United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0254
Issued: August 2, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 16, 2017 appellant, through counsel, filed a timely appeal from an
October 25, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received a
$12,486.46 overpayment of compensation because he concurrently received Social Security
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

Administration (SSA) and FECA benefits for the period June 1, 2014 to January 7, 2017;
(2) whether OWCP properly determined that appellant was at fault in the creation of the
overpayment of compensation, thereby precluding waiver of recovery of the overpayment; and
(3) whether OWCP properly required repayment of the overpayment by deducting $600.00 from
appellant’s compensation payments every 28 days.
FACTUAL HISTORY
On May 10, 2005 appellant, then a 54-year-old mail handler, filed a traumatic injury claim
(Form CA-1) under OWCP File No. xxxxxx870 in which he alleged that on May 9, 2005 he
sustained injury due to twisting his right knee while handling a mail tray at work. OWCP accepted
appellant’s claim for right knee strain, right medial meniscus tear, and aggravation of right knee
osteoarthritis. Appellant underwent OWCP-approved right knee surgeries on August 19, 2005,
May 10, 2006, and May 2, 2011. Under OWCP File No. xxxxxx989, OWCP accepted that
appellant sustained left shoulder impingement syndrome due to lifting and moving mail trays at
work on July 31, 2007. Appellant underwent OWCP-approved left shoulder surgeries on May 21,
2008 and September 23, 2009. He received wage-loss compensation for time lost from work due
to these accepted employment injuries.
Under OWCP File No. xxxxxx529, OWCP accepted that appellant sustained multiple
injuries to his right arm, leg, hip, and groin due to tripping and falling into a mail rack at work on
May 12, 2012.3 It administratively combined the files for appellant’s three claims and designated
OWCP File No. xxxxxx870 as the master file. Due to the effects of the May 12, 2012 employment
injury, in OWCP File No. xxxxxx529, appellant stopped work for the last time on May 13, 2012.
He received total disability compensation on the daily rolls beginning June 30, 2012.
In a December 11, 2012 letter (produced under OWCP File No. xxxxxx529), OWCP
advised appellant that he was being placed on the periodic rolls effective December 16, 2012 and
that he would automatically receive a compensation check every 28 days for his disability.4 It
informed him that he must report any retirement income he received from any federal agency as a
person who is receiving compensation benefits under FECA were not permitted to receive benefits
under the Federal Employees Retirement System (FERS). OWCP further advised appellant that,
if he was covered under FERS, it was required to deduct from his compensation any SSA
retirement benefits to which he was entitled based on age as a portion of FERS benefits included
in SSA retirement benefits. Appellant was informed that he was required to immediately inform
OWCP upon filing for or receiving SSA retirement benefits.
OWCP periodically required appellant to complete EN1032 forms which contained
extensive language advising him what types of employment activities and earnings that he was
required to report for each 15-month period prior to the time he signed each form. The forms
contained certification clauses which informed appellant of the consequences of not accurately

3

Appellant underwent OWCP-approved right hip surgeries on February 18, 2013 and October 13, 2014.

4

Appellant did, in fact, begin receiving disability compensation on the periodic rolls beginning December 16, 2012.

2

reporting his employment activities and earnings, such as being subjected to criminal penalties and
losing the right to receive workers’ compensation.5
In an EN1032 form he signed on September 16, 2014, appellant answered “No” in response
to a question regarding whether he received SSA benefits as part of an annuity for federal service.
The form had advised him that he was required to report any benefits received from the SSA which
he received as part of an annuity under FERS, but that he did not need to report any benefits
received from the SSA on account of employment in the private sector.6 In EN1032 forms with
the same instructions, which he completed on September 15, 2015 and October 5, 2016, appellant
answered “No” in response to a question regarding whether he received SSA benefits as part of an
annuity for federal service.
On November 14, 2016 OWCP contacted SSA to verify whether appellant had been in
receipt of SSA benefits based on his age as he had turned 65 years old on September 16, 2015.
On December 12, 2016 OWCP received a FERS/SSA dual benefits calculation form
completed by an SSA official on December 7, 2016. The information provided by SSA indicated
that appellant received age-based SSA benefits that were attributable to federal service beginning
June 1, 2014 and continuing through the present time. The document advised that appellant
received retirement benefits subject to an SSA/FERS offset from June 2014 through the present
time.7 SSA delineated the specific amount of age-based SSA retirement benefits that were
attributable to federal service and provided the SSA payment rate with FERS, and without FERS,
for specific periods commencing in June 2014 and continuing.
In a January 25, 2017 FERS offset calculation based on the SSA documentation (providing
the SSA payment rate both with and without FERS), OWCP calculated that for the period June 1
to November 30, 2014 appellant received an overpayment of $2,316.66, for the period
December 1, 2014 to November 30, 2015 he received an overpayment of $4,704.89, for the period
December 1, 2015 to August 31, 2016 he received an overpayment of $3,544.78, for the period
September 1, to November 30, 2016 he received an overpayment of $1,176.00, and for the period
December 1, 2016 to January 7, 2017 he received an overpayment of $744.13. The total
overpayment for the period June 1, 2014 to January 7, 2017 was $12,486.46.
In a February 7, 2017 notice, OWCP advised appellant of its preliminary determination
that he received a $12,486.46 overpayment of compensation for the period June 1, 2014 to
January 7, 2017 because he received SSA retirement benefits based on his age and attributable to
5
The certification portion of each EN1032 form indicated that the person signing the form was making the
following declaration, “I understand that I must immediately report to OWCP any employment or employment
activity, any change in the status of claimed dependents, any third-party settlement, and any monies or income or
change in monies or income from federally-assisted disability or benefit programs.”
6
The form also advised appellant that, if he received SSA disability benefits, i.e., benefits not received as part of
an annuity for federal service, such benefits should be reported under the “Other Benefits” portion of the form and
they might be reduced by SSA due to receipt of FECA benefits.
7
The Board notes that the precise date appellant retired from the employing establishment in 2014 is unclear from
the record.

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his federal service, without an offset being made, while he received FECA compensation benefits.
It also made a preliminary determination that he was at fault in the creation of the overpayment
because he failed to provide information covering the period of the overpayment which he knew
or should have known to be material. OWCP advised appellant that he had the opportunity to
submit evidence challenging the fact, amount, or finding of fault, and request waiver of recovery
of the overpayment. It informed him that he could submit additional evidence in writing or at a
prerecoupment hearing, but that a prerecoupment hearing must be requested within 30 days of the
date of the written notice of overpayment. OWCP requested that appellant complete and return an
enclosed financial information questionnaire (Form OWCP-20) within 30 days even if he was not
requesting waiver of recovery of the overpayment.
On March 8, 2017 appellant requested a prerecoupment hearing with a representative of
OWCP’s Branch of Hearings and Review. On March 10, 2017 OWCP received a Form OWCP20, signed on March 6, 2017, in which appellant listed monthly income of $5,187.09, monthly
expenses of $5,296.00, and assets of $800.00.8 Appellant challenged OWCP’s preliminary finding
of fault in the creation of the $12,486.46 overpayment and requested waiver of recovery of the
overpayment.9
During the prerecoupment hearing held on August 31, 2017, counsel argued that appellant
did not understand that the SSA benefits he received were the type that needed to be reported on
the EN1032 forms he completed. He asserted that appellant did not receive SSA benefits until
2015, although he acknowledged that they were retroactively paid back to 2014.
In an October 25, 2017 decision, OWCP’s hearing representative determined that appellant
received a $12,486.46 overpayment of compensation for the period June 1, 2014 to
January 7, 2017 because he received SSA retirement benefits based on his age and attributable to
his federal service, without an offset being made, while he received FECA compensation benefits.
The hearing representative found that appellant was at fault in the creation of the overpayment,
thereby precluding waiver of recovery of the overpayment, because he failed to provide
information covering the period of the overpayment which he knew or should have known to be
material. He discussed the fact that appellant failed to report his SSA benefits attributable to his
federal service on several EN1032 forms. The hearing representative required repayment of the
overpayment by deducting $600.00 from appellant’s continuing compensation payments every 28
days. In so finding, he discussed appellant’s financial circumstances and noted that appellant

8

Appellant provided an itemized list of his monthly expenses, including $507.00 for car lease payments, $656.00
for student loan payments, and $740.00 for commercial debt payments. He did not provide any documentation in
support of his claimed monthly expenses.
In an EN1032 form he signed on October 16, 2017, appellant answered “No” in response to a question regarding
whether he received SSA benefits as part of an annuity for federal service. He wrote “SSA disability” in response to
a question regarding whether he received other SSA benefits, i.e., SSA benefits which were not part of an annuity for
federal service.
9

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failed to submit documentation supporting several claimed monthly expenses, including those
related to car lease payments, student loan payments, and commercial debt payments.10
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.11 Section 8116 limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.12
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA benefits that are attributable to federal service of the
employee.13 FECA Bulletin No. 97-9 provides that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.14
Section 404.310 of SSA regulations provides that entitlement to SSA compensation begins
at 62 years.15 Section 404.409 of SSA regulations provides that for individuals born before
January 1, 1938, full retirement age is 65 years.16
ANALYSIS -- ISSUE 1
OWCP found that an overpayment of compensation was created in the amount of
$12,486.46 for the period June 1, 2014 to January 7, 2017. The overpayment was based on the
evidence received from SSA with respect to benefits paid to appellant. The record indicates that,
while appellant was receiving compensation for total disability under FECA, he concurrently
received SSA age-based retirement benefits. A claimant cannot receive both compensation for
wage-loss and SSA retirement benefits attributable to federal service for the same period.17 The

10

In a May 17, 2017 notice, OWCP advised appellant that it had made a preliminary determination that he received
a $1,388.39 overpayment due to improper deductions from his FECA compensation for life insurance premiums. The
record does not contain a final decision of OWCP regarding this matter and it is not currently before the Board. See
20 C.F.R. § 501.2(c).
11

5 U.S.C. § 8102(a).

12

Id. at § 8116.

13

20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007).

14

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

15

20 C.F.R. § 404.310.

16

Id. at § 404.409.

17

See supra notes 13 and 14.

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information provided by SSA indicated that appellant received age-based SSA benefits that were
attributable to federal service during the period June 1, 2014 to January 7, 2017.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received evidence from SSA with respect
to the specific amount of age-based SSA retirement benefits that were attributable to federal
service. The SSA provided the SSA rate with FERS, and without FERS, for specific periods
commencing in June 1, 2014 and continuing through January 7, 2014. OWCP provided its
calculations for each relevant period based on the SSA worksheet. Appellant has not contested
the amount of the $12,486.46 overpayment and no contrary evidence has been provided to show
that OWCP’s calculations were incorrect. The Board has reviewed OWCP’s calculation of
benefits received by appellant for the period June 1, 2014 to January 7, 2017 and finds that an
overpayment of compensation in the amount of $12,486.46 was created.18
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made “because of an error of fact or law,” adjustment shall be made by decreasing later payments
to which an individual is entitled.19 The only exception to this requirement is a situation which
meets the tests set forth as follows in section 8129(b): “Adjustment or recovery by the United
States may not be made when incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.”20 No waiver of payment is possible if the claimant is not
“without fault” in helping to create the overpayment.21
In determining whether an individual is not “without fault” or alternatively “at fault” in the
creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations
provides in relevant part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should
have known to be material; or

18

See G.T., Docket No. 15-1314 (issued September 9, 2016).

19

5 U.S.C. § 8129(a).

20

Id. at § 8129(b).

21

L.J., 59 ECAB 264 (2007).

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(3) Accepted a payment which he or she knew or should have known
to be incorrect….”22
Section 10.433(b) of OWCP’s regulations provides:
“Whether or not OWCP determines that an individual was at fault with respect to
the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”23
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant was at fault in the creation
of the $12,486.46 overpayment of compensation, thereby precluding waiver of recovery of the
overpayment.
OWCP applied the second standard of 20 C.F.R. § 10.433(a) in determining that appellant
was at fault in the creation of the $12,486.46 overpayment. In order for OWCP to establish that
he was at fault in creating the overpayment of compensation, it must establish that appellant failed
to furnish information which the individual knew or should have known to be material.24
In a December 11, 2012 letter, OWCP informed appellant that he was being placed on the
periodic compensation rolls and it advised him that he was required to immediately inform it upon
filing for or receiving SSA retirement benefits. Appellant began to receive SSA benefits as part
of an annuity for federal service on June 1, 2014. He had regularly completed EN1032 forms
which specifically instructed him to report any monies or income or change in monies or income
from federally-assisted disability or benefit programs, and any retirement benefits or SSA benefits
under FERS. The evidence of record establishes that for the EN1032 forms covering the period
June 1, 2014 to January 7, 2017, appellant failed to report his receipt of SSA benefits as part of an
annuity for federal service. These EN1032 forms provided information to appellant regarding
reporting income or monies from federally-assisted programs such as SSA.
The record reflects that on EN1032 forms dated September 16, 2014, September 15, 2015,
October 5, 2016, and October 16, 2017, each of which covered the 15 months prior to the date
signed, appellant signed and acknowledged, “I understand that I must immediately report to
OWCP any employment or employment activity, any change in the status of claimed dependents,
any third-party settlement, and any monies or income or change in monies or income from
federally-assisted disability or benefit programs.” Each EN1032 informed appellant of the
consequences of not accurately reporting his employment activities and earnings, such as being

22

20 C.F.R. § 10.433(a).

23

Id. at 10.433(b).

24

See supra note 22.

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subjected to criminal penalties and losing the right to receive workers’ compensation. In each of
these forms, he reported receiving no SSA benefits as part of an annuity for federal service.
Each of these forms specifically advised appellant of the need to update information or
change in monies or income for the periods covered by the forms, and they constitute evidence
that appellant was not forthcoming with providing information that was material. Consequently,
the evidence of record establishes that appellant failed to furnish information which he knew or
should have known to be material for the period June 1, 2014 to January 7, 2017.25 The Board
therefore finds that OWCP met its burden of proof to establish that appellant was at fault in the
creation of the $12,486.46 overpayment, thereby precluding waiver of recovery of the
overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441(a) of Title 20 of the Code of Federal Regulations provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”26
ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of the $12,486.46 overpayment by
deducting $600.00 from appellant’s compensation payments every 28 days, OWCP took into
consideration the financial information submitted by appellant as well as the factors set forth in
section 10.441 and found that this method of recovery would minimize any resulting hardship on
appellant. In determining that appellant could repay the overpayment through $600.00 deductions
from continuing compensation payments, OWCP discussed appellant’s financial circumstances
and noted that appellant failed to submit supporting documentation of several claimed monthly
expenses, including those related to car lease payments, student loan payments, and commercial
debt payments. Therefore, OWCP properly required repayment of the overpayment by deducting
$600.00 from appellant’s compensation payments every 28 days.
CONCLUSION
The Board finds that OWCP properly determined that appellant received a $12,486.46
overpayment of compensation because he concurrently received SSA and FECA benefits for the
25

See C.N., Docket No. 16-0134 (issued March 8, 2016) (finding that a claimant who failed to report SSA benefits
on multiple EN1032 forms was at fault in the creation of an overpayment received during a period covered by the
forms).
26

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

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period June 1, 2014 to January 7, 2017. The Board further finds that OWCP properly determined
that appellant was at fault in the creation of the overpayment of compensation, thereby precluding
waiver of recovery of the overpayment, and that OWCP properly required repayment of the
overpayment by deducting $600.00 from appellant’s continuing compensation payments every 28
days.
ORDER
IT IS HEREBY ORDERED THAT the October 25, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 2, 2018
Washington, DC

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

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

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

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

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

Docket No. 21-1278
Issued: March 29, 2022

Case Submitted on the Record

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

JURISDICTION
On August 23, 2021 appellant filed a timely appeal from a February 23, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days
elapsed from the last merit decision dated January 7, 2020 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 3

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s February 23, 2021 decision was August 22, 2021. As
this fell on a Sunday, the appeal was due the next business day, which was Monday, August 23, 2021, rendering the
appeal timely filed. See 20 C.F.R. § 501.3(f)(3).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 23, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedures 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On September 24, 2018 appellant, then a 34-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on September 12, 2018 she sustained an injury
to her left shoulder when she was carrying packages upstairs and an entire step collapsed, causing
her to fall to the left and hit her shoulder, while in the performance of duty. She did not stop work.
A September 12, 2018 urgent care report from Dr. Brian Hagler, a Board-certified family
practitioner, related appellant’s history of injury. Dr. Hagler’s examination revealed pain with
movement of the left shoulder and tenderness over the acromioclavicular (AC) joint. He reviewed
x-ray scans of appellant’s left shoulder taken on the same date, which revealed no acute
abnormality, and diagnosed a left shoulder injury.
A medical report dated October 3, 2018 from Dr. Thomas E. Kingsley, Board-certified in
family medicine and an occupational medicine specialist, related appellant’s history of carrying
packages up cement steps when a step gave way, causing her to fall to her left and hit her trapezius
muscles between her shoulder and neck on the handrail. Dr. Kingsley reviewed appellant’s
medical records from the date of injury, noting that her left shoulder x -ray was negative. His
examination revealed discomfort and tenderness to palpation in the trapezius muscles of the upper
back just behind the left clavicle, pain in left trapezius muscles with reaching the left hand over
head and with movement of the head. Dr. Kingsley diagnosed myalgia, referred appellant to
physical therapy, and advised her to use ibuprofen. An accompanying duty status report (Form
CA-17) of even date diagnosed shoulder pain and advised that appellant would need help when
lifting objects above her head at work.
In November 1 and December 26, 2018 medical reports, Dr. Kingsley related appellant’s
history of injury, diagnosed myalgia, and advised that appellant should not lift, push, or pull more
than 10 pounds with her left arm or lift above her head. In a work restriction note, patient discharge
summary, and Form CA-17, all dated December 26, 2018, he related that appellant could lift, push,
and pull up to 10 pounds with her left arm with no lifting above her head.
Appellant also submitted medical reports from Dr. Dominic McKinley, Board-certified in
family practice and sports medicine, dated February 1 and 12, 2019. In his February 1, 2019
report, Dr. McKinley related appellant’s history of injury. He indicated that, though appellant was
in physical therapy, she continued to experience left shoulder and neck pain that was aggravated
with activity. Dr. McKinley’s examination revealed tenderness along the left side of appellant’s
neck, acromion region, and trapezius region, painful arc of motion with lightly limited flexion,
positive empty can test, and positive impingement signs. He reviewed x-ray scans of the left
shoulder taken that day, which revealed a partially fused os acromiale, and noted that there was
some indication that the region had partially healed, as compared to the Sep tember 12, 2018 x-rays.
Additionally, cervical spine x-rays revealed no abnormalities. Dr. McKinley diagnosed cervical
strain with possible left-side radiculopathy and left shoulder pain, which he believed had
multifactorial etiology, including possible referred pain from her neck, symptomatic healing os
acromiale avulsion fracture, and possible rotator cuff injury. He recommended appellant undergo
2

magnetic resonance imaging (MRI) scans and advised that appellant should not lift more than 10
pounds with her left arm, lift overhead, or reach behind herself. In his February 12 report,
Dr. McKinley noted that appellant’s shoulder pain had increased, she was having difficulty lifting
objects at work, and she had missed work in previous days due to the aggravated pain. He injected
a mixture of betamethasone and lidocaine into the left subacromial space , which improved
appellant’s range of motion in her neck and left shoulder. Dr. McKinley advised that appellant
should not work pending the recommended MRI scan.
In a development letter dated March 5, 2019, OWCP informed appellant of the deficiencies
of her claim. It advised her as to the type of factual and medical evidence needed and provided a
questionnaire for completion. OWCP afforded appellant 30 days to respond.
Appellant submitted a Form CA-17 dated February 12, 2019 from Dr. McKinley, who
diagnosed cervical radiculitis and left shoulder pain. Dr. McKinley recommended that appellant
undergo an MRI scan of her left shoulder before returning to work.
On March 11, 2019 appellant responded to OWCP’s development questionnaire, relating
that she was delivering packages at an apartment complex on September 12, 2018 and, as she
climbed the steps, a step collapsed and she “went left,” trying to hold herself up while carrying
packages, and hit her shoulder. She reported that she notified R.W., the employing establishment
supervisor on September 12, 2018, the day she fell. Appellant also noted that she had no prior
injuries.
In a March 19, 2019 medical report, Dr. McKinley noted appellant’s continuing left
shoulder and neck pain, as well as a sensation of “lack of blood flow” radiating from her shoulder
down to her hand for the previous 4 to 6 weeks. Appellant had not returned to work and was no
longer undergoing physical therapy. Dr. McKinley reviewed the March 9, 2019 left shoulder MRI
and the March 16, 2019 cervical spine MRI.4 He diagnosed neck pain secondary to cervical strain
due to compensating for left shoulder discomfort, noting that the MRI did not reveal findings
consistent with a work-related injury, as well as persisting left shoulder pain with multifactorial
etiology including symptomatic biceps tendinitis and aggravation of pre -existing left AC joint
arthritis.5 Dr. McKinley advised that appellant should not lift more than five pounds or use her
left upper extremity.
By decision dated April 11, 2019, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the incident occurred, as alleged. It noted that
the evidence of record contained factual inconsistencies and that appellant had not adequately

4

The March 16, 2019 cervical spine MRI scan revealed suspected congenital incomplete segmentation of the C5C6 cervical level, minor superimposed cervical spine degeneration, and borderline to mild left side neural foraminal
stenosis at the left C7 and C8 nerve levels.
5

Dr. McKinley also diagnosed swelling and fullness in the left supraclavicular region associated with an enlarged
axillary lymph gland unrelated to her injury.

3

described the mechanism of injury. It concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA. 6
On April 29, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. The hearing was held on July 25, 2019. OWCP did not receive
any further evidence.
By decision dated September 3, 2019, OWCP’s hearing representative affirmed the
April 11, 2019 decision, as modified, finding that the evidence of record established that the
incident occurred as alleged. The claim remained denied, however, as the medical evidence of
record was insufficient to establish causal relationship between appellant’s diagnosed conditions
and the accepted September 12, 2018 employment incident.7
OWCP subsequently received a September 13, 2019 narrative medical report from
Dr. Dawn Quashie, a Board-certified family practitioner, who described appellant’s employment
duties and history of injury and examined appellant. Dr. Quashie diagnosed a sprain of the AC
joint, a sprain of the left shoulder joint, and adhesive capsulitis of the left shoulder. She advised
that appellant was temporarily disabled and should be on light-duty work. In her discussion of the
September 12, 2018 employment incident, Dr. Quashie described the anatomy of the shoulder and
stated that appellant “tried to stop her fall by stretching out her left arm . . . [and] she jammed her
humerus into the shoulder joint leading to her shoulder sprain.” She further explained what occurs
when a person falls forward onto an outstretched hand,
“[T]he impact force travels up the arm and exits in the cervical spine (neck) and thoracic
spine (upper back) similar to a whiplash type injury. Residual delayed symptoms may
appear, which include headaches, neck pain, muscle spasm, tingling or numbness in the
arm, and pain between the shoulder blades. [Appellant’s] fall caused mechanical and
functional damage to the left shoulder leading to inefficient movement and compensations.
These neurological compensations are part of your nervous system[‘]s hardwired survival
mechanism to avoid pain at all cost by taking the path of least resistance.”
Dr. Quashie opined that appellant’s shoulder sprain was directly and causally attributed to
the September 12, 2018 employment incident.
On October 10, 2019 appellant requested reconsideration.
By decision dated January 7, 2020, OWCP denied modification of its September 3, 2019
decision.
OWCP subsequently received an October 7, 2020 narrative medical report from
Dr. Quashie relating that appellant’s neck and left shoulder pain had progressively worsened and
6

Appellant subsequently submitted the March 9, 2019 left shoulder MRI scan, which revealed mild supraspinatus
and infraspinatus tendinosis, mild biceps tenosynovitis, mild AC osteoarthritis, and a single enlarged left axillary
lymph node.
7

The hearing representative noted that appellant’s 2016 injury had been assigned OWCP File No. xxxxxx987 and
accepted for limited medical expenses without formal adjudication. The representative ordered the case files to be
administratively combined. On January 9, 2020 it administratively combined OWCP File Nos. xxxxxx987 and
xxxxxx854, with the current file designated as the master file.

4

that she continued to have reduced range of motion with pain for the left shoulder. She diagnosed
arthropathy and primary osteoarthritis of the left shoulder and advised that appellant should remain
on light duty. Dr. Quashie noted that “[w]hile most people experience wear and tear in their joints
as they age, the development of [appellant’s] acromioclavicular joint arthrosis caused
degeneration, disabling the shoulder joint, sometimes making it appear la rger. Spurs, or spiny
projections from the bones, may develop around the joint. With this condition, there is usually
pain and swelling that limits the motion of the arm.” Dr. Quashie explained that appellant’s
employment duties, including sorting mail and lifting and delivering packages, placed a great deal
of stress on her shoulder joint, leading to “cartilage deterioration in her right [sic] shoulder ... and
allowing arthritis to develop into the joint.” She opined that appellant’s September 12, 2018 fall
through the apartment steps exacerbated her arthritic shoulder, leading to her AC joint arthropathy.
On January 29, 2021 appellant requested reconsideration. OWCP did not receive any
further evidence.
By decision dated February 23, 2021, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.8 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 9 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 10
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 11
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 12 OWCP’s procedures provide 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, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of

8

5 U.S.C. § 8128(a); see T.J., Docket No. 21-0586 (issued September 30, 2021); L.W., Docket No. 18-1475 (issued
February 7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).
9

20 C.F.R. § 10.607(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b (September 2020).

11

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
12

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).

5

OWCP.13 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 14
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 15 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP 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 OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.16
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.17 The Board makes an independent determination of whether a claimant has demo nstrated
clear evidence of error on the part of OWCP. 18
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
The last merit decision was dated January 7, 2020. As appellant’s request for
reconsideration was not received by OWCP until January 21, 2021, more than one year after
January 7, 2020, pursuant to 20 C.F.R. § 10.607(a), the request for reconsideration was untimely
filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in denying the
claim.19
The Board further finds that OWCP summarily denied appellant’s request for
reconsideration without complying with the review requirement of FECA and its implementing
13

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 10 at Chapter 2.1602.5 (September 2020).
14

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

15

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 10 at Chapter 2.1602.5a (September 2020).

16

C.M., Docket No. 19-1211 (issued August 5, 2020).

17

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 10 at Chapter 2.1602.5(a) (September 2020).

18

D.S., Docket No. 17-0407 (issued May 24, 2017).

19

20 C.F.R. § 10.607(b); S.C., Docket No. 20-1537 (issued April 14, 2021); R.T., Docket No. 19-0604 (issued
September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).

6

regulations.20 As noted, section 8124(a) of FECA provides that OWCP shall determine and make
a finding of fact and make an award for or against payment of compensation.21 Its regulations at
20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings and
facts and a statement of reasons. 22 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.23
In the February 23, 2021 decision, OWCP did not address Dr. Quashie’s October 7, 2020
medical report, which was received after the January 7, 2020 merit decision. It failed to analyze
this evidence as to whether it was sufficient to demonstrate clear evidence of error. The Board
finds that OWCP failed to properly explain the findings with respect to the issue presented so that
appellant could understand the basis for the decision, i.e., whether she had demonstrated clear
evidence that OWCP’s last merit decision was incorrect.
The case must, therefore, be remanded for findings of fact and a statement of reasons, to
be followed by an appropriate decision on appellant’s untimely reconsideration request.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed. The Board
further finds that the case is not in posture for decision regarding whether appellant has
demonstrated clear evidence of error.

20

See Order Remanding Case, W.D., Docket No. 20-0859 (issued November 20, 2020); Order Remanding Case,
C.G., Docket No. 20-0051 (issued June 29, 2020); Order Remanding Case, T.P., Docket No. 19-1533 (issued April 30,
2020); see also 20 C.F.R. § 10.607(b).
21

5 U.S.C. § 8124(a).

22

20 C.F.R. § 10.126.

23

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the
disallowance).

7

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: March 29, 2022
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
_________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-804
Issued: October 2, 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 February 24, 2012 appellant, through his attorney, filed a timely appeal from the
February 21, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying
his request for further merit review of his claim and a February 8, 2012 schedule award decision.
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 case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained more than an eight percent permanent impairment to his left leg, for which he received
a schedule award; and (2) whether OWCP properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a January 28, 2010 decision, the
Board set aside OWCP’s October 22, 2008 schedule award decision.2 The Board found that the
case was not in posture for decision as the report of a second opinion physician, Dr. Steven
Valentino, was insufficiently rationalized. The Board remanded the case for further
development. In a September 26, 2011 decision, the Board again found the case was not in
posture for decision.3 The Board noted that OWCP’s medical adviser used findings provided by
Dr. Robert Allen Smith, an OWCP referral physician, to rate permanent impairment due to
primary knee arthritis. The Board found that it was unclear where measurements necessary for
the rating came from, particularly a finding of a three-millimeter full thickness cartilage defect.
The Board noted that Table 16-3, page 511 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (6th ed. 2009), (hereinafter A.M.A., Guides) provided that
the class of impairment for primary knee joint arthritis was dependent on cartilage intervals.
OWCP’s medical adviser indicated that there were no specific measurements of the thickness of
the hyaline cartilage on any of the clinical examinations; but nevertheless rated impairment
based on a three-millimeter thickness of the cartilage with no supportive x-ray findings. The
Board directed that OWCP request that the examining physician conduct appropriate
examination of the extremities, including obtaining appropriate x-rays or other testing needed to
document the impairment rating. The facts as contained in the prior appeals are incorporated by
reference.
By letter dated November 17, 2011, OWCP referred appellant to Dr. Noubar A. Didizian,
a Board-certified orthopedic surgeon for a second opinion. In a November 17, 2011 report,
Dr. Didizian, reviewed appellant’s history of injury and treatment. He examined appellant and
determined that his left leg had not reached maximum medical improvement and his condition
was getting progressively worse. Dr. Didizian noted that appellant developed a flexion
contracture of five degrees and limited flexion of the left knee. Appellant brought in x-rays from
March 23, 2010 that revealed degenerative changes in both knees, most pronounced in the
patellofemoral joint. Dr. Didizian explained that he measured the joint line and advised that it
showed nine millimeters in the thickness of the hyaline cartilage in the medial joint and three
millimeters on the lateral joint. He advised that the patellofemoral joint showed one millimeter
of articular surface. Dr. Didizian reiterated that appellant had not reached maximum medical
improvement and recommended a total knee replacement. He explained that appellant would
reach maximum medical improvement 10 to 12 months postsurgery.
In a letter dated December 8, 2011, appellant informed OWCP that he did not wish to
have knee replacement surgery. He requested that OWCP proceed with his request for an
increased schedule award. In a letter dated December 12, 2011, appellant’s representative
requested that OWCP advise him of the status of appellant’s schedule award. By letter dated
December 16, 2011, OWCP advised Dr. Didizian that appellant did not wish to proceed with
surgery and requested that he rate appellant’s impairment.
2

Docket No. 11-546 (issued September 26, 2011). The Board also reversed the October 22, 2008 decision that
terminated appellant’s compensation benefits.
3

Docket No. 09-290 (issued January 28, 2010).

2

In a December 29, 2011 addendum report, Dr. Didizian utilized the A.M.A., Guides, and
referred to Table 16-3 for knee regional grid, page 511 under arthritis. He explained that the
primary diagnosis was primary knee joint arthritis. Dr. Didizian stated that he selected class 2
because appellant had a “two millimeter cartilage interval, four being normal. Class 2 has a
default impairment value of letter C or 20 percent.” Dr. Didizian advised that the grade
modifiers for physical examination, functional history and clinical studies were all grade
modifier 2. He utilized the net adjustment formula on page 521 and determined that the net
adjustment is (2-2) + (2-2) + (2-2) = 0. Dr. Didizian explained that, as a result, there was no
adjustment to the default value of letter C and the final impairment was equal to 20 percent of the
leg.
By letter dated January 18, 2012, OWCP referred Dr. Didizian’s report to an OWCP
medical adviser. In a report dated February 6, 2012, Dr. Christopher Brigham, Board-certified in
occupational medicine, reviewed appellant’s history and the report of Dr. Didizian. He noted
that Dr. Didizian assigned a class 2 rating with a default score of 20 percent leg impairment
based on his finding of a two-millimeter cartilage interval. Dr. Brigham explained that, on
November 17, 2011, Dr Didizian found “nine millimeters in the hyaline cartilage in the medial
joint and thickness of three on the lateral joint.” He explained that at most there could only be a
class 1 impairment for “three-millimeter cartilage interval,” which had a default score of seven
percent leg impairment. Dr. Brigham referred to section 16.3a, Adjustment Grid Functional
History and Table 16-6, Functional History Adjustment Lower Extremities.4 He assigned a
grade modifier 1 for a limp with no routine use of an external orthotic device or singe gait aid.
Regarding physical examination findings, Dr. Brigham referred to Table 16-7 and assigned a
grade modifier 1, as the physical examination revealed that appellant had mild motion loss with
mild placatory findings.5 Appellant did not have a grade modifier for clinical studies under
Table 16-8 as the clinical studies were used to confirm the diagnosis.6 Dr. Brigham applied the
net adjustment formula to find no net adjustment from the default grade C, or seven percent leg
impairment. He determined that appellant reached maximum medical improvement on
July 12, 2008.
By decision dated February 8, 2012, OWCP found that appellant had seven percent
impairment of the left lower extremity. As appellant had already received a schedule award of
eight percent, he was not entitled to an additional award.
On February 12, 2012 appellant’s attorney requested reconsideration. He noted that
OWCP did not obtain a new x-ray. Counsel asserted that Dr. Brigham’s report was not that of an
OWCP medical adviser as his company had nonphysicians perform impairment ratings.
In a decision dated February 21, 2012, OWCP denied appellant’s request for
reconsideration without further merit review.

4

A.M.A., Guides 516.

5

Id. at 517.

6

Id. at 518.

3

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. For decisions issued after May 1, 2009, the A.M.A., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.9
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS).10 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
It is well established that proceedings under FECA are not adversarial in nature and,
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.13 Once OWCP undertakes development of the
medical evidence, it has the responsibility to do so in a proper manner.14 The reports from
Dr. Didizian and Dr. Brigham are insufficient to resolve the issue of the extent of impairment to
appellants’ left leg. In the prior appeal, the Board remanded the case because OWCP’s medical
adviser provided an impairment rating based on a three millimeter thickness of the hyaline
cartilage although there were no specific measurements of the thickness of the hyaline cartilage
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

FECA Bulletin No. 09-03 (issued March 15, 2009). A.M.A., Guides (6th ed. 2008).

10

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

11

A.M.A., Guides 521.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
13

Richard E. Simpson, 55 ECAB 490 (2004).

14

Melvin James, 55 ECAB 406 (2004).

4

to support this selection. OWCP was instructed to obtain an opinion from an examining
physician who conducted appropriate examination, including obtaining an appropriate x-ray
examination or other testing needed to document the impairment rating.
In this case, the Board notes that Dr. Didizian did not obtain new x-rays. Rather, he
referred to x-rays from March 23, 2010. The Board notes that the March 23, 2010 x-ray did not
provide the required information pertinent to an impairment rating for arthritis. A new x-ray
examination was not obtained. The Board notes that Dr. Didizian’s two reports noted different
cartilage interval values. Without objective test findings of record, the Board is unable to make
an informed decision. The Board will remand the case for further development of the medical
evidence. On remand OWCP should refer appellant for x-ray testing and request an appropriate
specialist to address the left knee joint arthritis. Following this and any other further
development as deemed necessary, it shall issue an appropriate merit decision on appellant’s
schedule award claim.
On appeal, counsel also contends that the report from Dr. Brigham is not that of a
physician as the impairment evaluation was prepared by a nonphysician and reviewed by
Dr. Brigham. It is well established that a physician’s signature is required on a report in order
for it to be considered as medical evidence.15 Dr. Brigham signed the report in question and is a
physician, as defined under FECA. The February 6, 2012 impairment evaluation constitutes
probative medical opinion from a physician.16
CONCLUSION
The Board finds this case not in posture for decision.17

15

Vickey C. Randall, 51 ECAB 357 (2000).

16

B.M., Docket No. 11-725 (issued February 17, 2012).

17

In light of the Board’s finding on the first issue, the second issue is moot.

5

ORDER
IT IS HEREBY ORDERED THAT the February 21, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and remanded.
Issued: October 2, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JOHN J. PERSHING VA MEDICAL CENTER,
Poplar Bluff, MO, Employer
__________________________________________

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

Docket No. 20-0058
Issued: September 30, 2021

Case Submitted on the Record

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

JURISDICTION
On October 7, 2019 appellant filed a timely appeal from an August 20, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees ’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 20, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty on June 20, 2019, as alleged.
FACTUAL HISTORY
On July 8, 2019 appellant, then a 60-year-old licensed practical nurse, filed a traumatic
injury claim (Form CA-1) alleging that she suffered cardiac arrest on June 20, 2019 while in the
performance of duty, causing her to lose consciousness and fall backward to the floor. She
explained that she was charting at the nurse’s station when she got up, walked across the floor
(approximately 10 feet), reached for a door handle, grunted, and then fell backward onto a concrete
floor. Appellant stopped work on the date of injury.
In a July 10, 2019 development letter, OWCP informed appellant of the deficiencies of her
claim and advised her of the type of factual and medical evidence needed. It requested that she
complete a questionnaire regarding the factual circumstances of her injury and provide additional
medical evidence. OWCP afforded appellant 30 days to submit the requested evidence.
In a hospital report dated June 20, 2019, Dr. Michael John Clippard, a Board-certified
emergency medicine specialist, diagnosed syncope and collapse, abdominal aortic aneurysm
(AAA), without rupture, chronic obstructive pulmonary disease (COPD), personal history of other
malignant neoplasm of skin, other long-term (current) drug therapy, and long-term (current) use
of aspirin. He indicated that appellant was a patient who had presented after a possible seizure
and she reportedly had no recall of the event. Appellant related that she remembered checking in
a patient while in a sitting position and the next thing she recalled was people talking to her.
In a report dated June 20, 2019, Dr. Chris L. Chappell, a Board-certified family
practitioner, indicated that appellant was seen with a chief complaint of syncope. She did not
recall the events leading up to her admission, but her daughter, who was present during the visit,
reported that appellant was at work, standing when coworkers noticed that she had become limp,
fell backwards, and became unresponsive. Appellant began to shake, with decorticate posturing
of her upper extremities. Coworkers rolled her onto her side and her breathing became shallow.
They could not feel a pulse and chest compressions were started. Appellant received a total of
seven minutes of chest compressions with two automated external defibrillator shocks. The
emergency medical services arrived and she was transferred to the emergency department.
Appellant had reportedly felt more fatigued over the prior few months and reported a history of
premature ventricular contractions (PVCs) in the past, but denied recent palpitations, chest pain,
or dyspnea. Dr. Chappell diagnosed syncope, Mobitz Type 2 block, cardiac arrest, seizure-like
activity, and COPD with mild exacerbation.
On June 21, 2019 Dr. Karthik Ramaswamy, a Board-certified internist and cardiovascular
disease specialist, diagnosed cardiac arrest, presumably from “VT/VF” although no rhythm strips
were available, and no apparent etiology was identified.
In a June 21, 2019 report, Dr. Michael R. Klein, a Board-certified internist and
cardiovascular disease specialist, indicated that appellant had a history of COPD/asthma, PVCs,

2

and AAA who had presented to the hospital after “sudden rest.” He noted that appellant had a
sudden syncopal episode, but did not remember the details of the event itself. Appellant reported
that, prior to the episode, she was having intermittent chest pains, but only with emotional stress.
She was fairly sedentary, did not perform any structured aerobic exercise, and had chronic and
stable shortness of breath. Appellant also had chronic palpitations, which had not changed, but no
known cardiac disease.
On June 22, 2019 Dr. Stuart Taylor Higano, a Board-certified internist and cardiovascular
disease and interventional cardiology specialist, reported that appellant was without past cardiac
disease, but had a number of risk factors. He noted that she had collapsed while at work, but had
not had any neurologic deficit. Appellant’s echocardiogram revealed an ejection fraction of 50 to
55 percent without significant abnormalities. Dr. Higano found that a cardiac catheterization dated
June 21, 2019 showed nonobstructive coronary artery disease.
In a June 24, 2019 progress report, Dr. Klein diagnosed sudden cardiac arrest, elevated
end-diastolic pressure and edema, and AAA.
In an inpatient discharge summary dated June 28, 2019, Dr. Matthew Daniel Reuter, an
internist, diagnosed cardiac arrest at work. He reiterated Dr. Chappell’s report that appellant was
standing when coworkers noticed that she had become limp and fell backwards and was
unresponsive. After falling, appellant began to have shaking movements with decorticate
posturing of her upper extremities.
In a June 28, 2019 progress report, Dr. Ramaswamy indicated that appellant had suffered
a cardiac arrest with syncope and collapse and he had successfully placed a dual-chamber
implantable cardioverter defibrillator (ICD) that day.
In a hospital report dated June 30, 2019, Dr. Doubhi Bahna, a Board-certified internist,
indicated that appellant had been admitted on June 29, 2019 for chest pain, likely musculoskeletal
etiology, congestive heart failure exacerbation, post cardiac arrest and status post cardiopulmonary
resuscitation (CPR) on June 20, 2019, bilateral nondisplaced anterior rib fracture, status post CPR,
COPD not in acute exacerbation, and hyperlipidemia.
On June 30, 2019 Dr. Mark A. Hassen, an emergency medicine physician, diagnosed chest
wall pain, closed fracture of multiple ribs of both sides, acute on chronic combined systolic and
diastolic congestive heart failure, and bilateral pleural effusion.
In a July 1, 2019 hospital report, Dr. Amanda E. Avellone, a Board-certified internist
specializing in critical care medicine, sleep medicine, and pulmonary diseases, diagnosed bilateral
rib fractures, small bilateral pleural effusions, COPD, asthma, and obstructive sleep apnea.
In an attending physician’s report (Form CA-20) dated July 30, 2019, Dr. Klein continued
to diagnose cardiac arrest and checked a box marked “Yes” indicating that appellant’s condition
was caused or aggravated by her stressful work environment.
In a July 26, 2019 response to OWCP’s development questionnaire, appellant asserted that
she was at the nurses’ station and was “going to check in [a] veteran” when she was injured. She
was later found by her coworkers and was informed that her head had hit the floor. Appellant
3

alleged that she had went into cardiac arrest and her only injuries were related to the fall. She
further noted that she had fatigue, stress, and anxiety from work and that she has a history of COPD
and elevated cholesterol.
In a development letter dated August 14, 2019, OWCP requested additional information
from the employing establishment, including any available statements from individuals who had
witnessed or had direct knowledge of the circumstances surrounding appellant’s fall, which
resulted in the injury, as well as any knowledge of any medical condition which may have
contributed to the injury.
In an August 14, 2019 report, Dr. Klein reiterated the factual history and noted appellant’s
diagnosis of sudden cardiac arrest and that she underwent a successful dual-chamber ICD
placement on June 27, 2019. He opined that the cause of her fall was due to sudden cardiac arrest.
OWCP subsequently received witness statements from appellant’s coworkers. In a
statement dated August 19, 2019, N.M. indicated that he was not present on the scene when
appellant fell, but quickly arrived upon notification that appellant had fallen and was unconscious,
without a pulse. He detailed the history of injury noting that at approximately 10:45 a.m. on
June 20, 2019, she was working at her desk when she stood up to greet a new patient for inprocessing. Appellant proceeded to the door, heading into the hallway, grunted as if she had
stomach pain, and fell backwards, striking the back of her head onto the concrete floor. N.M.
contended that there were no other items that she struck on the way to the ground. Following the
fall, he and an in-house physician identified the emergency and called for help. In an undated
witness statement, summarizing a number of coworkers’ accounts, it was noted that appellant had
stood up from an office chair, walked toward the clinic hallway facing Sergeant T.N. who reported
that “[appellant] grunted like [she had] stomach pain, her eyes got wide, she fell backwards.” In
another statement, M.B. recounted that she had turned around in time to see appellant falling
backward, striking her head on the concrete floor and asserted that there was no object that she
struck that caused the fall. It was further reported that she had previously informed her coworkers
that she had extensive COPD and had several hospitalizations requiring ventilator support over the
past five years. Appellant had also informed coworkers during a past training session that she had
an irregular pulse.
By decision dated August 20, 2019, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the June 20, 2019 fall was caused by factors
of her federal employment. Specifically, it found that appellant’s injury was the result of a
nonoccupational illness and was, thus, idiopathic.
OWCP, therefore, concluded that the
requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed, that an injury was
sustained in the performance of duty, as alleged, and that any disability or medical condition for
3

Supra note 1.

4

which compensation is claimed is causally related to the employment injury. 4 These are the
essential elements of every compensation claim regardless of whether the claim is predicated on a
traumatic injury or an occupational disease. 5
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition. 6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.7 However, disability is not compensable when it results from factors such as an
employee’s fear of a reduction-in-force, or frustration from not being permitted to work in a
particular environment, or to hold a particular position.8
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered.9 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence. 10
It is a well-settled principle of workers’ compensation law that an injury resulting from an
idiopathic fall where a personal, nonoccupational pathology causes an employee to collapse and
4

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

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

See A.M., Docket No. 21-0420 (issued August 26, 2021); S.K., Docket No. 18-1648 (issued March 14, 2019);
Donna Faye Cardwell, 41 ECAB 730 (1990).
7

See A.M., id.; A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263
(2005); Lillian Cutler, 28 ECAB 125, 129 (1976).
8

Lillian Cutler, id.

9

See R.B., Docket No. 19-0434 (issued November 22, 2019); O.G., Docket No. 18-0359 (issued August 7, 2019).

10

Id.

5

to suffer injury upon striking the immediate supporting surface, and there is no intervention or
contribution by any hazard or special condition of employment, is not within coverage of FECA. 11
Such an injury does not arise out of a risk connected with the employment and is, therefore, not
compensable.12 However, the fact that the cause of a particular fall cannot be ascertained or that
the reason it occurred cannot be explained, does not establish that it was due to an idiopathic
condition.13
This follows from the general rule that an injury occurring while in the performance of
duty is compensable unless the injury is established to be within an exception to such general
rule.14 OWCP has the burden of proof to submit medical evidence showing the existence of a
personal, nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic
in nature.15 If the record does not establish that the particular fall was due to an idiopathic
condition, it must be considered as merely an unexplained fall, one which is distinguishable from
a fall in which it is definitely proven that a physical condition preexisted and caused the fall. 16
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty on June 20, 2019, as alleged.
In response to OWCP’s development questionnaire, appellant alleged that she was
fatigued, stressed, and experienced anxiety due to her work-related duties, which resulted in her
June 20, 2019 fall, unconsciousness and cardiac arrest. However, she has not implicated any
specific employment factors to which she attributes these conditions. Although Dr. Klein reported
on a July 30, 2019 Form CA-20 that appellant was in cardiac arrest, which caused her fall at work,
and indicated with an affirmative check mark that her condition was caused or aggravated by her
stressful work environment, he too did not delineate any contributing employment factors in
support of his opinion.
The Board finds that as appellant has not established any compensable employment
she has not met her burden of proof to establish that she sustained a stress-related
condition due to factors of her federal employment. Appellant further alleged that she sustained
an injury when she fell, hitting the back of her head on a concrete floor, while at work on
factors,17

11

M.A., Docket No. 19-0341 (issued July 10, 2019); H.B., Docket No. 18-0278 (issued June 20, 2018); Carol A.
Lyles, 57 ECAB 265 (2005).
12

Id.; see also D.T., Docket No. 19-1486 (issued January 17, 2020).

13

H.B., supra note 11; M.M., Docket No. 08-1510 (issued November 25, 2008).

14

P.N., Docket No. 17-1283 (issued April 5, 2018); Dora Ward, 43 ECAB 767 (1992).

15

A.B., Docket No. 17-1689 (issued December 4, 2018); P.P., Docket No. 15-0522 (issued June 1, 2016); see also
Jennifer Atkerson, 55 ECAB 317 (2004).
16

P.N., supra note 14; John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988).

17

M.B., Docket No. 20-1160 (issued April 2, 2021).

6

June 20, 2019. OWCP does not contest that she fell. The evidence indicates that after appellant
finished charting notes at the nurses’ station she arose from a seated position and began walking
down a hallway when she suddenly stopped, became dazed, and fell backwards hitting the back of
her head. OWCP denied the claim, finding that appellant’s fall was a result of an idiopathic
condition and, thus, not within the performance of duty.
As noted, an injury resulting from an idiopathic fall is not compensable.18 If appellant’s
injury was due to an idiopathic condition, the injury would not arise out of her employment.
OWCP has the burden of proof to submit medical evidence showing the existence of a personal,
nonoccupational pathology to establish that a given fall is idiopathic in nature. 19 The Board finds
that as appellant has not established that she sustained a stress-related condition due to factors of
her federal employment, her fall on June 20, 2019 was due to a personal, nonoccupational
pathology without employment contribution. 20
Appellant explained on her claim form that on June 20, 2019, she had gone into cardiac
arrest while working at the nurses’ station. The evidence of record includes a number of witness
statements indicating that she was charting notes at her desk before she stood to greet a patient,
and then walked across the floor, grabbed for a door handle, grunted, and suddenly fell backward,
hitting her head on the concrete floor. Both N.M. and M.B. observed that there were no other
items that she struck on the way to the ground.
In their June 20, 2019 reports, Drs. Clippard and Chappell diagnosed syncope and collapse,
AAA, cardiac arrest, and possible seizure/seizure-like activity. In his reports, Dr. Klein diagnosed
sudden cardiac arrest and opined that the cause of appellant’s fall was due to sudden cardiac arrest.
Likewise, Drs. Reuter and Ramaswamy also diagnosed cardiac arrest and Dr. Higano further noted
a diagnosis of collapse at work. However, there is no indication that any employment-related
factor caused or contributed to appellant’s fall.
Drs. Bahna, Hassen, and Avellone diagnosed bilateral rib fractures due to CPR following
the June 20, 2019 fall. However, these injuries occurred as a result of appellant’s stress-related
condition, which, as noted above, has not been established as employment related. As previously
noted, in the case of an idiopathic fall, striking an immediate supporting surface, without an
intervention or contribution by any hazard or special condition of employment is not within
coverage of FECA. 21
Accordingly, appellant has not established that she sustained an injury in the performance
of duty on June 20, 2019, as alleged.

18

Supra note 11.

19

Supra note 14.

20

Supra note 11.

21

Id.

7

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that an injury
occurred in the performance of duty on June 20, 2019, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 30, 2021
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shenandoah, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1131
Issued: March 2, 2022

Case Submitted on the Record

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

JURISDICTION
On July 20, 2021 appellant, through counsel, filed a timely appeal from a May 6, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No
contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative,
prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Boa rd notes that, following the May 6, 2021 decision, appellant submitted additional evidence to OWCP.
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 a recurrence of
disability, commencing July 30, 2018, causally related to her accepted June 15, 2017 employment
injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On June 15, 2017 appellant, then a 34-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on that date she twisted her left ankle as she stepped out of her mail
truck while in the performance of duty. On July 5, 2017 OWCP accepted sprain of the
calcaneofibular ligament of the left ankle. 5 On January 5, 2018 it expanded the acceptance of
appellant’s claim to include strain and laceration of muscles and tendons of peroneal muscle group
of the lower left leg and laceration of muscle and tendon of the peroneal muscle group at the lower
left leg. Appellant worked intermittent modified-duty work until January 11, 2018 when Dr. John J.
Stapleton, a podiatrist, performed authorized repair of a left peroneal brevis split tear and fibular
groove deepening. OWCP paid her wage-loss compensation on the supplemental rolls from
January 20 through April 13, 2018. Appellant returned to full-time, modified-duty work on
April 17, 2018.6
A July 24, 2018 magnetic resonance imaging (MRI) scan of the left ankle revealed
postsurgical changes, no other tendon or ligament injury, and a stable osteo chondral injury along
the posterior dome of the talus.
In a July 25, 2018 progress note, Dr. Stapleton noted that appellant had twisted her left ankle
on June 12, 2018 and subsequently had persistent left ankle pain that was increasing in intensity.
Left ankle examination demonstrated tenderness over the peroneal tendon, laxity of the peroneal
tendon with hypermobility, instability to the contralateral ankle, and mild edema. Dr. Stapleton
diagnosed acute left ankle pain, osteochondral defect, and tendinosis. In an unsigned
correspondence of even date, he noted that appellant was under his care and advised that she should
not work due to medical illness.
In a July 30, 2018 report, Dr. Daniel Fuchs, an orthopedic surgeon, noted the history of
appellant’s June 15, 2017 work injury. He described her medical and surgical history, and noted
4

Docket No. 19-1456 (issued July 14, 2020).

5

On November 24, 2017 appellant filed a Form CA-1 alleging that on that date she twisted her left ankle as she
stepped off the sidewalk while in the performance of duty. OWCP assigned OWCP File No. xxxxxx563. By decision
dated January 8, 2018, it denied appellant’s traumatic injury claim, finding that the evidence of record was insufficient
to establish that the injury and/or events occurred as she described. OWCP explained that she had not submitted factual
evidence to support that she experienced a work-related injury on November 24, 2017.
6

Appellant signed an offer of modified limited-duty assignment on April 17, 2018. The duties of the position were
one to two hours each casing mail, administrative duties, and working undeliverable mail with two hours
delivering/carrying mail. Appellant was restricted to two hours each, standing, walking, and delivering.

2

her complaint of persistent pain and swelling in the area of the peroneal tendons status post tendon
repair, and that she had a mild aggravation the previous month when she rolled her left ankle.
Dr. Fuchs indicated that a July 2018 MRI scan demonstrated a small posterolateral osteochondral
lesion of the talar dome. Findings on left ankle examination included intact sensation to light touch,
a well-healed surgical incision of the peroneal tendons, mild swelling, and tenderness to palpation.
Dr. Fuchs diagnosed left lower extremity peroneal tendinitis and recommended immobilization in a
controlled ankle movement (CAM) boot and physical therapy. He advised that appellant was
disabled from work. On a form report of same date Dr. Fuchs diagnosed left peroneal tendon tear,
recommended a CAM boot, weight bearing as tolerated, and advised that appellant could return to
modified sedentary work.
On July 31, 2018 appellant filed a notice of recurrence (Form CA-2a). She indicated that
the recurrence began on July 18, 2018 due to left ankle pain and weakness, and that it was causally
related to her accepted June 15, 2017 employment injury. Appellant stopped work on July 30, 2018.
By decision dated October 19, 2018, OWCP denied appellant’s claim, finding that she had
not sustained a recurrence of disability commencing July 30, 2018 causally related to her June 15,
2017 employment injury.
On October 31, 2018 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review.
In procedure notes dated November 5, 2018 and January 7, 2019, Dr. Stapleton treated
appellant in follow up. He opined that her current condition was clearly related to the initial work
injury, noting that, after she had repair of her peroneal brevis tendon, her symptoms continued and
were secondary to tendinosis and scarring from this repair and that she require d revision surgery.
On March 4, 2019 Dr. Stapleton noted that appellant was doing well, but had a complaint of mild,
intermittent pain over the medial aspect of her left ankle, worsened with extended activity, and that
ankle range of motion was still limited due to pain. He diagnosed status post-surgery and a lowgrade osteochondral defect. Dr. Stapleton reiterated his opinion that appellant’s current condition
was due to the June 15, 2017 employment injury.
In an April 10, 2019 report, Dr. Mitchell E. Cooper, a Board-certified orthopedic surgeon,
noted appellant’s complaint of a two-year history of left ankle pain with current complaints of lateral
midfoot pain, aggravated by direct pressure and weight bearing. He noted the September 27, 2018
surgery and that appellant reported that she had twisted her ankle the previous week and had
increased pain since that time. Dr. Cooper reviewed the July 24, 2018 left ankle MRI scan and
advised that he was not sure that appellant was symptomatic from osteochondritis dissecans.
By decision dated May 29, 2019, OWCP’s hearing representative affirmed the October 19,
2018 decision.
On June 25, 2019 appellant, through counsel, appealed to the Board. By decision dated
July 14, 2020, the Board set aside the May 29, 2019 decision and remanded the case for further
medical development. The Board found Dr. Stapleton’s opinion sufficient to require further

3

development of the medical evidence. The Board further instructed OWCP to administratively
combine OWCP File No. xxxxxx157 and File No. xxxxxx563. 7
OWCP received additional evidence. On May 24, 2019 Dr. Cooper treated appellant in
follow up for left ankle pain, which she attributed to an injury in June 2017. He noted that she was
status post peroneal brevis to longus transfer with tenodesis performed on September 27, 2018.
Dr. Cooper diagnosed persistent left ankle pain, deep ankle pain slightly lateral, and small
osteochondritis dissecans (OCD) post lateral talus. He continued appellant’s work restrictions.
On March 2, 2021 OWCP referred appellant, the case record and a SOAF for a second
opinion examination to Dr. Noubar A. Didizian, a Board-certified orthopedic surgeon. It requested
that Dr. Didizian evaluate appellant’s current disability status in connection with the June 15, 2017
date of injury and need for treatment medically connected to this injury. 8
In a March 18, 2021 report, Dr. Didizian discussed appellant’s factual and medical history
and reported physical examination findings. Examination of both ankles revealed no synovitis,
effusion, or crepitation, full range of motion of both ankles, intact peripheral pulses, no atrophic
changes, intact sensation in both ankles, reflexes present and equal, and negative pivot test of the
left ankle. Dr. Didizian diagnosed sprain of the calcaneofibular ligament, left ankle, strain of
muscles and tendons of the peroneal muscle group at lower left leg, laceration of the muscles and
tendons of the peroneal muscle group, and osteochondritis dissecans. He noted that the June 15,
2017 employment injury did not cause or aggravate an additional left ankle condition causing
surgery on September 27, 2018 and did not cause recurrent employment-related disability.
Dr. Didizian noted that appellant currently worked as a postmaster with no difficulty and opined
that she would not be able to go back to her original job because of multiple surgeries and ongoing
symptomology. He indicated that appellant continued to have residuals of her work-related injury
and was not fully recovered. In a work capacity evaluation (Form OWCP-5c), Dr. Didizian noted
appellant could perform light-duty work with restrictions on standing, walking, pushing, pulling,
and lifting.
By decision dated May 6, 2021, OWCP expanded the acceptance of appellant’s claim to
include osteochondritis dissecans of the left ankle.
By a second decision dated May 6, 2021, OWCP denied appellant’s recurrence claim,
finding that she did not sustain a recurrence of disability commencing July 30, 2018 causally related
to her June 15, 2017 employment injury. It found that the weight of the medical evidence rested
with Dr. Didizian, the OWCP referral physician.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,
7

OWCP administratively combined OWCP File No. xxxxxx157 and OWCP File No. xxxxxx563, with the former
serving as the master file, in accordance with the Board’s decision dated July 14, 2020.
8

OWCP received additional evidence. Appellant attended physical therapy treatment on January 14 through
23, 2020. Also submitted was a September 9, 2020 pathology report for a thigh biopsy.

4

which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment. 9
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning. 10 Where no such rationale is present,
the medical evidence is of diminished probative value.11
OWCP’s procedures provide that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings. That
change must result from a previous injury or occupational illness rather than an intervening injury
or new exposure to factors causing the original illness. It does not include a condition that results
from a new injury, even if it involves the same part of the body previously injured.12
ANALYSIS
The Board finds that this case is not in posture for decision.
Initially, the Board notes that it is unnecessary to consider the evidence appellant submitted
prior to the issuance of OWCP’s May 29, 2019 decision, which was considered by the Board in its
July 14, 2020 decision. Findings made in prior Board decisions are res judicata absent further merit
review by OWCP under section 8128 of FECA. 13
In a March 18, 2021 report, second opinion physician, Dr. Didizian, conducted an
examination of both ankles and reported no abnormalities. He diagnosed sprain of the
calcaneofibular ligament, left ankle, strain of muscles and tendons of the peroneal muscle group at
lower left leg, laceration of the muscles and tendons of the peroneal muscle group, and
osteochondritis dissecans. Dr. Didizian noted that the June 15, 2017 employment injury did not
cause or aggravate an additional left ankle condition resulting in surgery on September 27, 2018,
and did not cause recurrent employment-related disability. He noted that appellant currently worked
as a postmaster with no difficulty and opined that she would not be able to go back to her original
job because of multiple surgeries and ongoing symptomology. Dr. Didizian opined that appellant
continued to have residuals of her work-related injury and was not fully recovered. In a Form

9

20 C.F.R. § 10.5(x).

10

See J.S., Docket No. 19-1035 (issued January 24, 2020).

11

Id.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); D.T., Docket
No. 19-1064 (issued February 20, 2020).
13

C.M., Docket No. 19-1211 (issued August 5, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

5

OWCP-5c, he noted that appellant could perform light-duty work with restrictions on standing,
walking, pushing, pulling, and lifting.
Dr. Didizian, however, provided only conclusory responses to the questions posed by
OWCP with regard to whether appellant sustained a recurrence of disability on July 30, 2018 due
to a material change or worsening of her June 15, 2017 employment injury; whether she sustained
an aggravation of her accepted injury; and/or whether the September 27, 2018 left ankle surgery
was related to her work injury.14 The Board has held that a report is conclusory and of limited
probative value regarding causal relationship if it does not contain medical rationale. 15 As
Dr. Didizian did not provide a rationalized medical opinion explaining how the claimed recurrence
was causally related to the accepted June 15, 2017 employment injury, his report was insufficient
to establish causal relationship.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. 16
While the claimant has the responsibility to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. It has the obligation to see that justice is done. 17
Accordingly, once OWCP undertakes to develop the medical evidence further, it has the
responsibility to do so in a manner that will resolve the relevant issues in the case. 18
On remand OWCP shall provide an updated SOAF request a supplemental report from
Dr. Didizian thoroughly addressing the issues and providing medical rationale in support of his
opinion. Following any necessary further development, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

See D.M., Docket No. 19-1181 (issued December 2, 2019). See also P.R., Docket No. 19-1313 (issued August 11,
2020); see also S.S., Docket No. 18-0397 (issued January 15, 2019).
15

See R.W., Docket No. 19-1733 (issued April 13, 2021); D.W., Docket No. 18-1139 (issued May 21, 2019); Y.D.,
Docket No. 16-1896 (issued February 10, 2017).
16

N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August 22, 2019); B.A.,
Docket No. 17-1360 (issued January 10, 2018).
17

Id.; see also Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

18

T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the May 6, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings co nsistent
with this decision of the Board.
Issued: March 2, 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

7