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

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1319
Issued: December 7, 2017

Case Submitted on the Record

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

JURISDICTION
On May 30, 3017 appellant, through counsel, filed a timely appeal from a December 19,
2016 merit decision and an April 6, 2017 nonmerit 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.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant has established disability from work on or after
June 21, 2012 due to a work-related left knee condition; (2) whether OWCP properly denied
authorization of appellant’s October 22, 2012 left knee surgery; and (3) whether OWCP properly
denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts as presented in the Board’s
prior decisions are incorporated herein by reference. The relevant facts are as follows.
OWCP accepted that on October 5, 2009 appellant, then a 34-year-old letter carrier,
sustained a medial meniscus tear of her left knee due to a fall down stairs at work. The claim
was assigned File No. xxxxxx003. Appellant stopped work on October 5, 2009 and began to
receive compensation on the daily rolls.4
On January 12, 2010 Dr. Jeffrey F. Augustin, an attending Board-certified orthopedic
surgeon, performed a left knee arthroscopy with lateral meniscectomy and excision of plica. The
surgery was authorized by OWCP.
In a June 17, 2010 decision, OWCP terminated appellant’s wage-loss compensation and
medical benefits, effective June 17, 2010, because she ceased to have residuals of her October 5,
2009 work injury as of that date. It based its termination action on a May 30, 2010 report of
Dr. Augustin and a May 3, 2010 report of Dr. Jerome D. Rosman, a Board-certified orthopedic
surgeon, who served as an OWCP referral physician.
By decision dated November 17, 2010, OWCP modified its June 17, 2010 termination
decision to reflect that only appellant’s wage-loss compensation was terminated, effective
June 17, 2010. It explained that the May 12, 2010 notice of proposed termination failed to
mention that medical benefits related to the October 5, 2009 work injury would be terminated.
On June 21, 2012 appellant filed a traumatic injury claim (Form CA-1) alleging that she
injured her left knee at work on June 20, 2012 when she stepped down off a curb. She indicated
that she felt a tug and twist in her knee and heard a popping sound. OWCP assigned the claim
File No. xxxxxx402.5

3

Docket Nos. 14-1187 and 14-1215 (issued February 2, 2015).

4

Appellant later began to receive compensation on the periodic rolls.

5

This claim was initially developed under File No. xxxxxx402, but beginning in early 2013 the documents for
this claim were administratively combined with File No. xxxxxx003, the file created for appellant’s October 5, 2009
employment injury.

2

In an August 9, 2012 decision, OWCP denied appellant’s traumatic injury claim in File
No. xxxxxx402 because had not submitted sufficient medical evidence to establish that she
sustained a left knee injury in the performance of duty on June 20, 2012.
On October 22, 2012 Dr. Allen Glushakow, an attending Board-certified orthopedic
surgeon, performed left knee surgery, including abrasion arthroplasty, chondroplasty,
arthrotomy, and partial lateral meniscectomy. He noted that during the surgery he observed an
effusion, an osteochondral fracture of the medial femoral condyle, and an acute tear of the lateral
meniscus. The surgery was not authorized by OWCP.
By decision dated February 20, 2013, an OWCP hearing representative modified
OWCP’s August 9, 2012 decision to accept the condition of left knee sprain as occurring on
June 20, 2012 “with entitlement to medical benefits being limited to the claimant’s emergency
room visit on June 20, 2012.” He noted, “The district [office’s] denial of the claim for any other
left knee condition and for benefits subsequent to June 20, 2012 is affirmed.”
In an April 30, 2013 decision, OWCP advised appellant that her claim for a traumatic
injury on June 20, 2012 was formally accepted for a left knee sprain. It noted that, per the
hearing representative’s February 20, 2013 decision, authorization for medical treatment was
limited to treatment at the emergency room on June 20, 2012. OWCP further noted, “If the
current accepted condition(s) need to be revised or additional complications related to the current
accepted condition(s) need to be added, your physician should explain in writing, with medical
rationale, the relationship between any additional condition and the work injury or the current
accepted condition(s) noted above.”
On May 10, 2013 appellant filed claims for compensation (Form CA-7) for the periods
June 21 through October 21, 2012 and October 22, 2012 through March 18, 2013.6 The first
period of compensation was filed under File No. xxxxxx402 and the latter period under File No.
xxxxxx003. With respect to the period, June 21 through October 21, 2012, OWCP advised
appellant by letter dated May 13, 2013 that she should pursue her appeal rights associated with
the February 20, 2013 decision.
In an informational letter dated June 10, 2013, OWCP advised appellant that her claim
for compensation for the period October 22, 2012 to March 18, 2013 was not payable. It
explained her that in its November 17, 2010 decision, it had terminated her wage-loss
compensation, effective June 17, 2010.
In a July 17, 2013 letter received on that date, counsel, on behalf of appellant, sought
compensation for her October 22, 2012 left knee surgery and any periods of disability related to
her accepted work-related knee condition. He noted, “[Appellant] underwent surgery by

The employing establishment advised that appellant’s employment had been terminated, effective November 27,
2012, due to the expiration of her appointment.
6

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Dr. Glushakow under the above file in October 2012. Clearly, this is new evidence and was not
available on June 17, 2010. Appellant is now disabled as a result of the effects of the surgery.”7
In a November 14, 2013 decision, OWCP denied appellant’s July 17, 2013
reconsideration request, finding that it was untimely filed with respect to the November 17, 2010
decision and failed to demonstrate clear evidence of error. It indicated that the June 10, 2013
“decision” for which she was considered to have requested reconsideration was an informational
letter rather than a final decision of OWCP, and therefore, she could not request reconsideration
of that decision. OWCP further noted, “Your attorney does not argue that the decision dated
November 17, 2010 was incorrect when it was issued.”
On January 10, 2014 appellant filed a recurrence claim (Form CA-2a) for disability from
work due to her work-related left knee condition, commencing June 21, 2012. She filed a similar
claim under OWCP File No. xxxxxx003 for a recurrence of disability commencing
October 22, 2012.
In an informational letter dated February 26, 2014, OWCP referenced both of appellant’s
left lower extremity traumatic injury claims and advised her that it had only accepted that she
sustained a left knee sprain on June 20, 2012 and that her case was only open for payment of
medical bills related to an emergency room visit on June 20, 2012. It further noted that appellant
had previously been provided with appeal rights in connection with prior decisions on this
matter.
In a March 5, 2014 letter, counsel, on behalf of appellant, indicated that he was
submitting evidence which he felt supported coverage of her October 22, 2012 surgery. In the
attached June 25, 2013 report, Dr. Glushakow explained why he felt that appellant’s need for
repeat left knee surgery on October 22, 2012 was due to her June 20, 2012 injury rather than an
earlier injury. He noted that, while the October 22, 2012 operative report did not show a tear of
the medial meniscus, there was an effusion and osteochondral fracture of the medial femoral
condyle, as well as an acute tear of the lateral meniscus. Dr. Glushakow advised that marked
synovitis was noted requiring a subtotal synovectomy, all of which was described in the
operative report. He indicated that appellant had fully recovered from the January 12, 2010
surgery and that prior operative reports did not note an osteochondral fracture and did not note
synovitis. Dr. Glushakow noted, “Therefore, the combination of these findings point to the cause
of [appellant’s] surgery being the incident of June 20, 2012.”
In a March 19, 2014 decision, OWCP denied appellant’s March 5, 2014 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of
error in OWCP’s prior decisions, including its decision dated April 30, 2013.
Appellant appealed to the Board and, in a February 2, 2015 decision,8 the Board set aside
OWCP’s November 14, 2013 and March 19, 2014 decisions, and remanded the case to OWCP
Counsel also stated that he wished to “appeal” June 17, 2010 and June 10, 2013 “decisions” of OWCP. As
noted herein, the June 10, 2013 document was an informational letter rather than a final decision of OWCP.
7

8

See supra note 3.

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for further development. The Board found that OWCP improperly determined that counsel’s
communications on behalf of appellant constituted a request for reconsideration of its
November 17, 2010 decision, which modified its June 17, 2010 termination decision to reflect
that only her wage-loss compensation was terminated effective June 17, 2010. The Board found
that counsel expressly sought compensation for her October 22, 2012 left knee surgery and any
periods of disability related to her accepted left knee condition(s). Consequently, OWCP
improperly analyzed appellant’s case and wrongly determined, in its November 14, 2013 and
March 19, 2014 decisions, that she filed an untimely request for reconsideration and failed to
demonstrate clear evidence of error in its November 17, 2010 decision. The Board found that
she had an outstanding claim related to her October 22, 2012 left knee surgery and any periods of
disability arising after June 21, 2012. The Board remanded the case to OWCP for consideration
of that claim and directed OWCP to consider all the relevant documents relating to both
appellant’s accepted October 5, 2009 left knee injury and her accepted June 20, 2012 left knee
injury. After carrying out this development, OWCP was directed to issue an appropriate decision
on the matter.
On remand, OWCP issued a June 11, 2015 decision appellant’s request for authorization
of her October 22, 2012 surgery and her claim for a recurrence of disability commencing
June 21, 2012. It found that she failed to submit sufficient medical evidence in support of her
claim.
Appellant, through counsel, requested a telephonic hearing with a representative of
OWCP’s Branch of Hearings and Review. Prior to the hearing, OWCP’s hearing representative
determined, in a January 8, 2016 decision, that OWCP’s June 11, 2015 decision must be set aside
and the case remanded to OWCP for further development. She indicated that the case should be
forwarded to an OWCP medical adviser to address Dr. Glushakow’s medical opinions regarding
the October 22, 2012 surgery and to discuss whether there were additional medical conditions
causally related to the work injury of June 20, 2012. OWCP’s medical adviser should be asked
whether referral to a second opinion examiner would be appropriate. The hearing representative
noted that, after any additional development deemed necessary, OWCP should issue a de novo
decision as to whether appellant was disabled from June 21, 2012 and continuing and whether
the left knee surgery on October 22, 2012 was causally related to the June 20, 2012 work event.
On remand, OWCP determined that appellant and the case record should be referred to a
second opinion examiner. A second opinion examination referral was made to Dr. Timothy
Henderson, a Board-certified orthopedic surgeon, regarding the surgery and disability matters.
In a report dated November 10, 2016, Dr. Henderson advised that the October 22, 2012
surgical procedure was not secondary to the work injury that occurred on October 5, 2009. He
indicated that appellant suffered from a lateral meniscus tear,9 which was repaired and advised
that there was no further need for additional treatment regarding the work injury. Dr. Henderson
noted that she appeared to have recently sustained a new injury to her left meniscus, but that this
injury would not be a work injury. He indicated that appellant described symptoms of locking in
the recent past which did not clinically correlate to the work injury. Dr. Henderson did not
9

OWCP accepted appellant’s October 5, 2009 injury for left knee “medial” meniscus tear.

5

recommend a work capacity evaluation or work hardening program and indicated that she had
reached maximum medical improvement (MMI). He noted that the June 20, 2012 injury caused
an aggravation of arthritis, but indicated that the aggravation was temporary and had ceased at
this time. Dr. Henderson noted that the aggravation caused disability during appellant’s
employment and posited that she suffered disability from her arthritis. Appellant had partial
disability related to her degenerative changes and not the work injury. Dr. Henderson also noted
that she had not been totally disabled from June 21, 2012 and posited that she could perform
sedentary work.
On November 22, 2016 OWCP requested that Dr. Henderson clarify whether it should
update the accepted conditions to include aggravation of osteoarthritis in the left knee and
whether the restrictions provided were due to the work injury of October 5, 2009 or
June 20, 2012.
In an addendum report dated December 2, 2016, Dr. Henderson indicated that the workrelated aggravation of arthritis was temporary and had ceased at this time. He noted that he
inadvertently determined that this condition caused disability during appellant’s employment,
when in fact it was the work incident that caused the disability. Dr. Henderson noted that the
accepted conditions should not be updated to include aggravation of left knee osteoarthritis.
In a December 19, 2016 decision, OWCP found that appellant had not met her burden of
proof to establish disability commencing June 21, 2012 due to a work-related condition. It also
exercised its discretion and denied authorization for her October 22, 2012 left knee surgery.
On March 9, 2017 counsel, on behalf of appellant, requested reconsideration of OWCP’s
December 19, 2016 decision.
Counsel argued that Dr. Henderson’s November 10 and
December 2, 2016 reports were not well-rationalized as he did not adequately explain why her
June 20, 2012 employment injury did not cause disability on or after June 21, 2012 or why the
October 22, 2012 surgery was not necessitated by a work-related condition.
In an April 6, 2017 decision, OWCP denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the argument submitted by
counsel on behalf of appellant did not present a new and relevant legal argument.
LEGAL PRECEDENT -- ISSUES 1 & 2
An employee seeking benefits under FECA10 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.11 In general the term disability under FECA means

10

Supra note 2.

11

J.F., Docket No. 09-1061 (issued November 17, 2009).

6

incapacity because of injury in employment to earn the wages which the employee was receiving
at the time of such injury.12 This meaning, for brevity, is expressed as disability from work.13
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining
the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant.14
Section 8103(a) of FECA states in pertinent part: “The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers
likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the
amount of the monthly compensation.”15
The Board has found that OWCP has great discretion in determining whether a particular
type of treatment is likely to cure or give relief.16 The only limitation on the OWCP’s authority
is that of reasonableness.17 Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both
logic and probable deductions from established facts. It is not enough to merely show that the
evidence could be construed so as to produce a contrary factual conclusion.18 In order to be
entitled to reimbursement of medical expenses, it must be shown that the expenditures were
incurred for treatment of the effects of an employment-related injury or condition.19 Proof of
causal relationship in a case such as this must include supporting rationalized medical
evidence.20
ANALYSIS -- ISSUES 1 & 2
The Board finds that the case is not posture for decision due to an unresolved conflict in
the medical evidence between Dr. Henderson, who served as an OWCP referral physician, and
Dr. Glushakow, an attending physician, regarding whether appellant’s October 22, 2012 surgery
12

See 20 C.F.R. § 10.5(f).

13

Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

14

See E.J., Docket No. 09-1481 (issued February 19, 2010).

15

5 U.S.C. § 8103.

16

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

17

Lecil E. Stevens, 49 ECAB 673, 675 (1998).

18

Rosa Lee Jones, 36 ECAB 679 (1985).

19

Bertha L. Arnold, 38 ECAB 282, 284 (1986).

20

Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. Benton, 15 ECAB 48, 49 (1963).

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was necessitated by a work-related condition and whether she established disability on or after
June 21, 2012 due to a work-related condition.
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”21 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.22
In his November 10, 2016 report, Dr. Henderson advised that the October 22, 2012
surgical procedure was not secondary to the work injury, which occurred on October 5, 2009.
He indicated that appellant suffered from a lateral meniscus tear which was repaired and advised
that there was no further need for additional treatment regarding the work injury. Dr. Henderson
noted that she appeared to have recently sustained a new injury to her left meniscus, but that this
injury would not be a work injury. He indicated that appellant described symptoms of locking in
the recent past which did not clinically correlate to the work injury. Dr. Henderson did not
recommend a work capacity evaluation or work hardening program and indicated that she had
reached MMI. He noted that the June 20, 2012 injury caused an aggravation of arthritis, but
indicated that the aggravation was temporary and had ceased at this time. Dr. Henderson noted
that the aggravation caused disability during appellant’s employment and posited that she
suffered disability from her arthritis. Appellant had partial disability related to her degenerative
changes and not the work injury. Dr. Henderson also noted that she had not been totally disabled
from June 21, 2012 and posited that she could perform sedentary work. In an addendum report
dated December 2, 2016, he indicated that the work-related aggravation of arthritis was
temporary and had ceased at this time. Dr. Henderson noted that he inadvertently determined
that this condition had caused disability during appellant’s employment, when in fact it was the
work incident that caused the disability. He noted that the accepted conditions should not be
updated to include aggravation of left knee osteoarthritis.
In contrast, Dr. Glushakow explained in his June 25, 2013 report why he felt that
appellant’s need for repeat left knee surgery on October 22, 2012 was due to her June 20, 2012
injury rather than an earlier injury. He noted that, while the October 22, 2012 operative report
did not show a tear of the medial meniscus, there was an effusion and osteochondral fracture of
the medial femoral condyle, as well as an acute tear of the lateral meniscus. Dr. Glushakow
advised that a marked synovitis was noted requiring a subtotal synovectomy, all of which was
described in the operative report. He indicated that appellant had made a full recovery from the
surgery performed on January 12, 2010 and that prior operative reports did not note an
osteochondral fracture and did not note synovitis. Dr. Glushakow noted, “Therefore, the
combination of these findings point to the cause of [appellant’s] surgery being the incident of
June 20, 2012.”

21

5 U.S.C. § 8123(a).

22

William C. Bush, 40 ECAB 1064, 1975 (1989).

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Consequently, the case must be referred to an impartial medical specialist to resolve the
conflict in the medical opinion evidence between Dr. Henderson and Dr. Glushakow regarding
whether appellant’s October 22, 2012 surgery was necessitated by a work-related condition and
whether she established disability on or after June 21, 2012 due to a work-related condition. On
remand, OWCP should refer her, along with the case file and the statement of accepted facts, to
an appropriate specialist for an impartial medical evaluation and report including a rationalized
opinion on this matter. After carrying out this development, it shall issue a de novo decision
regarding appellant’s claim.23
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2017 and December 19, 2016 decisions
of the Office of Workers’ Compensation Programs are set aside, and the case is remanded for
further action consistent with this decision.
Issued: December 7, 2017
Washington, DC

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

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

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

Given the Board’s disposition of the merits of this case, it is unnecessary to consider whether OWCP properly
denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
23

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 09-1135
Issued: January 8, 2010

Case Submitted on the Record

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

JURISDICTION
On March 24, 2009 appellant filed a timely appeal from a January 7, 2009 decision of the
Office of Workers’ Compensation Programs that denied his claim for a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has any impairment caused by his accepted lumbar
conditions that would entitle him to a schedule award.
On appeal, appellant contends that the February 20, 2007 report from his attending
physician represents the weight of medical opinion.
FACTUAL HISTORY
On June 15, 1999 appellant, then a 46-year-old letter carrier, sustained an employmentrelated left elbow and hip contusion and lumbosacral strain when he tripped while delivering
mail. The Office accepted displacement of a lumbar intervertebral disc without myelopathy and

other joint derangement. It approved surgical procedures on January 26, 2000, April 8, 2002,
August 10, 2004 and August 29, 2005.1 By decision dated August 28, 2006, the Office
terminated appellant’s compensation benefits, effective September 2, 2006, on the grounds that
he refused an offer of suitable work. On January 24, 2007 appellant accepted a limited-duty job
offer and returned to work. Following a timely reconsideration request, in an April 13, 2007
decision, the Office determined that the August 28, 2006 termination decision was issued in
error.
On May 4, 2007 appellant filed a schedule award claim. In a February 20, 2007 report,
Dr. William Watters, III, a Board-certified orthopedic surgeon, rated impairment under the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides).2 He found that under Table 15-3 appellant had 13
percent impairment for lumbar herniated disc with radiculopathy and under Table 17-31,
3 percent impairment due to arthritis for zero millimeters right sacroiliac. Dr. Watters added the
impairment values to total 16 percent whole person impairment. He submitted treatment notes
but did not provide any additional impairment analysis.
The Office referred the record and a statement of accepted facts to Dr. Ronald Blum, an
Office medical adviser, for review. In a May 17, 2007 report, the Office medical adviser stated
that the information contained in Dr. Watters’ report was not adequate to provide an impairment
analysis and recommended that appellant be referred for a second opinion evaluation. On
June 27, 2008 the Office referred appellant to Dr. James F. Hood, a Board-certified orthopedic
surgeon, for a second opinion impairment evaluation.3 In a July 29, 2008 report, Dr. Hood noted
his review of appellant’s medical and surgical history and his complaints of back and bilateral
leg pain. Lumbar physical examination demonstrated palpable muscle spasm and limitation of
motion. Sitting straight leg raise was normal to 90 degrees bilaterally, and appellant was
neurologically intact. Dr. Hood provided hip range of motion measurements of 100 degrees of
flexion bilaterally; 30 degrees of extension bilaterally; 40 degrees of right abduction and 20
degrees on the left; 20 degrees of adduction bilaterally; 30 degrees of internal rotation bilaterally;
and 50 degrees of external rotation on the right and 40 degrees on the left. He advised that
appellant had uncomfortable hip pain that did not interfere with daily activity and moderate
lower extremity pain with no weakness or atrophy, and no sensory loss or neurological
involvement of the lower extremities. Dr. Hood indicated that elbow range of motion was
normal and advised that, although appellant had a slight limitation of hip motion, it was not
enough to result in any permanent impairment.
In an August 23, 2008 report, a second Office medical adviser noted review of
Dr. Hood’s report and found that there was no probative medical evidence to support impairment
of either lower extremity due to the June 15, 1999 employment injury.

1

Appellant worked limited duty for periods between the surgical procedures and received appropriate wage-loss
compensation.
2

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

3

The record reflects that appellant retired on February 15, 2008.

2

By decision dated January 7, 2009, the Office denied appellant’s claim for a schedule
award, finding that the medical evidence did not establish a compensable impairment.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act4 and section 10.404 of
the implementing federal regulations,5 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for 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. The
A.M.A., Guides6 has been adopted by the Office, and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.7
Before the A.M.A., Guides, can be utilized, a description of impairment must be obtained
from the claimant’s physician. In obtaining medical evidence required for a schedule award, the
evaluation made by the attending physician must include a description of the impairment
including, where applicable, the loss in degrees of active and passive motion of the affected
member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation, or other pertinent descriptions of the impairment. This description
must be in sufficient detail so that the claims examiner and others reviewing the file will be able
to clearly visualize the impairment with its resulting restrictions and limitations.8
Although the A.M.A., Guides include guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the spine.9 In
1960, amendments to the Act modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.10 An impairment should not be considered permanent until
the clinical findings indicate that the medical condition is static and well stabilized,11 and
schedule awards for permanent impairment of the whole person are not authorized under the
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

A.M.A., Guides, supra note 2.

7

See Joseph Lawrence, Jr., supra note 2.

8

Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

9

Pamela J. Darling, 49 ECAB 286 (1998).

10

Thomas J. Engelhart, 50 ECAB 319 (1999).

11

Patricia J. Penney-Guzman, supra note 8.

3

Act.12 Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment.13
ANALYSIS
The Board finds that the case is not in posture for decision. Dr. Watters advised that,
under Table 15-3, appellant had 13 percent impairment for a lumbar herniated disc with
radiculopathy. As noted, however, a schedule award is not payable under the Act for injury to
the spine or of the spine itself.14 Appellant is not entitled to an impairment rating under
Table 15-3. However, he may be entitled to a schedule award for permanent impairment to the
lower extremities even though the cause of the impairment originates in the spine.15 To support
an impairment rating based on a spinal injury, the physician must explain the impairment in
accordance with Chapter 17 of the A.M.A., Guides, which pertains to lower extremity
impairments.16 Dr. Watters indicated that appellant had three percent impairment under Table
17-31 for zero millimeters right sacroiliac. Table 17-31 provides impairment ratings for arthritis
impairments based on roentgenographically determined cartilage intervals.17 Zero millimeters
sacroiliac interval represent a three percent whole person impairment, as was noted by the
physician, or seven percent lower extremity impairment. The record before the Board, however,
does not contain the x-ray study demonstrating this cartilage interval loss.18 Schedule awards for
permanent impairment of the whole person are not authorized under the Act.19
In a July 29, 2008 report, Dr. Hood, an Office referral physician, advised that there was
no neurological involvement, weakness or atrophy of the lower extremities and that, while
appellant had moderate pain, this did not interfere with daily activity. He did not support that
appellant had any impairment for lower extremity sensory loss, weakness, atrophy or pain.
Dr. Hood provided range of motion findings for appellant’s hips. His findings for flexion,
extension, adduction, internal and external rotation and right abduction were all within normal
ranges as noted in Table 17-9 of the A.M.A., Guides and do not establish impairment.20
12

D.J., 59 ECAB ____ (Docket No. 08-725, issued July 9, 2008).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002); see J.P., 60 ECAB ___ (Docket No. 08-832, issued November 13, 2008).
14

Pamela J. Darling, supra note 9.

15

Thomas J. Engelhart, supra note 10.

16

A.M.A., Guides, supra note 2 at 433-564.

17

Id. at 544.

18

The record contains lumbar spine x-rays dated August 10, 2004 and August 12, 2005 that do not mention the
sacroiliac joint. January 6, 2004 and a January 25, 2005 lumbar spine magnetic resonance imaging (MRI) scans
noted metallic hardware in the right sacroiliac joint region.
19

D.J., 59 ECAB ____ (Docket No. 08-725, issued July 9, 2008).

20

A.M.A., Guides 537.

4

However, Dr. Hood noted left hip abduction of 20 degrees, which represents five percent lower
extremity impairment under Table 17-9.21 The medical evidence reflects that appellant has
impairment based on loss of left hip abduction. The case will be remanded to the Office for
further consideration of his claim for a schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision on the issue of the extent of
impairment related to appellant’s accepted injury.
ORDER
IT IS HEREBY ORDERED THAT the January 7, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded for further action in
accordance with this opinion of the Board.
Issued: January 8, 2010
Washington, DC

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

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

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

21

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF THE ARMY, OFFICE OF
ARMY NATIONAL GUARD, Lincoln, NE,
Employer
__________________________________________

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

Docket No. 11-325
Issued: October 26, 2011

Case Submitted on the Record

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

JURISDICTION
On November 22, 2010 appellant filed a timely appeal from a June 21, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) regarding an overpayment of
compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $17,404.55 because no deductions were made for
health benefit premiums or basic and optional life insurance premiums for the period October 15,
2005 through March 13, 2010; (2) whether OWCP properly denied waiver of the recovery of the
overpayment; and (3) whether OWCP properly required repayment of the overpayment by
deducting $150.00 from appellant’s continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. By decision dated February 14, 2007, the
Board affirmed a June 20, 2006 OWCP decision which denied appellant’s request for
modification of a July 11, 2003 wage-earning capacity decision.2 The facts of the case as set
forth in the prior decision are incorporated herein by reference.3
Appellant was removed from his position with the employing establishment effective
October 14, 2005 as he was discharged from the Army National Guard for medical reasons and
his position required maintaining membership. Deductions for health and life insurance were not
taken out of compensation payments based on the July 11, 2003 loss of wage-earning capacity
decision. In a March 23, 2010 worksheet, appellant was enrolled in health insurance, code 105,
with basic and optional life insurance.
On March 30, 2010 OWCP issued a preliminary overpayment determination in the
amount of $17,404.55 for the period October 15, 2005 through March 13, 2010 because health,
basic life and optional life insurance premiums were not withheld from appellant’s
compensation. It determined that health benefit premiums were $16,695.71, basic life insurance
premiums were $665.91 and optional life insurance premiums were $52.93 or a total
overpayment of $17,404.55. OWCP found appellant to be without fault in the matter. Appellant
was advised of the procedures for contesting the preliminary determination and to submit
financial information if he sought waiver or contested the overpayment.
On April 21, 2010 appellant contested the overpayment and requested waiver as it
occurred through no fault of his own. He submitted a completed Form OWCP-20 overpayment
recovery questionnaire and supporting financial documentation. Appellant advised that he
supported his wife and five children. He listed monthly income as $5,243.50 for actual earnings;
$923.00 for his wife’s income and $262.56 from FECA benefits, for a total monthly income of
$6,429.06. Appellant listed his monthly household expenses as $671.40 for mortgage including
insurance; $1,006.00 for food; $113.00 for clothing; $852.00 for utilities and $1,500.00 for other
expenses. He noted monthly installment payments of $180.14 to USAA for a home equity loan;
$277.69 to USAA for an automobile loan; $192.87 to Community Bank; $128.00 to GE credit
orthodontist; $173.00 for Cabela’s credit card and $231.00 for a USAA credit card. Appellant’s
total monthly expenses amounted to $5,325.10. He stated that he had $108.37 and $96.75 in
checking accounts; $1.15 and $1,679.81 in savings accounts for total assets of $1,886.08. In
addition to owning a house, appellant owned a 1986 Lowe Lunker III boat and motor worth
$1,015.00; a 1997 Chevy Suburban worth $3,470.00; a 1991 E350 Ford van worth $1,620.00l; a
2001 Chevy Impala worth $2,650.00; and a 1994 Cadillac DeVille worth $1,285.00. Supporting
financial documentation revealed assets of $4,910.77 in a Vangard retirement plan for his wife;
$3,525.59 in a Fidelity investment account at First State Bank and $88,901.41 in New York Life
Essentials Variable Annuity.
2

Docket No. 06-2071 (issued February 14, 2007).

3

On January 29, 1998 appellant, then a 32-year-old electronics mechanic, filed a traumatic injury claim alleging
that on that day he injured his lower back in the performance of duty. OWCP accepted the claim for an L4-5 disc
herniation and authorized a lumbar laminectomy and discectomy, which was performed on August 6, 1998.

2

By decision dated June 21, 2010, OWCP finalized the $17,404.55 overpayment and that
appellant was not at fault in its creation. It determined that his total monthly income was
$6,528.06 and his current monthly expenses totaled $5,152.10. OWCP did not include the
$173.00 monthly expenses for the Cabela credit card as it found it was not necessary for his daily
living expenses. Appellant was found capable of repaying the overpayment and he did not
provide justification for waiver. OWCP determined that $150.00 a month would be deducted
from future compensation payments until the overpayment was recovered.
LEGAL PRECEDENT -- ISSUE 1
The regulations of the Office of Personnel Management, which administers the FEHB
program, provide guidelines for registration, enrollment and continuation of enrollment of
federal employees. In this connection, 5 C.F.R. § 890.502(a)(1) provides:
“[A]n employee or annuitant is responsible for payment of the employee or
annuitant share of the cost of enrollment for every pay period during which the
enrollment continues. An employee or annuitant incurs an indebtedness due the
United States in the amount of the proper employee or annuitant withholding
required for each pay period that health benefit withholdings or direct premium
payments are not made but during which the enrollment continues.”4
In addition, 5 C.F.R. § 890.502(c) provides:
“An agency that withholds less than the proper health benefits contributions from
an individual’s pay, annuity or compensation must submit an amount equal to the
sum of the uncollected contributions and any applicable agency contributions
required under section 8906 of Title 5 United States Code, to OPM for deposit in
the Employees’ Health Benefits Fund.”5
Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.6 An agency that withholds less than the proper
health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.7 The Board has recognized that, when an underwithholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
OWCP must pay the full premium to OPM when the error is discovered.8
Under the Federal Employees’ Group Life Insurance Program (FEGLI), most civilian
employees of the Federal Government are eligible to participate in basic life insurance and one
4

See 5 C.F.R. § 890.502(a)(1); see also John Skarbek, 53 ECAB 630 (2002).

5

Id. at § 890.502(c).

6

Id. at § 890.502(a)(1).

7

Id.

8

See Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997); Marie D. Sinnett, 40 ECAB
1009 (1989); John E. Rowland, 39 ECAB 1377 (1988); 5 C.F.R. § 890.502.

3

or more of the options.9 The coverage for basic life insurance is effective unless waived10 and
the premiums for basic and optional life coverage are withheld from the employee’s pay.11
While the employee is receiving compensation under FECA, deductions for insurance are
withheld from the employee’s compensation.12 At separation from the employing establishment,
the FEGLI insurance will either terminate or be continued under compensationer status. If the
compensationer chooses to continue basic and optional life insurance coverage, the schedule of
deductions made will be used to withhold premiums from his or her compensation payments.13
When an underwithholding of life insurance premiums occurs, the entire amount is deemed an
overpayment of compensation because OWCP must pay the full premium to OPM upon
discovery of the error.14
ANALYSIS -- ISSUE 1
The record reflects that deductions for health, basic life and optional life insurance
premiums were not made from appellant’s compensation payments from October 15, 2005
through March 13, 2010. OWCP determined that health benefit premiums of $16,695.71, basic
life insurance premiums of $665.91 and optional life insurance premiums of $52.93 should have
been deducted from his compensation for this period as he had elected enrollment and premiums
were not deducted. Appellant does not dispute that he had elected enrollment for health, basic
life and optional life insurance benefits. In a worksheet dated March 23, 2010, OWCP calculated
his share of the premiums, which were not withheld from his compensation payment and
determined an overpayment in the amount of $17,404.55.
As no health, basic life and optional life benefit deductions were made from his
compensation during this time period and there is no evidence that he cancelled his health, basic
life and optional life benefits enrollment, the Board finds that the record establishes that an
overpayment was created in the amount of $17,404.55 from October 15, 2005 through March 13,
2010, due to the nonwithholding of health, basic life and optional life insurance premiums.
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. 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
9

5 U.S.C. § 8702(a)

10

Id. at § 8702(b).

11

Id. at § 8707.

12

Id. at § 8707(b)(1).

13

Id. at § 8706(b).

14

Id. at § 8707(d); see Keith H. Mapes, supra note 8; James Lloyd Otte, supra note 8.

4

fault and when adjustment or recovery would defeat the purpose of FECA or would be against
equity and good conscience.”15
Office regulations, at 20 C.F.R. § 10.438, state:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [OWCP]. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of FECA or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”16
ANALYSIS -- ISSUE 2
The fact that appellant is without fault in creating the overpayment does not mean that
OWCP cannot collect the overpayment. Appellant is still required to repay the debt unless:
(1) recovery of the overpayment would defeat the purpose of FECA; or (2) recovery of the
overpayment would be against equity and good conscience.
In determining that he was not entitled to a waiver of the recovery of the overpayment,
OWCP reviewed appellant’s income, expenses and assets as listed in his April 21, 2010
statement, overpayment recovery questionnaire and financial documents received into the record.
Based on the figures and financial documentation supplied by appellant on April 21, 2010, it
found his monthly household income was $6,528.60 with assets of $1,886.08, Mutual
Funds/Annuities of $97,337.77 and valuable property of $10,040.00. OWCP allowed the full
amount of claimed necessary monthly expense, as verified by the financial documentation
received, in the amount of $5,152.10 for food, clothing, utilities, mortgage, property tax,
insurance, equity loan, auto loan, community loan, USAA credit card and miscellaneous
expenses of $1,500.00. It disallowed monthly expenses of $173.00 for Cabela’s credit card as
being unnecessary for daily living expenses. OWCP procedures provide that an individual is
deemed to need substantially all of his or her current income to meet current ordinary and
necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00.17

15

5 U.S.C. § 8129

16

20 C.F.R. § 10.438.

17

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(3) (October 2004).

5

The Board finds that, as appellant’s monthly income of $6,528.60 exceeds his documented
reasonable monthly expenses of $5,152.10 by $1,375.9618 he is not entitled to waiver as he does
not need substantially all of his income to meet current ordinary and necessary expenses.
Further, there is no evidence in this case, and appellant did not allege, that he
relinquished a valuable right or changed his position for the worse in reliance on the excess
compensation he received for the period October 15, 2005 to March 13, 2010. Pursuant to its
regulations, OWCP, therefore, properly found that recovery of the overpayment would not be
against equity or good conscience.
As the evidence in this case fails to support that recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying a waiver of recovery of the overpayment of
$17,404.55.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. Section
10.441(a) of the regulations provide:
“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 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.”19
ANALYSIS -- ISSUE 3
With respect to the $150.00 withheld from appellant’s continuing compensation
payments to recoup the amount of the outstanding payment, OWCP’s regulations note the factors
to be considered in determining repayment from continuing compensation.20 The implementing
regulations provide that OWCP must take 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.21

18

The Board notes that appellant’s income exceeds his expenses even when the monthly expense of $173.00 for
the Cabela’s credit card is included. With this expense included, appellant’s income exceeds his expenses by
$1,202.96.
19

20 C.F.R. § 10.441.

20

Id.; see Fred A. Cooper, Jr., 44 ECAB 498 (1994).

21

Id.

6

OWCP found that recovery of the overpayment would be made by an adjustment against
continuing compensation at the rate of $150.00 per payment. It is appellant’s responsibility to
provide information about income, expenses and assets.22 The financial evidence indicated that
his monthly income exceeded his expenses by $1,375.06 and he has assets $1,886.08, mutual
funds/annuities with a value of approximately $97,337.77 and valuable property worth
approximately $10,040.00. Based on the evidence, OWCP did take relevant evidence into
account so as to minimize hardship in recovering the overpayment. The Board finds that it
properly followed its regulations in this case and in determining that the $17,404.55
overpayment could be recovered by deducting $150.00 from appellant’s continuing
compensation payments.23
CONCLUSION
The Board finds that appellant received an overpayment of $17,404.55 during the period
October 15, 2005 through March 13, 2010 and OWCP properly denied waiver of the recovery of
the overpayment. The Board further finds that OWCP also properly directed recovery of the
overpayment by deducting $150.00 every 28 days from continuing compensation.

22

20 C.F.R. § 10.441(a).

23

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(c)(3) and 6.200.4.d(1)(b) (May 2004).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 21, 2010 is affirmed.
Issued: October 26, 2011
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Ann Arbor, MI, Employer
__________________________________________

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Appearances:
Timothy E. McDaniel, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-257
Issued: April 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 4, 2013 appellant, through counsel, filed a timely appeal from the June 11,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

1
2

5 U.S.C. §§ 8101-8193.

Appellant submitted additional evidence after OWCP’s June 11, 2013 decision, but the Board cannot consider such
evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On February 5, 2007 OWCP accepted that appellant, then a 46-year-old food service
worker, sustained rotator cuff tendinitis of her left shoulder due to performing her repetitive
work duties over time, including placing dirty dishes in a dish washer and then putting away the
clean dishes. Appellant received compensation on the daily rolls for periods of partial and total
disability.3
In a November 17, 2009 letter, OWCP advised appellant of its proposed termination of
her wage-loss compensation and medical benefits based on its determination that she ceased to
have residuals of her accepted work injury. It indicated that the weight of the medical evidence
with respect to this matter rested with the well-rationalized May 14, 2009 report of
Dr. Emmanuel Obianwu, a Board-certified orthopedic surgeon serving as an impartial medical
specialist.4 Appellant was provided 30 days from the date of the letter to submit evidence and
argument challenging the proposed termination action.
Appellant submitted a November 3, 2009 report in which Dr. James Richardson, an
attending Board-certified physical medicine and rehabilitation physician, reported his
examination findings on that date and indicated that it might take “months to years” before her
left shoulder was “fully optimized.”
In a December 17, 2009 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective December 17, 2009. It indicated that the report of Dr. Richardson
was of limited probative value and that the weight of the medical evidence continued to rest with
the opinion of Dr. Obianwu.
On June 6, 2013 OWCP received a May 31, 2013 letter in which appellant, through
counsel, requested reconsideration of OWCP’s December 17, 2009 decision terminating her
compensation. Counsel stated that appellant wished to appeal OWCP’s “denial of her right to
file her CA-2a [n]otice of [r]ecurrence on the grounds that the original injury sustained while
employed at the [employing establishment] Hospital in Ann Arbor has become a permanent
injury.” Counsel asserted that he only discovered in 2013 that certain medical records submitted
by appellant to Tracy Sockow, an official of the employing establishment, were wrongfully
withheld by Ms. Sockow and were not submitted in a timely manner to OWCP. Therefore,
appellant’s compensation was terminated without OWCP having received all the evidence that
was submitted. Counsel indicated that on December 1, 2009 appellant was treated by Dr. Mary
Theisen-Goodvich, an attending clinical psychologist, and that on December 8, 2009 she was

3

In January 2008, appellant began working 20 hours per week in a limited-duty position for the employing
establishment.
4

Dr. Obianwu stated that, based on the clinical examination, appellant’s left rotator cuff tendinitis had completely
resolved. He noted that nonwork-related conditions were responsible for appellant’s continuing left shoulder
problems.

2

treated by Dr. Richardson and Dr. Ryan Topham, both Board-certified physical medicine and
rehabilitation physicians. He asserted that appellant took each record to Ms. Sockow well
within 30 days of OWCP’s November 17, 2009 preliminary determination letter and stated:
“However, Ms. Sockow, intentionally withheld these records and submitted them
to OWCP after the 30-day deadline had passed. In the trial hearing of [appellant’s
Equal Employment Opportunity Commission (EEOC) case], … the trial
testimony established that [Ms. Sockow] failed to submit [appellant’s] medical
information to OWCP in a timely manner, as required. Ms. Sockow deliberately
sent in some medical records almost one year after receiving them from
[appellant].
“In the instant case, Ms. Sockow intentionally withheld sending [appellant’s]
medical records to OWCP in order to make sure the decision to terminate her
from workers’ compensation benefits was made final. [She] did everything she
could to prevent [appellant] from receiving a fair hearing. The evidence from the
transcripts and testimony of the previously mentioned EEOC case is
overwhelming that Ms. Sockow engaged in a corrupt manner and deliberately
engaged in a manner to sabotage [appellant’s] chances of receiving workers’
compensation benefits…. [Appellant] was denied due process and equal
protection of the laws…. Therefore, we are requesting that [appellant] be given a
fair opportunity to appeal and have all the medical records considered as part of
her appeal or any other relief this office may deem appropriate.”
Appellant submitted a portion of a transcript of a June 3, 2011 hearing held in
conjunction with an EEOC case she filed. The transcript reveals that counsel questioned Kara
Szirotnyak, an employing establishment official, regarding why a December 21, 2006 medical
report was not received by OWCP until October 4, 2007. Ms. Szirotnyak indicated that she did
not know when this report was given to Ms. Sockow and noted that only Ms. Sockow could
answer that question. She stated that she did not know why there was a time lapse between the
production of the medical report and its receipt by OWCP.
In a June 11, 2013 decision, OWCP denied appellant’s request for further review of the
merits of her claim on the grounds that her request was untimely filed and failed to demonstrate
clear evidence of error. It noted that her reconsideration request was untimely because her
June 2013 request was not filed within one year of OWCP’s December 17, 2009 decision.
OWCP stated that appellant’s submitted evidence and argument did not show clear evidence of
error in its December 17, 2009 decision.5
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.6
5

OWCP stated, “[T]he allegations and references in [counsel’s] letter discuss potential errors or wrongdoing
committed by another federal agency and not [OWCP].”
6

20 C.F.R. § 10.607(a).

3

The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.7
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes “clear
evidence of error.”8 OWCP regulations and procedure 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(a), if the claimant’s application for review shows “clear evidence of error” on the part
of OWCP.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.10 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 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.14
ANALYSIS
In its June 11, 2013 decision, OWCP properly determined that appellant filed an untimely
request for reconsideration. Appellant’s reconsideration request was filed on June 6, 2013, more
than one year after OWCP’s December 17, 2009 decision terminating her compensation, and
therefore she must demonstrate clear evidence of error on the part of OWCP in issuing this
decision.

7

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

8

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

9

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.5a (October 2011). OWCP procedure further provides, “The term ‘clear evidence of error’ is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made a
mistake. For example, a claimant provides proof that a schedule award was miscalculated, such as a marriage
certificate showing that the claimant had a dependent but the award was not paid at the augmented rate. 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.”
10

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

11

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

12

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

13

See Leona N. Travis, supra note 11.

14

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

4

Appellant has not demonstrated clear evidence of error on the part of OWCP in issuing
its December 17, 2009 decision. She did not submit the type of positive, precise and explicit
evidence which manifests on its face that OWCP committed an error.
Appellant, through counsel, alleged that in December 2009 she submitted relevant
medical evidence to Ms. Sockow, an official of the employing establishment, but that
Ms. Sockow intentionally failed to submit this evidence to OWCP in a timely manner. She
claimed that her compensation was wrongfully terminated because OWCP did not have all the
relevant medical evidence to consider before reaching its termination decision. Appellant
submitted the transcript of a June 3, 2011 EEOC hearing in which Ms. Szirotnyak, an employing
establishment official, indicated that she did not know why a December 21, 2006 medical report
was not received by OWCP until October 4, 2007. Ms. Szirotnyak indicated that she did not
know when the December 21, 2006 medical report was given to Ms. Sockow and stated that she
did not know why there was a lapse between the production of the medical report and its receipt
by OWCP in October 2007.
The Board notes that appellant’s wage-loss compensation and medical benefits were
terminated effective December 17, 2009 based on a May 14, 2009 report of Dr. Obianwu, a
Board-certified orthopedic surgeon serving as an impartial medical specialist. The evidence and
argument submitted by appellant in connection with her untimely reconsideration request does
not show clear evidence of error in OWCP’s determination that the opinion of Dr. Obianwu
justified its termination action. Appellant has alleged that certain medical evidence she
submitted to an employing establishment official in December 2009 was not passed on to OWCP
in a timely matter. The evidence she submitted does not establish this allegation and it remains
unclear how the potential actions of another agency would show clear evidence of error in
OWCP’s December 17, 2009 termination decision.
For these reasons, the evidence submitted by appellant does not raise a substantial
question concerning the correctness of OWCP’s December 17, 2009 decision and OWCP
properly determined that appellant did not show clear evidence of error in that decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

5

ORDER
IT IS HEREBY ORDERED THAT the June 11, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 15, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, DALLAS LOVE FIELD,
Dallas, TX, Employer
__________________________________________

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

Docket No. 10-2113
Issued: July 6, 2011

Case Submitted on the Record

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

JURISDICTION
On August 17, 2010 appellant filed a timely appeal from a July 13, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) regarding an overpayment of
compensation.1 Pursuant to the Federal Employees’ Compensation Act (FECA)2 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction of the overpayment issue.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $442.82 during the period June 1 to 5, 2010; and
(2) whether OWCP properly found that appellant was at fault in creating the overpayment.

1

The Board notes that appellant referred to a June 11, 2010 decision, which is a preliminary determination by the
Office. The July 13, 2010 merit decision is properly within the Board’s jurisdiction.
2

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On December 22, 2005 appellant, then a 49-year-old lead transportation security
screener, alleged that she injured her right shoulder/upper arm and experienced pain in her neck
and back when she was hit by a bag exiting a machine. She had leaned across the exit ramp to
move a bin which was behind a screener when she was struck. OWCP accepted the claim for a
cervical sprain/strain; displaced cervical disc; sprain/strain of right shoulder and adhesive
capsulitis of right shoulder. Appellant underwent right shoulder arthroscopy on June 12, 2008
and left shoulder surgery on October 30, 2008. She also has an accepted traumatic injury under
xxxxxx511. OWCP paid appellant compensation for total disability. Appellant returned to work
on June 1, 2010.
In a June 3, 2010 letter, OWCP advised appellant as to her return to work effective
June 1, 2010. It informed her that she would be receiving one last 28-day compensation check
which partially covered the period following her return to work. OWCP requested that appellant
return the check to avoid an overpayment. It noted that it would issue another check covering
the appropriate period.
In a June 3, 2010 fiscal payment worksheet, OWCP noted that on June 5, 2010 appellant
would electronically receive $2,479.80 in net compensation for the 28-day period May 9 to
June 5, 2010. It divided $2,479.80 by 28 days to find she received $88.56 per day. As appellant
returned to full-time work June 1, 2010, it multiplied five days (for the period June 1 to 5, 2010)
by $88.56 per day to find an overpayment in the amount $442.82.
By letter dated June 11, 2010, OWCP made a preliminary determination that a $442.82
overpayment of compensation occurred for the period June 1 through 5, 2010. It found that
appellant was at fault in creating the overpayment because she knew or should have known that
she was not entitled to receive compensation payments after she returned to work. OWCP
referenced the April 11, 2006 acceptance letter which advised her to return any compensation if
she worked for any portion of the period for which compensation was made. It informed
appellant that, if she disagreed with the decision she could, within 30 days, submit evidence or
argument to OWCP or request a prerecoupment hearing with the Branch of Hearings and
Review. A copy of an overpayment recovery questionnaire was also provided. No additional
information was received from appellant.
By decision dated July 13, 2010, OWCP finalized the preliminary determination
regarding the overpayment of $442.82. It found that appellant knew or should have known she
accepted wage-loss compensation to which she was not entitled after she returned to work
June 1, 2010. Appellant was advised to pay the full amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Compensation for total disability under FECA is payable when the employee starts to
lose pay.3 Compensation for wage loss due to disability is available only for any periods during

3

20 C.F.R. § 10.401(a) (2003).

2

which an employee’s work-related medical condition prevents her from earning the wages
earned before the work-related injury.4
Section 8129(a) of FECA provides, in pertinent part, that when an overpayment has been
made to an individual under this subchapter because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which an individual is entitled.5 OWCP’s procedure manual identifies various situations when
overpayments of compensation may occur, including when a claimant receives compensation for
total disability while working.6
ANALYSIS -- ISSUE 1
OWCP determined that appellant received an overpayment of compensation in the
amount of $442.82 for the period June 1 through 5, 2010. The record shows that she received an
overpayment during the period in question based on receipt of a check for temporary total
disability compensation which covered the period May 9 to June 5, 2010 after she returned to
full-time work with no wage loss on June 1, 2010. OWCP calculated the $442.82 overpayment
by totaling the net amount of temporary total disability compensation appellant received from
May 9 through June 5, 2010, which amounted to $2,479.80, dividing that by 28 days of the
periodic rolls cycle, which amounted to $88.56 per day, and multiplying that by 5 days in the
overpaid period of June 1 through 5, 2010. On appeal appellant, however, disputed that she
received $442.82 in total disability compensation while working from June 1 through 5, 2010.
On appeal she indicated that she only worked two hours on June 1, 2010, not eight hours. The
record, however, is devoid of any evidence that appellant only worked two hours on June 1, 2010
or that any hours missed were due to the work injury. On appeal she also inquired whether the
night shift differential was included in the overpayment. The record reflects the night shift
differential was included in the overpayment. The Board finds that appellant received an
overpayment in compensation during the period June 1 to 5, 2010 in the amount of $442.82.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA7 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. No waiver
of an overpayment is possible if the claimant is not without fault in helping to create the
overpayment.8

4

Id. at § 10.500(a) (2003).

5

5 U.S.C. § 8129(a).

6

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2
(May 2004).
7

5 U.S.C. § 8129(a)-(b).

8

Bonnye Mathews, 45 ECAB 657 (1994).

3

In determining whether an individual is with fault, section 10.433(a) of OWCP’s
regulations provide that 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 the individual knew or should have known to be incorrect; or (2) Failed to provide
information which the individual knew or should have known to be material; or (3) Accepted a
payment which he or she knew or should have known to be incorrect.9
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that 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.10
ANALYSIS -- ISSUE 2
OWCP applied the third standard in determining that appellant was at fault in creating the
overpayment. In order for it to establish that she was at fault in creating the overpayment of
compensation, OWCP must establish that, at the time she received the direct deposit in question
she knew or should have known that the payment was incorrect.11 The overpayment of
compensation occurred in this case when appellant accepted a direct deposit after she returned to
work on June 1, 2010, for the period ending June 5, 2010. Consequently, for her to be found at
fault in creating the overpayments, the evidence must establish that when she accepted this direct
deposit she knew or should have been expected to know that the check included a payment for a
period of wage loss to which she was not entitled.12 With regard to appellant’s receipt of the
June 5, 2010 direct deposit, the Board has held that an employee who receives payments from
OWCP in the form of direct deposit may not be at fault the first time incorrect funds are
deposited into her account, as the acceptance of the resulting overpayment lacks the requisite
knowledge.13 While she accepted the overpayment by gaining control of the funds deposited
into her checking account pursuant to her authorization, she did not know that she would receive
an incorrect payment on that day. Unlike the situation in which a claimant receives a physical
9

20 C.F.R. § 10.433(a).

10

Id. at § 10.433(b).

11

See Robin O. Porter, 40 ECAB 421 (1989).

12

Id.; see also Michael R. Nixon, 40 ECAB 398 (1988); Marlene R. Pavlo, 38 ECAB 716 (1987) (where the
Board found that appellant was without fault where the record contained no evidence indicating that she was
apprised by the Office, as of the time she received the compensation check, of the specific period the check covered
so as to put her on notice that she was being paid incorrectly for a period of time during which she worked).
13

See Tammy Craven, 57 ECAB 689 (2006). The Board has found a claimant to be at fault in cases where he or
she is receiving compensation checks through direct deposit, which involve a series of payments over several
months, with clear knowledge that the payments are incorrect. See George A. Hirsch, 47 ECAB 520 (1996);
Kveta M. Kleven, Docket No. 99-2472 (issued August 10, 2000); William J. Loughrey, Docket No. 01-1861 (issued
July 12, 2002). The Board notes that it is not appropriate to make a finding that a claimant has accepted
overpayment via direct deposit until such time as a reasonable person would have been aware that this overpayment
had occurred. This awareness could be established either through documentation such as a bank statement or
notification from the Office or where a reasonable period of time has passed during which a claimant could have
reviewed independent confirmation of the incorrect payment.

4

check and is aware of the amount of the payment before depositing it into her account, appellant
was not on notice of the amount of the payment until after it was deposited electronically into her
account. While OWCP attempted to put her on notice of the impending overpayment in its
June 3, 2010 letter, but there is no evidence to establish that she received this letter prior to the
compensation check being electronically deposited into her account. The Board finds that
OWCP improperly determined that appellant was at fault in the creation of the June 5, 2010
overpayment. OWCP has not presented sufficient evidence to establish that she accepted a
payment which she knew or should have known to be incorrect. The Board will set aside the
finding of fault regarding the June 5, 2010 payment and remand the case for further development
and a final decision on the issue of waiver of the overpayment.
CONCLUSION
The Board finds that OWCP properly determined that an overpayment of compensation
had occurred in the amount of $442.82 during the period June 1 through 5, 2010. However, the
Board set aside the finding of fault. The case is remanded for OWCP to determine the amount of
overpayment and whether waiver of the recovery of the overpayment is warranted.
ORDER
IT IS HEREBY ORDERED THAT the July 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed, in part, and set aside, in part. The case is
remanded for action consistent with this decision.
Issued: July 6, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Las Vegas, NV, Employer
)
__________________________________________ )
A.F., Appellant

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

Docket No. 10-1064
Issued: January 7, 2011

Case Submitted on the Record

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

JURISDICTION
On March 8, 2010 appellant filed a timely appeal from merit decisions of the Office of
Workers’ Compensation Programs dated October 26, 2009 and January 28, 2010 denying her
occupational disease claim on the grounds that it was not timely filed. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether the Office properly denied appellant’s occupational disease claim on
the grounds that it was not timely filed under 5 U.S.C. § 8122.
FACTUAL HISTORY
On October 8, 2009 appellant, a retired 58-year-old window service technician, filed an
occupational disease claim alleging that her duties at the postal window caused her to develop
carpal tunnel syndrome. She indicated that she first realized her condition on August 27, 2002
and that it was caused or aggravated by her employment on October 29, 2004. Appellant retired
on July 1, 2006. With her claim she submitted a September 28, 2009 statement, diagnostic

testing and medical reports diagnosing bilateral carpal tunnel syndrome.
establishment challenged the claim on the basis that it was not timely filed.

The employing

By decision dated October 26, 2009, the Office denied appellant’s claim on the basis that
it was not timely filed.
On November 17, 2009 appellant requested reconsideration.
She submitted a
November 17, 2009 statement along with additional medical reports. In her November 17, 2009
statement, appellant indicated that she did not know there was a time limit for filing a claim. She
advised she has three active claims before the Office and that she was not properly diagnosed
with carpal tunnel syndrome until May 29, 2009.
In a January 7, 2010 letter to both the employing establishment and appellant, the Office
requested that the employing establishment comment on appellant’s reconsideration application
and statement. Specifically, it asked whether the employing establishment had any knowledge
that appellant sustained a bilateral wrist injury and that the injury was due to her work duties and,
if so, when it became aware of appellant’s condition. The Office also requested that appellant
provide a statement as to whether she had advised her immediate supervisor about her condition
and her belief that it was related to work.
In a January 14, 2010 statement, appellant reiterated that her hands had given her trouble
since August 27, 2002 but it worsened after she retired. She indicated that, when she was
working, she was undergoing treatment for other work-related conditions. Appellant stated that
she never informed a supervisor about her hand conditions “because at the time she had bigger
problems to address.” She noted that she was off work for more than three years in a wheel chair
with not much time to think of her hands. Appellant stated that she worked for a few months
before retiring in 2006. She indicated that she sought help for her hands in 2007 but did not
inform a supervisor because she was no longer on duty.
By decision dated January 28, 2010, the Office denied modification of the October 26,
2009 decision finding that the evidence did not demonstrate that her claim was timely filed in
accordance with 5 U.S.C. § 8122.
LEGAL PRECEDENT
Section 8122(a) of the Federal Employees’ Compensation Act1 states that an original
claim for compensation for disability or death must be filed within three years after the injury or
death.2 Section 8122(b) provides that in latent disability cases, the time limitation does not begin
to run until the claimant is aware or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability.3 The

1

5 U.S.C. § 8122(a).

2

Id.

3

Id. at § 8122(b).

2

Board has held that, if an employee continues to be exposed to injurious working conditions after
such awareness, the time limitation begins to run on the last date of this exposure.4
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of the Act if
her immediate supervisor had actual knowledge of the alleged employment-related injury within
30 days. The knowledge must be such as to put the immediate superior reasonably on notice of
appellant’s injury.5 An employee must show not only that her immediate superior knew that she
was injured, but also knew or reasonably should have known that it was an on-the-job injury.6
ANALYSIS
In its October 25, 2009 and January 28, 2010 decisions, the Office denied appellant’s
claim for compensation on the grounds that the evidence of record failed to demonstrate that her
claim was timely filed in accordance with 5 U.S.C. § 8122. Appellant indicated on her claim
form that she first became aware of a connection between her hand condition and her
employment on October 29, 2004. As she retired on July 1, 2006, she was last exposed to the
work duties that caused her condition on June 30, 2006. Since appellant did not file her claim
until October 8, 2009, her claim was filed outside the three-year time limitation period under
section 8122(b).
The record additionally contains no evidence that appellant’s supervisor had actual
knowledge of the work injury or that written notice of the injury was given within 30 days.
Appellant’s statements and the medical records submitted do not purport to show that her
immediate supervisor had actual knowledge of appellant’s alleged hand conditions within 30
days or that timely written notice of injury was provided within 30 days.7 In fact, in her
January 14, 2010 statement, she advised she never informed a supervisor of the claimed
condition. Additionally, appellant stated that, when her hand condition worsened after her
retirement, she did not inform a supervisor as she was no longer employed. The fact that she had
other previous claims for work-related conditions does not establish that the employing
establishment had actual timely knowledge of the separate claim for carpal tunnel syndrome.
While appellant asserted both before the Office and on appeal that she did not know there was a
time limitation to filing a claim, the Board has held that unawareness of possible entitlement,
lack of access to information and ignorance of the law or of one’s rights and obligations under it
do not constitute exceptional circumstances that could excuse a failure to file a timely claim.8
Therefore, the Board finds that appellant has not established actual knowledge by her
supervisors of her work-related condition within 30 days and therefore has not established a
4

See Mitchell Murray, 53 ECAB 601 (2002); Alicia Kelly, 53 ECAB 244 (2001); Larry E. Young, 52 ECAB 264
(2001); Garyleane A. Williams, 44 ECAB 441 (1993).
5

5 U.S.C. § 8122(a)(1); see also Jose Salaz, 41 ECAB 743 (1990); Kathryn A. Bernal, 38 ECAB 470 (1987); see
also Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(a)(3) (March 1993).
6

Charlene B. Fenton, 36 ECAB 151 (1984).

7

See 5 U.S.C. § 8122(a)(1) and (2).

8

Roger W. Robinson, 53 ECAB 846, 851 (2003).

3

timely claim. The record is void of any indication that appellant’s immediate supervisors had
written notice of the work-related injury or actual notice of the work-related injury within 30
days. The exceptions to the statute have not been met, and thus, appellant has failed to establish
that she filed a timely claim.
On appeal, appellant notes the history of her treatment for carpal tunnel syndrome and
her belief that her carpal tunnel syndrome is work related. She also reiterated that she was
unaware of the time limitation for filing a claim. As noted, the evidence establishes that
appellant did not timely file her claim and her unawareness of the filing requirement does not
excuse a failure to timely file a claim.
CONCLUSION
The Board finds that the Office properly denied appellant’s compensation claim on the
grounds that her claim was not filed within the applicable time limitation provisions of the Act.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2010 and October 26, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 7, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oak Lawn, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-710
Issued: August 13, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On February 13, 2012 appellant filed a timely request for review from a November 3,
2011 decision of the Office of Workers’ Compensation Programs (OWCP) denying appellant’s
request for an oral hearing as untimely.
The Board, having duly reviewed the matter, notes that it issued a Decision and Order on
October 14, 2011 finding that appellant’s request for a hearing before an OWCP hearing
representative was untimely, and that he was, therefore, not entitled to a hearing as a matter of
right. The Board found, however, that OWCP had discretion, nonetheless, to grant appellant’s
request. Because OWCP did not exercise its discretion, the Board set aside the December 28,
2010 decision denying appellant’s request and remanded the case for a proper exercise of
discretion and an appropriate final decision.1
In a November 3, 2011 decision, OWCP found that because appellant’s hearing request
was not made within 30 days, he was not as a matter of right entitled to an oral hearing or a

1

Docket No. 11-879 (issued October 14, 2011). The Board’s decision may also be found under OWCP File No.
xxxxxx517 (master file).

review of the written record. Citing its procedure manual2 and its regulations,3 OWCP found
that the requirement for OWCP to offer a discretionary hearing is no longer mandated and
therefore the legal precedent cited by previous Board decisions is no longer valid. “Therefore a
discretionary hearing is denied for above-stated reasons.”
The Board finds that OWCP has again failed to exercise its discretion. The Board has
held that OWCP, in its broad discretionary authority to administer the Federal Employees’
Compensation Act (FECA), has the power to hold hearings in circumstances where no legal
provision is made for such hearings and has further held that OWCP must exercise its discretionary
authority.4 This power to hold hearings did not derive from an OWCP procedure or regulation.
Indeed, OWCP had this authority prior to the 1966 amendments that provided a right to a hearing.
The Board held that there was nothing in the legislative history of the 1966 amendments to indicate
that Congress was revoking OWCP’s discretionary authority to hold a hearing even if the request
was not timely made.5
When OWCP procedures later required the exercise of discretion if a hearing request was
untimely or made after reconsideration, the Board found that the procedure was a proper
interpretation of both FECA and Board precedent.6 That the procedure no longer addresses the
matter in no way diminishes OWCP’s power to hold discretionary hearings.
On remand, OWCP shall exercise its discretion whether to grant appellant’s untimely
request, and if not, shall so advise appellant with reasons.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.4.a (October 2011).
3

20 C.F.R. § 10.616(a).

4

Mary B. Moss, 40 ECAB 640 (1989) (untimely request for hearing); Shirley A. Jackson, 39 ECAB 540 (1988)
(hearing request made after request for reconsideration); Johnny S. Henderson, 34 ECAB 216 (1982) (request for a
second hearing); Rudolph Bermann, 26 ECAB 354 (1975) (injury occurring prior to effective date of the statutory
amendments providing right to hearing).
5

Herbert C. Holley, 33 ECAB 140 (1981).

6

Jeff Micono, 39 ECAB 617 (1988).

2

IT IS HEREBY ORDERED THAT the November 3, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: August 13, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3