United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 12-1547
Issued: July 5, 2013

Case Submitted on the Record

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

JURISDICTION
On July 11, 2012 appellant filed a timely appeal from February 7 and June 27, 2012 merit
decisions of the Office of Workers’ Compensation Programs (OWCP) which denied his
occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1

5 U.S.C. § 8101 et seq.; The Board notes that appellant submitted additional evidence following the June 27,
2012 decision. Since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its
final decision, the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c);
Sandra D. Pruitt, 57 ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for
reconsideration.
2

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant to confirm his
continuing desire for an oral argument in Washington, DC. No written confirmation was received within the time
allotted. The Board in its discretion will decide the appeal on the record.

ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
upper or lower back condition causally related to factors of his employment.
FACTUAL HISTORY
On November 30, 2011 appellant, then a 47-year-old manager of distribution operations,
filed an occupational disease claim alleging degenerative disc disease and arthritis of his back as
a result of walking the floors and checking containers. He first became aware of his condition
and realized that it was caused by his employment on May 1, 2011.3
In a November 15, 2011 report, Dr. Kenneth W. Reichert, II, a Board-certified
neurosurgeon, stated that appellant underwent surgery on July 27, 2010 and returned to work.
He did not describe the type of surgery performed. Dr. Reichert noted that it was becoming
more difficult for appellant to work without pain due to the amount of walking and bending he
performed on a daily basis. He reported that appellant was unable to perform his duties to full
capacity.
On December 13, 2011 OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that he submit a detailed description of the
employment activities that he believed caused his condition and respond to specific questions.
OWCP also requested that appellant submit a comprehensive medical report, including a
diagnosis, results of examinations and tests and a physician’s opinion with medical rationale
explaining the cause of his condition.
In a decision dated February 7, 2012, OWCP denied appellant’s claim. It accepted that
his work duties included continuous walking and checking containers but found insufficient
medical evidence to establish that he sustained a back condition as a result of his employment
duties.
On April 24, 2012 appellant submitted a request for reconsideration.
In a May 26, 2011 computerized tomography (CT) scan report, Dr. John R. Grogan, a
Board-certified diagnostic radiologist, observed that appellant’s thoracic alignment was normal
and disc height was well maintained throughout the spine. He noted mild osteophytic spurring of
the T4-5 facet joints and mild circumferential disc bulging at T10-11. Dr. Grogan diagnosed
mildly diffusely enlarged serpentine appearing dorsal thoracic vein, upper thoracic facet
arthropathy at T4-5, mild-to-moderate canal stenosis at T10-11 secondary to disc bulging and
ligamentum flavum hypertrophy and multilevel lumbar degenerative changes.
In a November 14, 2011 report, Dr. Max Lee, a Board-certified neurosurgeon, noted
appellant’s complaints of worsening low back pain and bilateral lower extremity numbness.
Appellant complained of chronic low back pain since 2004 and bilateral leg weakness and
3

The record reveals that appellant filed a previous occupational disease claim (File No. xxxxxx540) and two
previous traumatic injury claims (File Nos. xxxxxx989 & xxxxxx106).

2

numbness since June 2011. Dr. Lee noted that appellant’s previous low back surgery in 2004
and morphine pump placed in 2007. He conducted an examination and observed back pain and
arthralgias. No tenderness to palpation or instability was found. Appellant had full range of
motion and normal strength and tone of head, spine and bilateral arms and legs. Dr. Lee
diagnosed low back pain and thoracic spondylosis. He recommended further testing because
appellant demonstrated signs and symptoms of cervical myelopathy.
In a November 25, 2011 CT scan of the spine, Dr. Eric Fisher, a Board-certified
diagnostic radiologist, related appellant’s complaints of upper and lower extremity pain and
weakness. He observed a reversal of normal cervical lordosis, posterolateral endplate
osteophytic ridge with disc bulging and endplate spurring. Dr. Fisher diagnosed mild C5-6 right
lateral recess stenosis effacing the ventral thecal sac with probable mild cord flattening and no
evidence for foraminal compromise.
In a November 30, 2011 report, Dr. Lee related a history of appellant’s complaints of
worsening low back pain and bilateral lower extremity numbness. Since the CT scan, appellant
experienced an increase in his left leg weakness specifically in his hip. Dr. Lee provided a
history of injury and examination findings that were identical to the November 14, 2011
examination. He reported that the May 26, 2011 CT scan of the cervical spine revealed evidence
of a reversal of the normal lordotic curvature, congenital narrowing of the central canal and
osteophyte ridging at C5-6 causing flattening of the thecal sac and cervical spinal cord. Dr. Lee
stated that the cervical CT myelogram suggested spinal cord compression extending from C5-7
and to a lesser degree C4-5. He also observed some stenosis at T10-11 and stenosis with spinal
cord compression in the cervical spine C5-6, C6-7 and to a lesser degree C4-5. Dr. Lee
diagnosed low back pain and thoracic spondylosis.
In a February 27, 2012 report, Dr. Lee provided a history of injury and examination
findings that were similar to his previous reports. He noted that appellant felt that his condition
was worsening over time and that his low back pain caused him to sleep only one hour at a time.
Appellant stated that he had to crawl to the bathroom at times due to his leg weakness. Dr. Lee
diagnosed low back pain and thoracic spondylosis.
In April 3 and May 8, 2012 operative reports, Dr. Lee noted appellant’s diagnoses of
cervical stenosis and myelopathy.
In an April 11, 2012 report, Dr. Lee noted that he examined appellant for a postoperative
wound check. He stated that appellant underwent an anterior discectomy and fusion C4-7 on
April 3, 2012 but it was decided to stop the surgery because appellant became hypotensive.
Dr. Lee observed that the incision was clean, dry and intact with no signs of infection. He
opined that appellant’s cervical degenerative disc disease was directly attributed to the physical
demands of his job, such as heavy lifting.
In an April 11, 2012 statement of medical necessity form, Dr. Lee check marked
diagnoses for degenerative disc disease, radiculopathy and spinal stenosis. He indicated that a
bone growth stimulator was necessary for multilevel fusion, previous back surgery, obesity and
all/mixed graft.

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By decision dated June 27, 2012, OWCP denied the claim, finding insufficient medical
evidence to establish that his back condition was causally related to factors of his employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5 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.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8
ANALYSIS
Appellant alleged that he sustained an upper and lower back condition as a result of his
duties as a manager of distribution operations. OWCP accepted that his duties included
repetitive walking and checking containers. Appellant was diagnosed with a cervical condition.
The Board finds that he failed to provide sufficient medical evidence to establish that he
developed an upper or lower back condition as a result of his employment duties.
Appellant submitted several reports by Dr. Lee, who noted his complaints of worsening
low back pain and bilateral lower extremity numbness. Dr. Lee related that appellant
complained of chronic low back pain since 2004 and bilateral leg weakness and numbness since
June 2011. He briefly noted a history that appellant underwent previous low back surgery in
2004. Upon examination, Dr. Lee did not observe any tenderness to palpation or instability.
Range of motion was full. Dr. Lee diagnosed low back pain and spondylosis. He observed that
diagnostic reports reviewed stenosis with spinal cord compression and evidence of reversal of
4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

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the normal lordotic curvature. Dr. Lee however did not provide a rationalized medical opinion
causally relating appellant’s low back condition to the factors of his federal employment.
In an April 11, 2012 postoperative report, Dr. Lee opined that appellant’s cervical
degenerative disc disease was directly attributed to the physical demands of the job, such as
heavy lifting. Although he provided an opinion on causal relationship regarding appellant’s
cervical condition, the Board finds that his opinion is not well rationalized. Dr. Lee attributes
appellant’s condition to the physical demands of his job, such as heavy lifting. The Board notes,
however, that the record does not contain any description of appellant’s job duties as including
heavy lifting and that appellant attributed his condition to duties of repetitive walking and
checking containers. Medical reports must be based on a complete and accurate factual and
medical background.9 Because Dr. Lee fails to accurately describe appellant’s work duties, his
opinion lacks probative value. The Board notes that he failed to adequately explain how
appellant’s spinal conditions developed or worsened as a result of his duties of heavy lifting.
Such opinion is necessary as the record reveals a preexisting condition for which appellant had
surgery. Dr. Lee did not address whether appellant’s duties caused any aggravation or
contribution to the degenerative disc disease. Medical evidence that states a conclusion but does
not offer sufficient rationalized medical explanation regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.10 Dr. Lee’s reports are
insufficient to establish appellant’s claim.
Appellant also submitted various diagnostic reports by Drs. Grogan and Fisher. Although
the physicians provide a diagnosis of appellant’s spinal conditions, neither physician provides
any opinion on causal relationship. The Board has found that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.11
Dr. Reichert’s November 15, 2011 report does not contain any opinion on the cause of
appellant’s spinal condition. The Board finds that his reports are also insufficient to establish
causal relationship.
On appeal, appellant stated that his work duties included repetitive walking and checking
containers. He explained that checking containers required lifting and moving parcels, tubs and
bags of priority mail. Appellant alleged that heavy lifting was only one example used by
Dr. Lee. As noted, Dr. Lee’s reports lack probative value as he does not adequately explain how
appellant’s duties as an operator caused or contributed to his spinal conditions. Causal
relationship is a medical issue that can only be shown by reasoned medical opinion evidence that
is supported by medical rationale.12 Because appellant has not provided such medical opinion in
this case, he has failed to meet his burden of proof.

9

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

10

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

11

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

12

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

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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 establish that his upper or lower back conditions
were causally related to factors of his employment.
ORDER
IT IS HEREBY ORDERED THAT the June 27 and February 7, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 5, 2013
Washington, DC

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

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

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

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

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

Docket No. 15-164
Issued: March 9, 2015

Case Submitted on the Record

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

JURISDICTION
On November 3, 2014 appellant filed a timely appeal from an August 7, 2014 nonmerit
decision and a June 12, 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.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish carpal tunnel
syndrome causally related to factors of her federal employment; and (2) whether the Branch of
Hearings and Review properly denied her request for a hearing.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the June 12, 2014 decision. Because the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final merit decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit this evidence to OWCP along with a request for reconsideration.

FACTUAL HISTORY
On May 6, 2014 appellant, then a 52-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that she developed carpal tunnel syndrome as a result of
throwing letters, flats, and parcels, selling stamps, and handling packages of up to 70 pounds
daily in the course of her federal employment. She became aware of her condition and of its
relationship to her employment on December 29, 2012. The employing establishment did not
note a date of work stoppage and indicated that medical reports did not show that appellant was
disabled from work.
On November 12, 2013 Dr. Xiuli Li, a Board-certified neurologist, noted that appellant
reported numbness in both hands. Appellant stated that the change in sensation was intermittent.
On examination, Dr. Li noted that appellant was asymptomatic. She diagnosed appellant with
paresthesia and carpal tunnel syndrome. Dr. Li ordered testing to rule out peripheral neuropathy
and multiple sclerosis.
In a diagnostic report dated December 9, 2013, Dr. Luisa F. Rojas, a Board-certified
neurologist, interpreted the results of electromyographic testing performed on appellant’s upper
extremities. She stated an impression of moderate to severe right carpal tunnel syndrome and
moderate left carpal tunnel syndrome.
On December 10, 2013 Dr. Li noted that appellant’s symptoms remained the same, but
that appellant reported some pain involving the right hand. She stated that the symptoms
sometimes woke her in the middle of the night. Dr. Li restated her previous diagnoses of carpal
tunnel syndrome and paresthesia.
By letter dated May 8, 2014, OWCP advised appellant of the evidence needed to
establish her claim. It requested that she submit a comprehensive medical report from an
attending physician including dates of examination and treatment, a description of symptoms,
results of examinations and tests, diagnoses, the clinical course of treatment provided with the
effects of such treatment, a description of specific employment factors given to her by a
physician, and a physician’s opinion supported by a medical explanation as to whether her workrelated exposure resulted in the specific condition that had been diagnosed.
In a report dated February 5, 2014, Dr. Li noted that appellant returned for a follow up
relating to her carpal tunnel syndrome. Appellant reported that she still had pain in the wrist at
night, which would occasionally wake her up. Dr. Li referred appellant to a hand surgeon for
further evaluation.
By decision dated June 12, 2014, OWCP denied appellant’s claim for compensation. It
found that the medical evidence did not establish that her condition was caused or aggravated by
factors of her federal employment. OWCP accepted that appellant was a federal civilian
employee who filed a timely claim; that the employment factors occurred as alleged; that a
medical condition had been diagnosed; and that she was within the performance of duty.
On July 18, 2014 appellant requested an oral hearing before an OWCP hearing
representative. She also submitted an additional medical report from Dr. Li dated May 29, 2014.

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In this report, Dr. Li offered an opinion regarding the cause of appellant’s diagnosed condition.
He indicated that she was still symptomatic and that repeated movement using the hands
commonly results in carpal tunnel.
By decision dated August 7, 2014, the Branch of Hearings and Review denied the hearing
request as untimely. An OWCP hearing representative also denied a discretionary hearing,
noting that appellant could instead file a request for reconsideration along with additional
relevant evidence not previously considered.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The claimant has the burden of establishing by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
3

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Michael E. Smith, 50 ECAB 313, 315 (1999).

5

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

7

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

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opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the compensable
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.8 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant was a federal civilian employee who filed a timely claim;
that the employment factors occurred as alleged; that a medical condition had been diagnosed;
and that she was within the performance of duty. It denied her claim as she had not submitted
sufficient medical evidence to establish that her carpal tunnel syndrome was caused or
aggravated by factors of her federal employment. The Board finds that appellant has not met her
burden of proof to establish that her condition is causally related to duties of her federal
employment.
In reports from November 12, 2013 through February 5, 2014, Dr. Li examined appellant
and diagnosed her with carpal tunnel syndrome and paresthesia. A diagnostic report from
Dr. Rojas indicated that her carpal tunnel syndrome was moderate to severe on the right and
moderate on the left. Dr. Li noted that appellant’s symptoms were intermittent and that she was
experiencing pain in her right hand to the extent that it sometimes woke her up at night.
There is no medical evidence that was before OWCP at the time of its June 12, 2014
decision containing a rationalized opinion as to the cause of appellant’s carpal tunnel
syndrome.10 Medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.11 Hence,
these reports are not sufficient to meet appellant’s burden to establish a causal relationship
between work-related factors and her claimed injury.
As such, the Board finds that the medical evidence does not establish that appellant
sustained carpal tunnel syndrome causally related to her employment. An award of
compensation may not be based on surmise, conjecture, or speculation. Neither the fact that
appellant’s condition became apparent during a period of employment nor the belief that her
condition was caused, precipitated or aggravated by her employment, is sufficient to establish

8

Leslie C. Moore, 52 ECAB 132, 134 (2000).

9

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

10

Appellant submitted medical evidence subsequent to OWCP’s June 12, 2014 decision, but the Board lacks
jurisdiction to consider this evidence for the first time on appeal. Supra note 2.
11

Michael E. Smith, 50 ECAB 313, 316 n.8 (1999).

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causal relationship.12 Causal relationships must be established by rationalized medical opinion
evidence. As noted, the medical evidence is insufficient to establish appellant’s claim.
Consequently, OWCP properly found that appellant did not meet her burden of proof to establish
her claim.
LEGAL PRECEDENT -- ISSUE 2
A claimant, injured on or after July 4, 1966, who has received a final adverse decision by
OWCP may obtain a hearing by writing to the address specified in the decision.13 The hearing
request must be sent within 30 days (as determined by postmark or other carrier’s date marking)
of the date of the decision for which a hearing is sought.14 The claimant must not have
previously submitted a reconsideration request (whether or not it was granted) on the same
decision.15 If the request is not made within 30 days, a claimant is not entitled to a hearing as a
matter of right. However, the Branch of Hearings and Review may exercise its discretion to
either grant or deny a hearing.16
ANALYSIS -- ISSUE 2
OWCP issued its latest merit decision on June 12, 2014. Appellant had 30 days to
request a hearing, but the hearing request was postmarked July 18, 2014. The regulations
provide that “[t]he hearing request must be sent within 30 days … of the date of the decision for
which a hearing is sought.”17 Because appellant’s July 18, 2014 request was untimely, she was
not entitled to a hearing as a matter of right. The Branch of Hearings and Review also denied
appellant’s hearing request because it found that her claim for compensation for occupational
disease could be equally well addressed by requesting reconsideration before OWCP. The Board
finds that the hearing representative properly exercised her discretionary authority in denying
appellant’s request for a hearing.18

12

See Dennis M. Mascarenas, supra note 6.

13

20 C.F.R. § 10.616(a).

14

Id.

15

Id.

16

5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33
ECAB 140 (1981).
17

20 C.F.R. § 10.616(a).

18

Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from known facts. See André Thyratron, 54 ECAB 257, 261 (2002).

5

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
carpal tunnel syndrome was causally related to her federal employment. The Board further finds
that the Branch of Hearings and Review properly denied appellant’s hearing request.
ORDER
IT IS HEREBY ORDERED THAT the August 7 and June 12, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 9, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-182
Issued: August 7, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 4, 2011 appellant, through his attorney, filed a timely appeal from a
August 11, 2011 merit decision of the Office of Workers’ Compensation Programs’ (OWCP),
which denied his claim of injury. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The record contains a September 28, 2011 decision; however, appellant’s representative only appealed from the
August 11, 2011 decision.

FACTUAL HISTORY
On October 7, 2010 appellant, then a 57-year-old modified carrier, filed an occupational
disease claim alleging that on July 12, 2010 he was walking down a flight of stairs when his right
knee buckled. He caught his balance to prevent himself from falling. Appellant realized that his
condition was caused or aggravated by his employment on September 21, 2010 when a torn
medial meniscus in his right knee was diagnosed. He advised that he was not sure if his
condition was related to a November 14, 1998 injury and his right knee was always in pain.
Appellant did not stop work.
In a September 21, 2010 report, Dr. Paul J. Papanek, a Board-certified family
practitioner, noted that appellant had several claims, including one for a November 14, 1998
injury which included the right knee. Appellant reported right knee swelling for the previous
12 years with a constant and sharp right knee pain and swelling for about two weeks. He denied
any new injuries. Dr. Papanek noted that a right knee magnetic resonance imaging (MRI) scan
on August 19, 2010 revealed a horizontal tear of the lateral meniscus anterior horn and body. He
also diagnosed osteoarthritis of the knee.
In an October 6, 2010 statement, appellant reiterated how the July 12, 2010 incident
occurred. He advised that he was off the next day and iced his leg and took some pain
medication.
Appellant noted that he had right knee pain from a prior injury on
November 14, 1998. He advised that his physician diagnosed a torn meniscus, which he alleged
occurred on July 12, 2010.
After OWCP requested, additional evidence, appellant provided a December 1, 2010
statement describing his injury. Appellant noted that he had prior problems with his right knee
due to over compensating with his weight to his right leg. He walked with a cane since his
November 14, 1998 injury to his left Achilles tendon. Appellant explained after receiving his
MRI scan results, he confirmed that his injury, a medial meniscus tear, was a new injury on
July 12, 2010, when his knee buckled. In a December 3, 2010 statement, Harold Provost, a
maintenance engineer, confirmed that he witnessed appellant’s July 12, 2010 injury at work. He
walked with appellant down the stairs when his leg buckled. Mr. Provost indicated that appellant
appeared to be in pain.
In a December 22, 2010 decision, OWCP denied the claim finding that appellant did not
submit sufficient medical evidence in connection with the claimed injury.
On January 4, 2011 appellant requested reconsideration. He repeated his history of injury
and advised OWCP that additional medical evidence was forthcoming. Appellant explained that,
when he initially saw Dr. Papanek on July 27, 2010, he thought his condition was due to his
November 14, 1998 injury. After his MRI scan, he realized that it was a new injury.
In a January 4, 2011 report, Dr. Papanek noted that appellant’s case was complex as he
had a previous November 14, 1998 claim that involved the right knee as well as left Achilles
rupture and left plantar fascia. The right knee had a history of swelling on and off for 12 years
and appellant had permanent work restrictions since 2002 that included walking and standing
limited to 20 minutes an hour. Dr. Papanek explained that appellant wanted to amend his history

2

to note that, while descending stairs at work, his right knee buckled and he hyperextended it on
July 12, 2010. Appellant initially thought his condition was due to the previous knee injury but
the August 19, 2010 MRI scan revealed a horizontal tear of the lateral meniscus anterior horn
and body. Dr. Papanek explained that the new finding of a meniscus tear was different from
appellant’s previous injury and opined that “it would be difficult to prove as an industrial injury.”
He stated “[I] CANNOT conclude that the current knee problem is the result [of the] industrial
injury in 1998, but I also cannot rule out that possibility and would defer to [OWCP] as to
whether they would accept [appellant’s] current knee condition under the previous one.”
Dr. Papanek diagnosed osteoarthritis of the knee, trigger finger, carpal tunnel syndrome and tear
of the right knee, lateral meniscus. He opined that “causation is a very difficult question.”
Dr. Papanek was “unable to resolve issues of the inconsistencies in [appellant’s] previous
history, since he denied any new injury to the right knee at the time of the visit with me on
July 27, 2010.” He noted that, while it was possible appellant overlooked important parts of his
history, “the reliability of his history is plainly quite poor.”
In a January 18, 2011 report, Dr. Yu Fon Lee, a Board-certified orthopedic surgeon and
associate of Dr. Papanek, diagnosed osteoarthritis of the right knee and “meniscal teardegenerative lateral.” He noted that appellant had worsening right knee pain and intermittent
swelling worsened by a slip on the stairs at work on July 12, 2010. Dr. Lee advised that the
August 2010 MRI scan revealed a lateral meniscal tear.
In a February 1, 2011 report, Dr. Papanek noted that appellant had experienced right knee
swelling for the past 12 years. He advised that on July 12, 2010 appellant related:
“[H]is knee had been bothering him more for about two weeks, but denied any
new injuries to the right knee. Then, at a subsequent visit, [appellant] ‘recalled’
that he had in fact hurt his knee on July 12, 2010. He was descending the stairs
while at work on July 12, 2010 and says that the right knee buckled and
hyperextended. [Appellant] completed the shift despite the right knee pain. Over
the next few days his knee swelled and he was unable to walk and then made an
appointment to see me two weeks later.”
Dr. Papanek opined that “the history of a new injury was inconsistent and that it was very
difficult for [him] to sort out the issues of causation.” He explained that “it was possible that
[appellant] sustained a new injury to the right knee on July 12, 2011. There was NO evidence
that any of his previous work[ers’] comp[ensation] claims would explain the current right knee
problems.” Dr. Papanek advised that appellant would have arthroscopic right knee surgery on
March 16, 2011 and require about three to six weeks of total disability and four to six months of
modified duty.
In an April 7, 2011 decision, OWCP denied the claim finding that the medical evidence
was insufficient to establish causal relationship. It adjudicated the claim as a traumatic injury on
July 12, 2010.
On April 19, 2011 OWCP received a January 4, 2011 industrial work status report from
Dr. Papanek, who diagnosed osteoarthritis of the knee and a current tear of the lateral meniscus
in the knee. Dr. Papanek advised that appellant continue his previous restrictions due to three

3

separate workers’ compensation claims. He submitted additional reports continuing the
restrictions on February 1 and May 10, 2011.
Appellant requested reconsideration on May 20, 2011. He repeated his history and noted
that Dr. Papanek was aware of how he injured himself. Appellant noted that he had a witness
and explained the delay in reporting was due to management’s failure to cooperate.
In a March 22, 2011 report, Dr. Papanek repeated his explanation that on July 12, 2010,
appellant related that “his knee had been bothering him more for about two weeks, but denied
any new injuries to the right knee. Then, at a subsequent visit, [appellant] ‘recalled’ that he had
in fact hurt his knee on July 12, 2010 and says that the right knee buckled and hyperextended.
[Appellant] completed the shift despite the right knee pain. Over the next few days his knee
swelled and he was unable to walk and then made an appointment to see me two weeks later.”
In a May 10, 2011 report, Dr. Papanek noted appellant’s case was complex due to his
previous claims. He again reviewed his notes from January 4 to February 1, 2011. Dr. Papanek
noted:
“[Appellant was] sure that he tore his meniscus at work on July 12, 2010, but as I
previously related my concurrent noted indicate (sic) conflicting histories and I
have not been able to conclude to a medical certainty that the episode of July 12,
2010 likely was the cause of his current meniscal tear. Please note that I am not
saying that it would be impossible for the meniscal tear to have happened on that
date-merely that given the conflicting histories and the concurrent examinations I
am not able to conclude to a medical certainty that there was a work injury
producing a meniscal tear on July 12, 2010.”
In a June 14, 2011 report, Dr. Papanek repeated his previous opinion about the claim and
stated that appellant had an episode of minor trauma to the right knee on July 12, 2010. In a
July 12, 2011 report, he noted appellant’s history and repeated his diagnoses. OWCP also
received a report of diagnostic testing as well as previously submitted reports and progress notes
from an occupational therapist.
By decision dated August 11, 2011, OWCP denied modification of the prior decision. It
found that Dr. Papanek was unable to conclude that the episode on July 12, 2011 was the cause
of his current meniscal tear.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged and
that any disability and/or specific condition for which compensation is claimed are causally related

4

to the employment injury.3 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, 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.6
ANALYSIS
Appellant has established that on July 12, 2010 he was walking down a flight of stairs
when he had to catch himself to prevent from falling. The issue, therefore, is whether the
medical evidence establishes that this employment activity caused or contributed to any
diagnosed condition. Appellant has submitted insufficient medical evidence to establish that his
right knee meniscal tear was caused or aggravated by specific factors of his federal employment.
Appellant submitted several reports from his treating physician Dr. Papanek. However,
he was unable to provide an unequivocal opinion that the meniscal tear was work related. On
September 21, 2010 Dr. Papanek noted that appellant reported right knee pain and swelling for
about two weeks and that he denied any new injuries. On January 4, 2011 he noted that
appellant wanted to amend his history and asserted that his right knee symptoms were due to the
July 12, 2010 work incident. Dr. Papanek asserted that appellant’s condition “would be difficult
to prove as an industrial injury.” He opined that “causation is a very difficult question” as he
was “unable to resolve issues of the inconsistencies” in appellant’s history noting that he denied
any new injury to the right knee when he saw appellant on July 27, 2010. Dr. Papanek noted
that, while it was possible appellant overlooked important parts of his history, “the reliability of
his history is plainly quite poor.” In subsequent reports, he continued to note that appellant had
provided an inconsistent history and that he could not state with medical certainty that
appellant’s right knee condition was caused or aggravated by the July 12, 2010 work incident.
3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

T.H., 59 ECAB 388 (2008).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 4.

5

At best, Dr. Papanek provides only speculative support for causal relationship.7 Because he was
unable to provide an unequivocal opinion explaining the reasons why walking on steps on
July 12, 2010 caused or aggravated a right knee condition, his reports are of limited probative
value and insufficient to establish appellant’s claim.
In a January 18, 2011 report, Dr. Lee diagnosed osteoarthritis of the right knee and
“meniscal tear-degenerative lateral.” He noted that appellant had worsening right knee pain and
intermittent swelling worsened by a slip on the stairs at work on July 12, 2010 diagnosed lateral
meniscal tear. The Board notes that Dr. Lee did not explain how he arrived at this conclusion.
This is especially important in light of appellant’s complex medical history. A medical report is
of limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale.8
Appellant also submitted several other reports and diagnostic reports. However, these
reports are insufficient because they did not provide an opinion on the causal relationship.
Therefore, these reports have no probative value in establishing causal relationship.9
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.10
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.11 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
As there is no probative, rationalized medical evidence addressing and explaining why
appellant’s right knee meniscal tear was caused and/or aggravated by factors of his employment,
he has not met his burden of proof in establishing that he sustained a medical condition in the
performance of duty causally related to factors of employment.
Appellant may submit evidence or argument with a written request for reconsideration
within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty.
7

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions which are
speculative or equivocal in character have little probative value).
8

See Leon Harris Ford, 31 ECAB 514, 518 (1980).

9

See Michael E. Smith, 50 ECAB 313 (1999).

10

See Joe T. Williams, 44 ECAB 518, 521 (1993).

11

Id.

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ORDER
IT IS HEREBY ORDERED THAT the August 11, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 7, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, WOLF CREEK JOB CORPS
CENTER, Glide, OR, Employer
__________________________________________

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

Docket No. 11-510
Issued: September 8, 2011

Case Submitted on the Record

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

JURISDICTION
On December 27, 2010 appellant filed a timely appeal from a December 1, 2010 decision
of the Office of Workers’ Compensation Programs (OWCP) finding that she abandoned her
request for a hearing. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit hearing request issue.
ISSUE
The issue is whether OWCP properly determined that appellant abandoned her request
for a hearing.
On appeal, appellant asserted that she did not receive notice of the scheduled telephonic
hearing due to difficulties with the post office box she used as her address of record. She
contended that she paid the annual fee for the post office box but was wrongfully denied access
and that the post office returned her mail to sender rather than delivering it.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 26, 2010 appellant, then a 68-year-old former contract arts and crafts
instructor, filed a traumatic injury claim (Form CA-1) for a right hip fracture sustained on May 6,
2001 when she fell on a cement floor.2 She submitted a January 6, 2010 letter from her attorney
arguing that she was a federal employee and entitled to FECA benefits. The employing
establishment contended in an April 13, 2010 letter and on the reverse of the claim form that
appellant was a contract worker and not a federal employee.
In an April 15, 2010 letter, OWCP advised appellant of the evidence needed to establish
her claim, including documentation that she was a federal employee at the time of the claimed
injury. Appellant was afforded 30 days in which to submit such evidence. In response, she
submitted contracts from July 1997 through June 2001 contending that she was hired as a
contract arts and crafts instructor and required to supply all materials required for performance of
the contract. She was to instruct the students in the manner she chose. The contracts did not
incorporate FECA coverage.
By decision dated May 28, 2010, OWCP denied appellant’s claim, finding that she was
not a federal civil employee and not covered by FECA.
On June 14, 2010 appellant requested an oral hearing. She submitted a June 15, 2010
statement and various medical records.
By notice dated October 4, 2010 and addressed to appellant at her address of record,
OWCP advised her that a telephonic hearing would be held in her case on November 3, 2010 at
2:00 p.m., eastern time. It instructed appellant to call the provided toll free number a few
minutes before the scheduled hearing time and enter a specified pass code to gain access to the
conference call. OWCP also addressed this notice to appellant’s attorney. It misspelled the
name of the street on which the attorney’s office was located.
In an envelope postmarked October 5, 2010 and received by OWCP on October 28, 2010,
the notice of oral hearing sent to appellant was returned to OWCP bearing the notation “box
closed, unable to forward, return to sender.”
By decision dated December 1, 2010, OWCP found that appellant had abandoned her
request for a hearing. It acknowledged that the notice addressed to appellant had been returned
but found that her attorney was “properly put on notice” yet failed to respond. As neither
appellant nor her attorney appeared or explained her absence either before or after the scheduled
hearing, OWCP determined that she abandoned her request.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
2

Appellant worked under a contract/purchase order from 1997 to 2001. She previously filed an administrative
claim under the Federal Tort Claims Act (FTCA) for the same injury. This claim was denied on April 17, 2009.

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in the decision within30 days of the date of the decision for which a hearing is sought.3 Unless
otherwise directed in writing by the claimant, OWCP’s hearing representative will mail a notice
of the time and place of the hearing to the claimant and any representative at least 30 days before
the scheduled date.4
OWCP has the burden of proving that it mailed a notice of a scheduled hearing to a
claimant.5 Under the mailbox rule, it is presumed, in the absence of evidence to the contrary,
that a notice mailed to an individual in the ordinary course of business was received by that
individual. This presumption arises when it appears from the record that the notice was properly
addressed and duly mailed.6 However, as a rebuttable presumption, receipt will not be assumed
when there is evidence of nondelivery.7 Also, it is axiomatic that the presumption of receipt does
not apply where a notice is sent to an incorrect address.8
The authority governing the abandonment of hearings rests with OWCP’s procedure
manual, which provides that a hearing can be abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not requested a
postponement; the claimant has failed to appear at a scheduled hearing; and the claimant has
failed to provide any notification for such failure within 10 days of the scheduled date of hearing.
Under these circumstances, the Branch of Hearings and Review will issue a formal decision
finding that the claimant has abandoned her request for a hearing and return the case to the
appropriate OWCP district office.9
ANALYSIS
The Board finds that OWCP improperly determined that appellant abandoned her request
for a telephonic hearing. OWCP found that she received adequate notice of the scheduled
hearing. The evidence of record establishes that notice of the November 3, 2010 hearing was
sent to appellant’s address of record. However, the record demonstrates that the notice was
returned to OWCP as undeliverable.
The mailbox rule provides that proper and timely mailing of a document raises a
rebuttable presumption of receipt by the addressee. The Board has applied the mailbox rule to
claimants under FECA and to OWCP when it is established that the mailing was in the ordinary

3

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

4

20 C.F.R. § 10.617(b).

5

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

6

Michelle Lagana, 52 ECAB 187 (2000).

7

C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-526 (issued September 14, 2009).

8

W.A., Docket No. 06-1452 (issued November 27, 2006); see also Clara T. Norga, 46 ECAB 473 (1995).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearing and Reviews of the Written Record, Chapter
2.1601.6(c)(January 1999). See also G. J., 58 ECAB 651 (2007).

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course of the sender’s business practices.10 However, receipt will not be presumed when there is
evidence of nondelivery.11 The record demonstrates that the notice of hearing mailed to
appellant was returned to OWCP as undeliverable. Although properly addressed to her address
of record, the notice of hearing was returned. OWCP received the returned envelope on
October 28, 2010. As the evidence supports nondelivery of the notice of hearing, the mailbox
presumption does not apply.
Regarding the copy of the notice of hearing addressed to appellant’s attorney, the Board
finds that it was misaddressed. OWCP misspelled the street on which the attorney’s office was
located. As the notice sent to appellant’s attorney was not sent to his correct address, the
mailbox rule’s presumption of receipt does not apply.12
Moreover, OWCP’s notice of hearing was insufficient. OWCP regulations provide that a
written notice of hearing will be mailed to a claimant at least 30 days before a scheduled
hearing.13 As stated, appellant did not receive the October 4, 2010 notice. The Board finds that
OWCP failed to give appellant proper notice of her hearing under 20 C.F.R. § 10.617(b).
Therefore, OWCP improperly found that she abandoned her request for hearing.
On appeal, appellant asserts that she did not receive proper notice of hearing due to
difficulties with her post office box. As stated, OWCP did not provide her with proper notice of
hearing. The case will be remanded to OWCP to schedule a hearing.
CONCLUSION
The Board finds that OWCP failed to provide proper notification to appellant of the
hearing scheduled for November 3, 2010.

10

Kenneth Harris, 54 ECAB 502 (2003).

11

C.O., supra note 7; M.U., supra note 7.

12

W.A., Docket No. 06-1452 (issued November 27, 2006); see also Clara T. Norga, 46 ECAB 473 (1995).

13

20 C.F.R. § 616(a).

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ORDER
IT IS HEREBY ORDERED THAT the decision dated December 1, 2010 of the Office
of Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this decision.
Issued: September 8, 2011
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
E.G., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, New York, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-2148
Issued: February 22, 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 September 20, 2006 appellant filed a timely appeal of an August 9, 2006 decision of
the Office of Workers’ Compensation Programs finding that his request for reconsideration was
untimely and failed to show clear evidence of error. The most recent decision on the merits of
the claim was dated December 31, 2002. Pursuant to 20 C.F.R. § 501.3(d)(2), the Board’s
jurisdiction is limited to final decisions of the Office issued within one year of the filing of the
appeal. The Board does not have jurisdiction over the merits of the claim on this appeal.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request for reconsideration was untimely
filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On July 16, 1999 appellant filed a traumatic injury claim (Form CA-1), alleging that on
May 20, 1999 he sustained a back injury while lifting trays of mail. By decision dated

January 27, 2000, the Office denied the claim on the grounds that he had not established that the
employment incident occurred as alleged or submitted probative medical evidence. The Office
noted that appellant failed to notify his supervisor on or about May 20, 1999 of a work-related
injury and initially reported on an employing establishment form that his injury was not
employment related.
Appellant requested reconsideration of his claim which was denied by merit decision
dated July 1, 2000. The Office also denied modification by merit decisions dated February 20
and December 31, 2002.
In a letter dated March 2, 2006, appellant requested reconsideration of his claim. He
argued that he did timely report a work-related injury and his version of the alleged incident
should be accepted as factual. Appellant alleged that he was forced to continue working despite
his injury and was not provided with the appropriate claim forms. He argued that he submitted
sufficient medical evidence to meet his burden of proof. Appellant submitted a September 25,
2005 report from Dr. Ahmed Elemam, a physiatrist, who diagnosed chronic low back pain due to
disc herniation, lumbar radiculopathy and myofascitis. He concluded that appellant had a partial
and permanent disability. Appellant also submitted a December 23, 2005 report from
Dr. David Green, a chiropractor, who diagnosed a lumbar subluxation based on a June 29, 2005
magnetic resonance imaging (MRI) scan. Dr. Green opined that the May 20, 1999 accident
caused a permanent lumbar condition that interfered with appellant’s ability to perform daily
activities and duties.
By decision dated August 9, 2006, the Office determined that appellant’s application for
reconsideration was untimely. The Office found that the evidence submitted did not establish
clear evidence of error by the Office and did not warrant reopening the case for merit review.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act1 does not entitle a claimant
to a review of an Office decision as a matter of right.2 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.3 The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).4 As one such limitation, the Office has stated
that it will not review a decision denying or terminating a benefit unless the application for
1

5 U.S.C. § 8128(a).

2

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

3

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
4

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a specific point of law; or (2) advancing a relevant
legal argument not previously considered by the Office or (3) constituting relevant and pertinent evidence not
previously considered by the Office; see 20 C.F.R. § 10.606(b).

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review is filed within one year of the date of that decision.5 The Board has found that the
imposition of this one-year limitation does not constitute an abuse of the discretionary authority
granted the Office under 5 U.S.C. § 8128(a).6
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.7 In accordance with this holding the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.9 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.14 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.15

5

20 C.F.R. § 10.607(a).

6

See Leon D. Faidley, Jr., supra note 2.

7

Leonard E. Redway, 28 ECAB 242 (1977).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

9

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

10

See Leona N. Travis, 43 ECAB 227 (1991).

11

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

12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919 (1992).

14

Leon D. Faidley, Jr., supra note 2.

15

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

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ANALYSIS
The last merit decision in this case was dated December 31, 2002. Appellant submitted
an application for reconsideration dated March 2, 2006. Since the application for reconsideration
was filed more than one year after the last merit decision, it is untimely pursuant to 20 C.F.R.
§ 10.607(a).
The underlying claim for compensation was denied on the grounds that appellant had not
established either requirement for fact of injury: (1) an employment incident occurred at the
time, place and in the manner alleged; and (2) medical evidence on causal relationship between a
diagnosed injury and the employment incident.16 On reconsideration appellant alleges that the
evidence is sufficient to establish an employment incident as alleged on May 20, 1999. The
Office, however, had considered the contemporaneous evidence and found there were
inconsistencies that cast doubt as to whether the incident occurred as alleged.17 This included a
review of employing establishment forms completed by appellant and statements from
supervisors. Appellant alleged that he timely notified his supervisor and the Office should
accept the incident as alleged, but he did not submit probative evidence establishing clear
evidence of error in the finding that the incident did not occur at the time, place and in the
manner alleged. As noted above, it is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion. The evidence must prima facie shift the
weight of the evidence in favor of the claimant. Appellant did not show clear evidence of error
in the Office’s finding as to the occurrence of an employment incident on May 20, 1999.
Since appellant did not show clear evidence of error with respect to the employment
incident, he did not show clear evidence of error in the denial of the claim. The medical
evidence, therefore, will not be addressed at this time.
CONCLUSION
The Office properly determined that appellant’s application for reconsideration was
untimely and failed to show clear evidence of error.

16

See, e.g., Caroline Thomas, 51 ECAB 451 (2000).

17

It is well established that a claimant cannot establish fact of injury if there are inconsistencies that cast doubt as
to whether the incident occurred as alleged. Gene A. McCracken, 46 ECAB 593 (1995); Mary Joan Coppolino,
43 ECAB 988 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 9, 2006 is affirmed.
Issued: February 22, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Grand Prairie, TX, Employer
__________________________________________

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

Docket No. 21-0456
Issued: September 20, 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 February 2, 2021 appellant filed a timely appeal from a September 16, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 16, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish entitlement to four
hours of wage-loss compensation for disability on June 29, 2020 causally related to the accepted
August 19, 2019 employment injury.
FACTUAL HISTORY
On August 19, 2019 appellant, then a 54-year-old computation classification specialist,
filed a traumatic injury claim (Form CA-1) alleging that on that date she sustained bilateral hip
and right shoulder injuries as the result of slipping and falling on a wet floor in the performance
of duty. OWCP accepted the claim for bilateral knee sprain, bilateral knee contusion, right
shoulder joint sprain, cervical ligament sprain, lumbar ligament sprain, right wrist and hand
sprains, unilateral bilateral hip post-traumatic osteoarthritis, right elbow sprain, and left hip sprain.
It subsequently expanded its acceptance of the claim to include right knee medial meniscus tear.
OWCP paid appellant wage-loss benefits on the supplemental rolls.
On July 6, 2020 appellant filed a claim for compensation (Form CA-7) requesting wageloss compensation for disability from work on June 29, 2020. In an attached time analysis form
(Form CA-7a), appellant noted that she was claiming four hours of wage-loss compensation on
June 29, 2020 for a doctor/therapy appointment.
In an August 27, 2020 development letter, OWCP advised appellant that the evidence
submitted was insufficient to establish entitlement to four hours of compensation for medical
treatment on June 29, 2020 due to her accepted August 19, 2019 employment injury as it did not
receive any evidence to support a medical visit on that date. It further requested that she submit
additional evidence to establish that she was disabled from work on the date. OWCP afforded
appellant 30 days to submit the necessary evidence.
By decision dated September 16, 2020, OWCP denied appellant’s Form CA-7 claim for
compensation for time lost from work to obtain medical treatment on June 29, 2020. It found that
she was provided 30 days to submit the requested information; however, no medical evidence had
been submitted to establish that she received medical treatment on the claimed date causally related
to the accepted August 19, 2019 employment injury.
LEGAL PRECEDENT
OWCP’s procedures provide that wages lost for compensable medical examination or
treatment may be reimbursed. 3 A claimant who has returned to work following an accepted injury
or illness may need to undergo examination, testing, or treatment and such employee may be paid
compensation for wage loss while obtaining medical services or treatment, including a reasonable

3
Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment, Chapter
2.901.19 (February 2013).

2

time spent traveling to and from the medical provider’s location.4 Wage loss is payable only if the
examination, testing, or treatment is provided on a day which is a scheduled workday and during
a scheduled tour of duty. Wage-loss compensation for medical treatment received during off-duty
hours is not reimbursable. 5 The evidence should establish that a claimant attended an examination
or treatment for the accepted work injury on the dates claimed in order for compensation to be
payable. For a routine medical appointment, a maximum of four hours may be allowed. However,
longer periods of time may be allowed when required by the nature of the medical procedure and/or
the need to travel a substantial distance to obtain medical care.6
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP’s procedures address the time period to be allowed by OWCP for submission of
evidence pertaining to a wage-loss compensation claim for medical treatment.7 Its procedures
provide that, if the necessary evidence is not present regarding medical treatment or attendance at
an examination at the time of the initial review, it will develop the claim and review the claim after
30 days for either payment or issuance of a decision denying any claimed hours not supported by
the medical evidence.
OWCP’s August 27, 2020 development letter to appellant properly advised that she had 30
days to submit additional evidence supporting her wage-loss claim. OWCP issued its
September 16, 2020 decision denying appellant’s claim for wage-loss compensation; however, it
provided appellant only 20 days after the August 27, 2020 development letter before denying the
claim. The Board, therefore, finds that the September 16, 2020 decision was premature and did
not conform with OWCP’s procedures.
This case will, therefore, be remanded to OWCP. Following any further development as
deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

4

Id. at Chapter 2.901.19(a); A.M., Docket No. 20-0320 (issued March 31, 2021); M.B., Docket No. 19-1049 (issued
October 21, 2019).
5

Id. at Chapter 2.901.19(a)(2).

6

Id. at Chapter 2.901.19(c).

7

Id. at Chapter 2.901.19(a)(3).

3

ORDER
IT IS HEREBY ORDERED THAT the September 16, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: September 20, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ORLANDO VA MEDICAL CENTER,
Orlando, FL, Employer
_________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1090
Issued: March 21, 2022

Case Submitted on the Record

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

On July 12, 2021 appellant through counsel, filed a timely appeal from a July 1, 2021,
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-1090.
In a letter dated March 8, 2022, appellant, through counsel requested that the appeal be
dismissed.
The Board has duly considered the matter and concludes that counsel’s request for the
dismissal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
legal or other service performed on appeal before the Board is valid unless approved by the Board.
20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal
is granted. The appeal docketed as No. 21-1090 is dismissed.
Issued: March 21, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
TENNESSEE VALLEY AUTHORITY,
CUMBERLAND FOSSIL PLANT,
Cumberland City, TN, Employer
__________________________________________

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

Docket No. 10-2036
Issued: May 13, 2011

Case Submitted on the Record

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

JURISDICTION
On July 30, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated February 4, 2010 which denied his request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit decision.2
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the February 4, 2010 Office decision and on appeal, appellant
submitted new evidence. However, the Board is precluded from reviewing evidence which was not before the
Office at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence,
together with a written request for reconsideration to the Office, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606.

FACTUAL HISTORY
Appellant, then a 53-year-old assistant unit operator, filed an occupational disease claim
(Form CA-2) on September 10, 2008 alleging that he sustained carpal tunnel syndrome causally
related to factors of his federal employment. He first became aware of the condition and
attributed it to his federal employment on September 23, 1999.
By decision dated December 23, 2008, the Office denied appellant’s claim, finding that
he did not submit sufficient factual and medical evidence to establish that he sustained an injury
in the performance of duty.
On January 12, 2009 appellant requested an oral hearing before an Office hearing
representative. A hearing was held by telephone on June 12, 2009.
By decision dated August 13, 2009, an Office hearing representative found that appellant
did not submit sufficient evidence to establish causal relationship between his claimed carpal
tunnel condition and factors of his federal employment.
On January 27, 2010 appellant requested reconsideration and submitted literature on
neuropathy and diabetic neuropathy, a job description for an assistant unit operator and a ninepage narrative statement.
By decision dated February 4, 2010, the Office denied appellant’s request for
reconsideration of the merits finding that he did not submit new relevant or pertinent evidence,
did not show that the Office erroneously applied or interpreted a point of law, or advanced a
point of law or fact not previously considered by the Office.
LEGAL PRECEDENT
Section 8128(a) of the Act does not entitle a claimant to a review of an Office decision as
a matter of right; it vests the Office with discretionary authority to determine whether it will
review an award for or against compensation.3 The Office, through regulations, has imposed
limitations on the exercise of its discretionary authority under section 8128(a).4
To require the Office to reopen a case for merit review under section 8128(a) of the Act,
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.5 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her

3

Supra note 1. Under section 8128 of the Act, the Secretary of Labor may review an award for or against
payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
4

Annette Louise, 54 ECAB 783, 789-90 (2003).

5

20 C.F.R. § 10.606(b)(2). See A.L., Docket No. 08-1730 (issued March 16, 2009).

2

application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.7
The Board has held that the submission of evidence or argument which does not address
the particular issue involved does not constitute a basis for reopening a case.8
ANALYSIS
The Board finds that appellant has not shown that the Office erroneously applied or
interpreted a specific point of law; he has not advanced a relevant legal argument not previously
considered by the Office; and he has not submitted relevant and pertinent new evidence not
previously considered by the Office.
In support of his January 27, 2010 reconsideration request, appellant submitted a ninepage narrative statement. The Board notes that submission of this statement did not require
reopening his case for merit review. The Office denied appellant’s claim based on the lack of
supportive medical evidence and, thus, the underlying issue is medical in nature. The Board
finds that his narrative statement is irrelevant to the issue of whether he sustained an injury in the
performance of duty causally related to factors of his federal employment. Therefore, it is not
sufficient to require the Office to reopen appellant’s claim for consideration of the merits.
Appellant submitted a description of his job and literature on neuropathy and diabetic
neuropathy. As noted, the issue on which his claim was denied was premised on the causal
relationship between his claimed carpal tunnel syndrome to factors of his federal employment.
The job description and medical literature do not constitute relevant or pertinent new evidence as
they are irrelevant to the issue of causal relationship and are not based on a physician’s medical
opinion from a complete and accurate medical history of appellant.
Because appellant did not meet any of the criteria to warrant a reopening of the case for
further merit review, the Board finds that the Office properly declined to reopen the case.
CONCLUSION
The Board finds that appellant failed to submit relevant and pertinent new evidence, a
relevant legal argument not previously considered by the Office, or evidence or argument which
shows that the Office erroneously applied or interpreted a specific point of law. Therefore, the
Office properly refused to reopen his claim for further consideration of the merits of his claim
under 5 U.S.C. § 8128.

6

20 C.F.R § 10.607(a).

7

Id. at § 10.608(b).

8

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

3

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 13, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 18-0032
Issued: May 3, 2018

Case Submitted on the Record

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

JURISDICTION
On October 2, 2017 appellant filed a timely appeal from a September 14, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $2,655.66 as she was in receipt of dual benefits
for the period June 27 through July 22, 2017; and (2) whether OWCP properly determined that

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its September 14, 2017 decision.
The Board’s jurisdiction is limited to the evidence in the case record that was before OWCP at the time of its final
decision. Therefore, the Board is precluded from considering this new evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

appellant was at fault in the creation of the overpayment, thereby precluding waiver of recovery
of the overpayment.
FACTUAL HISTORY
On December 9, 1989 appellant, then a 45-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that, on that date, she injured her right arm while lifting a bag from a rack
to the workroom floor in the performance of duty. She stopped work on March 25, 1990 and did
not return. On March 28, 1990 OWCP accepted appellant’s claim for cervical radiculopathy. It
initially paid wage-loss compensation on the supplemental rolls. Beginning November 17, 1991,
appellant was paid compensation benefits on the periodic rolls. On January 27, 1993 she retired
from the employing establishment.
On May 5, 2016 appellant wrote to OWCP, inquiring about her “retirement pension.”
In a June 21, 2017 letter, OWCP provided a Form CA-1102, which explained the process
of electing benefits to which she was entitled to under FECA and the benefits to which she was
entitled to under the Civil Service Retirement System (CSRS) or Federal Employees Retirement
System (FERS) under the Office of Personnel Management (OPM). It advised appellant that when
selecting an election date, she could not receive compensation for disability under FECA while
also receiving benefits under the CSRS or FERS. Therefore, if she made an election of benefits
under CSRS or FERS for a date in the past, this may result in an overpayment under FECA for
which she would be responsible to pay. It indicated that she may wish to consider choosing a date
that corresponded with the cessation of her FECA/OPM benefits or a date in the future to avoid
the creation of an overpayment. An election form, Form CA-1105, was provided.
In a separate June 21, 2017 letter, OWCP advised appellant that her entitlement to FECA
benefits for the period July 23 to August 19, 2017 was $2,966.00 monthly, or $741.50 weekly. It
indicated that employees entitled to both FECA and OPM benefits could elect which benefit to
receive, and that the election could be changed to whichever plan the employee deemed more
advantageous. Appellant was advised that she was still entitled to medical benefits for the effects
of her December 9, 1989 employment injury at OWCP expense.3
On June 27, 2017 appellant completed a Form CA-1105, electing OPM retirement benefits,
effective that date.
In a letter dated July 28, 2017, OWCP advised OPM that appellant had elected OPM
benefits in lieu of compensation benefits under FECA. It requested that OPM commence monthly
annual benefits, effective June 27, 2017 and that it reimburse OWCP $2,860.07 for FECA benefits
it had paid appellant during the period June 27 to July 22, 2017.
By letter dated August 1, 2017, OWCP informed appellant of its preliminary determination
that she was overpaid compensation in the amount of $2,655.66 because she elected to receive
retirement benefits from OPM, effective June 27, 2017, but continued to receive FECA benefits

3

A copy of appellant’s gross calculation detail report from December 9, 1989 to March 1, 2017 was also provided.

2

from OWCP through July 22, 2017. A copy of the overpayment calculation was provided.4
OWCP found appellant at fault in the creation of the overpayment because she was aware or should
have been aware that she was not entitled to FECA compensation on the date of her election of
OPM retirement benefits. OWCP provided an overpayment action request and overpayment
recovery questionnaire (Form OWCP-20) for her completion. Appellant was afforded 30 days to
respond.
On September 11, 2017 appellant contested the finding of fault. She indicated that she had
not received a retirement check and had to use the monies received to pay her August bills. On
the Form OWCP-20, appellant listed monthly income of $2,754.02 and monthly expenses of
$2,432.50.5 She reported $1,322.00 in cash and in her checking account. No supporting financial
documentation was provided.
By decision dated September 14, 2017, OWCP finalized its preliminary overpayment
determination. It found that appellant received an overpayment of compensation in the amount of
$2,655.66 for the period June 27 through July 22, 2017, for which she was at fault. While appellant
provided no supporting evidence to substantiate her expenses or income, OWCP accepted the
figures as reported and directed recovery in the amount of $100.00 in monthly installments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.6 Section 8116(a) states that while an employee is receiving workers’
compensation benefits, he or she may not receive salary, pay, or remuneration of any type from
the United States, except in return for services actually performed or for certain payments related
to service in the Armed Forces, including benefits administered by the Department of Veterans
Affairs, unless such benefits are payable for the same injury or the same death being compensated
for under FECA.7
Section 10.421(a) of OWCP’s implementing regulations provides that a beneficiary may
not receive wage-loss compensation concurrently with a federal retirement or survivor annuity.8
The beneficiary must elect the benefit that he or she wishes to receive.9 OWCP procedures also

4

The gross amount of $2,966.00 was divided by 28 days of compensation to find the daily rate of $105.93 which
was multiplied by 27 days of the overpayment period to find the new gross amount of $2,860.07. An overpayment
amount of $2,655.66 resulted after health benefits of $204.41 was subtracted from the new gross amount.
5

The monthly expenses were comprised of rent/mortgage $920.00, food $175.00, clothing $100.00, utilities
$160.00, other expenses $600.00, and monthly installment debts $477.50.
6

5 U.S.C. § 8102(a).

7

Id. at § 8116(a).

8

20 C.F.R. § 10.421(a).

9

Id.

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explain that the employee has the right to elect the monetary benefit which is the more
advantageous.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation. OWCP based its overpayment finding on its determination that
appellant had received prohibited dual OPM and FECA benefits for the period June 27 through
July 22, 2017. While the record reflects that appellant received FECA benefits for this period,
OWCP has not established that she also received OPM benefits for this period.11
Appellant elected OPM retirement benefits, effective June 27, 2017. On July 28, 2017
OWCP requested that OPM commence retirement benefit payments and that OPM reimburse any
FECA benefits paid to appellant after June 27, 2017. However, there is no evidence of record
which establishes, as a matter of fact, that appellant actually received OPM benefits, the periods
for which she received such benefits, or the amount of benefits she received.12 The record is also
silent as to whether OPM reimbursed OWCP for FECA benefits paid to appellant during the period
in question.
The Board thus finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $2,655.66 for the period June 27 through
July 22, 2017.13
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $2,655.66 because she was in receipt of dual
benefits for the period June 27 through July 22, 2017.14

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4.a (January 1997); see also
R.S., Docket No. 11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued
March 30, 1994).
11

See B.G., Docket No. 14-2002 (issued August 13, 2015).

12

The election form signed by appellant on June 27, 2017 is insufficient to show that she actually began receiving
OPM benefits that day or any other time.
13

G.M., Docket No. 17-0784 (issued August 23, 2017); D.O., Docket No. 15-1004 (issued July 28, 2015).

14

In light of the Board’s finding in Issue 1, Issue 2 is moot.

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ORDER
IT IS HEREBY ORDERED THAT the September 14, 2017 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 3, 2018
Washington, DC

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

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

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

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