United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Orlando, FL, Employer
__________________________________________

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Docket No. 16-1497
Issued: December 20, 2016

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

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 July 14, 2016 appellant, through counsel, filed a timely appeal from a May 9, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of appellant’s claim.

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.

ISSUE
The issue is whether appellant established that his claimed left knee condition is causally
related to the accepted August 13, 2015 employment incident.
FACTUAL HISTORY
On August 20, 2015 appellant, then a 61-year-old carpenter, filed a traumatic injury claim
(Form CA-1) alleging that on August 13, 2015 he injured his left knee while laying carpet in the
performance of duty. He explained that he had been on his knee for two hours and injured his
knee when he stood up.
In an August 14, 2015 employing establishment report of injury, appellant stated that on
August 13, 2015 he was laying carpet with knee pads on and after approximately two hours of
crawling on the floor he stood up and his left knee popped. He reportedly had been experiencing
pain ever since the incident, and despite icing his knee, it was still very tender.
Appellant visited the employee health unit on August 14, 2015 and was treated by Linda
Baco, a physician assistant. Ms. Baco noted that on August 13, 2015 appellant was laying carpet
with his knees on pads and with two hands crawling on the floor. She further reported that when
appellant stood up “his left knee popped,” and he had been in pain ever since. Ms. Baco
diagnosed possible left knee meniscal tear. She recommended a magnetic resonance imaging
(MRI) scan to rule out meniscal tear. Ms. Baco also advised that appellant could return to work
with restrictions of no squatting, no repetitive bending, and no kneeling.
An August 14, 2015 left knee x-ray revealed degenerative changes and no acute
abnormality.3
On August 17, 2015 the employing establishment provided appellant a transitional
assignment that allowed him to return to work with restrictions of no stooping, squatting, or
kneeling. Appellant was to perform office-related work with various administrative tasks.
The record revealed that appellant previously filed a traumatic injury claim (Form CA-1)
for an August 5, 2010 left knee injury, which OWCP denied under OWCP File No. xxxxxx797.
A September 8, 2010 left knee MRI scan revealed a bone bruise of the medial femoral condyle
and a tear of the posterior horn of the medial meniscus.4 On September 21, 2010 Dr. Richard M.
Konsens, a Board-certified orthopedic surgeon, examined appellant and reported left knee pain
of about six weeks’ duration. He noted an August 5, 2010 date of injury and reported that
appellant had been doing a lot of kneeling and when he got up, he noted a pop and the onset of
pain and swelling. Dr. Konsens also noted the results of appellant’s recent left knee MRI scan,
as well as bilateral knee x-rays, which showed mild medial compartment narrowing. He
diagnosed left knee medial meniscus tear and mild medial compartment arthritis, bilaterally.
Dr. Konsens recommended knee arthroscopy, and advised that in the interim appellant could
3

Dr. Rashmi Mediratta, a Board-certified diagnostic radiologist, interpreted the August 14, 2015 left knee x-ray.

4

Dr. Mark J. Timken, a Board-certified diagnostic radiologist, interpreted the September 8, 2010 MRI scan.

2

perform light-duty work with no kneeling, squatting, twisting, or climbing. In follow-up reports
dated September 28 and October 14, 2010, he continued to diagnose left knee medial meniscus
tear, and noted that appellant was awaiting authorization for surgery.
On August 26, 2015 appellant returned to see Dr. Konsens. Dr. Konsens noted that he
last saw appellant approximately five years ago for medial meniscus tear per MRI scan at that
time. He explained that he never received approval for surgery and appellant ultimately decided
to live with the problem. Dr. Konsens related that appellant was doing fairly well until
August 13, 2015, when he noted the traumatic onset of knee pain. He examined appellant and
provided findings. Dr. Konsens noted that x-rays revealed no acute osseous abnormality,
fracture or malalignment, and only minimal degenerative changes. He diagnosed prior history of
left knee degenerative medial meniscus tear. Dr. Konsens related that appellant wished to have
the knee arthroscoped. He recommended a new left knee MRI scan to confirm the size and
location of the tear.
A September 2, 2015 MRI scan of the left knee, read by Dr. Kevin W. McLean, a Boardcertified diagnostic radiologist, revealed tearing of the medial meniscus, mild compartment
chondromalacia, no acute ligamentous pathology, no lateral meniscus tear, and patellofemoral
compartment chondromalacia.
In a September 8, 2015 report, Dr. Konsens noted that the MRI scan revealed an oblique
tearing of the medial meniscus primarily in the posterior third and a grade 3 and grade 4
chrondrosis in the patellofemoral joint. He examined appellant and diagnosed medial meniscus
tear of the left knee and grade 3 and 4 chrondrosis in the patellofemoral joint. Dr. Konsens
indicated that appellant wished to proceed with arthroscopy and requested authorization for
surgery.
In a letter dated September 25, 2015, OWCP informed appellant of the type of evidence
needed to support his claim and requested that he submit such evidence within 30 days.
Specifically, it requested a narrative report from appellant’s attending physician, including an
explanation of how appellant’s August 13, 2015 employment injury affected his preexisting left
knee condition.
In an October 1, 2015 report, Dr. Konsens noted that x-rays obtained on August 26, 2015
demonstrated no acute osseous abnormality, fracture, or malalignment. He opined that
appellant’s current symptoms were related to his injury from 2010. Dr. Konsens explained that,
at that time, he had an MRI scan which revealed a tear of the posterior horn of the medial
meniscus. He explained that, because of the continued symptoms, he would like to have the
knee arthroscoped, as the meniscal tear was “not inclined to improve over time.” Dr. Konsens
advised that appellant had intermittent symptoms over the years, which were consistent with a
meniscus tear.
In an October 13, 2015 disability certificate, Dr. Konsens recommended light-duty work
with restrictions of no bending, stooping, kneeling, climbing, or prolonged walking.
By decision dated November 6, 2015, OWCP denied appellant’s claim as he failed to
establish causal relationship between the diagnosed condition and the accepted employment

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incident of August 13, 2015. It found the medical evidence of record insufficient as there was no
rationale to support causal relationship.
On December 8, 2015 appellant requested a review of the written record before an
OWCP hearing representative.
In a December 4, 2015 report, Dr. Konsens noted that appellant had an injury on the job
five years ago. He explained that appellant was kneeling, and when he got up he felt a pop in the
knee. Dr. Konsens explained that a left knee MRI scan revealed a medial meniscus tear. He
explained that appellant never fixed it and the knee continued to bother him intermittently over
the years. Dr. Konsens indicated that appellant never got approval for the surgery but on
August 13, 2015, he noted traumatic worsening of pain. He explained that a new MRI scan
confirmed a broad-sided tear of the medial meniscus and a parameniscal cyst with medial
compartment chondromalacia.
By decision dated May 9, 2016, the hearing representative affirmed OWCP’s
November 6, 2015 decision. She too found that appellant failed to establish a causal relationship
between his left knee condition and the accepted August 13, 2015 employment incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a
personal injury.7 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.8

5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
8

Shirley A. Temple, 48 ECAB 404, 407 (1997).

4

Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.9
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.10
ANALYSIS
OWCP accepted that the August 13, 2015 employment incident occurred as alleged.
Appellant reported that he had been crawling on his knees for about two hours laying carpet, and
when he stood his left knee popped. The record establishes a diagnosis of left knee medial
meniscus tear. However, OWCP denied appellant’s traumatic injury claim based on his failure
to establish causal relationship between the diagnosed left knee condition and the August 13,
2015 employment incident. An OWCP hearing representative subsequently conducted a review
of the written record and similarly found that appellant failed to establish causal relationship
between his current left knee condition and the accepted August 13, 2015 employment incident.
The Board finds that the medical evidence of record contains no reasoned explanation of
how the specific employment incident on August 13, 2015 caused or aggravated appellant’s
claimed left knee condition.11
The record contains an August 14, 2015 treatment note from a physician assistant. Under
FECA the term “physician” includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by the applicable state law.12 Consequently, the physician assistant’s August 14, 2015
treatment notes are irrelevant as the records provided cannot be considered medical evidence
and, as noted above, the underlying point at issue is medical in nature.
OWCP also received August 14, 2015 x-rays of the left knee read by Dr. Mediratta and a
September 2, 2105 MRI scan of the left knee read by Dr. McLean. However, these reports
merely reported findings and did not contain an opinion regarding the cause of the reported
condition. Thus, they are of limited probative value.13
Appellant submitted several reports from Dr. Konsens, who previously treated him for a
medial meniscus tear in 2010. In an August 26, 2015 report, Dr. Konsens explained that despite
9

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

10

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a
physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified
physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013).
11

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
12

See 5 U.S.C. § 8101(2). See also B.L., Docket No. 16-1205 (issued November 23, 2016); Roy L. Humphrey, 57
ECAB 238 (2005).
13

See L.L., Docket No. 16-0896 (issued September 13, 2016); A.D., 58 ECAB 149 (2006).

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recommending surgery, appellant never received approval for surgery. He related that appellant
was doing fairly well until August 13, 2015, when appellant experienced a traumatic onset of
knee pain. Dr. Konsens examined appellant, provided findings, and diagnosed a prior history of
left knee degenerative medial meniscus tear. The Board finds that this report supports the prior
injury, but does not offer any support that the August 13, 2015 incident caused or aggravated an
injury.
In a September 8, 2015 report, Dr. Konsens diagnosed left knee medial meniscus tear and
grade 3 and 4 patellofemoral joint chrondrosis. He noted that appellant wished to proceed with
arthroscopy and requested authorization for surgery. Dr. Konsens merely provided diagnoses
and did not offer any opinion on causal relationship. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.14 In his October 1, 2015 report, Dr. Konsens specifically opined that
appellant’s current symptoms were related to his injury from 2010.
In a December 4, 2015 report, Dr. Konsens noted that appellant had an injury on the job
five years prior, which occurred when appellant got up from kneeling and felt a pop in his knee.
He explained that a left knee MRI scan revealed a medial meniscus tear. However, appellant
never fixed it and the knee continued to bother him intermittently over the years. Dr. Konsens
explained that on August 13, 2105 appellant noted a traumatic worsening of pain. He confirmed
that a new MRI scan revealed a broad-sided tear of the medial meniscus and a parameniscal cyst
with medial compartment chondromalacia. In this case, Dr. Konsens referenced the prior injury
and noted the date of the employment incident. However, other than that he did not describe the
employment incident or offer an opinion regarding the cause of the diagnosis. To establish a
causal relationship between the condition, as well as any attendant disability claimed and the
employment event or incident, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background, supporting such a causal relationship.15
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. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.16 The
Board finds that Dr. Konsens’ December 4, 2015 report is of limited probative value.
Because the medical reports submitted by appellant do not address how the August 13,
2015 activities at work caused or aggravated his left knee condition, these reports are of limited
probative value and are insufficient to establish that the August 13, 2015 employment incident
caused or aggravated a specific injury.17
14

K.W., supra note 10.

15

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

16

James Mack, 43 ECAB 321 (1991).

17

See Linda I Sprague, 48 ECAB 386, 389-90 (1997).

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that his claimed left knee condition is
causally related to the August 13, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 9, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 20, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
M.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
________________________________________

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

Docket No. 15-1868
Issued: February 4, 2016

Case Submitted on the Record

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

JURISDICTION
On September 14, 2015 appellant filed a timely appeal from a June 24, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from November 7, 2014, the date of the most recent OWCP merit decision, to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that OWCP closed her case in the midst of her changing
doctors. She further contends that her neck injury is a permanent disability and argues that no
doctor has relieved her from any treatment yet.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant, a 36-year-old mail processing clerk, sustained a cervical
sprain on September 28, 1992 while in the performance of duty. It authorized a February 8,
1993, anterior cervical disc removal and fusion at C4-5. Following surgery, appellant returned to
modified work and began a rehabilitative job assignment on May 20, 1996. She filed a claim for
a schedule award (Form CA-7) on March 27, 2002. In a decision dated May 13, 2003, OWCP
granted a schedule award for three percent permanent impairment of the right upper extremity
and three percent permanent impairment of the left upper extremity.2 Appellant was separated
from the employing establishment effective February 17, 2011 due to unacceptable conduct.
Appellant submitted a September 25, 2012 letter to OWCP requesting permission to seek
another doctor to handle her case and a December 6, 2012 letter indicating that she would
schedule an appointment with a new physician for a complete evaluation of her neck.
On November 13, 2013 appellant filed a recurrence of medical treatment (Form CA-2a)
commencing on June 3, 2009 due to her original September 28, 1992 employment injury.3 She
stated that she had permanent lifting limitations and she was seeing a doctor on a continuous
basis every six months for pain management. Appellant alleged that the cervical pain from her
original injury had never ceased and her pain medication was helping her cope with activities of
daily living, but OWCP closed her case in the middle of her care while she was still under
doctor’s orders. With her claim, she submitted a June 27, 2013 cervical spine magnetic
resonance imaging (MRI) scan report which noted multiple congenital fusions and herniation at
C5-6 and C6-7.
On February 24, 2014 OWCP advised appellant of the type of medical evidence needed
to establish entitlement to additional medical treatment.
On March 21, 2014 appellant informed OWCP that since her injury and surgery she
never had physical therapy. She indicated that her condition remained symptomatic. Appellant
submitted a March 31, 1993 medical report that was previously of record.
By decision dated April 2, 2014, OWCP denied the recurrence claim finding that
appellant failed to establish that she required additional medical treatment due to a worsening of
her accepted cervical sprain without intervening cause.
On May 5, 2014 appellant requested a review of the written record by an OWCP hearing
representative. Thereafter, she submitted a March 17, 2014 report from Dr. Helo Chen, an
osteopath and family practitioner, who diagnosed cervical discopathy or radiculitis that was due
to the September 28, 1992 work injury. Appellant also submitted evidence that predated the
claimed recurrence of her medical condition.
2

Appellant was also involved in two nonwork-related motor vehicle accidents in 2008. Her treating physician at
that time, Dr. Michael P. Barker, a Board-certified physiatrist, indicated that these accidents caused increased neck
pain. Dr. Barker opined that appellant could continue working with regard to her accepted condition.
3

The record indicates that appellant previously filed a separate claim for a June 2, 2009 injury which OWCP
denied on August 28, 2009. This other claim is not presently before the Board.

2

By decision dated May 22, 2014, OWCP denied appellant’s request for a review of the
written record finding that her request was untimely because it was not made within 30 days of
its April 2, 2014 decision. It further indicated that it had exercised its discretion and further
denied the request for the reason that the relevant issue of the case could be addressed by
requesting reconsideration and submitting evidence not previously considered by OWCP.
On July 18, 2014 appellant requested reconsideration.
By decision dated November 7, 2014, OWCP denied modification of its April 2, 2014
decision finding that the medical evidence failed to establish that appellant sustained a
recurrence on June 3, 2009.
On December 23, 2014 appellant requested reconsideration and submitted a narrative
statement dated December 23, 2014 reiterating the factual history of her claim and requesting
that she be allowed to keep her current doctor as her treating physician for this case. She also
resubmitted her letters dated September 25 and December 6, 2012.
By decision dated June 24, 2015, OWCP denied appellant’s request for reconsideration of
the merits finding that she did not submit pertinent new and relevant evidence and did not show
that it erroneously applied or interpreted a point of law not previously considered by OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.4 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).5
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.6 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
be received within one year of the date of that decision.7 When a claimant fails to meet one of
the above standards, OWCP will deny the application for reconsideration without reopening the
case for review on the merits.8
4

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

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

6

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

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The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record9 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.10
ANALYSIS
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
Appellant did not demonstrate that OWCP erroneously applied or interpreted a point of
law. Moreover, she did not advance a legal argument not previously considered by OWCP.
In support of her reconsideration request, appellant submitted a December 23, 2014
narrative statement reiterating the factual history of her claim and requesting that she be allowed
to keep her current doctor as her treating physician for this case. Her statement is irrelevant to
the issue at hand, which is whether she sustained a recurrence of her need for medical treatment
beginning June 3, 2009 causally related to her accepted September 28, 1992 employment injury.
This is a medical issue.11 The Board has held that the submission of evidence which does not
address the particular issue involved does not constitute a basis for reopening a case.12 The
Board finds that this document does not constitute relevant and pertinent new evidence and is not
sufficient to require OWCP to reopen the claim for consideration of the merits.
Appellant also resubmitted her letters to OWCP dated September 25 and
December 6, 2012. The Board finds that the submission of this evidence did not require
reopening her case for merit review because she had submitted the same evidence, which was
previously reviewed by OWCP in its April 2, 2014 decision. As the letters repeat evidence
already in the case record, it is duplicative and does not constitute relevant and pertinent new
evidence. Thus, appellant has not established a basis for reopening her case.13
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advanced a relevant legal argument not previously
considered by OWCP, nor did she submit any relevant and pertinent new evidence not
previously considered. The Board finds that she did not meet any of the necessary requirements
and is not entitled to further merit review.14

9

See A.L., supra note 6. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

10

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

11

See M.D., 59 ECAB 211 (2007) (causal relationship is a medical issue and the evidence generally required to
establish causal relationship is rationalized medical opinion evidence).
12

See Nina Corazon Pelejo, Docket No. 05-1063 (issued August 9, 2005).

13

See D.K., 59 ECAB 141 (2007).

14

See L.H., 59 ECAB 253 (2007).

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On appeal, appellant contends that OWCP closed her case in the midst of her changing
doctors. She further contends that her neck injury is a permanent disability and argues that no
doctor has relieved her from any treatment yet. As noted above, however, the Board does not
have jurisdiction over the merits of the claim. The Board only has jurisdiction over OWCP’s
June 24, 2015 nonmerit decision and, as explained, appellant has not met any of the three
regulatory criterion for having her claim reopened for a merit review.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LOUIS STOKES VETERANS
ADMINISTRATION MEDICAL CENTER,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 19-0787
Issued: October 23, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 28, 2019 appellant, through counsel, filed a timely appeal from a January 23,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $102,330.08 because she concurrently received Social Security Administration (SSA)
age-based benefits while also receiving FECA benefits for the period March 1, 2003 through
April 28, 2018; (2) whether OWCP properly found appellant at fault in the creation of the
overpayment thereby precluding waiver of recovery of the overpayment; and (3) whether OWCP
properly required recovery of the overpayment by deducting $800.00 every 28 days from
appellant’s continuing compensation.
FACTUAL HISTORY
On December 16, 1994 appellant, then a 53-year-old registered nurse, filed a traumatic
injury claim (Form CA-1) alleging that she injured the right side of her lower back on December 8,
1994 assisting a patient while in the performance of duty. She stopped work on December 11,
1994 and returned to work on December 13, 1994.
Appellant underwent anterior cervical discectomy at C4-5 on May 8, 1995. On July 17,
1995 OWCP accepted the claim for herniated disc at C4-6 with myelopathy. It paid appellant
retroactive wage-loss compensation effective January 23, 1995.
On February 22, 2005 appellant returned to a part-time modified position for four hours
daily as a program assistant. By decision dated August 10, 2005, OWCP determined that her
modified work fairly and reasonably represented her loss of wage-earning capacity (LWEC) and
reduced her compensation accordingly. Appellant continued to work until October 7, 2011, and
she continued to receive LWEC wage-loss compensation thereafter.
On EN1032 forms dated March 6, 2003, January 10, 2006, February 6, 2007, and then
yearly through February 12, 2018, each of which was signed by appellant, she indicated that she
was not receiving SSA benefits as part of an annuity for federal service. On an EN1032 form
dated January 30, 2004, she indicated that she was receiving SSA benefits as part of an annuity for
federal service.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the January 23, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “the Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

2

On April 25, 2018 SSA forwarded a Federal Employees Retirement System (FERS)/SSA
dual benefits calculation form to OWCP. The form set forth the SSA compensation based upon
her rate without FERS and with FERS from March 2003 through December 2017.4
In a letter dated May 16, 2018, OWCP notified appellant that, based on information
provided by SSA regarding the amount that her SSA age-based benefit was attributable to federal
service, her FECA wage-loss compensation had been adjusted.
On June 20, 2018 OWCP issued a preliminary determination finding that an overpayment
of compensation in the amount of $102,330.08 had been created. It explained that the overpayment
occurred because portions of appellant’s SSA age-based benefits that she received from March 1,
2003 through April 28, 2018 were based on credits earned while working in the Federal
Government, and that this portion of her SSA benefit was a prohibited dual benefit. OWCP found
appellant at fault in the creation of the overpayment and provided an overpayment action request
form and an overpayment recovery questionnaire (OWCP-20).5 It explained its calculation of the
overpayment, informed appellant of the actions she could take, and allotted 30 days for her to
respond.
On July 18, 2018 appellant requested a prerecoupment hearing with OWCP’s Branch of
Hearings and Review. She indicated that she disagreed that the overpayment occurred, disagreed
that she was at fault in its creation, and requested waiver of recovery of the overpayment.
At the hearing, held telephonically on November 28, 2018, counsel asserted that it was an
error to find appellant at fault. Appellant testified that she had not understood the reporting
requirements and maintained that, since OWCP had not declared an overpayment for 15 years, she
4

The form indicated that beginning in March 2003, appellant’s SSA rate with FERS was $527.40 and without
FERS $348.60; beginning in November 2003, her rate with FERS was $669.50 and without FERS $348.60; beginning
December 2003, her SSA rate with FERS was $683.50 and without FERS $355.80; beginning in December 2004, her
SSA rate with FERS was $702.00 and without FERS $365.40; beginning in December 2005, her SSA rate with FERS
was $730.60 and without FERS $380.40; beginning in January 2006, her SSA rate with FERS was $730.90 and
without FERS $380.40; beginning in October 2006, her SSA rate with FERS was $906.50 and without FERS $380.40;
beginning in December 2006, her SSA rate with FERS was $936.40 and without FERS $392.80; beginning in
January 2007, her SSA rate with FERS was $942.60 and without FERS $392.80; beginning in December 2007, her
SSA rate with FERS was $964.30 and without FERS $401.90; beginning in January 2008, her SSA rate with FERS
was $971.10 and without FERS $401.90; beginning in December 2008, her SSA rate with FERS was $1,027.30 and
without FERS $425.10; beginning in January 2009, her SSA rate with FERS was $1,034.60 and without FERS
$425.10; beginning in January 2010, her SSA rate with FERS was $1,042.40 and without FERS $425.10; beginning
in January 2011, her SSA rate with FERS was $1,050.20 and without FERS $425.10; beginning in December 2011,
her SSA rate with FERS was $1,088.00 and without FERS $440.40; beginning in January 2012, her SSA rate with
FERS was $1,094.10 and without FERS $440.40; beginning in December 2012, her SSA rate with FERS was
$1,112.60 and without FERS $447.90; beginning in December 2013, her SSA rate with FERS was $1,129.30 and
without FERS $454.60; beginning in December 2014, her SSA rate with FERS was $1,148.40 and without FERS
$462.30; beginning in December 2015, her SSA rate with FERS was $1,148.40 and without FERS $462.30; beginning
in December 2016, her SSA rate with FERS was $1,151.90 and without FERS $463.60; and beginning in
December 2017, her SSA rate with FERS was $1,174.90 and without FERS $472.90.
5

OWCP explained that she was to attach documents to the overpayment recovery questionnaire including income
tax returns, bank account statements, bills and cancelled checks, pay slips, and any other records which supported
income and expenses listed.

3

should not have to repay it. The record was held open for 30 days for appellant to submit an
OWCP-20.
On December 14, 2014 appellant submitted an OWCP-20. She listed monthly income of
$2,830.17 and monthly expenses of $1,804.83,6 and attached financial information including a
FECA benefit statement, credit card statements, utility bills, and bank statements.
By decision dated January 23, 2019, an OWCP hearing representative finalized the
overpayment determination. The hearing representative referenced section 8116(d)(2) of FECA
and found that appellant received an overpayment of compensation in the amount of $102,330.08
because she received a prohibited benefit from SSA while she concurrently received FECA
compensation. He found appellant at fault because she answered “no” on EN1032 forms, which
she signed, when asked if she received SSA as part of an annuity for federal service. As such,
appellant was not entitled to waiver of recovery of the overpayment. The hearing representative
converted appellant’s reported monthly FECA benefit to reflect its 28-day cycle and reviewed her
reported expenses and the financial information she submitted in determining her monthly
expenses. He found that her reported monthly income of $3,112.00 exceeded her allowable
monthly expenses of $2,024.00, and set repayment at $800.00 per compensation period.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.7 Section 8116 limits the right of an employee to receive compensation
providing that while an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 8 Section 8116(d)(2) specifically provides
that disability or death payments paid under FECA are to be reduced by the amount of any SSA
age-related benefits paid that are attributable to the employee’s federal service. 9
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA benefits that are attributable to federal service of the
employee.10 FECA Bulletin No. 97-9 provides that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit. 11

6

This included $1,788.17 in FECA benefits and $1,042.00 in SSA benefits.

7

5 U.S.C. § 8102(a).

8

Id. at § 8116.

9

5 U.S.C. § 8116(d)(2).

10

20 C.F.R. § 10.421(d); see J.T., Docket No. 18-1791 (issued May 17, 2019).

11

FECA Bulletin No. 97-9 (issued February 3, 1997).

4

Section 404.310 of SSA regulations provides that entitlement to SSA compensation begins
at 62 years.12 Section 404.409 of SSA regulations provides that for individuals born in 1941, full
retirement age is 65 years 8 months.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $102,330.08 for the period March 1, 2003 through
April 28, 2018.
In its January 23, 2019 decision, OWCP found that an overpayment of compensation was
created for the period March 1, 2003 through April 28, 2018. The overpayment was based on the
evidence received from SSA with respect to age-based benefits paid to appellant. A claimant
cannot receive both FECA compensation for wage loss and SSA age-based benefits attributable to
federal service for the same period. 14 The information provided by SSA indicated that appellant
received age-based SSA benefits that were attributable to federal service during the period
March 1, 2003 through April 28, 2018.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of age-based SSA retirement benefits that were attributable to
federal service. The SSA provided the SSA rate with FERS, and without FERS for specific periods
commencing March 1, 2003 through April 28, 2018. OWCP provided its calculations for each
relevant period based on an SSA worksheet and in its June 20, 2018 preliminary overpayment
determination. No contrary evidence was provided.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period March 1, 2003 through April 28, 2018 and finds that an overpayment of compensation in
the amount of $102,330.08 was created. 15
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP 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.”16

12

20 C.F.R. § 404.310.

13

Id. at § 404.409.

14

5 U.S.C. § 8116(d)(2); see J.T., supra note 9.

15

See L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).

16

5 U.S.C. § 8129; see A.S., Docket No. 17-0606 (issued December 21, 2017).

5

On the issue of fault, section 10.433(a) of OWCP’s regulations provides that an individua l
is at fault in the creation of an overpayment who: (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 furnish
information which the individual knew or should have known to be material; or (3) with respect
to the overpaid individual only, accepted a payment which the individual knew or should have
been expected to know was incorrect. 17 With respect to whether an individual is not at fault,
section 10.433(b) provides 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. 18
Section 6.300.4g(4) of OWCP’s procedures provides that if a claimant receives benefits
from the SSA as part of an annuity under FERS concurrently with disability/wage- loss
compensation, in such a case, the claimant should be found without fault unless there is evidence
on file that the claimant was aware that the receipt of full SSA benefits concurrent with
disability/wage-loss compensation was prohibited. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP has not established that appellant was at fault in the creation
of the overpayment of compensation.
OWCP found appellant at fault because she accepted a payment which she knew or should
have known was incorrect. Based on the April 25, 2018 FERS/SSA dual benefit calculation
information provided by SSA, a portion of appellant’s monthly SSA age-related retirement benefit
was attributable to her federal earnings. Over the approximately 15-year period of the
overpayment, OWCP calculated a 28-day FERS offset between $165.05 and $648.00 in finding
an overpayment of compensation in the amount of $102,330.08 for the period March 1, 2003
through April 28, 2018.
As noted, OWCP’s procedures indicate that where the claimant receives SSA benefits as
part of an annuity under FERS, it is the type of circumstance where the claim should be found
without fault for the receipt of dual benefits unless there is evidence on file that the claimant was
aware that the receipt of full SSA benefits received concurrently with FECA compensation was
prohibited.20
Herein, it was not until correspondence dated May 16, 2018 that OWCP provided clear
notification to appellant that she had been receiving prohibited dual benefits and her FECA
compensation would be adjusted. It provided an explanation that the portion of SSA benefits
17

20 C.F.R. § 10.433(a); see C.L., Docket No. 19-0242 (issued August 5, 2019).

18

Id. at § 10.433(b); C.L., id.

19

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment,
Chapter 6.300.4g(4) (September 2018).
20

Id.

6

which were attributed to her federal service required an offset of her FECA compensation per
section 10.421(d) of its regulations. This was shortly before the June 20, 2018 preliminary
overpayment determination which notified appellant that she had received prohibited dual FECA
and SSA benefits for the period March 1, 2003 through April 28, 2018. Otherwise, the record only
contains a number of EN1032 forms in which appellant indicated that she was not in receipt of
SSA benefits as part of an annuity for federal service. Appellant received no clear notification
prior to the May 16, 2018 correspondence.
Under the circumstances of this case, the Board finds that OWCP has not sufficiently
explained how appellant’s various EN1032 forms dating back to 2003 established that she knew
or should have known that she was receiving FECA compensation benefits without an appropriate
offset due to her SSA retirement benefits. 21 To determine if an individual was at fault in 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 individua l’s
capacity to realize that he or she is being overpaid. 22 Therefore, based on the circumstances
described above, OWCP has not established that appellant was at fault in the creation of the
overpayment of compensation for the period March 1, 2003 through April 28, 2018.23
As appellant has not been found to be at fault in the creation of the overpayment at issue
in this case, this case will be remanded to OWCP to consider the issue of waiver of recovery of
the overpayment. Because the issue of waiver of recovery is not in posture for decision, it is
premature to address whether OWCP properly required recovery of the overpayment by making
periodic deductions of $800.00 from appellant’s continuing FECA compensation payments.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$102,330.98 for the period March 1, 2003 through April 28, 2018. The Board further finds that
she was not at fault in the creation of the overpayment, and the case will be remanded to OWCP
for it to consider waiver of recovery of the overpayment.

21

B.M., Docket No. 19-0158 (issued July 11, 2019).

22

Supra note 17.

23

B.M., supra note 21. The Board also notes that, as written on EN1032 forms, each form covers the preceding 15
months. The last EN1032 dated prior to the final overpayment decision dated January 23, 2019 was dated
February 12, 2018. It, therefore, did not cover the period of the overpayment of compensation from February 12
through April 28, 2018.

7

ORDER
IT IS HEREBY ORDERED THAT the January 23, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part, reversed in part, and the case is remanded
to OWCP for further proceedings consistent with this decision of the Board.
Issued: October 23, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


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

)
)
)
)
)
)
)
)

Appearances:
Kenneth Brady, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1859
Issued: March 27, 2013

Case Submitted on the Record

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

JURISDICTION
On September 6, 2012 appellant, through her representative, filed a timely appeal from a
March 21, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying
her emotional condition claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty.
On appeal appellant contends that the medical and factual evidence she submitted
supports her claim and entitlement to benefits.
FACTUAL HISTORY
On September 13, 2011 appellant, then a 48-year-old city carrier, filed an occupational
disease claim alleging that on July 25, 2011 she first realized that she suffered from occupational
1

5 U.S.C. § 8101 et seq.

stress. The employing establishment controverted the claim, noting that she stopped work on
July 25, 2011. On September 13, 2011 Vicki Viteh, a supervisor, noted that appellant had been
requested to submit medical documentation to support sick leave as of July 25, 2011. She did
not submit evidence with her September claim.
In a September 22, 2011 letter, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised as to the medical and factual
evidence required to establish her claim and given 30 days to provide additional evidence.
On September 27, 2011 OWCP received an August 31, 2011 report from Dr. Cyrus
Sajadi, a treating psychiatrist, who diagnosed major depression and adjustment disorder which he
attributed to her employment. Dr. Sajadi related that appellant had worked at the employing
establishment for 27 years and alleged harassment at work and on her patrol route. Appellant
also related having significant conflict with her supervisors, which included being charged with
insubordination and ordered off the clock. Dr. Sajadi stated that she had a prior history of
psychiatric treatment in 2002 and July 26, 2011 was admitted to an inpatient psychiatric unit to
August 4, 2011. He noted that appellant was having suicidal and homicidal ideation with
auditory hallucinations. Dr. Sajadi attributed appellant’s condition to work stressors she
identified.
Appellant submitted the contact forms from the Employee Assistance Program (EAP). It
verified the date and time appellant had been seen at the EAP office during the period August 12,
2008 through July 25, 2011.
In an August 3, 2010 statement, Harvey L. Crowe, a coworker and former union steward,
stated that he believed appellant had been harassed at work by Ms. Viteh and April Smith. He
stated that he believed she was being nitpicked by these individuals.
In a July 22, 2011 statement, B.B. Shelvin, a coworker, stated that on July 21, 2011 he
saw appellant being told to go off the clock with no explanation or reason given. He stated that
he saw Ms. Smith escort appellant back to the time clock and heard her tell appellant to leave the
premises. Mr. Shelvin also related that appellant was assigned to a new route which
management did not give her time to learn or make corrections. He alleged that management
treated her unfairly and set her apart from her coworkers.
In an August 3, 2010 statement, appellant alleged that since July 2010 she had been
subjected to harassment, a hostile work environment and required to work in an unsafe
environment. She alleged that she had been placed by management on a list called “the vital
few” beginning in July 2010 and continuing. Appellant alleged that management treated her
disrespectfully and unprofessionally, which included being placed off the clock for
insubordination and harassing her. She attributed her depression to harassment at work.
Appellant related that on July 21, 2011 her supervisor found her insubordinate and did not allow
her to clock in at work. She alleged that she was not provided any details or documentation as to
why her supervisor found her insubordinate. When appellant returned to work on July 25, 2011,
she alleged that she was verbally harassed by Eric Rodriquez regarding her ID card while
Kenneth Brady stood beside her while this was happening. She alleged that she felt trapped and
that she was about to be attacked.

2

In a September 21, 2010 statement, J. Adams stated that she observed appellant being
harassed on the route by Ms. Smith and Ms. Vitek during the week of July 22, 2010.
On November 23, 2011 OWCP received the employing establishment’s response to
appellant’s allegations. Bob Sutkoff, Manager of Health and Resource Management, reviewed
appellant’s discipline file. He noted that no discipline was issued in July 2011 to appellant and
that she had been sent home on full pay until she was brought back to work following a
settlement. Mr. Sutkoff noted that appellant had a history of either not following instructions or
failing to come into work on a regular basis. He provided the dates of discipline, which included
February 25, 28, March 1 and June 1, 2011.
By decision dated November 23, 2011, OWCP denied appellant’s claim. It found that
she had failed to establish any compensable factors of employment.
On November 28, 2011 OWCP received a November 18, 2012 statement from
Kenneth E. Brady, Manager of Customer Service, who responded to appellant’s complaint and
witness statements. Mr. Brady denied appellant’s allegations. He stated that she was put off the
clock because she was deemed a threat to herself and other carriers due to staying out until an
unsafe hour regardless of the assistance given her. On July 25, 2011 Mr. Brady stated that
Mr. Rodriquez questioned appellant about not wearing her ID badge as required. He denied
appellant’s allegations that Mr. Rodriquez verbally abused her or that they had trapped or
cornered her. Mr. Brady stated that they stood at least four feet from her.
In a November 16, 2011 note, Sheila Jenkins, Ph.D., a clinical psychologist, stated that
appellant was under her care for treatment of a severe major depressive disorder. She opined
that appellant was totally disabled for work due to this condition and that appellant was also
treated for post-traumatic stress symptoms.
On December 19, 2012 OWCP received an August 11, 2010 statement by Charles
Vazquez; a December 12, 2011 statement of appellant; a December 9, 2011 addendum statement
by Mr. Crowe; a July 25, 2011 admission note and admission information from Cypress Creek
Hospital; a July 26, 2011 report from Dr. Frank Chen, a treating Board-certified psychiatrist; a
July 3, 2008 Step B decision; an April 2, 2008 response from Mr. Brady denying appellant’s
allegations of supervisory harassment; and verification of an EAP visit on July 25, 2011.
On August 11, 2010 Mr. Vazquez stated that he observed Ms. Smith on July 26, 2010
either counting or doing an office observation on appellant. Ms. Smith also gave appellant a
postal vehicle which was equipped with a GPS when it came time for her to go out on her route.
Appellant informed Ms. Smith that the vehicle was dirty and that she wanted another vehicle.
Ms. Smith gave appellant a direct order to use the vehicle she had been given.
On July 26, 2011 Dr. Chen diagnosed major recurrent and severe depressive disorder
with psychotic feature. Under history of illness, he related that appellant had a history of
treatment for depression and has worked at the employing establishment for 27 years. Appellant
related being monitored since July 2010 and believes that she was being followed. She stated
that management had talked to her about the amount of time she took to perform her job.
Appellant alleged that she was being unfairly singled out and harassed by management at work.

3

In a December 9, 2011 statement, Mr. Crowe stated that he observed appellant being
subjected to disciplinary and punitive actions by management. On July 15, 2010 he saw
Ms. Viteh, a supervisor, standing closely behind appellant while she was casing mail and that
Ms. Viteh made derogatory comments. The next incident occurred on July 20, 2010 when
Mr. Crowe saw Ms. Smith speaking to appellant in a condescending and punitive manner
regarding hurrying to pull down her route and street.
In a December 12, 2011 statement, appellant attributed her condition to harassment over
a period of years and not to staff shortages. She alleged that the “vital few” list did exist and that
she was not given enough time to learn her new route by management.
By decision dated December 19, 2011, OWCP denied appellant’s claim. It noted that
errors were found in the November 23, 2011 decision with different claimants’ names and
OWCP file numbers.
By letter dated December 12, 2011, received by OWCP on December 19, 2011, appellant
requested a review of the written record by an OWCP hearing representative.
By decision dated March 21, 2012, an OWCP hearing representative affirmed the
December 19, 2011 decision.
LEGAL PRECEDENT
To establish a claim that she sustained an emotional condition in the performance of duty,
an employee must submit the following: (1) medical evidence establishing that she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.3 There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation.4 Where the disability results from an
employee’s emotional reaction to his or her regular or specially assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of FECA.5
On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his or her frustration from not being permitted to work
in a particular environment or to hold a particular position.6
2

V.W., 58 ECAB 428 (2007); Donna Faye Cardwell, 41 ECAB 730 (1990).

3

L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

4

A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

5

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

J.F., 59 ECAB 331 (2008); Gregorio E. Conde, 52 ECAB 410 (2001).

4

Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.7 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.8
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.9
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.10 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.11
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.12
The Board has held that the manner in which a supervisor exercises his or her discretion
falls outside the coverage of FECA. This principal recognizes that a supervisor or manager must
be allowed to perform their duties and that employee’s will, at times, disagree with actions taken.
Mere disagreement with or dislike of actions taken by a supervisor or manager will not be
compensable absent evidence establishing error or abuse.13 Although the handling of leave
requests and attendance matters are generally related to employment, they are administrative
matters and not a duty of the employee.14
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact,
occur.15 Mere perceptions of harassment or discrimination are not compensable under FECA.16
A claimant must substantiate allegations of harassment or discrimination with probative and
7

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991); Lillian Cutler, supra note 5.
8

See William H. Fortner, 49 ECAB 324 (1998).

9

Ruth S. Johnson, 46 ECAB 237 (1994).

10

See Matilda R. Wyatt, supra note 7; Thomas D. McEuen, supra note 7.

11

See William H. Fortner, supra note 8.

12

Ruth S. Johnson, supra note 9.

13

S.M., Docket No. 09-2290 (issued July 12, 2010); Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

14

C.T., Docket No. 08-2160 (issued May 7, 2009); Jeral R. Gray, 57 ECAB 611 (2006).

15

K.W., 59 ECAB 271 (2007); Robert Breeden, supra note 3.

16

M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB 657 (2006).

5

reliable evidence.17 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.18 A claimant must
establish a factual basis for his or her allegations of harassment or discrimination with probative
and reliable evidence.19
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.20 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor.21 When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.22
ANALYSIS
Appellant has not attributed that her emotional condition is related to her regular duties as
a letter carrier under Lillian Cutler. Her allegations do not relate to such potential compensable
factors as overwork or any claim of her inability to perform the duties required in her position.23
Rather, appellant attributed her emotional reaction to harassment by management over a period
of years. The Board must review whether the alleged incidents are established as compensable
employment factors under the terms of FECA.
Appellant alleged a general pattern of harassment by management. Incidents of
harassment, discrimination or retaliation by supervisors and coworkers, if established as
occurring and arising from the employee’s performance of his or her regular duties, could
17

J.F., supra note 6; Robert Breeden, supra note 3.

18

G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005); Penelope C.
Owens, 54 ECAB 684 (2003).
19

Robert Breeden, supra note 3; Beverly R. Jones, 55 ECAB 411 (2004).

20

D.L., 58 ECAB 217 (2006); Jeral R. Gray, 57 ECAB 611 (2006).

21

K.W., 59 ECAB 271 (2007); David C. Lindsey, Jr., 56 ECAB 263 (2005).

22

Robert Breeden, supra note 3.

23

See Reco Roncaglione, 52 ECAB 454 (2001) (disagreement with the associate warden held not compensable,
whether viewed as a disagreement with supervisory instructions or as perceived poor management); Robert Knoke,
51 ECAB 319 (2000) (where the employee attributed his emotional injury to the manner in which his supervisor
spoke to him about undelivered mail, the Board found that a reaction to the instruction itself was not compensable,
as work assignments given by supervisors in the exercise of supervisory discretion are actions taken in an
administrative capacity and, as such, are outside the coverage of FECA); Frank A. Catapano, 46 ECAB 297 (1994)
(supervisory instructions, with which the employee disagreed, held not compensable in the absence of evidence of
managerial error or abuse); Rudy Madril, 45 ECAB 602 (1994) (where the employee questioned his supervisor’s
instructions to move from belt number five to belt number six and unload mail and became upset because he felt he
was being pushed and picked on, the Board found that the incident was not a compensable factor of employment).

6

constitute employment factors.24 To give rise to a compensable disability under FECA, there
must be probative and reliable evidence that harassment did in fact occur.25 Mere perceptions of
harassment are not compensable under FECA.26 An employee’s charges that he or she was
harassed or discriminated against, is not determinative of whether or not harassment or
discrimination occurred.27 To establish entitlement to benefits, a claimant must establish a
factual basis for the claim by supporting his or her allegations with probative and reliable
evidence.28 Appellant did not submit evidence, such as witness statements, corroborating her
allegations of harassment. She submitted witness statements from Mr. Crowe, Ms. Adams and
Mr. Shelvin. Mr. Crowe and Ms. Adams contend that Ms. Viteh and Ms. Smith harassed
appellant. However, none of the statements provided contain specific details supporting
appellant’s allegations of harassment. Mr. Crowe’s August 3, 2010 statement and Ms. Adams’
statement generally allege harassment but provided no identifiable instances of harassment
details or specifics. Mr. Crowe provides no details as to what the derogatory comments or
condescending manner consisted of. His December 9, 2011 addendum statement is also general
and without specifics of harassment. In the December 9, 2011 addendum, Mr. Crowe stated that
on July 15, 2010 he heard Ms. Viteh making derogatory comments to appellant and that he heard
Ms. Smith speaking in a condescending manner to appellant on July 20, 2010. Similarly
Mr. Shelvin’s statement is also insufficient to establish appellant’s harassment claim. He related
seeing her on July 21, 2011 being escorted by Ms. Smith back to the time clock and told to leave
the premises, but does not explain how this constituted harassment. Mr. Shelvin also noted that
appellant had been assigned to a new route, but was not given time to learn it or make
corrections. The record contains no evidence other than Mr. Shelvin’s statement that appellant
was not allowed to learn the new route. Mr. Brady stated that appellant was given assistance
with her route and that the time she was put off the clock was because she was deemed to be a
threat by staying out to an unsafe hour regardless of any assistance given her. Thus, appellant
has not established a compensable factor under FECA with respect to the claimed harassment.
Consequently, appellant has not established her claim for an emotional condition as she
has not attributed her claimed condition to any compensable employment factors.29 She may
submit new evidence or argument with a written request for reconsideration to OWCP within one
year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through
10.607.

24

C.T., supra note 14; Robert G. Burns, supra note 11.

25

G.S., supra note 18; K.W., supra note 21; Doretha M. Belnavis, 57 ECAB 311 (2006); Charles E. McAndrews,
55 ECAB 711 (2004).
26

J.F., supra note 6; Robert Breeden; supra note 3; Kim Nguyen, 53 ECAB 127 (2001).

27

See Ronald K. Jablanski, supra note 18; William P. George, 43 ECAB 1159 (1992).

28

See G.S., supra note 18; C.S., 58 ECAB 137 (2006); Frank A. McDowell, 44 ECAB 522 (1993); Ruthie M.
Evans, 41 ECAB 416 (1990).
29

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see L.K., Docket No. 08-849 (issued June 23, 2009); Alberta Dukes, 56 ECAB 247 (2005);
Margaret S. Krzycki, 43 ECAB 496 (1992).

7

CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 21, 2012 is affirmed.
Issued: March 27, 2013
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1354
Issued: March 13, 2020

Case Submitted on the Record

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

JURISDICTION
On May 28, 2019 appellant filed a timely appeal from a December 3, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The most recent merit
decision was a Board decision dated March 13, 2018, which became final 30 days after issuance,
and is not subject to further review.2 As there was no merit decision by OWCP within 180 days
of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from December 3, 2018, the date of OWCP’s last decision, was
June 1, 2019. As this fell on a Saturday, appellant had until the following business day, Monday, June 3, 2019, to file
the appeal. Since using June 4, 2019, the date the appeal was received by the Clerk of the Appellate Boards would
result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal
Service postmark is May 28, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

20 C.F.R. § 501.6(d). See G.G., Docket No. 18-1074 (issued January 7, 2019).

3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is 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.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On February 11, 2008 appellant, then a 51-year-old administrative assistant, filed an
occupational disease claim (Form CA-2) alleging that she developed constant pain in both elbows,
hands, arms, and her neck and back as a result of her employment duties. She indicated that she
first became aware of her condition and first realized that it resulted from her employment on
January 15, 2008. On the reverse side of the claim form, the employing establishment reported
that appellant was last exposed to the conditions alleged to have caused her conditions on
“February 12, 2008.” OWCP accepted her claim for bilateral lateral epicondylitis, bilateral medial
epicondylitis, sciatica, and neck sprain. It subsequently expanded acceptance of appellant’s claim
to include bilateral carpal tunnel syndrome.5 OWCP paid wage-loss compensation for total
disability on the periodic rolls, effective June 7, 2009.
On December 5, 2014 OWCP mailed appellant an EN1032 form for her completion. The
form instructed her to report all employment for which she received a salary, wages, income, sales
commissions, piecework, or payment of any kind. Appellant was also directed to report all selfemployment activities or involvement in business enterprises, including (but not limited to)
farming, sales work, operating a business, and providing services in exchange for money, goods,
or other services. The kinds of services that she was required to report included such activities as
carpentry, mechanical work, painting, contracting, child care, keeping books and records, and
managing and overseeing a business of any kind, including a family business. The form also
instructed appellant to report any work or ownership interest in any business enterprise, even if the
business lost money or if profits or income were reinvested or paid to another.
The cover letter for the EN1032 form included the following warning: “A false or evasive
answer to any question, or the omission of an answer, may be grounds for forfeiting your
compensation benefits and subject you to civil liability.” The forms contained certification clauses
which informed appellant of the consequences of not accurately reporting her employment

4

Docket No. 17-1362 (issued March 13, 2018).

5

Under OWCP File No. xxxxxx455, OWCP accepted appellant’s September 15, 2008 occupational disease claim
for cervical spondylosis without myelopathy or radiculopathy, cervical disc degeneration, lumbar spondylosis without
myelopathy or radiculopathy, lumbar spondylolisthesis, bilateral pes planus, neck sprain, bilateral medial and lateral
epicondylitis, and bilateral carpal tunnel syndrome as causally related to her employment duties. On September 1,
2010 OWCP combined the current case under OWCP File No. xxxxxxx045 with OWCP File No. xxxxxx455 with the
latter file as the master file.

2

activities, such as being subjected to criminal penalties and losing the right to receive workers’
compensation benefits.
On December 27, 2014 appellant completed and signed the EN1032 form. In response to
the question of whether she worked for an employer for the past 15 months, she reported “No.”
Appellant also responded “No” to the question of whether she was self-employed or involved in
any business enterprise in the past 15 months.
On June 12, 2015 OWCP received a narrative statement from appellant. Appellant
indicated that she needed to correct an answer on the yearly paperwork form. She explained that
her husband had purchased a snow cone trailer and had added her name to the permits, trailer, and
limited liability company (LLC) just in case anything happened to him. Appellant reported that
she answered “No” on the EN1032 form and that she did not think about the snow cone trailer
until her husband opened it for business over the summer.
In a July 23, 2015 letter, the employing establishment’s Office of Inspector General (OIG)
informed OWCP that an investigation into appellant revealed that she had been operating her own
business and had failed to report the employment activities to OWCP. It requested that OWCP
issue a forfeiture decision due to her failure to disclose her employment.
On July 27, 2015 OWCP received an OIG summary report of investigation, which
indicated that during surveillance OIG agents had observed appellant working at a snow cone
business, carrying merchandise and buckets, unloading supplies from a trailer, writing on the
outside menu of the business, setting up tables and umbrellas, staking signs in the ground, and
serving snow cones to customers.
In a completed Form EN1032 dated February 7, 2016, appellant answered “yes” that she
was self-employed or involved in a business enterprise from the period April 1 to
September 1, 2015. She explained that she and her husband bought a snow cone stand and that
she bought and delivered cups, checked on the employees, and visited with customers a couple of
times. Appellant noted a pay rate of $8.00/hour.
In a February 7, 2016 narrative statement, appellant explained that her husband had added
her name to the title of the snow cone stand that he had bought because he had lung cancer. She
indicated that, while grocery shopping with her husband, they occasionally bought cups, straws,
or napkins and dropped them off at the snow cone stand. Appellant also related that the snow cone
stand was two blocks from her house and that she occasionally stopped by to see how the business
was operating and visit with customers. She reported that neither she nor her husband were paid
or received any wages while operating the snow cone stand.
By decision dated August 18, 2016, OWCP found that appellant had forfeited her wageloss compensation for the period September 27, 2013 through December 27, 2014 for failure to
report her business and employment activities or earnings on a Form EN1032. The forfeiture
period covered the 15 months preceding the December 27, 2014 EN1032 form. OWCP found that
appellant had knowingly provided false information about earnings and self-employment on that

3

EN1032 form. It also determined that all compensation paid during the period would be considered
an overpayment subject to recovery in accordance with 5 U.S.C. § 8129.6
OWCP received a September 21, 2016 letter by Dr. John Ellis, Board-certified in family
medicine, who related that appellant had severe anxiety and depression due to the multiple
work-related injuries to her neck, upper extremities, lumbar spine, and feet. Dr. Ellis noted that
she was under the influence of narcotic pain medicine when she filled out the Form EN1032 in
2014 and opined that she was not fully aware of what she was signing.
In an October 18, 2016 report, Dr. Gary A. Rouse, a clinical psychologist, related that,
since his original evaluation in September 2008, appellant had continued to decline emotionally
and physically. He opined that she was not competent or knowledgeable enough to understand
what she was signing or attesting to or to understand the complexity or legal implications of
partnerships and LLCs.
In a January 31, 2017 statement, appellant explained that she had not received money from
her husband’s snow cone business nor did she perform any job activities. She reported that her
husband had recently dissolved the LLC.
On August 18, 2017 appellant requested reconsideration of the August 18, 2016 forfeiture
decision. In a statement dated August 9, 2017, she asserted that she believed that she was not
required to report her investment income as work activities since there was no evidence that the
three to five hours total spent at the business could be construed as integral to the operation of the
business. Appellant cited to FECA Procedure Manual 2.402.5 and S.G.,7 and contended that the
Board has distinguished between the reporting requirements for income received from passive
investment and earnings and income received by performing work and earning wages. She also
alleged that she was not fully aware when she signed the LLC documents due to her deteriorating
mental health, severe anxiety, and depression. Appellant also cited to B.Y.,8 alleging that the Board
had previously found that, in finding that a claimant forfeited compensation, OWCP could not rely
solely on video tape and summary submitted by the employing establishment’s OIG. She also
noted her disagreement with the OIG investigation and her interview with the OIG agents.

6

By separate decision dated August 18, 2016, OWCP also issued a preliminary determination that appellant
received an overpayment of compensation in the amount of $43,832.60 for the period September 27, 2013 through
December 27, 2014 as a result of the forfeiture. It found that she was at fault in the creation of the overpayment
because she failed to report her business and employment activities or earnings from the snow cone business that she
owned with her husband. By decision dated December 12, 2016, OWCP finalized the preliminary overpayment
determination, finding an overpayment of compensation in the amount of $43,832.60 for the period September 27,
2013 to December 27, 2014. It also found that appellant was at fault in the creation of the overpayment, and therefore
was not eligible for waiver for recovery of the overpayment. On June 2, 2017 appellant filed an appeal to the Board
regarding the December 12, 2016 overpayment decision. By decision dated March 13, 2018, the Board affirmed the
December 12, 2016 OWCP decision, which finalized the overpayment of compensation in the amount of $43,832.60
for the period September 27, 2013 to December 27, 2014 and found that she was at fault in the creation of the
overpayment.
7

Docket No. 11-0942 (issued April 4, 2012).

8

Docket No. 11-1798 (issued July 24, 2012).

4

By decision dated November 17, 2017, OWCP denied modification of the August 18, 2016
forfeiture decision.
On November 20, 2018 OWCP received appellant’s appeal request form, which requested
reconsideration of the November 17, 2017 decision. In a narrative statement, appellant alleged
that OWCP ignored many issues, including her arguments concerning why any of the OIG
interviews or photographs were applicable. She also contended that OWCP erred by ignoring
evidence and arguments concerning whether her comprehension was impaired. Appellant cited to
the Board’s holding in C.G.,9 and alleged that she had provided probative supporting evidence that
she would have difficulty understanding the obligations required on a Form EN1032.
Appellant also resubmitted Dr. Ellis’ September 21, 2016 report and Dr. Rouse’s
October 28, 2016 report.
OWCP received a statement from appellant dated June 1, 2017. Appellant alleged that
OWCP had not supported its forfeiture determination because there was no evidence establishing
that she knowingly failed to report self-employment or earnings on the Form EN1032 signed on
December 27, 2014. She explained that the three to five hours spent at the business were not
considered valuable on the open labor market and that her activities could not be construed as
integral to the operation of the business. Appellant also asserted that, although the business was
licensed in May 2014, it had not opened for business in April 2015. She further indicated that the
file contained statements from her psychologist who noted that she was not fully aware of what
she was signing when she signed the LLC.
By decision dated December 3, 2018, OWCP denied appellant’s request for
reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.10 This discretionary authority, however, is subject
to certain restrictions.11 One such limitation is that the request for reconsideration must be received
by OWCP within one year of the date of the decision for which review is sought.12 Timeliness is
determined by the document receipt date of the request for reconsideration as is indicated by the
“received date” in the Integrated Federal Employees’ Compensation System (iFECS).13
9

Docket No. 11-0454 (issued May 22, 2012).

10

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
11

20 C.F.R. § 10.607; S.C., Docket No. 18-0126 (issued May 14, 2019).

12
Id. at § 10.607(a); L.W., Docket No. 18-1475 (issued February 7, 2019). For merit decisions issued on or after
August 29, 2011, a request for reconsideration must be received by OWCP within one year of OWCP’s decision for
which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(February 2016).
13

Id. at Chapter 2.1602.4(b).

5

Imposition of this one-year filing limitation does not constitute an abuse of discretion.14 OWCP
may not deny a reconsideration request solely because it was untimely filed. When a claimant’s
request for reconsideration is untimely filed, it must nevertheless undertake a limited review to
determine whether it demonstrates clear evidence of error.15 If an application demonstrates clear
evidence of error, OWCP will reopen the case for merit review.16
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error.17 It is not enough merely to demonstrate that the
evidence could be construed so as to produce a contrary conclusion.18 The evidence submitted
must not only be of sufficient probative value to create a conflict in medical opinion or demonstrate
a clear procedural error, but must be of sufficient probative value to shift the weight of the evidence
in favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.19
OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard.20
The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.21
ANALYSIS
The Board finds that this case is not in posture for decision.
The most recent merit decision of OWCP was the November 17, 2017 decision. One year
from November 17, 2017 elapsed on November 17, 2018. As November 17, 2018 fell on a
Saturday, appellant had until the next business day on Monday, November 19, 2018 to file her
reconsideration request.22 OWCP received her reconsideration request on November 20, 2018
which was more than one year after the November 17, 2017 decision. Appellant’s request
14

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
15

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
16
L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 12 at Chapter 2.1602.5 (February 2016).
17

20 C.F.R. § 10.607(b); P.L., Docket No. 18-0813 (issued November 20, 2018); Fidel E. Perez, 48 ECAB 663,
665 (1997).
18

See Leona N. Travis, 43 ECAB 227, 240 (1991).

19

V.L., Docket No. 17-1493 (issued September 12, 2018); Annie L. Billingsley, 50 ECAB 210 (1998).

20

Supra note 12 at Chapter 2.1602.5a (October 2011).

21

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

22

Supra note 12 at Chapter 2.1602.4 (February 2016).

6

therefore was untimely filed.23 The proper standard of review for an untimely reconsideration
request is the clear evidence of error standard.24 In denying her request, OWCP applied the
standard of review for timely requests for reconsideration.25 As it applied the incorrect standard
of review to the untimely request for reconsideration, the Board will set aside OWCP’s
December 3, 2018 decision and remand the case for proper review under the clear evidence of
error standard as required by regulations.26
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further action
consistent with this decision of the Board.
Issued: March 13, 2020
Washington, DC

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

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

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

23

See E.H., Docket No. 19-0859 (issued December 10, 2019).

24

Supra note 15.

25

See L.W., Docket No. 16-1202 (issued January 25, 2018); H.L., Docket No. 13-2077 (issued March 20, 2014).

26

See 20 C.F.R. § 10.607(b); see also M.C., Order Remanding Case, Docket No. 18-0866 (issued March 26, 2019).

7