, Board-certified in
sports medicine and internal medicine. In an August 25, 2017 note, Dr. Gonte related that
appellant was unable to work until August 28, 2017. He also completed a duty status report (Form
CA-17) indicating that appellant could return to work with specified restrictions. In an October 3,
2017 note, Dr. Gonte recounted that appellant was unable to work from September 13 to
November 1, 2013 due to her current medical conditions of cervical radiculitis and shoulder and
thoracic strains.

2

By letter dated October 31, 2017, OWCP informed appellant of the type of evidence
needed to support her wage-loss compensation claims for total disability. It afforded her 30 days
to submit additional evidence.
On October 31, 2017 appellant telephoned OWCP and asserted that she had been totally
disabled no work being available. She explained that she signed a job offer, but the offer was
rescinded. In a claim note (Form CA-110) of that same date an OWCP claims examiner indicated
that she had left a message for the employing establishment to verify if it had work available for
appellant based on her restrictions.
Appellant again telephoned OWCP on October 31, 2017. She explained that the first day
she had missed work was on July 31, 2017 and then again on August 1, 2017 she had a scheduled
day off. Appellant recounted that on August 4, 2017 she returned to work on a job offer and then
missed intermittent time for medical appointments during the COP period. She indicated that she
missed the dates for the period August 25 to 28, 2017 completely and returned to work with
intermittent time lost through September 13, 2017. Appellant reported that she was taken off work
for total disability by Dr. Gonte on September 13, 2017.
OWCP received an August 10, 2017 work status note by Ron Dobrzynski, a certified
physician assistant. Mr. Dobrzynski indicated that: appellant could return to work with specified
restrictions of occasionally lifting, pushing, and pulling up to five pounds for up to three hours a
day; no reaching above the shoulders; and changing positions periodically to relieve discomfort.
By decision dated November 30, 2017, OWCP denied appellant’s claim for compensation
beginning September 14, 2017, finding that the evidence of record was insufficient to establish
that she was disabled as a result of her employment-related conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.3 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.4 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.5
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
3

See D.W., Docket No. 18-0644 (issued November 15, 2018).

4

Id.

5

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

3

of injury, has no disability as that term is used in FECA.6 Furthermore, whether a particular injury
causes an employee to be disabled from employment and the duration of that disability are medical
issues which must be proven by a preponderance of the reliable, probative, and substantial medical
evidence.7
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.8 Rationalized medical evidence is medical
evidence which includes a physician’s detailed medical opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
incident. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.9 Neither the mere fact that a disease
or condition manifests itself during a period of employment, nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.10
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.11
ANALYSIS
The Board finds that this case is not in posture for a decision.
OWCP accepted appellant’s traumatic injury claim for bilateral shoulder and neck strains.
Appellant filed several claims for wage-loss compensation for total disability beginning
September 13, 2017. She continued to file wage-loss compensation claims. On October 31, 2017
appellant contacted OWCP by telephone and asserted that there was no work available within her
restrictions. She recounted that she had signed a job offer, but the offer was rescinded. According
to another claim note (Form CA-110), appellant telephoned OWCP again and explained that after
the July 31, 2017 employment injury she had returned to modified-duty work on August 4, 2017.
She related that she missed work again from August 25 to 28, 2017 and returned to work with
intermittent time lost until September 13, 2017. Appellant alleged that her treating physician
placed her on total disability from work on September 13, 2017.

6

Id.

7

T.O., Docket No. 17-1177 (issued November 2, 2018).

8

D.W., Docket No. 18-0644 (issued November 15, 2018).

9

C.B., Docket No. 18-0633 (issued November 16, 2018).

10

Supra note 8.

11

See B.K., Docket No. 18-0386 (issued September 14, 2018).

4

The Board finds that the record contains conflicting information from appellant regarding
whether she is claiming a recurrence of disability because there was no work available or because
Dr. Gonte placed her on total disability. As OWCP’s regulations allow for appellant to establish
a recurrence of disability under either scenario, the evidence of record must contain accurate
information regarding appellant’s claim. The Board, therefore, finds that due to the factual
inconsistencies in the record it is unable to determine whether appellant was unable to work her
August 4, 2017 modified-duty position beginning September 13, 2017.12
Furthermore, the record indicates that on October 31, 2017 an OWCP claims examiner
telephoned the employing establishment and left a message for it to verify appellant’s work status.
There is no evidence of record demonstrating that OWCP received responsive information from
the employing establishment regarding appellant’s work status beginning on September 13, 2017.
It is well established that proceedings under FECA are not adversarial in nature and, while the
employee has the burden to establish entitlement to compensation, OWCP shares responsibility in
the development of the evidence.13 Once OWCP undertook development of the evidence by
requesting additional information from the employing establishment, it had a duty to secure
appropriate information addressing the relevant issues.14 Accurate information regarding
appellant’s work status and the availability of the August 4, 2017 modified-duty position is
essential to determine whether she sustained a recurrence of disability beginning on
September 13, 2017. The Board notes that this evidence is of the character normally obtained by
the employing establishment and is more readily accessible to OWCP than to appellant.15
Upon remand, OWCP should request that the employing establishment furnish
documentation regarding appellant’s work status for the applicable period with specific
information regarding the days and hours work was made available, to be followed by a de novo
decision on the issue of disability claimed for this period.16
CONCLUSION
The Board finds that this case is not in posture for decision.

12

See J.G., Docket No. 17-0910 (issued August 28, 2017); M.A., Docket No. 16-1602 (issued May 22, 2017).

13

Donald R. Gervais, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

14

Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).

15

J.T., Docket No. 15-1133 (issued December 21, 2015); J.S., Docket No. 15-1006 (issued October 9, 2015).

16

See T.L., Docket No. 17-1391 (issued July 3, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the November 30, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: May 14, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Detroit, MI,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Shelley Stasson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1997
Issued: April 21, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 14, 2006 and April 13, 2007 merit decisions denying his
emotional condition claim and the Office’s June 26, 2007 decision denying his request for
further review of the merits of his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an emotional condition in the performance of duty; and (2) whether the Office properly
denied appellant’s request for further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 20, 2006 appellant, then a 57-year-old maintenance mechanic, filed a claim
alleging that he sustained an emotional condition in the performance of duty on January 9, 2006.

On the claim form, Louis Ciavone, appellant’s supervisor, stated: “Employee was missing from
his assignment for seven hours. When asked about his whereabouts he became hostile and
abandoned his job.” Appellant stopped work on January 10, 2006.
Appellant submitted a statement in which he claimed that on January 9, 2006 he clocked
in at about 7:30 a.m. but was not given a work assignment. At some point after 2:45 p.m. on that
date, Mr. Ciavone asked him where he had been all day. Appellant asserted that Mr. Ciavone
told him that he had not seen him on “the floor” and that Mr. Ciavone became upset after
appellant told him that he was mistaken about his work activities that day. He claimed that
Mr. Ciavone ordered him to his office for a disciplinary discussion and alleged that he called him
a liar and insisted that he had given him a work assignment.1 Appellant asserted that
Mr. Ciavone’s “threatening demeanor and actions” during the meeting caused him to experience
stress and that he was “threatened with reprimand and removal” because Mr. Ciavone made a
mistake.
Mr. Ciavone asserted that at 7:40 a.m. on January 9, 2006 he gave appellant the
assignment of base lining number 24 of the automated flat sorting machines. He claimed that he
did not see appellant on the workroom floor until 3:00 p.m. when he asked him what work he
had performed between 7:40 a.m. and 3:00 p.m. Mr. Ciavone alleged that appellant started
“yelling and cursing” at him about “what other people were not doing” and he asked appellant to
come to his office for a discussion. He advised appellant that he would have him removed from
the building if he continued to “cuss and yell” at him. After initially refusing to appear,
appellant eventually came to Mr. Ciavone’s office and told him that he did not want to speak to
an “incompetent supervisor.”2 Mr. Ciavone alleged that appellant left his office, returned after a
short period and “started cussing” at him and then left his office again.
In an undated statement received by the Office on January 30, 2006, a coworker asserted
that on January 9, 2006 he observed appellant pointing his finger in Mr. Ciavone’s face and
screaming, “You are an incompetent lying mother fucker.” The coworker indicated that
appellant continued to repeat this statement despite being asked to calm down. In a January 20,
2006 statement, a coworker stated that appellant has “blow-ups” whenever he is asked to
perform any type of maintenance task and that when he has such blow-ups he “curses [and]
get[s] very loud, almost seemingly threatnative [sic].” In a January 20, 2006 statement, a
coworker stated that on numerous occasions she had witnessed appellant “yelling, cussing [and]
throwing tubs on the workroom floor.” She asserted that he was “very rude and loud.”
In January 2006 statements, one coworker indicated that on January 9, 2006 he saw
appellant on the third floor of the work site throughout the day and two others stated that they
observed him responding to several calls for a mechanic on that date. In a January 20, 2006
statement, a coworker asserted that appellant told him at 8:15 a.m. on January 9, 2006 that he
still had not received a work assignment. In an undated statement, a coworker stated that on
1

Appellant claimed that Mr. Ciavone initially denied his request to have his union representative present but
noted that his representative did attend the meeting.
2

Mr. Ciavone stated that, at appellant’s request, he arranged for another supervisor, Rudy Marks, to attend the
meeting. He also indicated that appellant’s union representative was present at the meeting.

2

January 9, 2006 he heard Mr. Ciavone tell appellant that he was “calling security on him to put
him out of the building.” In a January 20, 2006 statement, a coworker indicated that on
January 9, 2006 Mr. Ciavone asked appellant where he had been and what he had been doing.
Appellant responded by stating that he “has been here and that he has been working.”
Appellant submitted several medical reports indicating that he could not work after mid
January 2006. On February 1, 2006 the Office requested that appellant submit additional factual
and medical evidence in support of his claim.
Appellant submitted a statement in which he alleged that, on January 9, 2006, he assumed
that he should answer calls for maintenance work on “area assurance” duty because he was not
given any specific assignment by Mr. Ciavone. At 2:45 p.m. on January 9, 2006, while he was
working on number 24 of the automated flat sorting machines, he told Mr. Ciavone that he was
on area assurance duty. Appellant asserted that Mr. Ciavone asked him where “he had been
hiding all day” and indicated that he responded that he had been “on the floor.” He claimed that
Mr. Ciavone asked for his badge and threatened to take him off the clock and to take away his
pay for the day. Mr. Ciavone indicated that he was going to give him a letter of warning and
“yelled back at him” that he was calling security to have him placed out of the building.
Appellant stated that he told Mr. Ciavone that he was a liar and an incompetent supervisor. He
felt intimidated by Mr. Ciavone’s presence3 and believed that his job was in danger.4
In a March 8, 2006 decision, the Office denied appellant’s emotional condition claim. It
found that an employment factor had been established with respect to the discussion between
appellant and Mr. Ciavone on January 9, 2006 concerning his “whereabouts throughout the
course of the January 9, 2006 work shift.” The Office found, however, that appellant had not
submitted sufficient medical evidence to show that he sustained a medical condition due to this
established employment factor.
Appellant requested a review of the written record by an Office hearing representative.
In an April 6, 2006 statement, he asserted that on January 9, 2006 Mr. Ciavone spoke to him in a
“loud and angry voice.” Appellant indicated that he told Mr. Ciavone on January 9, 2006 that he
had to leave the office because he did not know how he would react to taking Xanax for his
anxiety. He asserted that Mr. Ciavone took a bottle out of his jacket and responded, “Big deal, I
take them everyday.”
In an August 14, 2006 decision, the Office hearing representative denied appellant’s
claim, finding that he had not established any compensable employment factors. The
representative found that appellant had not established an employment factor on January 9, 2006,
as there was no evidence that Mr. Ciavone had acted in an abusive or threatening manner.

3

Appellant indicated that he felt intimidated because Mr. Ciavone, who was five inches taller, stood two feet
away from him during their discussion.
4

Appellant asserted that in late 2005 he requested a work order to replace some bushings on a console but that, to
his knowledge, management did not replace the bushings.

3

In a February 22, 2007 statement, appellant requested reconsideration of his claim. He
indicated that in 2002 and 2005 he filed grievances as the employing establishment subjected
him to racial and gender discrimination. In 2001, a supervisor, Ms. Slickers, subjected him to
sexual harassment.5
In a February 8, 2007 statement, a coworker indicated that on January 9, 2006 he could
hear “yelling coming from the front” of number 25 of the automated flat sorting machines. He
noted that appellant and his supervisor were next to number 26 of the automated flat sorting
machines. The coworker stated: “I heard [appellant’s] supervisor tell him that he was calling
security to have him removed from the building. I did not hear [appellant] swearing or
screaming at his supervisor.” In a February 8, 2007 statement, another coworker stated that on
January 9, 2007 Mr. Ciavone “initiated the loud conversation” with appellant who “responded in
a loud fashion.” The coworker indicated that it was not unusual for people to speak loudly
because the workroom floor was “an extremely loud environment.” He noted that he had never
heard appellant use “off-color language” when directly addressing individuals but that he may
have used it in other circumstances.6
In an April 13, 2007 decision, the Office affirmed its August 14, 2006 decision. It found
that the new witness statements submitted by appellant were not sufficient to establish the
existence of an employment factor on January 9, 2006.
On June 13, 2007 appellant requested reconsideration of the Office’s April 13, 2007
decision. In a June 26, 2007 decision, the Office denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.7 On the other hand, the disability is not covered where it results from such factors as an

5

Appellant submitted several documents which appear to relate to these matters. In February 9, 2001 letter,
appellant claimed that Ms. Slickers reached into his pocket, pulled out his cigarettes and asked: “What are we
smoking today?” He also asserted that on October 24, 1995 Mr. Ciavone issued an order “to override a safety
switch” and generally alleged that Mr. Marks’ actions were abusive.
6

Several coworkers stated that appellant was always answering calls and performing maintenance tasks.
Appellant also submitted commendation letters from employing establishment customer service managers.
7

5 U.S.C. §§ 8101-8193.

4

employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.8
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.9 This burden includes the submission of a detailed
description of the employment factors or conditions which the employee believes caused or
adversely affected the condition or conditions for which compensation is claimed.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.12
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied appellant’s emotional condition claim
on the grounds that he did not establish any compensable employment factors. The Board must
initially review whether the alleged incidents and conditions of employment are compensable
employment factors under the Act.
Appellant has alleged that harassment and discrimination on the part of his supervisors
contributed to his claimed stress-related condition. He claimed that on January 9, 2006 a
supervisor, Mr. Ciavone, subjected him to harassment and discrimination by unreasonably
inquiring about his whereabouts and work activities on that date. Appellant asserted that
Mr. Ciavone never gave him a specific work assignment on January 9, 2006 and that he was
properly carrying out his on-call work duties on that date. He claimed that on January 9, 2006
Mr. Ciavone acted in a threatening manner and used abusive language.

8

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).
9

Pamela R. Rice, 38 ECAB 838, 841 (1987).

10

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

11

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

12

Id.

5

To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors are established as occurring and arising from appellant’s
performance of his regular duties, these could constitute employment factors.13 However, for
harassment or discrimination to give rise to a compensable disability under the Act, there must
be evidence that harassment or discrimination did in fact occur. Mere perceptions of harassment
or discrimination are not compensable under the Act.14
Appellant has not submitted sufficient evidence to show that Mr. Ciavone subjected him
to harassment or discrimination on January 9, 2006. The evidence reveals that at about 3:00 p.m.
on January 9, 2006, Mr. Ciavone inquired where appellant had been and what he had been doing
between about 7:40 a.m. and 3:00 p.m.15 A witness asserted that both appellant and Mr. Ciavone
spoke in a loud tone of voice during their discussion, but the witness acknowledged that it was
common for people to speak loudly because the work environment was extremely noisy.16 None
of the witnesses of record indicated that Mr. Ciavone made abusive comments or otherwise acted
in an abusive manner on January 9, 2006. In fact, one witness identified appellant as having
acted abusively on that date. In a contemporaneous statement, a coworker asserted that on
January 9, 2006 he observed appellant pointing his finger in Mr. Ciavone’s face and screaming,
“You are an incompetent lying mother fucker.” The coworker indicated that appellant continued
to repeat this statement despite being asked to calm down.
Appellant further alleged that Mr. Ciavone harassed him on January 9, 2006 by
threatening him and calling security to remove him from the building. Two witnesses asserted
that Mr. Ciavone advised appellant that he would call security and have him removed from
building, but there is no indication that security was called and appellant left the building of his
own accord.17 Appellant has not explained how a statement by Mr. Ciavone that security would
be called constituted harassment. As noted it appears that he directed abusive language at
Mr. Ciavone and continued to use such language after being asked to calm down. Appellant

13

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

14

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

15

Mr. Ciavone indicated that he had given appellant a specific assignment in the morning to work on a particular
mail sorting machine but did not observe him working on that machine. Appellant asserted that he did not receive
such a specific assignment but he did not submit sufficient evidence to support his claim.
16

Another witness stated that he heard yelling coming from near a mail sorting machine but he did not indicate
who was yelling or what was said.
17

He indicated that he advised appellant that he would have him removed from the building if he continued to
“cuss and yell” at him.

6

alleged that he feared for his job, but the Board has held that a claimant’s job insecurity is not a
compensable factor of employment under the Act.18
In the present case, the employing establishment denied that appellant was subjected to
harassment or discrimination. He has not submitted sufficient evidence to establish that he was
harassed or discriminated against by his supervisors.19 Appellant alleged that his supervisors
made statements and engaged in actions which he believed constituted harassment and
discrimination, but he provided insufficient evidence to establish that the statements actually
were made or that the actions actually occurred.20 Thus, he has not established a compensable
employment factor under the Act with respect to the claimed harassment and discrimination.
Appellant alleged that on January 9, 2006 Mr. Ciavone improperly threatened him with
disciplinary action and mishandled his work assignments.21 He also claimed that in late 2005
management ignored his request to replace some bushings on a console and that on October 24,
1995 Mr. Ciavone issued an order “to override a safety switch.” Regarding appellant’s
allegations that the employing establishment engaged in improper disciplinary actions,
improperly handled work assignments and wrongly dealt with safety matters, the Board finds
that these allegations relate to administrative or personnel matters, unrelated to the employee’s
regular or specially assigned work duties and do not fall within the coverage of the Act.22
Although the handling of disciplinary actions, the assignment of work duties and the handling of
safety matters are generally related to the employment, they are administrative functions of the
employer and not duties of the employee.23 However, the Board has also found that an
administrative or personnel matter will be considered to be an employment factor where the
evidence discloses error or abuse on the part of the employing establishment. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.24
18

See Artice Dotson, 42 ECAB 754, 758 (1990); Allen C. Godfrey, 37 ECAB 334, 337-38 (1986). Appellant
indicated that in 2002 and 2005 he filed grievances in which he alleged that the employing establishment subjected
him to racial and gender discrimination and that in 2001 a supervisor, Ms. Slickers, subjected him to sexual
harassment. In addition to the fact that he only vaguely described these matters, he did not submit any evidence,
such as a final decision of a grievance, to show that he was subjected to harassment or discrimination as alleged.
Appellant generally alleged that the actions of Mr. Marks, a supervisor, were abusive. However, he did not indicate
which actions of Mr. Marks he felt were abusive. Appellant claimed that Mr. Ciavone made a statement regarding
his use of Xanax, but he did not establish that this statement was actually made.
19

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
20

See William P. George, 43 ECAB 1159, 1167 (1992).

21

As noted above, appellant asserted that Mr. Ciavone did not give him a specific work assignment in
January 9, 2006.
22

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate,
41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
23

Id.

24

See Richard J. Dube, 42 ECAB 916, 920 (1991).

7

Appellant did not submit sufficient evidence to establish that the employing
establishment committed error or abuse with respect to these matters. He did not submit any
documents, such as a final decision of a grievance, to show that Mr. Ciavone or other
management officials committed error or abuse regarding these claimed incidents. Thus,
appellant has not established a compensable employment factor under the Act with respect to
administrative matters.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty.25
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.27 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.28 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.29
26

ANALYSIS -- ISSUE 2
On June 13, 2007 appellant checked a box on an appeal request form indicating that he
was requesting reconsideration of the Office’s April 13, 2007 decision. He did not submit any
evidence or argument in support of his reconsideration request. Therefore, the Office properly
found in its June 26, 2007 decision that appellant’s reconsideration request did not provide any
basis for reopening his case for further review of the merits of his claim.
Appellant has not established that the Office improperly denied his request for further
review of the merits of its April 13, 2007 decision under section 8128(a) of the Act, because he
did not submit evidence and argument showing that the Office erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by the
Office, or submit relevant and pertinent new evidence not previously considered by the Office.
25

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
26

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
27

20 C.F.R. § 10.606(b)(2).

28

Id. at § 10.607(a).

29

Id. at § 10.608(b).

8

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty. The Board further finds that the
Office properly denied appellant’s request for further review of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 26, April 13, 2007 and August 14, 2006 decisions are affirmed.
Issued: April 21, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Woodbury, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2017
Issued: April 7, 2009

Case Submitted on the Record

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

JURISDICTION
On July 17, 2008 appellant, through counsel, filed a timely appeal from a May 1, 2008
merit decision, denying modification of a decision of the Office of Workers’ Compensation
Programs dated February 27, 2007. 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 established that he sustained an injury on March 10, 2005
in the performance of duty.
FACTUAL HISTORY
On April 25, 2005 appellant, a 61-year-old general clerk, filed a traumatic injury (Form
CA-1) claim for a back injury. He claimed that, on March 10, 2005, while lifting mail and
buckets of flats he felt a sharp pain in his back. Appellant stated that this injury limited his
ability to walk and resulted in spinal stenosis and three displaced spinal discs. By memorandum
dated April 25, 2005, the employing establishment controverted his claim.

Appellant submitted no supporting medical evidence with his claim and, in a May 10,
2005 letter, the Office notified him that the evidence he submitted was insufficient to support his
claim.
Responding to the Office’s letter, appellant submitted a duty status report (Form CA-17)
dated May 16, 2005 as well as a medical authorization (Form CA-16) dated April 29, 2005.1 The
CA-16 form pertained to alleged conditions of stenosis of the spine, laminectomy and inability to
walk.
Appellant also submitted a March 28, 2005 medical report signed by Dr. Joseph Greco, a
Board-certified anesthesiologist, who proffered a surgical diagnosis of spinal stenosis with
herniated disc L3-4.
By decision dated July 27, 2005, the Office denied appellant’s claim because the medical
evidence he submitted was insufficient to establish that he sustained an injury in connection with
the reported event.
After retaining legal counsel, appellant submitted an illegible medical report dated
March 24, 2005 concerning an appointment at Winthrop University Hospital. He submitted a
March 28, 2005 surgical report signed by Dr. Mark Eisenberg, a Board-certified neurosurgeon,
which noted that on March 25, 2005 he performed an L3, L4, L5 decompressive laminectomy
with bilateral medial facetectomy and foraminotomies at L3-4, L4-5 and L5-S1; L3-4
discectomy from left; L4-5 discectomy from the left. On May 4, 2005 Dr. Eisenberg reported
that appellant continued to improve and was transitioned to a quad cane. In a letter dated
June 22, 2005, he reported that appellant was doing well and continued to make postsurgical
improvement.
Appellant submitted an April 22, 2005 medical discharge report, signed by
Dr. Peter Hollis, a Board-certified neurosurgeon, diagnosing him with lumbar spinal stenosis.
In a September 21, 2005 addendum, Dr. Harold Avella, a Board-certified physiatrist,
stated that appellant’s condition occurred while at work on March 10, 2005. He also reported
that appellant fell on March 11, 2005.
Appellant submitted a September 21, 2005 post-neurosurgical follow-up medical report
from Dr. Eisenberg, which reflected that he was doing well and was very pleased with his
surgical outcome. On October 19, 2005 Dr. Eisenberg in a letter to appellant’s attorney,
reviewed appellant’s course of treatment. He noted that he had first seen appellant on March 25,
2005 when appellant presented with a two-week history of severe back pain. Dr. Eisenberg
noted that appellant had a history of some back pain, but that the pain had intensified during the
past two weeks. He did not note or identify appellant’s job duties on March 10, 2005 as the
cause of his lumbar condition.
1

The Board notes that the Office issued a Form CA-16. A properly executed CA-16 form creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989). The CA-16 form issued to
appellant did not authorize either examination or treatment and was, therefore, not properly executed.

2

Appellant also submitted a December 22, 2005 medical report signed by Dr. Avella,
Board-certified physiatrist, which noted that his status was post L3-4, L4-5 and L5-S1
discectomy and post L3, L4 and L5 decompressive laminectomy. Dr. Avella reported a
diagnosis of L3-4 and L4-5 herniated discs. The diagnosis noted L3-4, L4-L5 and L5-S1 central
canal stenosis, with left lower extremity myelopathy, left foot drop, as well as gait disturbance.
Dr. Avella opined that appellant was totally disabled from work, his condition was permanent
and that the prognosis for further improvement was poor. Furthermore, he asserts that
appellant’s medical history, medical records and Dr. Avella’s examination establish that his
diagnoses were causally related to appellant’s March 10, 2005 work injury.
By request dated May 26, 2006 appellant, through his attorney, requested
reconsideration. His attorney submitted a brief, arguing that the Office’s July 27, 2005 decision
was contrary to controlling principles of the Federal Employees’ Compensation Act and Board
precedent.
By decision dated February 16, 2007, the Office denied modification. Although it had
accepted that the events occurred as alleged, the medical evidence did not resolve the evidentiary
inconsistencies concerning whether appellant’s condition was caused by the work-related
March 10, 2005 event or appellant’s fall on March 11, 2005.
By request dated February 8, 2008, appellant, through his attorney, requested
reconsideration. In support of his claim, counsel submitted a brief in which he argued that the
Office’s February 16, 2007 denial of reconsideration was contrary to controlling principles of the
Act.
Appellant, through counsel, also submitted medical evidence. In a medical report dated
March 22, 2007, Dr. Avella asserted that appellant’s condition occurred on March 10, 2005
while moving boxes of mail from the floor to the table. He reported that, following this incident,
appellant developed difficulty walking and left leg weakness. Dr. Avella noted that appellant fell
on March 24, 2005 and asserted that this fall had no effect on the initial injury of March 10, 2005
but most likely resulted from pain and weakness down the left leg.
By decision dated May 1, 2008, the Office denied modification of the February 16, 2007
decision. It found that appellant had not submitted sufficient evidence to resolve the significant
inconsistencies as to how and when the claimed back injury occurred.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of 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

2

5 U.S.C. §§ 8101-8193.

3

related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.3
Section 10.5(ee) of Office regulations defines a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 To determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must determine whether fact of injury is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence opinion required to
establish a causal relationship is rationalized medical evidence.6 Rationalized medical evidence
is medical evidence which includes a physician s rationalized medical opinion on the issue of
whether there is a causal relationship between the claimants diagnosed condition and the
implicated employment factors.7 The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.8 Neither the
mere fact that a disease or condition manifests itself during a period of employment nor the
belief that the disease or condition was caused or aggravated by employment factors or incidents
is sufficient to establish causal relationship.9
ANALYSIS
Appellant identified lifting mail and buckets of flats as the employment factors
contributing to his injury. The Office has accepted that appellant performed these employment
duties on March 10, 2005. It is then appellant’s burden to submit rationalized medical evidence
establishing a diagnosed condition causally related to the identified employment factors. The
evidence of record before the Office does not contain a medical report with a rationalized

3

Gary J. Watling, 52 ECAB 278 (2001).

4

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

5

Gary J. Watling, supra note 3.

6

M.W., 57 ECAB 710 (2006).

7

D.D., 57 ECAB 734 (2006).

8

Kathryn E. Demarsh, 56 ECAB 677 (2005).

9

Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

medical opinion on causal relationship explaining how appellant’s shoulder condition was
caused or contributed to by his work duties.
The CA-16 and CA-17 forms are of little probative value as they do not contain a
physician’s diagnosis, findings upon examination or a rationalized medical opinion concerning
the relationship between any diagnosed condition and factors of employment. The Board has
held that appellant’s self-diagnosed symptoms are not substantive evidence for purposes of the
Act.10
Dr. Greco proffered a surgical diagnosis of spinal stenosis with herniated disc L3-4.
Similarly, Dr. Eisenberg’s operative report proffered a diagnosis, L3, L4, L5 decompressive
laminectomy with bilateral medial facetectomy and foraminotomies at L3-4, L4-5 and L5-S1;
L3-4 discectomy from left; L4-5 discectomy from the left. However, as the purpose of these
reports was to establish a surgical diagnosis, they do not address the cause of appellant’s
condition. The Board has consistently held that medical reports lacking a rationale on causal
relationship have little probative value.11 As this information is absent, Drs. Eisenberg and
Greco reports are of diminished probative value.
Moreover, Dr. Hollis’ medical report proffered a diagnosis of lumbar spinal stenosis
without providing complete medical history or an opinion on the causal relationship of the
condition to appellant’s employment. As noted above, a rationalized medical opinion is based on
a complete factual and medical background and is supported by medical rationale.12 Thus,
Dr. Hollis’ medical report is of diminished probative value.
Appellant submitted medical reports and notes from Dr. Avella, a Board-certified
physiatrist. In December 22, 2005, Dr. Avella reports on his findings during an examination
performed May 18, 2005. He noted in appellant’s history that, while at work on May 10, 2005,
appellant experienced back pain. The Board has consistently held that pain is a symptom, not a
compensable medical diagnosis.13 The Board has held that the concurrence of symptom
development with a period of employment is insufficient to establish causal relationship.14
Dr. Avella did not provide a reasoned medical opinion explaining how appellant’s work
activities would cause or aggravate her diagnosed condition. Therefore, his medical report is
insufficient to support appellant’s claim.
In a report dated September 22, 2005, Dr. Avella relates appellant’s condition to his
employment. He also notes that on March 11, 2005 appellant fell. Dr. Avella did not adequately

10

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
11

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).
12

Froilan Negron Marrero, 33 ECAB 796 (1982).

13

Robert Broome, 55 ECAB 339, 342 (2004).

14

Robert M. Sanford, 27 ECAB 115 (1975).

5

explain how appellant’s work activities caused or aggravated his diagnosed condition and,
therefore, this note is of limited probative value.
In an addendum dated March 22, 2007, Dr. Avella again asserted that appellant’s
March 10, 2005 employment-related incident caused his injury. He also asserted that, although
appellant fell on March 24, 2005, this incident most likely resulted from the pain and weakness
down the left leg and had no effect on the initial injury. But this is an equivocal statement
because, as a matter of law, such terms as: “suspected,” “could,” “may,” “might be” or “most
likely” indicate that the report is equivocal, speculative or conjectural and, therefore, the report is
of limited probative value.15 There is no medical report of record which accurately reflects
appellant’s job duties on March 10, 2005 and then causally relates appellant’s multiple diagnosed
conditions with this employment duties, with proper supportive medical rationale.
Finally, the Board notes that Dr. Avella’s medical reports and notes contain sufficient
inconsistent factual statements as to the cause of appellant’s claim.16 The first note submitted
was dated September 22, 2005. Dr. Avella asserted in this note that appellant fell on March 11,
2005 whereas in a March 22, 2007 note he asserts that appellant fell on March 24, 2005. The
Board also notes that, while appellant relates all of his lumbar conditions to his lifting duties at
work on March 10, 2005, there is no evidence of record that he sought immediate medical
treatment until after his fall, which occurred on either March 11 or 24, 2005. In fact appellant
was seen in the emergency room at Winthrop University Hospital on March 24, 2005. The
inherent conflict between Dr. Avella’s notes combined with the discrepancy concerning the date
upon which appellant allegedly fell are significant factual inconsistencies tending to cast serious
doubts upon the validity of appellant’s traumatic injury claim and preclude appellant from
establishing that he sustained an injury on March 10, 2005 in the performance of duty.
CONCLUSION
The Board finds that appellant has not established that he sustained a traumatic injury on
March 10, 2005 in the performance of duty.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.3(g) (April 1993).
16

Joseph A. Fournier, 35 ECAB 1175 (1984); Ernest N. Krome, 20 ECAB 363 (1969).

6

ORDER
IT IS HEREBY ORDERED THAT the May 1, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 7, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


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

)
)
)
)
)
)
)
)

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

Docket No. 19-0822
Issued: February 18, 2020

Case Submitted on the Record

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

JURISDICTION
On March 7, 2019 appellant filed a timely appeal from a January 11, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.1
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $53,510.67 for the period February 1, 2014 through March 31, 2018, for which she was
without fault, as she concurrently received Social Security Administration (SSA) age-related
retirement benefits while receiving FECA wage-loss compensation benefits; (2) whether OWCP
1

The Board notes that following the January 11, 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.

properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly required
recovery of the overpayment by deducting $407.41, every 28 days, from appellant’s continuing
compensation benefits.
FACTUAL HISTORY
On September 20, 2000 appellant, then a 52-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date she sustained a lower lumbar strain when lifting
parcels and sorting mail while in the performance of duty. OWCP accepted the claim for
lumbosacral sprain. It paid appellant wage-loss compensation on the periodic rolls as of
June 16, 2002.
In a letter dated January 22, 2002, OWCP informed appellant that she was being placed on
the periodic rolls and of her obligations regarding completing an EN1032 form, which required
the reporting of retirement income, disability income, and compensation benefits she received
from any federal agency.
In EN1032 forms dated February 20, 2015, February 10, 2016, March 4, 2017, and
February 22, 2018, appellant indicated that she was not receiving benefits from SSA as part of an
annuity for her federal service, but that she was in receipt of social security disability benefits.
In a form dated March 26, 2018, SSA advised OWCP that appellant had concurrently
received FECA benefits and age-related benefits through the Federal Employees Retirement
System (FERS) for the period February 1, 2014 to date. It provided the amount that appellant
received in retirement benefits, including the amount earned through FERS and the hypothetical
amount that she would have received without FERS. With FERS SSA indicated that appellant
received $1,678.20 effective February 2014; $1,706.70 effective December 2014; $1,711.80
effective December 2016; and $1,746.00 effective December 2017. Without FERS, SSA indicated
that appellant was entitled to a monthly entitlement of $627.40 effective February 2014; $638.00
effective December 2014 and December 2015; $639.90 effective December 2016; and $652.60
effective December 2017.
In a letter dated April 17, 2018, OWCP notified appellant that her compensation would be
offset by the portion of her SSA age-related retirement benefits attributable to her federal service.
It indicated that she would receive net compensation of $1,628.21, every 28 days, effective
April 28, 2018.
In a preliminary determination dated May 21, 2018, OWCP notified appellant that she had
received an overpayment of compensation in the amount of $53,510.67, because her compensation
benefits had not been reduced for the period February 1, 2014 through March 31, 2018, by the
portion of her SSA benefits that were attributable to her federal service. It calculated the
overpayment amount by determining the difference between her SSA amount with and without
FERS for each period. OWCP then multiplied the daily offset amount by the number of days in
each period to find a total overpayment of $53,510.67. It further made a preliminary determination
that appellant was without fault in the creation of the overpayment because she was not aware and
could not have reasonably been expected to know that she accepted compensation to which she
was not entitled. OWCP requested that she complete an enclosed overpayment recovery
2

questionnaire (Form OWCP-20) and submit supporting financial documentation. Additionally, it
notified appellant that, within 30 days of the date of the letter, she could request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing.
Appellant submitted a June 11, 2018 Form OWCP-20 which listed monthly income of
$4,518.00. She also listed expenses of $1,995.37, which included $1,500.00 for rent, $100.00 for
food, $40.00 for clothing, $100.00 for utilities, $65.37 and $30.00 for dental and vision insurance,
respectively, $80.00 for health care, and $80.00 for credit card expenses, and other household
expenses. Appellant noted that she had assets of $505.36. She also submitted financial
documentation in support of her claim. Appellant claimed that she was never informed that she
was not entitled to the benefits she received.
By decision dated January 11, 2019, OWCP finalized its preliminary overpayment
determination finding that appellant had received an overpayment of compensation in the amount
of $53,510.67 for the period February 1, 2014 through March 31, 2018, because it failed to offset
her compensation payments by the portion of her SSA age-related retirement benefits that were
attributable to her federal service. It determined that she was without fault in the creation of the
overpayment, however, OWCP denied waiver of recovery of the overpayment of compensation
based on the financial information provided. OWCP determined the overpayment would be
recovered by deducting $407.41, every 28 days, from appellant’s continuing compensation
payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.2 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.3
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA benefits that are attributable to federal service of the
employee.4 FECA Bulletin No. 97-09 provides 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.5

2

5 U.S.C. § 8102(a).

3

Id. at § 8116.

4

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

5

FECA Bulletin No. 97-09 (February 3, 1997).

3

ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $53,510.67 for the period February 1, 2014 through March 31,
2018, for which she was without fault, because she concurrently received FECA wage-loss
compensation and SSA age-related retirement benefits.
In its January 11, 2019 decision, OWCP found that an overpayment of compensation was
created for the period February 1, 2014 through March 31, 2018. The overpayment was based on
the evidence received from SSA with respect to age-related retirement benefits paid to appellant.
A claimant cannot receive both FECA compensation for wage loss and SSA age-related retirement
benefits attributable to federal service for the same period.6 The information provided by SSA
indicated that appellant received age-related SSA retirement benefits that were attributable to
federal service during the period February 1, 2014 through March 31, 2018.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. The SSA provided the rate with FERS, and
without FERS, for specific periods in question commencing February 1, 2014 through
March 31, 2018. OWCP provided its calculations for each relevant period based on an SSA Dual
Benefit worksheet and in its May 21, 2018 preliminary overpayment determination. It calculated
the amount of overpayment by determining the difference between the SSA amount with and
without FERS for each period and multiplying the daily offset amount by the number of days in
each period, to find a total overpayment of $53,510.67. No contrary evidence was provided, and
appellant has not contested that an overpayment occurred.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period February 1, 2014 through March 31, 2018 and finds that OWCP properly found that an
overpayment of compensation in the amount of $53,510.67 was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. The
waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests within
OWCP’s discretion pursuant to statutory guidelines.7
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
6

5 U.S.C. § 8116(d)(2); see L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued
May 17, 2019).
7

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

4

not exceed a specified amount as determined by OWCP.8 Additionally, 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.9
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.10
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
OWCP properly determined that appellant did not require substantially all of her income
to meet ordinary living expenses. Based upon appellant’s June 11, 2018 overpayment recovery
form and the record, it found that she had monthly income of $4,518.00. Appellant listed monthly
expenses of $1,995.37, which included $1,500.00 for rent, $100.00 for food, $40.00 for clothing,
$100.00 for utilities, $65.37 and $30.00 for dental and vision insurance, respectively, $80.00 for
health care, and $80.00 for credit card expenses, and other household expenses. As appellant’s
monthly income exceeded her ordinary and necessary living expenses by more than $50.00, she
did not need substantially all of her income for ordinary and necessary living expenses.11
Additionally, the evidence of record does not demonstrate that recovery of the overpayment
would be against equity and good conscience. Appellant did not submit any evidence that she had
relied upon the incorrect payments to her detriment or that she would experience severe financial
hardship attempting to repay the debt.12 Consequently, OWCP properly denied waiver of recovery
of the overpayment.

8
20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
9

Id. at § 10.437(a)(b).

10

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

11

J.C., Docket No.19-0122 (issued June 11, 2019); A.C., Docket No. 18-1550 (issued February 21, 2019); see also
M.P., Docket No. 18-0902 (issued October 16, 2018).
12

20 C.F.R. § 10.437.

5

LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that, 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 soon as the error is discovered 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.13
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$407.41, every 28 days, from appellant’s continuing compensation payments.
OWCP provided appellant a Form OWCP-20 with its May 21, 2018 preliminary
determination. Appellant completed the overpayment recovery questionnaire and submitted
financial documentation. It revealed that she had income of $4,518.00 and expenses of $1,995.37,
with excess monthly income of $2,522.63.
The Board finds that OWCP gave due regard to the financial information appellant
submitted as well as the factors set forth in section 10.441 in setting the amount of the repayment
from continuing compensation benefits to minimize hardship, while liquidating the debt, as
appellant had financial resources sufficient for more than ordinary needs.14 OWCP did not abuse
its discretion in requiring recovery by deducting $407.41 every 28 days from each of appellant’s
continuing compensation payments.
CONCLUSION
The Board finds that an overpayment of compensation was created in the amount of
$53,510.67 for the period February 1, 2014 through March 31, 2018, for which she was without
fault, as she concurrently received SSA age-related retirement benefits while receiving FECA
wage-loss compensation benefits. The Board further finds that OWCP properly denied waiver of
recovery of the overpayment, and properly required recovery by deducting $407.41, every 28 days,
from appellant’s continuing compensation payments.

13

M.A., Docket No. 18-1666 (issued April 26, 2019); Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

14

See N.J., Docket No. 19-1170 (issued January 10, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the January 11, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 18, 2020
Washington, DC

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

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

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

7