United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bangor, WA,
Employer
__________________________________________

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

Docket No. 20-0849
Issued: January 29, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 9, 2020 appellant filed a timely appeal from a February 13, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case
ISSUE
The issue is whether appellant has met his burden of proof to establish binaural hearing
loss causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On March 26, 2019 appellant, then a 63-year-old rigger, filed an occupational disease claim
(Form CA-2) alleging that he developed binaural hearing loss due to factors of his federal
1

5 U.S.C. § 8101 et seq.

employment. He noted that he first became aware of his hearing loss and its relationship to his
federal employment on March 12, 2019.
In support of his claim, appellant provided a March 12, 2019 report from Jason Willard
Danford, an audiologist, who upon testing noted moderate sensorineural at three kilohertz (kHz),
mild-to-severe sensorineural hearing loss from four to eight kHz in the left ear and mild sloping to
moderately severe sensorineural hearing loss from three to eight kHz in the right hear.
Mr. Danford noted that appellant had worked for 31 years as a rigger and that he had reported
occupational noise exposure from intermittent exposure to machinery and hammering. He advised
that appellant utilized hand-formed earplugs for hearing protection. OWCP also received an
audiogram report dated March 12, 2019 from Mr. Danford.
In an April 1, 2019 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence necessary and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary
information. In a separate letter of even date, it requested that the employing establishment address
the accuracy of his allegations and describe his workplace exposure to hazardous noise.
On April 16, 2019 appellant submitted a number of documents detailing his employment
history in private and federal employment as an assistant logging yard hook tender choker setter
from May 1976 through July 1979, as an assistant foreman from August 1979 through May 1981,
as a foreman from June 1981 through January 1982, as an equipment operator from March through
November 1982, as an equipment cleaner from November 1982 through July 1985, as commercial
construction from March to November 1997, as a laborer from November 1997 to June 2000, as a
school bus driver from September 2000 through June 2001, as a general contractor from June 2001
through January 2003, and as a rigger from June 2000 through the present. He worked as a rigger
at the Puget Sound Naval Support from June 2000 through May 2009, at the U. S. Army Corps of
Engineers from May 2009 through February 2014, and at the current employing establishment
from February 2014 through the present.
In an undated employment history summary, appellant alleged that he was exposed to noise
eight hours per day at the employing establishment worksite including noise from pressure
washers, needle guns, sanders, grinders, deck crawlers, cranes, forklifts, carbon arc, diesel engines,
chopping guns, etc. On April 11, 2019 he responded to OWCP’s questions and noted that he had
not previously filed a claim for a hearing loss.
On May 13, 2019 the employing establishment provided copies of appellant’s yearly
audiogram findings from October 10, 1982 through March 12, 2019.
OWCP referred appellant for a second opinion evaluation with Dr. Edward Treyve, a
Board-certified otolaryngologist, in order to determine whether his work-related noise exposure
was sufficient to have caused hearing loss, and if so, the extent and degree of appellant’s hearing
loss. In a report dated July 18, 2019, Dr. Treyve noted that he had reviewed the statement of
accepted facts (SOAF), performed an audiological evaluation, and completed OWCP’s evaluation
questionnaire. He discussed appellant’s medical records, including prior audiograms and noted
normal hearing through 2014 in both ears when appellant began his current employment, with
progressive high-frequency binaural loss since 2014. Dr. Treyve reported that physical

2

examination of appellant’s ears revealed normal ear canals and tympanic membranes. He
reviewed appellant’s audiogram performed that day, which demonstrated at 500, 1,000, 2,000, and
3,000 Hertz (Hz) losses of 5, 20, 15, and 30 decibels (dBs) on the right, respectively and 10, 30,
25, and 40 dBs on the left, respectively. The audiogram was performed by an audiologist who
documented timely calibration of testing equipment. Dr. Treyve diagnosed bilateral sensorineural
hearing loss, which he believed was not employment related. He concluded that appellant’s
hearing loss was more likely due to the effects of presbycusis rather than due to any occupational
noise exposure. In support of this conclusion, Dr. Treyve noted that appellant worked in a noisy
environment from 1976 until 2014 wearing ear protection and that from 2014 to the present
appellant has worked in his quietest work environment that he has experienced throughout his
career. He related that while much of appellant’s work history in and out of federal employment
was in an environment of sufficient intensity and duration to have potentially contributed to
hearing loss, it did not appear to have contributed based upon serial audiometry and the use of
adequate ear protection. Dr. Treyve concluded that according to the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),2
appellant had zero percent monaural hearing loss in each ear and zero percent impairment for
tinnitus. While he noted that binaural amplification would be recommended for appellant’s
hearing loss, the need for amplification was not related to occupational noise exposure.
By decision dated August 20, 2019, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish causal relationship between his diagnosed
hearing loss and his work-related noise exposure. It based its finding upon the July 18, 2019 report
of Dr. Treyve.
On September 9, 2019 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review. In a letter dated September 5, 2019,
appellant related that he disagreed with Dr. Treyve’s opinion that his hearing loss was related to
presbycusis as he had been exposed to hazardous noise in his private employment as well as his
federal employment.
On December 2, 2019 the Branch of Hearings and Review vacated the August 20, 2019
decision, finding that Dr. Treyve’s opinion was insufficient to carry the weight of the medical
evidence. It therefore remanded the case to OWCP to obtain a supplemental opinion from
Dr. Treyve.
OWCP prepared an updated statement of accepted facts on December 12, 2019 and in a
letter dated December 12, 2019, it requested that Dr. Treyve review the SOAF and expand on his
medical reasoning as to why appellant’s federal employment did not contribute to appellant’s
hearing loss.
In a December 18, 2019 supplemental report, Dr. Treyve responded noting that he did not
believe that appellant’s bilateral hearing was related to occupational noise. He explained that while
appellant worked in a noisy work environment for most of his work career, he had normal hearing
through 2014, approximately 32 years after starting employment. Since 2014 appellant worked as
a rigger in a workplace environment described as quiet enough for easy communication with
2

A.M.A., Guides (6th ed. 2009).

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coworkers, and he wore ear protection when necessary. Dr. Treyve advised that once noise
exposure stops, the effects of noise exposure cease and do not progress. He explained that noise
exposure effects typically occur in the early years of exposure, and as people age, the effects of
presbycusis occur increasingly. For these reasons, Dr. Treyve concluded that appellant’s hearing
changes in the last five years was consistent with the effects presbycusis rather than noise exposure
working in a quieter work environment than the previous employment. Additionally, the late
occurrence of appellant’s hearing loss and the audiometry results suggested presbycusis to be the
cause rather than any noise exposure. Dr. Treyve explained that this conclusion was supported by
the industrial audiograms on and after 2015, which showed high-frequency deterioration, and the
July 18, 2019 audiogram.
By decision dated February 13, 2020, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish causal relationship between his diagnosed
hearing loss and his work-related noise exposure. It based its finding upon Dr. Treyve’s
December 18, 2019 supplemental report.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.7

3

Supra note 1.

4

B.C., Docket No. 19-1983 (issued June 8, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

C.C., Docket No. 20-0151 (issued July 20, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59
ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6

B.C., supra note 4; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

C.C., supra note 5; S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

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Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.8 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.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish binaural hearing
loss causally related to the accepted factors of his federal employment.
OWCP referred appellant to Dr. Treyve for a second opinion evaluation regarding his
hearing loss claim. In a supplemental report dated December 18, 2019, he reviewed appellant’s
medical record and SOAF, related examination findings, and diagnosed bilateral sensorineural
hearing loss. Dr. Treyve opined that appellant’s hearing loss was related to presbycusis and not
work exposure, noting that noise exposure effects typically occur during the early years of
exposure. He noted that appellant did not have any hearing loss through 2014, and since 2014, he
worked in a quieter environment. Dr. Treyve also explained that while the effects of noise
exposure typically occur more in the earlier years of exposure, the effects of presbycusis occur
more as individuals age. He concluded that the late occurrence of appellant’s hearing loss and
audiogram results were indicative of presbycusis as the cause of the hearing changes rather than
any employment noise exposure.
Dr. Treyve advised that the effects of noise exposure cease after noise exposure stops and
do not progress related to prior noise exposure. The Board has recognized that a claimant may be
entitled to a schedule award for increased hearing loss, even after exposure to hazardous noise has
ceased, if causal relationship is supported by the medical evidence of record.10 The Board has
cautioned against a medical opinion providing a blanket unrationalized statement that hearing loss
does not progress following the cessation of hazardous noise exposure.11 Dr. Treyve also
explained why appellant’s hearing loss was due to presbycusis and not his federal employment
exposure.
Dr. Treyve’s opinion is based on a proper factual and medical history as he reviewed
current audiometric test results and related his findings on examination and testing in support of
his opinion that appellant’s hearing loss was not due to the exposure to noise in his federal
employment.
The Board therefore finds that Dr. Treyve’s supplemental report dated

8
B.C., supra note 4; A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G.
Morris, 48 ECAB 238 (1996).
9

C.C., supra note 5; M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
10

See E.C., Docket No. 19-1007 (issued November 8, 2019). R.B., Docket No. 16-1863 (issued April 3, 2017).

11

E.C., id.; E.R., Docket No. 16-1529 (issued March 3, 2017); Adelbert E. Buzzell, 34 ECAB 96 (1982).

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December 18, 2019 represents the weight of the medical evidence and establishes that appellant’s
sensorineural hearing loss was not due to exposure to noise in the federal workplace.
Appellant has not submitted medical evidence sufficient to overcome the weight accorded
to Dr. Treyve or create a conflict. As the medical evidence of record is insufficient to establish
sensorineural hearing loss causally related to the accepted factors of federal employment, the
Board finds that appellant has not met his burden of proof.12
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish binaural hearing
loss causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the February 13, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 29, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12

See J.B., Docket No. 17-0984 (issued July 11, 2018); Mary E. Marshall, 56 ECAB 420, 427 (2005).

6


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Downey, CA, Employer
_________________________________________

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

Docket No. 14-1395
Issued: July 6, 2015

Case Submitted on the Record

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

JURISDICTION
On June 2, 2014 appellant filed a timely appeal from an April 21, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has more than five percent permanent impairment of his
left lower extremity.
FACTUAL HISTORY
Appellant, a 25-year-old human resources specialist, injured his lower back on October 9,
1976 while lifting a portable ramp, as he was loading and unloading a truck. He filed a claim for
benefits on October 22, 1976 and OWCP accepted lumbar strain, herniated lumbar disc and
1

5 U.S.C. § 8101 et seq.

lumbosacral degenerative disc disease. Appellant underwent an L4 laminectomy and L5
discectomy on November 12, 1976. He was placed on the periodic rolls until he returned to
work on February 15, 1978. Appellant later received a wage-earning capacity decision based on
his position at that time. He continued to receive compensation for partial disability.
Appellant continued to complete EN1032 forms and received medical treatment until
2007 when he was advised that his position was being targeted by the National Reassessment
Process and that he needed to provide an updated medical report listing all current restrictions.
In a report dated May 29, 2007, Dr. Sangarapilla Manoharan, a specialist in emergency
medicine, stated that appellant had left lower leg symptoms consisting of numbness and tingling
in his left lower extremity, as well as weakness in his left leg. Appellant believed that his left leg
symptoms were related to his lower back condition. Dr. Manoharan advised that this might be a
problem with the nerves that supply the left lower leg, which actually originate in the low back.
He noted that appellant had surgery at L4-5, L5-S1 in 1976. Dr. Manoharan asserted that,
although he believed appellant’s left lower leg symptoms were related to his lower back
condition, he would recommend referral to a back specialist who could consider whether his left
leg symptoms were causally related to his accepted lower back condition. He provided work
restrictions.
On October 29, 2013 appellant filed a claim for a schedule award based on a partial loss
of use of his lower extremities.
OWCP referred appellant to Dr. Richard A. Rogachefsky, Board-certified in orthopedic
surgery, for a second opinion examination as to whether appellant had any impairment from the
accepted conditions. In a February 28, 2014 report, Dr. Rogachefsky found that appellant had nine
percent lower extremity impairment pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (sixth edition). He advised that appellant had undergone
an L4 laminectomy and L5 discectomy on November 12, 1976. Dr. Rogachefsky stated that
appellant’s status was post decompression laminectomy, discectomy, and neural foraminotomy;
he had developed facet syndrome at the left L4-5 level, probably segmental instability and
recurrent disc herniation, with some residual motor weakness and sensory deficit in the left lower
extremity involving the L4, L5, and S1 nerve root, probably by perineural scarring. He stated
that his current diagnosis was spinal stenosis syndrome, postlaminectomy, long-term, with two
levels of low back lumbar radiculitis.
Dr. Rogachefsky stated that, under Table 16-12, page 534-35 of the A.M.A., Guides,2
appellant had a peripheral nerve impairment of the lower extremity impairment for sciatica,
based on a mild motor deficit in the left leg. He graded this as a class 1, mild problem with a
middle default value of nine percent lower extremity impairment. Citing Table 16-6, page 516
of the A.M.A., Guides,3 the table used for rating grade modifiers for functional history
impairments for the lower extremities, Dr. Rogachefsky found that appellant had a grade
modifier of zero because he did not have an antalgic limp. The physical examination grade
2

A.M.A., Guides 534-35.

3

Id. at 516.

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modifier at Table 16-7, page 517 of the A.M.A., Guides4 was not relevant as this was used in
determining class assignment. The clinical studies grade modifier at Table 16-8, page 519 of the
A.M.A., Guides5 was also not relevant as there were no electrodiagnostic studies available.
Accordingly, Dr. Rogachefsky found that appellant’s net adjusted impairment consisted of one
shift to the left because a class 1 minus a grade zero modifier would yield an adjusted grade
modifier of minus one, which would be one shift to the left from the middle default value; this
resulted in a seven percent lower extremity rating under the A.M.A., Guides. He determined that
the date of maximum medical improvement (MMI) was February 28, 2014.
In a March 22, 2014 report, Dr. Arthur A. Harris, a specialist in orthopedic surgery and
an OWCP medical adviser, found that appellant had a five percent impairment of the left lower
extremity under the sixth edition of the A.M.A., Guides stemming from his accepted lower back
conditions. He stated that appellant had undergone an L4-5 laminectomy with left L5-S1 disc
excision on November 12, 1976 and chronic left lumbar radiculopathy. Dr. Harris advised that
the sixth edition of the A.M.A., Guides does not provide a diagnosis-based impairment or any
other method to calculate residual lower extremity impairment for lumbar radiculopathy. He
stated, however, that the July/August issue of The Guides Newsletter provided a separate
approach to rating spinal nerve impairments consistent with the sixth edition methodology.
Dr. Harris asserted that, utilizing this method, appellant had a five percent impairment of the left
lower extremity for residual problems with mild motor weakness stemming from lumbar
radiculopathy, using class 1. He stated:
“Appellant has five percent of the left lower extremity resulting from the accepted work
injury of October 9, 1976. The date of MMI was February 28, 2014, when [he] was seen
by Dr. R. Rogachefsky.”
Dr. Harris stated that it not did appear that Dr. Rogachefsky was aware of the approach to
rate spinal nerve impairment, utilizing The Guides Newsletter as he set forth above.
By decision dated April 21, 2014, OWCP granted appellant a schedule award for a five
percent permanent impairment of the left lower extremity for the period March 4 to June 9, 2014,
for a total of 14.4 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
4

Id. at 517.

5

Id. at 519.

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th edition).

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necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.9
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP procedures indicate that The Guides
Newsletter “Rating Spinal Nerve Extremity Impairment using the sixth edition”
(July/August 2009) is to be applied.10
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment Class of Diagnosis condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH) and if
electrodiagnostic testing were done, Clinical Studies (GMCS).11 The net adjustment formula is
(GMFH - CDX) + (GMCS - CDX).12
ANALYSIS
The Board finds that the case is not in posture for decision.
In the present case, OWCP found that appellant was entitled to a schedule award for a
five percent left lower extremity impairment based on the opinion of Dr. Harris, OWCP’s
medical adviser. The Board finds, however, that OWCP improperly relied on its medical
adviser’s opinion. Dr. Harris failed to identify any positive clinical findings of peripheral nerve
impairment. In addition, he failed to indicate the applicable tables and figures of the July/August
issue of The Guides Newsletter or the A.M.A., Guides upon which he relied in calculating his
impairment rating. Regarding radiculopathy, Dr. Harris’ conclusion that “appellant had a five
percent impairment of the left lower extremity for residual problems with mild motor weakness
stemming from lumbar radiculopathy” is not a sufficient basis for an impairment rating. Due to
this lack of clarity, the Board is unable to render an informed judgment as to whether Dr. Harris’
impairment rating was in conformance with the accepted condition and the standards enunciated
in the July/August issue of The Guides Newsletter or the A.M.A., Guides.
The Board further finds that Dr. Rogachefsky’s report is similarly lacking in probative
value. Dr. Rogachefsky did not indicate that he was rating appellant’s left leg impairment
8

Id.

9

Veronica Williams, 56 ECAB 367, 370 (2005).

10

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as
Exhibit 4.
11

A.M.A., Guides 533

12

Id. at 521.

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pursuant to the accepted condition or the protocols of The Guides Newsletter. The Board notes
that while Dr. Rogachefsky indicated that mild motor deficit of the sciatic nerve would have a
default grade of 9, pursuant to The Guides Newsletter the default grade would be 8. As such, the
evidence does not substantiate that Dr. Rogachefsky’s evaluation was performed pursuant to The
Guides Newsletter. OWCP properly determined that Dr. Rogachefsky’s report did not provide a
basis for a schedule award under FECA.13 While the claimant has the burden to establish
entitlement to additional compensation, once OWCP undertakes the development of the
evidence, it has an obligation to provide a valid opinion.14
Accordingly, the Board will set aside OWCP’s April 21, 2014 decision and remand to
OWCP for further development of the medical evidence and to determine whether appellant has
established greater impairment of the left lower extremity based on the accepted condition. On
remand, OWCP should refer him to another second opinion physician. It should request that the
second opinion physician provide a well-rationalized, updated medical opinion, which
specifically makes a finding as to whether the accepted conditions from 1976 are responsible for
the current impairment and provide a rationalized opinion, based on the July/August issue of The
Guides Newsletter and/or the A.M.A., Guides in making findings and conclusions and in
rendering an impairment rating. After such development as it deems necessary, OWCP shall
issue a de novo decision.15
CONCLUSION
The Board finds that the case is not in posture for decision.

13

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580,
585 (2005).
14

Horace L. Fuller, 53 ECAB 775 (2002).

15

The Board notes that appellant has contested the date of MMI. This issue should also be addressed on remand
by the second opinion physician.

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ORDER
IT IS HEREBY ORDERED THAT that the April 21, 2014 decision of the Office of the
Workers’ Compensation Programs be set aside and remanded in accordance with this decision.
Issued: July 6, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


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

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

Docket No. 06-1515
Issued: April 9, 2007

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 June 19, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ April 7, 2006 nonmerit decision denying his request for an oral hearing
following an overpayment decision. Because more than one year elapsed between the issuance
of the Office’s most recent merit decision dated April 5, 2005 and the date appellant filed his
appeal, the Board lacks jurisdiction to review the merits of the overpayment decision.1
ISSUE
The issue is whether the Office properly denied appellant’s request for an oral hearing
following the April 5, 2005 decision finalizing the overpayment.
FACTUAL HISTORY
On February 7, 1997 appellant, a 50-year-old letter carrier, filed an occupational disease
claim alleging that on January 27, 1997 he first realized that his right knee tear was employment
1

See 20 C.F.R. §§ 501.3(d)(2); Linda Beale, 57 ECAB ___ (Docket No. 05-1536, issued February 15, 2006).

related.2 The Office accepted the claim for right knee torn meniscus and paid appropriate
compensation benefits. Appellant returned to modified part-time work on September 8, 1997
following his June 20, 1997 right knee arthroscopic surgery.
On December 20, 1999 appellant filed an occupational disease claim alleging that his
right knee pain was employment related.3 The Office accepted the condition of right knee
osteoarthritis. The Office accepted a claim for a recurrence of disability and authorized payment
of wage-loss compensation beginning November 13, 2000 based on the medical evidence.
Appellant returned to a modified job working six hours per day on February 12, 2001. On
July 26, 2001 the Office authorized right knee arthroscopy/joint debridement, which was
performed on August 27, 2001. On October 25, 2001 the Office placed appellant on the periodic
rolls for temporary total disability. She returned to a modified job working six hours per day on
December 17, 2001.4 The Office accepted a March 7, 2002 claim for a recurrence of disability.
On May 30, 2002 the Office authorized right knee total knee arthroplasty, which was performed
on June 3, 2002.
Appellant returned to limited-duty working six hours per day on
5
October 1, 2002.
On December 22, 2004 the Office made a preliminary determination that an overpayment
in the amount of $2,262.82 occurred because appellant received benefits for temporary total
disability through January 26, 2002 following his return to work six hours per day on
December 17, 2001. The Office found that he was at fault in the creation of the overpayment
because he accepted a payment that he knew or should have known was incorrect. The Office
advised appellant that, if he disagreed with the fact or amount of the overpayment or the finding
of fault, he had a right to submit any evidence or arguments and the right to request a
prerecoupment hearing within 30 days.
On January 27, 2005 the Office received appellant’s completed overpayment recovery
questionnaire which was dated January 17, 2005. Appellant contended that he was unaware of
the overpayment and that he had notified the Office that he had returned to work six hours per
day.
By decision dated January 27, 2005, the Office finalized the overpayment and noted that
appellant did not respond to the December 22, 2004 preliminary determination.

2

This was assigned File No. 03-0225036.

3

This was assigned File No. 03-0248034. On April 17, 2000 the Office doubled File No. 03-0248034 and File
No. 03-0225036 with File No. 03-248034 as the master file number.
4

The record contains evidence that appellant was paid compensation for total disability for the periods
December 2 through 29, 2001 and December 30, 2001 through January 26, 2002.
5

On November 6, 2003 appellant filed a claim for recurrence of disability beginning October 25, 2003. The
Office denied his claim by decision dated March 3, 2004, which was affirmed by an Office hearing representative in
a decision dated July 19, 2004. The Office hearing representative found that the record contained evidence of an
overpayment of compensation and remanded the case to the Office to follow the procedures regarding an
overpayment of compensation.

2

In a letter dated February 14, 2005, appellant informed the Office that he had responded
to the preliminary determination and that he requested waiver of the overpayment. He also
stated that he received no proof that he had received the overpayment.
In a decision dated April 5, 2005, the Office informed appellant that his overpayment
recovery form had been received and reviewed. The Office found that the preliminary
determination was correct and reissued the January 27, 2005 decision, which found appellant at
fault in the creation of an overpayment in the amount of $2,262.82. Appellant was informed that
he was not entitled to a waiver of the overpayment since he had been found at fault in the
creation of the overpayment. The Office informed him that, if he disagreed with the decision,
the only right of appeal was to the Board. However, the Office attached appeal rights which
included requesting an oral hearing before an Office hearing representative.
On April 12, 2005 appellant requested an oral hearing.
By nonmerit decision dated April 7, 2006, the Office denied appellant’s request for an
oral hearing on the grounds that he had not requested a hearing on the preliminary overpayment
determination. In addition, the Office noted that a final decision had been issued on the
overpayment issue on April 5, 2005. Appellant was informed that a final decision on an
overpayment is not subject to the hearing provisions set forth at 5 U.S.C. § 8124(b).
LEGAL PRECEDENT
Section 10.440(b) of the Office’s regulations provides that [t]he only review of a final
decision concerning an overpayment is to the Employees’ Compensation Appeals Board. The
provisions of 5 U.S.C. § 8124(b) (concerning hearings) and 5 U.S.C. § 8128 (concerning
reconsiderations) do not apply to such a decision.6 The Board has found that the implementation
of this regulation is a proper exercise of the Director’s discretion and that a claimant has no
further right to review by the Office once a final decision on the issue of overpayment has been
issued.7
ANALYSIS
In its April 5, 2005 overpayment decision, the Office correctly notified appellant that he
had the right to appeal that decision to the Board. However, the Office mistakenly attached
appeal rights with the April 5, 2005 overpayment decision which indicated that he could request
an oral hearing by an Office hearing representative. Appellant, on April 12, 2005, requested an
oral hearing before an Office hearing representative based upon the appeal rights given by the
Office with the April 5, 2005 final overpayment decision. By the time the Office issued its
decision denying appellant’s request for an oral hearing on April 7, 2006, the one-year time
limitation for review of decisions by the Board had already passed. The Office’s almost year
delay in responding to the April 12, 2005 request for a hearing and the misleading appeal rights
attached to the April 5, 2005 final overpayment decision effectively denied appellant the
6

20 C.F.R. § 10.44(b).

7

Charles E. Nance, 54 ECAB 447 (2003); Philip G. Feland, 48 ECAB 485 (1997).

3

opportunity to obtain a merit review of his overpayment decision before the Board. It is well
established that, when the delay in issuing a decision precludes a claimant from exercising his
right to appeal a merit decision to the Board, the Office should conduct a merit review.8 In the
present case, it is apparent that appellant’s opportunity for a merit review of the April 5, 2005
overpayment decision by the Board has been compromised by the Office’s almost one year delay
in issuing its decision denying appellant’s request for a hearing. The Board accordingly finds
that appellant is entitled to a merit review of the issues presented in the April 5, 2005 final
overpayment decision in order to protect his appeal rights.
CONCLUSION
The case will be remanded to the Office for a merit review of appellant’s final
overpayment decision based on the evidence of record and the issuance of an appropriate
decision to protect his appeal rights.

8

See, e.g., Anthony A. DeGenaro, 44 ECAB 230 (1992); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.9 (June 2002) “(when a reconsideration decision is delayed beyond 90 days and
the delay jeopardizes the claimant’s right to review of the merits of the case by the Board, the [Office] should
conduct a merit review).”

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 7, 2006 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: April 9, 2007
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

5


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

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

Docket No. 08-721
Issued: September 23, 2008

Case Submitted on the Record

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

JURISDICTION
On January 14, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 2, 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 has established that she sustained reflex sympathetic
dystrophy and cutaneous neuroma causally related to her June 24, 2004 employment injury.
FACTUAL HISTORY
On September 24, 2004 appellant, then a 47-year-old mail handler, filed an occupational
disease claim alleging that she sustained carpal tunnel syndrome in the performance of duty due
to lifting heavy sacks and parcels. She first became aware of her condition on June 24, 2004.
On December 13, 2004 the Office accepted appellant’s claim for bilateral carpal tunnel
syndrome.

The Office also accepted that appellant experienced a recurrence on November 24, 2004.
On December 8, 2004 appellant underwent a left carpal tunnel release.1
On April 6, 2006 the Office denied authorization of a nerve block of the stellate ganglion
finding that the evidence of record did not establish the procedure was required due to
appellant’s accepted employment injury.
In an April 25, 2006 letter, Dr. Harvey Finkelstein, Board-certified in pain medicine,
diagnosed reflex sympathetic dystrophy in the left arm and requested authorization for a series of
three cervical stellate ganglion blocks. He explained that based on the changes in appellant’s
skin color and the increased pain that she had the early stages of complex regional pain
syndrome. Dr. Finkelstein stated that appellant reported burning and paresthesias through out on
the palmar aspect of the hand from the previous carpal tunnel surgery as well as discoloration
developing and dystrophic skin changes. In a May 22, 2006 report, Dr. Lewis B. Lane, Boardcertified in orthopedic surgery and hand surgery, found appellant’s arm pain to be of an uncertain
basis. He stated that although appellant may have a neuroma of the palmar cutaneous branch of
the median nerve, he did not feel confident exploring this area. In a June 1, 2006 note,
Dr. Carlos Montero diagnosed right hand neuroma.
In a June 7, 2006 letter, the Office asked the district medical adviser to advise whether
the three cervical stellate ganglion blocks were necessitated by appellant’s accepted condition.
The medical adviser opined that it appeared that appellant had reflex sympathetic dystrophy of
the left hand but that it was a difficult diagnosis to make with certainty and that the series of
cervical stellate ganglion blocks would be related to appellant’s condition if it was actually
present. The medical adviser opined that the symptoms and findings described seemed to fit
reflex sympathetic dystrophy and that stellate ganglion blocks were often helpful. The medical
adviser also noted that it is often a difficult condition to treat.
In a June 20, 2006 letter, the Office informed appellant that she was being sent for a
second opinion examination to determine the diagnosis of her current condition, whether there
was evidence of reflex sympathetic dystrophy in the left arm and possible cutaneous neuroma
and if so if it was related or aggravated by her work injury and whether a series of three cervical
stellate ganglion block or trigger point injections should be authorized.
On July 12, 2006 appellant was examined by Dr. Dwight C. Blum, Board-certified in
orthopedic surgery. In his July 12, 2006 report, Dr. Blum reviewed appellant’s medical history
and records and performed a physical examination. Upon examination he noted that Tinel’s sign
tapping in the left palm caused pain radiating to the wrist, mild thenar atrophy on the left and
increased pigmentation on the dorsum of the left hand compared to the right. Dr. Blum
diagnosed chronic carpal tunnel syndrome, status post release on the left hand with left hand scar
pain and opined that there was no evidence of reflex sympathetic dystrophy or possible
cutaneous neuroma. He opined that appellant’s condition was repetitive stress syndrome in the
hands, which would probably be permanent. Dr. Blum found that neither cervical stellate
ganglion blocks nor trigger point injections were indicated.
1

There is no operative report in the file.

2

In a July 31, 2006 merit decision, the Office denied authorization for stellate ganglion
blocks and trigger point injections finding that there was no medical evidence to support that
appellant sustained a reflex sympathetic dystrophy or cutaneous neuroma related to her June 24,
2004 employment injury.
In an October 11, 2006 letter, the Office informed appellant that it had found a conflict in
medical opinion between Dr. Montero and Dr. Blum and that she would be seen by a referee
physician, Dr. Noah Finkel, Board-certified in orthopedic surgery, on October 23, 2006 to
resolve the outstanding medical issues.
In an October 23, 2006 report, Dr. Finkel reviewed appellant’s medical history and
records. He noted that appellant reported ongoing tenderness at the site of the surgery in the left
hand, which occasionally radiated up her arm into her shoulder and armpit. Dr. Finkel also noted
that appellant reported occasional paresthesias. He found appellant to have a negative Tinel’s
sign on the left with a questionably positive one on the right with pain radiating to the third
finger. Dr. Finkel found no clinical evidence to suggest reflex sympathetic dystrophy. He noted
that appellant had no significant color changes although the dorsal surface of the left hand
appeared to be darker but he did not believe there to be any correlation with the prior surgery,
disuse or evidence of reflex sympathetic dystrophy. Dr. Finkel opined that there was no
evidence of nerve compression in the left hand and noted that there was no atrophy, sensory or
motor deficit. He also found that it was not clear that appellant’s initial onset of bilateral acute
pain and numbness and tingling in both hands was solely causally related to her employment.
Dr. Finkel concluded that the etiology of appellant’s symptomatology was unclear. He opined
that the subjectivity of appellant’s examination and inconsistency of her symptomatolgy did not
support the diagnosis of either reflex sympathetic dystrophy or cutaneous neuroma.
On July 23, 2007 appellant, through his representative, requested reconsideration of the
July 31, 2006 merit decision. Additional medical reports were submitted. In a June 25, 2007
letter, Dr. Finkelstein noted that appellant had been a patient since March 20, 2006 and the
diagnosis at that time was postsurgical complex regional pain syndrome. He reported that
appellant had cervicothoracic sympathetic block/stellate ganglion block on October 6, 2006,
which provided significant relief of pain in her hand. Dr. Finkelstein stated that appellant was
cleared to return to work full time with a weight restriction of 20 pounds as of her last visit on
June 11, 2007. In a June 26, 2007 letter, Dr. Montero provided a narrative statement of his
treatment and physical findings of appellant’s left wrist and arm from December 5, 2005 through
October 12, 2006. He concluded that appellant had a chronic pain condition of the left upper
extremity and left hand since her carpal tunnel release in 2004.
In a November 2, 2007 merit decision, the Office modified the July 31, 2006 decision and
denied appellant’s claim that reflex sympathetic dystrophy and cutaneous neuroma were
employment related. It found that Dr. Finkel’s report constituted the weight of the medical
evidence and that Dr. Finkel properly based his medical opinion that the additional conditions
were not work related on his examination of appellant and review of the medical record.

3

LEGAL PRECEDENT
An employee who claims benefits for a work-related condition has the burden of
establishing by the weight of the medical evidence a firm diagnosis of the condition claimed and
a causal relationship between that condition and factors of federal employment.2 An employee
seeking compensation under the Federal Employees’ Compensation Act has the burden of
establishing her claim by the weight of the reliable, probative and substantial evidence.3
Section 8123(a) of the Act provides in part: If there is 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 an examination.4 When there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.5
ANALYSIS
To resolve the conflict between appellant’s attending physicians and the Office referral
physician, the Office properly referred appellant to an impartial medial specialist under 5 U.S.C.
§ 8123(a). The Office provided Dr. Finkel with appellant’s records and a statement of accepted
facts so he could base his opinion on a complete and accurate history. Dr. Finkel found no
clinical evidence to suggest reflex sympathetic dystrophy. He noted that there was no evidence
of nerve compression in the left hand nor any atrophy or any sensory or motor deficit. Based on
his physical examination of appellant and her symptoms Dr. Finkel determined that there was no
support for a diagnosis of either reflex sympathetic dystrophy or cutaneous neuroma. As
Dr. Finkel did not find that appellant had either reflex sympathetic dystrophy or cutaneous
neuroma neither of these conditions could not be found to be related to her employment injury.
Medical reports from Dr. Montero and Dr. Finkelstein were submitted with appellant’s request
for reconsideration however neither of the reports addressed the issue at hand, whether she had
reflex sympathetic dystrophy or cutaneous neuroma related to her employment injury, as neither
of the reports diagnosed either condition.
The Board finds that the opinion of the impartial medical specialist is based on a proper
factual and medical history and is sufficiently well rationalized that it is entitled to special
weight. The weight of the medical opinion evidence establishes that appellant did not sustain
reflex sympathetic dystrophy or cutaneous neuroma consequential to her accepted carpal tunnel
syndrome on June 24, 2004.

2

See Roy L. Humphyrey, 57 ECAB 238 (2005); see Naomi A Lilly, 10 ECAB 560, 574 (1959).

3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968).

4

5 U.S.C. § 8123(a).

5

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

4

CONCLUSION
The Board finds that appellant did not establish that she sustained reflex sympathetic
dystrophy or cutaneous neuroma caused by her June 24, 2004 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the November 2, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Atlanta, GA,
Employer
__________________________________________

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

Docket No. 15-1680
Issued: November 20, 2015

Case Submitted on the Record

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

JURISDICTION
On August 4, 2015 appellant filed a timely appeal from a July 22, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on February 2, 2014.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 2, 2015 appellant, then a 55-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he sustained an injury due to falling down stairs.2 He
indicated that he realized his condition was causally related to his employment on
November 4, 2014. Appellant explained that he had used bio-freeze for two months before
going to a specialist, who diagnosed a torn shoulder.
Appellant submitted a January 28, 2015 statement asserting that he had slipped and fallen
on stairs at work. He reported that he had been cleaning up a spill and was carrying a tub of mail
down the stairs when he fell. Appellant indicated that the fall was witnessed by his supervisor.3
He reported that he continued to work and for a time he used a substance called bio-freeze on his
shoulder and knees, before seeking treatment on March 14, 2014.
OWCP received a report dated March 14, 2014, signed by a physician assistant,
indicating appellant had received treatment for left shoulder discomfort. In a report dated
April 3, 2014, another physician assistant reported appellant had been seen for progressive left
shoulder pain.
In a report dated July 3, 2014, Dr. Jeff Traub, an orthopedic surgeon, reported that
appellant’s left shoulder pain was better, but he still had some pain and was weak in the rotator
cuff. He indicated that a magnetic resonance imaging (MRI) scan would be ordered. By report
dated July 24, 2014, Dr. Traub noted that the MRI scan showed a full-thickness tear of the left
rotator cuff. In an October 21, 2014 note, he indicated that appellant could return to work on
November 4, 2014.
OWCP sent a February 3, 2015 letter, advising appellant that the medical evidence of
record did not establish causal relationship between his left rotator cuff tear and the employment
incident. It was also noted that reports from a physician assistant were not sufficient as a
physician assistant is not considered a physician under FECA. Appellant was instructed to
submit additional relevant evidence within 30 days. On February 17, 2015 he submitted a
July 10, 2014 MRI scan report from Dr. John Reeder, a radiologist, reporting the results showed
a left shoulder rotator cuff tear.
By decision dated March 10, 2015, OWCP denied the claim for compensation. It found
an incident occurred as alleged, but that the medical evidence was insufficient to establish causal
relationship with a diagnosed condition.
On April 10, 2015 appellant submitted a request for reconsideration. He indicated that he
did not understand how the claim could be denied when the fall was witnessed by a supervisor.
2

A CA-2 claim form is used for an occupational disease or illness, which is an injury produced by the work
environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q). Since appellant alleged an
injury resulting from an incident that occurred during a single workday, OWCP properly considered his claim as a
traumatic injury claim. See 20 C.F.R. § 10.5(ee).
3

Appellant submitted a note from his supervisor dated February 11, 2015 indicating that he saw appellant fall on
stairs on February 2, 2014.

2

Appellant submitted an April 2, 2015 report from Dr. Traub, who reported that he had first seen
appellant on April 3, 2014. Dr. Traub indicated that at that time appellant had an injury to his
rotator cuff, more likely than not a contusion. He noted the results on the July 10, 2014 MRI
scan, and reported that appellant stated that his left shoulder had been asymptomatic “prior to his
fall and injury at work….” Dr. Traub concluded that “if this is the case, then I can see with a
reasonable degree of medical certainty that the fall and injury at work was the action that caused
him to either tear his rotator cuff or aggravate a preexisting condition that was latent and not
bothering him prior to the fall.”
By decision dated July 22, 2015, OWCP reviewed the merits of the claim and denied
modification. It found the medical evidence was insufficient to establish the claim.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”4 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of and in the course of
employment.”5 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.6 In order to determine whether
an employee actually sustained an injury in the performance of duty, OWCP begins with an
analysis of whether “fact of injury” has been established. Generally “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by medical evidence.7
OWCP’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.8 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.9
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
4

5 U.S.C. § 8102(a).

5

Valerie C. Boward, 50 ECAB 126 (1998).

6

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

7

See John J. Carlone, 41 ECAB 354, 357 (1989).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013).

9

Id., Chapter 2.805.3(d) (January 2013).

3

specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.10
ANALYSIS
In the present case, appellant has alleged that he fell on stairs while in the performance of
duty on February 2, 2014. OWCP accepted that an incident occurred as alleged. The issue is
whether there is rationalized medical evidence establishing a diagnosed injury causally related to
the employment incident.
The Board notes that appellant submitted March 18 and April 3, 2014 reports regarding
left shoulder treatment. The March 18, 2014 report was signed by a physician assistant, and it is
well established that a physician assistant is not a physician under FECA.11 The April 3, 2014
report contained only a reference that it was dictated by a physician assistant. Although
Dr. Traub reported he had seen appellant on April 3, 2014, the report of record does not contain
his signature or any indication that he reviewed the content of the report.
As to the medical evidence from Dr. Traub, there is no report with a rationalized medical
opinion on the issue presented. The July 3 and 21, and October 21, 2014 reports are brief and do
not discuss the issue of causal relationship. In an April 2, 2015 report, Dr. Traub opined that
appellant had sustained an injury resulting from a fall at work. This report is of diminished
probative value to the issue presented. As noted above, a medical report must be based on a
complete factual and medical background. Dr. Traub does not provide a complete factual or
medical history. He referred to a fall at work, without providing any relevant details, such as the
date of the incident and a clear description of the circumstances of the fall itself.
In addition, there is little medical rationale to support the opinion offered. The Board has
held that an opinion that a condition is causally related to an employment injury because the
employee was asymptomatic before the injury but symptomatic after it is insufficient, without
supporting rationale, to establish causal relationship.12 Dr. Traub also refers to the employment
incident as causing a rotator cuff tear “or aggravating a preexisting condition.” If he believes the
fall caused a rotator cuff tear, he must explain how the condition found on the July 10, 2014 MRI
scan was caused by the employment incident. If there was an aggravation, Dr. Traub should
clearly explain the nature and extent of any aggravation.13
10

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

11

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses, and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law.); George H. Clark, 56 ECAB 162 (2004);
5 U.S.C. § 8101(2).
12

See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (because the employee is symptomatic after an injury
is not sufficient to establish causal relationship without supporting rationale).
13

See W.F., Docket No. 14-0673 (issued July 9, 2014).

4

For the reasons noted, the Board finds that appellant did not meet his burden of proof
based on the evidence of record. Appellant may submit new evidence or argument with a written
request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an injury in
the performance of duty on February 2, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 22 and March 10, 2015 are affirmed.
Issued: November 20, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, MMPA,
Oak Creek, WI, Employer
__________________________________________

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

Docket No. 07-380
Issued: June 1, 2007

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 November 27, 2006 appellant filed a timely appeal from a June 2, 2006 decision of
the Office of Workers’ Compensation Programs denying her request for a prerecoupment hearing
and an August 10, 2006 merit decision, which found that she received an overpayment of
compensation in the amount of $8,395.92. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the overpayment.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for a
prerecoupment hearing; (2) whether appellant received an overpayment of compensation in the
amount of $8,395.92 for the period June 12, 2004 through December 31, 2005; (3) whether the
Office properly denied waiver of the overpayment; and (4) whether the Office properly
determined that the overpayment would be collected by deducting $100.00 from her continuing
compensation.

FACTUAL HISTORY
On December 16, 2003 appellant, then a 40-year-old clerk, filed an occupational disease
claim alleging that on December 12, 2003 she first realized her anxiety and stress were
employment related. On November 8, 2005 the Office accepted the claim for depressive
disorder.
By letter dated November 21, 2005, the Office noted that the record showed that
appellant might be receiving social security disability benefits and requested information. An
October 18, 2005 letter from the Social Security Administration indicated that appellant had been
receiving disability benefits from December 2004 at a regular monthly rate of $1,489.60.
The record contains computer printouts showing appellant received wage-loss
compensation during the period June 12, 2004 to December 31, 2005. For the period June 12
to 25, 2004, the Office noted that appellant was paid $1,030.62 after Federal Employees’
Retirement System (FERS) offset of $256.00, for the period July 10 to November 30, 2004, the
Office paid appellant $2,438.00 after a FERS offset of $2,438.00, for the period December 1,
2004 to November 30, 2005, the Office paid appellant $28,145.96 after a FERS offset of
$6,329.00 and for the period December 1 to 31, 2005, the Office paid appellant $2,405.67 after a
FERS offset of $549.00.
On March 7, 2006 appellant elected to receive benefits under the Federal Employees’
Compensation Act effective that date.
In a letter dated March 31, 2006, the Office informed appellant that the offset for
computation of benefits had been incorrectly calculated. The Office noted the computations
were calculated based upon her Social Security Administration benefits with FERS and without
FERS. The calculations were as follows:
“In your case, for the month of July [20]04, you received $1,489.60 for SSA with
FERS. Without FERS, the amount is $513.60. The difference is $976[.00],
($1,489.60 – 513.60) is deducted from your compensation payments.
“Unfortunately, in my haste to get you paid since, 2004, I incorrectly computed
the offset by simply deducting $513.60 as opposed to $976.00.... The over
payment is $8,395.82.” (Emphasis in the original.)
On April 5, 2006 the Office made a preliminary finding that appellant had been overpaid
in the amount of $8,395.92 because the receipt of dual benefits for social security disability and
federal workers’ compensation benefits for the period June 12, 2004 through
December 31, 2005. The Office noted that appellant received compensation of $42,638.441 for
the period June 12, 2004 to December 31, 2005, when she was entitled to $34,242.52, which
resulted in an overpayment of $8,395.92. The Office found that appellant was without fault in
the creation of the overpayment. The Office advised that, if she disagreed with the fact or
1

The calculations contain a typographical error for the period December 1 to 31, 2005. The amount noted is
$21,405.67 when it should be $2,405.67.

2

amount of the overpayment, she had a right to submit any evidence or arguments and the right to
request a prerecoupment hearing within 30 days.
In a letter dated and mailed on May 6, 2006, appellant requested a prerecoupment hearing
and submitted an overpayment recovery questionnaire dated May 6, 2006. The only information
she submitted in the overpayment questionnaire form was her Social Security monthly income of
$1,500.0. Appellant provided no information on expenses or any funds she might have on hand
on the form.
By decision dated June 2, 2006, the hearing representative denied appellant’s request for
a hearing on the grounds that it was untimely. The hearing representative indicated that
appellant was not entitled to a hearing as a matter of right.
By decision dated August 10, 2006, the Office finalized the overpayment of
compensation in the amount of $8,395.92 because it had miscalculated the dual benefits for
Social Security disability and federal workers’ compensation benefits offset for the period
June 12, 2004 through December 31, 2005. The Office found that appellant was without fault in
the creation of the overpayment but that she was not entitled to waiver. The Office further
determined that the overpayment would be collected by withholding $100.00 from her
continuing compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Section 10.432 of the Office’s regulations provides that, in response to a preliminary
notice of an overpayment, a claimant may request a prerecoupment hearing within 30 days of the
written notice of overpayment.2 Failure to request the hearing within this 30-day time period
shall constitute a waiver of that right.3
ANALYSIS -- ISSUE 1
Appellant argued that she timely requested a prerecoupment hearing as the decision had
been mailed April 6, 2006 and she mailed her request on May 6, 2006.
In computing a time period the date of the event from which the designated period of
time begins to run shall not be included, while the last day of the period so computed shall be
included unless it is a Saturday, Sunday or a legal holiday.4 The Office issued its preliminary
overpayment determination on April 5, 2006. She had 30 days within which to respond.
Therefore, she had until May 5, 2006 to respond to the preliminary determination. Appellant did
not respond within the required 30-day period. Therefore, her right to a hearing is deemed
waived.

2

20 C.F.R. § 10.432. See Willie C. Howard, 55 ECAB 564 (2004).

3

Afegalai L. Boone, 53 ECAB 533, 537 n.12 (2002); John B. Montoya, 43 ECAB 1148 (1992).

4

Id.

3

LEGAL PRECEDENT -- ISSUE 2
The Act provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of duty.5
When an overpayment has been made to an individual because of an error of fact or law,
adjustments shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.6
ANALYSIS -- ISSUE 2
The Office accepted appellant’s claim for a depressive disorder on November 8, 2005.
The record established that she received disability benefits from the Social Security
Administration during the period June 12, 2004 to December 31, 2005 and compensation
benefits under the Act.
On March 31, 2006 the Office determined that appellant’s offset for compensation of
benefits had been incorrectly calculated using her Social Security Administration benefits with
FERS when it should have been calculated without FERS. The record reflects that, from
June 12, 2004 to December 31, 2005, the Office paid appellant a total of $42,638.44 when it
calculated her compensation offset with FERS. The Office incorrectly deducted $513.60 from
her compensation payments instead of $976.00 which resulted in an overpayment. The Office
calculated that, during the period June 12, 2004 to December 31, 2005, appellant received
$42,638.44 when she was only entitled to receive $34,242.52. This difference created an
overpayment of $8,395.82.
The Board finds that, for the period June 12, 2004 to December 31, 2005, appellant
received an overpayment of $8,395.82 due to her receipt of benefits calculated using an incorrect
computation for the Social Security Administration payments she received. Appellant argued
that she should not be penalized due to the Office’s computation error. It is well established that
the Office’s negligence in creating the overpayment by the erroneous deduction of benefits does
not excuse the overpaid claimant from liability for repayment.7 The Office explained how the
overpayment occurred and provided this to appellant with the preliminary notice of
overpayment. The Office properly determined the amount of the overpayment that covered the
period June 12, 2004 to December 31, 2005.
LEGAL PRECEDENT -- ISSUE 3
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment.8 If the Office finds that the
recipient of an overpayment was not at fault, repayment will still be required unless:
5

5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

See Lawrence J. Dubuque, 55 ECAB 667 (2004).

8

20 C.F.R. § 10.33(a).

4

(1) adjustment or recovery of the overpayment would defeat the purpose of the Act; or
(2) adjustment or recovery of the overpayment would be against equity and good conscience.9
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of the Act or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.10
Failure to submit the requested information within 30 days of the request shall result in
denial of waiver and no further request for waiver shall be considered until the requested
information is furnished.11
ANALYSIS -- ISSUE 3
Although the Office found that appellant was without fault in the creation of the
overpayment, she nonetheless bears responsibility for providing financial documents. The
Office explained the importance of this financial information and advised her that it would deny
waiver if she failed to furnish the information within 30 days. Within the required 30-day
period, appellant did not submit the financial information. Under these circumstances, the Office
regulations mandate denial of waiver. The Board will affirm the Office’s decision on the issue
of waiver.
LEGAL PRECEDENT -- ISSUE 4
Section 10.441(a) of the Office’s regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made [the Office] shall decrease later payments of
compensation, taking into account the probably extent of future payments, the rate

9

Id. Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom the Office seeks recovery needs
substantially all of his or her current income, including compensation benefits, to meet current ordinary and
necessary living expense; and (b) the beneficiary’s assets do not exceed a specified amount as determined by the
Office from data furnished by the Bureau of Labor Statistics. A higher amount is specified for a beneficiary with
one or more dependents. Id. at § 10.436. Recovery of an overpayment is considered to be against equity and good
conscience when any individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt. Id. at § 10.437(a). Recovery of an overpayment is also considered to be against equity
and good conscience when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. Id. at § 10.437(b).
10

Id. at § 10.438(a).

11

Id. at § 10.438(b).

5

of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.”12
ANALYSIS -- ISSUE 4
The Office, in determining the rate of repayment by deduction from appellant’s
continuing compensation payments, had no financial information in which to consider whether
the withholding $100.00 from continuing compensation would result in any hardship. It is
appellant’s burden to submit evidence establishing that repayment would cause a hardship. The
Office directed appellant to submit financial information in its letter of April 5, 2006. Appellant
did not timely submit any financial information other than noting her monthly income from
Social Security on the overpayment recovery form. Based upon the circumstances of this case,
the Board finds the record devoid of any indication that repayment of $100.00 from appellant’s
continuing compensation payments would result in a severe hardship.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a prerecoupment
hearing as it was untimely filed. The Board also finds that the Office properly found an
overpayment in the amount of $8,395.92 and properly denied waiver for her failure to submit
requested financial information. Lastly, the Board finds that the Office properly determined
repayment would be collected by deducting $100.00 from her continuing compensation.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 10, 2006 is affirmed.
Issued: June 1, 2007
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
12

20 C.F.R. § 10.441(a).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Crescent City, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
William H. Brawner, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1923
Issued: April 19, 2012

Case Submitted on the Record

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

JURISDICTION
On August 23, 2011 appellant, through her attorney, filed a timely appeal from the
June 1, 2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this decision.
ISSUE
The issue is whether OWCP properly denied appellant’s March 3, 2011 request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error.
FACTUAL HISTORY
On December 11, 2007 appellant, a 54-year-old clerk, filed an occupational disease claim
alleging that she developed pain in her left chest and shoulder area in the course of her federal
1

5 U.S.C. § 8101 et seq.

employment. OWCP accepted her claim for left shoulder rotator cuff tear and left shoulder
weakness. Appellant received compensation for temporary total disability on the periodic rolls.
OWCP directed appellant to undergo vocational rehabilitation. OWCP’s rehabilitation
counselor developed a training plan for the position of medical secretary, and OWCP notified
appellant of her responsibilities to cooperate.
When the rehabilitation counselor advised that appellant had abandoned her approved
training program, OWCP issued a notice on April 12, 2007 advising her of the penalty under 5
U.S.C. § 8113(b) for failing without good cause to undergo vocational rehabilitation when so
directed: “If, within 30 days from the date of this letter, you do not comply with the instruction
to undergo the approved training program, or you do not show good cause for not undergoing the
training program, the rehabilitation effort will be terminated and action will be initiated to reduce
your compensation to reflect your probable wage-earning capacity had you completed the
training program.”
The rehabilitation counselor conducted a labor market survey for the position of medical
secretary. The entry-level wage in appellant’s area, as reported by the State of California, was
$8.59 per hour. The most consistently reported wage from employer contacts, however, was
$10.00 per hour or $400.00 per week. The rehabilitation counselor selected the latter.
The rehabilitation specialist advised that the targeted job remained vocationally and
medically appropriate as a rehabilitation goal, but that appellant willingly abandoned her
approved training. “The claimant’s own intransigence effectively precluded any potential for
success in the rehabilitation placement process.”
On July 25, 2007 OWCP proposed to reduce appellant’s compensation under section
8113(b). It noted that she had moved to Reno to be with her daughter, who was experiencing a
difficult pregnancy. After OWCP provided appellant the computer and training material she had
left behind in Crescent City, she engaged in online school courses but did not complete
outstanding assignments. Appellant advised that she was unable to proceed due to her
daughter’s pregnancy. When she came back home to Crescent City, she left part of the school
material behind due to limited space on the plane and advised it would be another month or more
before her husband could drive her back to Reno to pick up the material. “Based on the
circumstances described it is found that the claim has not fulfilled her statutory obligation for an
active and good faith participation in Vocational Rehabilitation and return to gainful employment
and that had training been completed employment would have been likely with a substantial
increase in wage[-]earning capacity.”
In a September 4, 2007 decision, OWCP reduced appellant’s compensation based on the
$400.00 per week that it found would likely have been her wage-earning capacity had she
undergone vocational rehabilitation. It notified appellant that she had one calendar year from the
date of that decision to request reconsideration.
On June 22, 2010 appellant, through her attorney, requested modification of the
September 4, 2007 decision on the grounds that the original rating was in error. OWCP
explained that the September 4, 2007 decision was not a wage-earning capacity determination

2

under section 8115 of FECA. As was explained in the prereduction notice, it was a sanction
under section 8113(b) for noncompliance with the vocational rehabilitation process after a
training plan was approved. As such, if appellant complied with OWCP’s direction to undergo
vocational rehabilitation, her compensation would be reinstated prospectively at the previous
rate. OWCP suggested several options: (1) appellant could notify OWCP that she was willing to
participate; (2) she could request reconsideration; or (3) she could claim total disability if her
medical condition had changed such that she could no longer participate in rehabilitation.
On March 3, 2011 appellant requested reconsideration of OWCP’s September 4, 2007
decision. She referred to the opinion of an independent vocational rehabilitation consultant, who
found that she was precluded from successfully performing the tasks of a medical secretary.
Appellant took issue with the notice of proposed reduction and final decision for not making
clearer that the decision was not a constructed wage-earning capacity decision, citing David W.
Green, 43 ECAB 883 (1992). She also contended that she could not be expected to understand
the reasons for the decision or her appeal rights or what she might do to change the outcome.
Appellant argued that serious family health issues forced her to deviate from the planned
training. She also contended that the identified position was inappropriate. Appelant noted that
the entry-level wage was $8.59 per hour, but OWCP used $10.00 per hour or $400.00 per week.
In a decision dated June 1, 2011, OWCP denied appellant’s request for reconsideration.
It found that her request was untimely and did not present clear evidence of error in the
September 4, 2007 decision. OWCP noted that while the cover letter of the sanction decision did
not cite section 8113(b), the April 12 and July 25, 2007 letters very clearly explained that
appellant’s compensation was being reduced because she failed to comply with her training
program.
Appellant’s attorney argued on appeal that the Board has jurisdiction to review the merits
of the case. The primary issue, he argues, is whether OWCP properly terminated appellant’s
wage-loss benefits. Appellant’s attorney argued that the selected position was not vocationally
or educationally suitable and that the wage-earning capacity determination must be modified. He
stated that it is not clear that appellant did not cooperate with vocational rehabilitation efforts or
that the training was suited to her educational ability and accomplishments. Appellant’s attorney
argued that he was forced into the “clear evidence of error” path, and that the Director’s
suggestion to submit new evidence was tantamount to a tacit agreement to review the 2007
decision. He asked the Board to find that the June 1, 2011 reconsideration decision failed to
adequately review the case on the Director’s own motion, and to return the case for payment of
appropriate compensation, including retroactive compensation from the date of the wage-earning
capacity decision forward.

3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretion to review an award for or against
the payment of compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”2
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
application for reconsideration must be sent within one year of the date of OWCP’s decision for
which review is sought. OWCP will consider an untimely application only if the application
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The
application must establish, on its face, that such decision was erroneous.3
The term “clear evidence of error” is intended to represent a difficult standard.4 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.5
ANALYSIS
On September 4, 2007 OWCP reduced appellant’s compensation. As the attached appeal
rights made clear, appellant had one calendar year, or until September 4, 2008, to request
reconsideration of that decision. Her March 3, 2011 reconsideration request was therefore
untimely. The only issue presented on this appeal is whether appellant’s untimely request
showed clear evidence of error in OWCP’s September 4, 2007 decision.
In her reconsideration request, appellant referred to the opinion of an independent
vocational rehabilitation consultant. She did not attempt to explain the significance of this
evidence. The independent counselor found that appellant was precluded from successfully
performing the tasks of a medical secretary. But this was not the issue. OWCP’s September 4,
2007 decision was not a wage-earning capacity determination. It was a sanction decision issued
under section 8113(b) for failing without good cause to continue her vocational rehabilitation.
To the possible extent that the independent counselor’s opinion conflicts with that of OWCP’s
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.c (January 2004).

5

Id., Chapter 2.1602.3.d(1).

4

rehabilitation counselor and rehabilitation specialist, who found that the targeted position
remained vocationally and medically appropriate as a rehabilitation goal, such a conflict fails to
establish clear error in the reduction of appellant’s compensation.
Appellant argued that the September 4, 2007 decision did not mention section 8113(b),
leading her to believe that the decision was a constructed wage-earning capacity decision “and
nothing more.” But as OWCP explained in denying reconsideration, letters dated April 12 and
July 25, 2007 provided notice that her compensation was being reduced for lack of cooperation
until such time as she demonstrated her willingness to resume her online training. A partially
disabled employee in vocational rehabilitation is subject to the sanction under section 8113(b)
should he or she not cooperate with rehabilitation efforts without good cause. OWCP provided
an April 12, 2007 notice letter and the July 25, 2007 notice of proposed reduction. Both letters
clearly addressed appellant’s refusal to participate in OWCP-approved training. Both letters
informed her that she could resume further training or, if good cause was not shown, her
compensation would be reduced to reflect her probable wage-earning capacity had training been
completed. There is no clear error on the notices provided appellant by OWCP prior to the
reduction of her benefits.
Appellant cited David W. Green, 43 ECAB 883 (1992), where the Board could not
discern the precise basis for the reduction of compensation, whether it was a wage-earning
capacity determination under section 8115 or a sanction decision under section 8113. The Board
found that OWCP improperly reduced the claimant’s compensation regardless. As to the former,
OWCP failed to give proper notice. As to the latter, the claimant took affirmative steps to
comply with OWCP’s notice of sanction.
The basis for the reduction of wage-loss compensation was clear. There is no evidence
that appellant took affirmative steps to comply with OWCP’s notice letter. Indeed, as appellant
stated in her request for reconsideration, she was “unwilling to resume vocational rehabilitation.”
As for appellant’s argument that she could not be expected to understand her appeal
rights, the September 4, 2007 decision set forth her appeal rights. It clearly spelled out that she
had one calendar year from the date of that decision to request reconsideration.
Appellant argued that serious family health issues forced her to deviate from the planned
training. OWCP addressed this argument in its notice of proposed reduction. Simply repeating
the same argument does not show clear error in OWCP’s decision. Appellant argued that the
identified position was inappropriate, but her lay disagreement with OWCP’s vocational
rehabilitation specialist, who is an expert in such matters and upon whose opinion OWCP may
rely,6 does not establish clear evidence of error in the reduction of her compensation for failing
to continue her online training.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8.b(2) (October 2009) (because the rehabilitation specialist is an expert in the field of vocational
rehabilitation, OWCP may rely on his or her opinion as to whether the job is reasonably available and vocationally
suitable).

5

Appellant noted that the entry-level wage of the targeted position was $8.59 per hour, but
OWCP reduced her compensation by $10.00 per hour or $400.00 per week. The record shows
that the rehabilitation counselor conducted a labor market survey, and contacts most consistently
reported an entry-level wage $10.00 per hour. Appellant’s request does not clearly show that it
was error for OWCP to use the entry-level wage most consistently reported by employers within
her commuting area.
The Board finds that appellant’s March 3, 2011 request for reconsideration did not
establish, on its face, that OWCP’s September 4, 2007 reduction of compensation was clearly
erroneous. Appellant is therefore not entitled to a merit review of her case. The Board will
affirm OWCP’s June 1, 2011 decision denying her untimely reconsideration request.
Appellant’s attorney argued that the Board has jurisdiction to review the merits of
appellant’s case. The most recent OWCP decision on the merits of appellant’s case was the
September 4, 2007 decision reducing her compensation. Appellant had no more than one year to
file an appeal of that decision with the Board. Her August 23, 2011 appeal allows the Board no
jurisdiction to review the merits of the reduction. The only decision the Board may review is
OWCP’s June 1, 2011 nonmerit decision denying her untimely reconsideration request.
The issue is whether appellant’s untimely reconsideration request established that the
September 4, 2007 conditional reduction of compensation was clearly erroneous. The options
given to appellant in no way committed OWCP to conduct a merit review of her case. The
September 4, 2007 decision was not a wage-earning capacity determination under section 8115,
and arguments that might be at least relevant to such a determination are immaterial to whether
OWCP properly denied appellant’s March 3, 2011 request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s March 3, 2011 request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error.

6

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 19, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7