United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
AGENCIES, Long Beach, CA, Employer
__________________________________________

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

Docket No. 20-0753
Issued: October 28, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 14, 2020 appellant filed a timely appeal from an August 19, 2019 merit
decision and an October 10, 2019 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an overpayment
of compensation in the amount of $37,200.97, for which she was not at fault, because she
concurrently received FECA wage-loss compensation benefits and Social Security Administration
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the October 10, 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.

(SSA) age-related retirement benefits for the period June 1, 2016 to June 22, 2019 without an
appropriate offset; (2) whether it properly denied waiver of recovery of the overpayment;
(3) whether OWCP properly required recovery of the overpayment by deducting $707.74 from
appellant’s continuing compensation payments every 28 days; and (4) whether it properly denied
appellant’s September 8, 2019 request for a prerecoupment hearing as untimely filed.
FACTUAL HISTORY
On January 14, 2000 appellant, then a 49-year-old property management specialist, filed a
traumatic injury claim (Form CA-1) alleging that on January 5, 2000 she suffered an injury when
lifting heavy boxes and files to clean out an office, while in the performance of duty. She initially
stopped work on January 11, 2000.
On February 23, 2000 OWCP accepted the claim for sprain of the lumbar region. It paid
appellant wage-loss compensation benefits on the daily rolls from February 25, 2000 to August 10,
2002 and on the periodic rolls commencing August 11, 2002. Appellant was notified that “You
may not receive Federal retirement benefits and compensation for wage loss for the same periods
of time.”
In an EN1032 form dated July 19, 2017, appellant indicated that she received SSA agerelated retirement benefits in the amount of $892.00 monthly. In an EN1032 form dated June 22,
2018, she indicated that she received SSA age-related retirement benefits in the amount of
$1,008.00 monthly.
On June 11, 2019 OWCP provided SSA with a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form.
On June 20, 2019 SSA completed the dual benefits calculation form, which indicated
appellant’s SSA benefit rates with a FERS offset and without a FERS offset from June 2016
through December 2018. Beginning June 2016, the SSA rate with FERS was $1,167.40 and
without FERS was $175.00. Beginning December 2016, the SSA rate with FERS was $1,170.90
and without FERS was $175.50. Beginning December 2017, the SSA rate with FERS was
$1,194.30 and without FERS was $179.00. Beginning December 2018, the SSA rate with FERS
was $1,227.70 and without FERS was $184.00.
On July 3, 2019 OWCP prepared a FERS offset calculation worksheet wherein it noted the
calculation of appellant’s SSA offset overpayment from June 1, 2016 through June 22, 2019. The
total overpayment was determined to be $37,200.97. OWCP found that appellant received an
overpayment in the amount of $5,987.12 for the period June 1 through November 30, 2016, an
overpayment in the amount of $11,977.62 for the period December 1, 2016 through November 30,
2017, an overpayment in the amount of $12,217.07 for the period December 1, 2017 through
November 30, 2018, and an overpayment in the amount of $7,019.17 for the period December 1,
2018 through June 22, 2019.
In a letter dated July 3, 2019, OWCP notified appellant that, based on information provided
by SSA regarding the amount of her age-related retirement benefits, which were attributable to
Federal service, her FECA wage-loss compensation had been adjusted.

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On July 19, 2019 OWCP issued a preliminary determination finding that an overpayment
of compensation in the amount of $37,200.97 had been created. It explained that the overpayment
occurred because appellant’s SSA age-related retirement benefits that she received from June 1,
2016 through June 22, 2019 where partially based on credits earned while working for the federal
government, and that this portion of her SSA benefit constituted a prohibited dual benefit. OWCP
found appellant not at fault in the creation of the overpayment and forwarded an overpayment
action request form and an overpayment recovery questionnaire (Form OWCP-20). It requested
that she provide supporting financial documentation, including income tax returns, bank account
statements, bills and cancelled checks, pay slips, and any other records to support her reported
income and expenses. OWCP afforded appellant 30 days to respond.
OWCP subsequently received an EN1032 form dated July 1, 2019 in which appellant
indicated that she received SSA age-related retirement benefits in the amount of $1,020.00
monthly. No other evidence was received.
By decision dated August 19, 2019, OWCP finalized its preliminary determination that
appellant had received an overpayment of compensation in the amount of $37,200.97, for the
period June 1, 2016 through June 22, 2019, because it had failed to offset her compensation
payments by the portion of her SSA age-related retirement benefits that were attributable to federal
service. It further found that she was without fault in the creation of the overpayment, but denied
waiver of recovery of the overpayment because the evidence of record was insufficient to establish
that recovery of an overpayment would defeat the purpose of FECA or would be against equity
and good conscience. OWCP required recovery of the overpayment by deducting $707.74 every
28 days from appellant’s continuing compensation payments.
On September 8, 2019 appellant requested a prerecoupment hearing. She requested a
waiver of overpayment and asserted that she would suffer severe financial hardship in attempting
to repay the debt. Appellant submitted a Form OWCP-20, dated September 17, 2019, which
indicated that she had a monthly income of $1,102.00 and monthly expenses of $3,155.82.
By decision dated October 10, 2019, OWCP’s Branch of Hearings and Review denied
appellant’s request for a prerecoupment hearing, finding that she had not timely requested a
hearing on the preliminary overpayment determination, and that the final overpayment
determination was not subject to a hearing pursuant to 5 U.S.C. § 8124(b).
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 his or her duty.3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

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Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.5 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA age-related retirement 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.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $37,200.97, for which she was without fault, because she
concurrently received FECA wage-loss compensation benefits and SSA age-related retirement
benefits for the period June 1, 2016 to June 22, 2019 without an appropriate offset.
The record indicates that, while appellant was receiving FECA wage-loss compensation
benefits, she was also receiving SSA age-related retirement benefits attributable to federal service.
As noted, a claimant cannot receive both compensation for wage loss and SSA age-related
retirement benefits attributable to federal service for the same period.7 Consequently, the fact of
the overpayment has been established.
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 SSA age-related retirement benefits that were attributable to
federal service. The SSA provided the SSA rate with FERS and without FERS for specific periods
commencing June 1, 2016 through June 22, 2019. OWCP provided its overpayment calculations
for each relevant period based on the SSA worksheet and in its July 19, 2020 preliminary
overpayment determination. No contrary evidence was provided.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period June 1, 2016 through June 22, 2019, and finds that an overpayment of compensation in the
amount of $37,200.97 was created.8
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides: “Adjustment or recovery [of an overpayment] by the
United States may not be made when incorrect payment has been made to an individual who is

5
20 C.F.R. § 10.421(d); see J.R., Docket No. 17-0181 (issued August 12, 2020); L.W., Docket No. 19-0787 (issued
October 23, 2019).
6

FECA Bulletin No. 97-09 (February 3, 1997); see also S.M., Docket No. 20-0152 (issued August 10, 2020).

7

See I.U., Docket No. 20-0129 (issued July 31, 2020).

8

Id.

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without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.”9
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.10 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 $50.00.11 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.12 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.13
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.14
OWCP regulations provide that 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. The information is also used to
determine the repayment schedule, if necessary.15

9

5 U.S.C. § 8129(b).

10

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).
11

Id. at Chapter 6.400.4(a)(3); C.B., Docket No. 20-0031 (issued July 27, 2020); N.J., Docket No. 19-1170 (issued
January 10, 2020).
12

See supra note 10 at Chapter 6.400.4(a)(2) (September 2018).

13

Id. at Chapter 6.400.4(b)(3).

14

20 C.F.R. § 10.437(a)(b).

15

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

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ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant not at fault in the creation of the overpayment, waiver of
recovery of the overpayment must be considered, and repayment is still required unless adjustment
or recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience.16 However, appellant had the responsibility to provide financial information to
OWCP,17 but failed to do so.
In its preliminary determination, dated July 19, 2019, OWCP requested that appellant
provide a completed Form OWCP-20 and supporting financial documentation, including copies of
income tax returns, bank account statements, bills and cancelled checks, pay slips, and any other
records to support income and expenses. It advised her that it would deny waiver of recovery if
she failed to furnish the requested financial information within 30 days. Appellant did not provide
the requested Form OWCP-20 or submit any financial information necessary for OWCP to
determine if recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience.
Accordingly, as appellant did not submit the information required under 20 C.F.R. § 10.438
of OWCP’s regulations to determine her eligibility for waiver, OWCP properly denied waiver of
recovery of the overpayment.
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.18
Section 10.441 of OWCP’s regulations19 provides that, 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 the error is discovered or his or her attention is called to the
same. If no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.20

16

Id. at § 10.436.

17

Id. at § 10.438; S.P., Docket No. 19-1318 (issued July 31, 2020).

18

Id. at § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

19

Id. at § 10.441(a).

20

Id.; see L.G., Docket No. 19-1274 (issued July 10, 2020).

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ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$707.74 every 28 days from appellant’s continuing compensation payments.
OWCP provided appellant a Form OWCP-20 with its July 19, 2019 preliminary
determination. It afforded her the opportunity to provide appropriate financial information and
documentation to OWCP. Appellant did not complete the Form OWCP-20 or provide the
necessary financial information to support her income and expenses prior to the final August 19,
2019 overpayment decision. The overpaid individual is responsible for providing information
about income, expenses, and assets as specified by OWCP.21 When an individual fails to provide
requested financial information, OWCP should follow minimum collection guidelines designed to
collect the debt promptly and in full.22 As appellant did not submit supporting financial
documentation to OWCP as requested, the Board finds that there is no evidence of record to
establish that OWCP erred in directing recovery of the $37,200.97 overpayment at the rate of
$707.74 every 28 days from appellant’s continuing compensation payments.23
LEGAL PRECEDENT -- ISSUE 4
OWCP’s regulations provide that a claimant may request a prerecoupment hearing with
respect to an overpayment.24 Failure to request the prerecoupment hearing within 30 days shall
constitute a waiver of the right to a hearing.25 The only right to a review of a final overpayment
decision is with the Board.26 The hearing provisions of section 8124(b) of FECA do not apply to
final overpayment decisions.27
ANALYSIS -- ISSUE 4
The Board finds that OWCP properly denied appellant’s September 8, 2019 request for a
prerecoupment hearing as untimely filed.
OWCP’s July 19, 2019 preliminary determination of overpayment provided appellant with
a right to request a prerecoupment hearing within 30 days. The record indicates that OWCP
properly mailed its preliminary determination to appellant’s last known address of record.
21

Id. at § 10.438(a).

22

See J.A., Docket No. 19-1946 (issued July 13, 2020); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA)
Procedure Manual, supra note 10 at Chapter 6.500.2 (September 2018).
23

See J.A., id.; E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued
March 2, 2017).
24
20 C.F.R. § 10.432. See E.M., Docket No. 19-0857 (issued December 31, 2019); D.H., Docket No. 19-0384
(issued August 12, 2019).
25

Id.

26

Id. at § 10.440(b).

27

5 U.S.C. § 8124(b). See G.L., Docket No. 19-0297 (issued October 23, 2019).

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Appellant did not request a prerecoupment hearing within 30 days of July 19, 2019. Consequently,
by decision dated August 19, 2019, OWCP properly finalized its preliminary overpayment
determination.
On September 26, 2019 OWCP received an overpayment action request form, dated
September 8, 2019. Appellant requested waiver of recovery of the overpayment because she was
found to be without fault in the creation of the overpayment and addressed her request to OWCP’s
Branch of Hearings and Review. She submitted a partially completed Form OWCP-20 along with
her request.
The Board finds that as appellant’s request form was mailed to OWCP’s Branch of
Hearings and Review, it was properly treated as a request for a hearing. OWCP’s regulations,
however, provide that when a final overpayment decision is issued, there is no right to a hearing
or a review of the written record, and OWCP does not have discretion to grant such a request. The
only right to appeal is with the Board.28 As appellant’s September 8, 2019 request for a
prerecoupment hearing was made after the final overpayment determination, the Board finds that
OWCP properly denied appellant’s request for a hearing as untimely filed.29
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $37,200.97, for which she was not at fault, because she
concurrently received FECA wage-loss compensation benefits and SSA age-related retirement
benefits without appropriate offset for the period June 1, 2016 to June 22, 2019. The Board further
finds that OWCP properly denied waiver of recovery of the overpayment and properly required
recovery of the overpayment by deducting $707.74 from her continuing compensation payments
every 28 days. Additionally, OWCP properly denied appellant’s September 8, 2019 request for a
prerecoupment hearing as untimely filed.

28

Id.

29

See E.M., supra note 24.

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ORDER
IT IS HEREBY ORDERED THAT the October 10 and August 19, 10 2019 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 28, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE ARMY, COMMAND
SAFETY OFFICE, Fort Drum, NY, Employer
__________________________________________

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

Docket No. 10-736
Issued: January 26, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 25, 2010 appellant, through counsel, filed a timely appeal from a
December 28, 2009 merit decision of the Office of Workers’ Compensation Programs affirming
the termination of appellant’s compensation for failure to accept suitable work. 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 the Office properly terminated appellant’s compensation effective
April 11, 2009 on the grounds that she refused an offer of suitable work, pursuant to 5 U.S.C.
§ 8106(c).
FACTUAL HISTORY
On February 10, 2005 appellant, then a 48-year-old temporary cook, filed a traumatic
injury claim alleging that on that day she injured her left shoulder and left knee when she slipped
and fell on ice. The Office accepted the claim for left shoulder/arm strain and left knee
contusion and placed her on the periodic rolls for temporary total disability.

An August 29, 2006 functional capacity evaluation determined that appellant was capable
of performing sedentary work. Physical restrictions included no lifting or carrying more than 10
pounds; occasional left arm reaching and occasional left arm overhead reaching.
In a May 21, 2007 work capacity evaluation form, Dr. Steven B. Fish, a treating Boardcertified orthopedic surgeon, found appellant was capable of working eight hours a day with
restrictions including no lifting/pushing/pulling more than 10 pounds and no reaching or
reaching above the shoulder for more than an hour.
In a May 16, 2008 report, Dr. Christopher V. Horn, a second opinion Board-certified
orthopedic surgeon, diagnosed left knee osteoarthritis, left shoulder degenerative arthopathy and
rotator cuff impingement syndrome. He advised that appellant was capable of working an eighthour day with restrictions. The restrictions included intermittent lifting up to 25 pounds,
occasional lifting of up to 40 pounds, more frequent lifting of 5 to 10 pounds and intermittent
sitting and walking.
On September 8, 2008 the employing establishment offered appellant the position of
office automation clerk, with restrictions of light duty, no pushing, pulling or lifting more than
25 pounds and a 15-minute break every 2 hours. The position description indicated that the
duties and responsibilities including performing a variety of clerical, administrative and
secretarial duties in support of organization; receiving visitors and telephone calls; routing,
distributing and controlling mail and other office communications in accordance with the
organization and personnel; using word processing equipment and the computer to process and
produce a variety of tabular and narrative documents including travel orders, correspondence,
reports, technical papers, charts, messages, statistical tables and other documents; maintaining
official files; referring to text books, technical dictionaries, research papers or similar reference
material and other jobs as assigned. The position required appellant to possess knowledge and
expertise in secretarial skills including typing and working at a computer and in processing
statistical data and in operating office equipment such as printers and modems. The work was
characterized as sedentary with some walking, standing, carrying light items and bending.
Appellant declined the position on September 10, 2009 on the grounds that she had no
knowledge of computers or typing skills. Her only work experience had been in cooking and
fitness.
On January 24, 2009 the employing establishment noted that it had based the offered
position on appellant’s résumé which indicated typing skills of 40 words a minute and that
training was available for areas appellant needed. Appellant stated that she was capable of
typing 40 words a minute, provided an e-mail address and listed her employment history. She
noted that she ran her own catering business from May 2004 to October 2006, that she worked as
a fitness trainer from June 1995 to August 2004, worked as a chef from April 2000 to
December 2001 and as a head chef/manager from May 1992 to November 1994. Under
education, appellant received an associates degree in 1995.
On February 10, 2009 the Office informed appellant that it had reviewed the physical
requirements of the offered position and had determined that it was suitable as it conformed with

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her work capability. The employer confirmed that the position remained available to appellant.
The Office instructed appellant that she must, within 30 days, either accept the position or
provide a written explanation of the reason she did not accept the position, or she could lose her
right to compensation under 5 U.S.C. § 8106(c) of the Act.
In an undated letter, appellant declined the offered position because she had no
experience with computers or any typing skills. She reiterated that all her work experience had
either been related to either fitness or cooking.
By letter dated March 9, 2009, the Office found that the reasons given by appellant for
refusing the offered position were not valid. It gave her 15 additional days to accept the position
or to make arrangements to report to this position. The Office noted that, if she did not accept
the position within 15 days of the date of the letter, her right to compensation for wage loss or a
schedule award would be terminated pursuant to section 8106 of the Act. It would not consider
any further reasons for refusal.
By decision dated March 25, 2009, the Office terminated appellant’s monetary
compensation benefits effective that day, finding that appellant refused to accept a suitable job
offer.
On October 12, 2009 appellant’s counsel requested reconsideration. She contended that
she rejected the offered position as she had no typing skills or computer knowledge. Appellant
related that she only put the e-mail address, which her husband set up, and that she could type 40
words a minute on her résumé so as “to not look stupid.”
By decision dated December 28, 2009, the Office denied modification of the March 25,
2009 decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation.1 Under section 8106(c)(2) of the Act, the Office may terminate
the compensation of a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by or secured for the employee.2 To justify termination, the Office
must show that the work offered was suitable and must inform appellant of the consequences of
refusal to accept such employment.3 Section 8106(c) will be narrowly construed as it serves as a
penalty provision, which may bar an employee’s entitlement to compensation based on a refusal
to accept a suitable offer of employment.4
1

A.W., 59 ECAB 593 (2008).

2

5 U.S.C. § 8106(c)(2); see also Mary E. Woodard, 57 ECAB 211 (2005); Geraldine Foster, 54 ECAB
435 (2003).
3

T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

4

Richard P. Cortes, 56 ECAB 200 (2004); Joan F. Burke, 54 ECAB 406 (2003).

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When the Office considers a job to be suitable, it shall advise the employee of its finding
and afford her 30 days to either accept the job or present any reasons to counter the Office’s
finding of suitability.5 If the employee presents such reasons and the Office determines that the
reasons are unacceptable, it will notify the employee of that determination and further inform the
employee that she has 15 days in which to accept the offered work without penalty.6 After
providing the 30-day and 15-day notices, the Office will terminate the employee’s entitlement to
further compensation.7 However, the employee remains entitled to medical benefits.8
Section 8123(a) of the Act 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.”9 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.10
ANALYSIS
The Office accepted appellant’s claim for left shoulder/arm strain and left knee contusion
and placed her on the periodic rolls for temporary total disability. The issue to be resolved is
whether the Office properly terminated appellant’s compensation benefits on the grounds that
she refused suitable work.
Dr. Fish, a treating Board-certified orthopedic surgeon, indicated appellant was capable
of working eight hours per day with restrictions including no lifting/pushing/pulling more than
10 pounds and no reaching or reaching above the shoulder for more than an hour.
Dr. Horn, a second opinion Board-certified orthopedic surgeon, indicated that appellant
was capable of working an eight-hour day with restrictions. The restrictions included
intermittent lifting up to 25 pounds, occasional lifting of up to 40 pounds, more frequent lifting
of 5 to 10 pounds and intermittent sitting and walking.
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits due to an unresolved conflict of medical opinion evidence between
Dr. Fish and Dr. Horn. While both physicians concurred that appellant was capable of working
5

20 C.F.R. § 10.516.

6

Id. However, the 15-day notification need not explain why the Office found the employee’s reasons for refusal
unacceptable. Id.
7

20 C.F.R. § 10.517(b). This includes compensation for lost wages as well as compensation for any permanent
loss of use of a scheduled member. Id.; see 5 U.S.C. §§ 8105, 8106 and 8107.
8

20 C.F.R. § 10.517(b).

9

5 U.S.C. § 8123(a); see also R.H., 59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637 (2002); Rita
Lusignan (Henry Lusignan), 45 ECAB 207 (1993).
10

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

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an eight-hour day, they disagreed on the extent of her work restrictions. Dr. Fish advised that
appellant had a lifting restriction of no more than 10 pounds and no above the shoulder reaching
for more than one hour. Dr. Horn found that appellant was capable of intermittent lifting up to
25 pounds and occasional lifting of up to 40 pounds. Due to the conflict in the medical opinion
evidence on appellant’s physical restrictions, the Office failed to meet its burden of proof to
terminate appellant’s compensation benefits and the December 28, 2009 decision will be
reversed.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation on April 11, 2009 on the grounds that appellant refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 28, 2009 is reversed.
Issued: January 26, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 08-1547
Issued: December 1, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 5, 2008 appellant, through her representative, filed a timely appeal from the
Office of Workers’ Compensation Programs’ April 7, 2008 decision denying her claim for
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability
causally related to her June 1, 2005 employment-related injury.
FACTUAL HISTORY
On June 20, 2005 appellant, then a 32-year-old letter carrier, filed a traumatic injury
claim (CA-1) alleging that on June 1, 2005 she “stepped wrong on uneven broken asphalt” and
sprained her ankle. In progress notes dated June 6, 2005, Dr. Nathaniel S. Bautista, Boardcertified in internal and occupational medicine, diagnosed appellant with a left ankle sprain and
placed her on work restrictions. On August 3, 2005 appellant was referred by her treating

physician to Dr. Andrew L. Katz, D.P.M., who diagnosed her with a Grade 2 left ankle sprain.
Dr. Katz found that appellant could perform a majority of her daily activities without any
discomfort and released her for regular duty on August 8, 2005. On October 11, 2005 the Office
accepted appellant’s claim for a left ankle sprain.
On September 12, 2007 appellant filed a claim alleging a recurrence of her June 1, 2005
employment injury. She claimed that she developed tendinitis in her ankle and that her ankle
“has never gotten better so I do not know if it is a recurrence.” Appellant did not indicate the
date of the recurrence but did state that she stopped work on June 26, 2007.
The Office denied appellant’s claim on November 26, 2007, finding that the submitted
evidence did not establish that the alleged recurrence of disability resulted from the accepted
work injury.
On December 10, 2007 appellant, through her representative, requested a telephonic
hearing by an Office hearing representative. This hearing took place on February 25, 2008,
where appellant testified that she had not worked since June 26, 2007. Appellant also stated that
her ankle was not presently being treated, however, her ankle had been examined by a
Dr. Lameer, who was primarily treating her back injury,1 and by a Dr. Manjikian, who performed
a magnetic resonance imaging scan finding tendinosis of the peroneal tendons. Appellant’s
representative argued that her injury is better characterized as an occupational disease caused by
appellant’s constant walking on her ankle than a spontaneous recurrence of the June 1, 2005
employment injury.2
On April 7, 2008 the Office issued a decision denying appellant’s claim for recurrence of
disability. Specifically, it held that appellant did not submit any medical records after August 3,
2005 and therefore there was no medical evidence to support appellant’s claims that she
sustained a recurrence of her June 1, 2005 employment injury.3
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”4 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial, reliable,
1

Appellant has filed an additional claim for a work-related back injury. According to the record, the claim was
assigned a separate file number and is not at issue in this case.
2

The Board notes that the issue of an occupational disease is not properly before the Board under 20 C.F.R.
§ 501.2(c) as the Office has not issued a final decision on the matter.
3

Notably, in a letter dated April 8, 2008, appellant’s representative stated that he was attaching a medical report
from a Dr. Lameer. This medical report was not attached to the letter, as was acknowledged by the Office in
correspondence dated April 26, 2008. Therefore, the Office did not consider any additional medical evidence in its
April 7, 2008 decision.
4

R. S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007); 20 C.F.R. § 10.5(x).

2

and probative evidence that the disability for which she claims compensation is causally related to
the accepted injury. This burden of proof requires that an employee furnish medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that
conclusion with sound medical reasoning.5 Where no such rationale is present, medical evidence
is of diminished probative value.6
ANALYSIS
The Board finds that appellant did not provide sufficient medical evidence to establish
that she sustained a recurrence of disability causally related to her accepted employment injury.
In order to establish such causation, appellant is required to submit medical rationalized
evidence. Here, appellant did not submit any medical evidence dated after August 3, 2005,
despite the fact that the recurrence of disability occurred in 2007, and the medical evidence of
record relates solely to her June 1, 2005 accepted injury. Moreover, the only evidence relating to
appellant’s alleged recurrence is the claim form itself and appellant’s testimony at her telephonic
hearing. As the Board has held, claimants may not self-certify their disability and periods of
compensation.7 Thus, the Board finds that none of this evidence constitutes medical rationale
sufficient to establish causation.
Appellant has the burden of proof to establish a claim for recurrence by submitting the
necessary medical evidence.8 The record does not contain medical evidence providing a
reasoned medical opinion that appellant sustained a recurrence causally related to her June 1,
2005 employment injury. Accordingly, the Board finds that appellant did not meet her burden of
proof in establishing causation and the Office properly denied the claim.
CONCLUSION
Appellant has not established by medical evidence that her recurrence of disability was
causally related to her June 1, 2005 employment-related injury.

5

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

6

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

7

See Fereidoon Kharabi, 52 ECAB 291 (2001).

8

See Mary A. Ceglia, 55 ECAB 626 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the April 7, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
U.S. POSTAL SERVICE, BAY STATION POST
OFFICE, Brooklyn, NY, Employer
__________________________________________

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 10-1766
Issued: May 25, 2011

Case Submitted on the Record

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

JURISDICTION
On June 22, 2010 appellant, through his representative, filed a timely appeal from an
April 28, 2010 merit decision of the Office of Workers’ Compensation Programs denying his
recurrence claim. Pursuant to the Federal Employees’ Compensation Act1 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 he sustained a recurrence of disability
beginning December 1, 2009, causally related to his accepted June 13, 1989 employment injury.
On appeal, appellant’s representative contends that the employing establishment’s
withdrawal of appellant’s modified position on December 1, 2009 resulted in a recurrence of
disability.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 14, 1989 appellant, then a 46-year-old carrier, filed a traumatic injury claim
alleging that he injured his lower back and left small finger on June 13, 1989 when he was run
over by someone pushing a steel cart while he was sorting parcels. The Office accepted the
claim for lumbosacral sprain and tendinitis/contusion over left little finger and placed him on the
periodic rolls for temporary total disability effective January 31, 1991. Appellant returned to a
light-duty job working four hours a day on January 12, 1992, which was increased to eight hours
a day on March 11, 1992. The Office accepted a recurrence of disability on October 2, 2004 and
by letter dated November 1, 2004 placed him on the periodic rolls for temporary total disability.2
On August 26, 2005 appellant accepted a modified job working four hours a day from the
employing establishment. The hours of the job were 7:30 a.m. to 11:30 a.m. Monday through
Friday with Saturday and Sunday as his days off. The employing establishment indicated that
the work hours were contingent on work being available. Duties of the position included:
approximately two hours of casing mail; approximately one and a half hours of express mail
delivery within walking distance and accountable and certified mail; and approximately one-half
hour of strapping out. Appellant’s actual return to work was on September 19, 2005.3
On December 1, 2009 the employing establishment presented appellant with a new
modified job offer which replaced the modified job he had been performing since
September 19, 2005. The hours of the new position were 12:50 p.m. to 4:50 p.m. Monday,
Tuesday, Thursday and Friday and 9:00 a.m. to 11:00 a.m. on Saturday with Sunday and
Wednesday as his days off. Duties of the position included: one to four hours of lobby customer
assistance; one to four hours of assisting customers with all-purpose container (APC); and up to
one hour of street delivery of express mail. The physical requirements of the position were up to
10 pounds of intermittent lifting one to four hours a day; one to four hours of walking; one to
two hours of sitting; and up to two hours of standing and walking. Appellant rejected this new
job offer from the employing establishment. As appellant refused to sign the December 1, 2009
new job offer, the employing establishment placed him in off-duty status and sent him home.
The employing establishment contended the only difference between the December 1, 2009
modified job and the one appellant had been performing was the reporting time.
On December 4, 2009 appellant filed a claim for wage-loss compensation eight hours a
day for the period December 2 to 4, 2009.
By letter dated December 23, 2009, the Office advised appellant that before payment
could be issued for December 2 to 4, 2009, medical and factual evidence regarding his work
stoppage should be submitted.

2

The recurrence was due to the employing establishment’s withdrawal of appellant’s light-duty job as it was
unable to provide work within his restrictions.
3

The effective date of the job was September 3, 2005, but due to nonjob-related medical conditions appellant
actually returned to work on September 19, 2005. The employing establishment requested the Office to modify
appellant’s wage-loss compensation payment to four hours a day.

2

In a January 28, 2010 memorandum to file, the Office informed the employing
establishment that the December 1, 2009 job offer was not suitable as the medicals limited
appellant up to two hours of walking and the walking requirement in the job offer was one to
four hours. The employing establishment amended the job offer. The Office notified appellant
on January 28, 2010 that it had reviewed the job offer and found it to be suitable. It further
notified him that he had 30 days to either accept the job offer or to demonstrate that it was not
suitable. Failure to do either would result in termination of wage-loss compensation and denial
of any schedule awards, pursuant to 5 U.S.C. § 8106(c)(2).
On January 28, 2010 the employing establishment presented appellant with a new
modified job offer. The hours of the position were 12:50 p.m. to 4:50 p.m. Monday, Tuesday,
Thursday and Friday and 9:00 am to 11:00 a.m. on Saturday with Sunday and Wednesday as his
days off. Duties of the position included: one to four hours of lobby customer assistance; one to
four hours of assisting customers with APC; and up to one hour of street delivery of express
mail. The physical requirements of the position were up to 10 pounds of intermittent lifting one
to four hours a day; up to two hours of intermittent walking; up to two hours of intermittent
sitting; and up to two hours of intermittent standing.
On February 8, 2010 the Office received a January 20, 2010 claim for a recurrence of
disability from appellant for the period beginning December 1, 2009. On the back of the form,
the employing establishment noted appellant was instructed not to return to work because he had
refused an offer of modified work. It noted that the Office found the job suitable on
January 28, 2010.
In a February 16, 2010, Dr. David M. Rizzo, a treating osteopath, stated that appellant
was being treated for high blood pressure, diabetes and lower back pain. He indicated that
appellant has been disabled from working since December 1, 2009.
On February 17, 2010 appellant submitted a January 20, 2010 letter advising the Office,
inter alia, that he did not immediately sign the job offer because his blood pressure was elevated
and he was not feeling well, that he was not given an opportunity to fully read and comprehend
the job offer and that as a result his supervisor relieved him of his identification badge and
directed him to leave. Additionally, he noted that the offer did not conform to his doctor’s
restrictions and recommendations.
By letter dated March 5, 2010, the Office advised that appellant’s reasons for refusing the
offer of suitable work were not valid and provided him an additional 15 days to accept the
position, which was still available, or his entitlement to wage-loss compensation or a schedule
award would be terminated.
On March 5, 2010 the Office received a February 25, 2010 letter from appellant advising
that he had accepted the January 28, 2010 modified job offer from the employing establishment
and noted that restrictions on temperature extremes and street work needed to be included in the
physical restrictions of the offered job. Appellant attached a copy of the signed acceptance of
the offer dated February 25, 2010.

3

The Office on March 5, 2010 also received a May 13, 2009 duty status report (Form CA17) and February 12, 2010 disability note from Dr. Raghava R. Polavarapu, a treating Boardcertified orthopedic surgeon, and a February 27, 2010 report from Dr. Rizzo.4 Dr. Polavarapu
provided work restrictions for appellant in a May 13, 2009 Form CA-17. He stated that appellant
was capable of working four hours a day with restrictions, which were up to four hours of
intermittent lifting up to 5 pounds; up to two hours of intermittent sitting; up to two hours of
intermittent walking; up to two hours of intermittent standing; up to two hours of intermittent
pushing/pulling 5 to 30 pounds; up to four hours of APC work; up to two hours of reaching
above the shoulder; no exposure to temperature below 32 degrees Fahrenheit or above 90
degrees Fahrenheit; up to three hours of driving a vehicle; up to four hours of fine manipulation
and simple grasping; and no kneeling, bending/stooping or twisting. In a subsequent report dated
February 12, 2010, Dr. Polavarapu diagnosed herniated lumbar disc and lumbar radiculopathy
and that appellant has been treated for low back pain since December 4, 2009. He stated that
appellant has been totally disabled by his low back pain since December 4, 2009. Once appellant
was medically fit, Dr. Polavarapu stated that appellant would return to his modified job.
Appellant submitted a February 27, 2010 report in which Dr. Rizzo advised the Office
that he has been treated for low back pain, diabetes and high blood pressure since
December 1, 2009. Dr. Rizzo stated that appellant was unable to begin work in the afternoons as
it would raise his blood sugar and pressure and that he preferred appellant to have two
consecutive days off (preferably Saturday and Sunday) due to medical reasons.
By letter dated March 9, 2010 and received by the Office on March 15, 2010, appellant
replied that he had accepted and signed the job offer on February 25, 2010, added that he had
been ill since December 1, 2009 and that the only objections to the offer were the extreme
temperature range, the “street work,” and starting times for his shift.
In a March 17, 2010 letter, the Office informed appellant of the evidence required for his
light-duty recurrence claim and was given 30 days to provide the requested information.
In an April 6, 2010 letter, the Office noted the additional restrictions mentioned by
appellant and informed him that it would verify their relationship to his accepted injuries. It
informed appellant that there would be a referral for a second opinion evaluation and he would
be notified at a later date regarding the details of the evaluation.
Appellant raised the same objections to the job offer in his March 30, 2010 response to
the Office. He also reiterated that he became ill beginning December 1, 2009.
On April 9, 2010 the Office received a March 26, 2009 report from Dr. Polavarapu and a
March 25, 2010 report from Dr. Rizzo. Dr. Polavarapu diagnosed lumbosacral sprain, lumbar
radiculopathy and lumbar herniated disc and that appellant was currently totally disabled. He
reported that appellant injured his back at work on June 13, 1989 and that on December 1, 2009
he developed dizziness while exiting a bus which caused him to twist his left foot and caused
severe low back pain. A physical examination revealed paraspinal tenderness, 40 degrees
4

There appears to be a typographical error with respect to the physician’s name as in the signature block it is
spelled “Russo” and not “Rizzo.”

4

flexion, 5 degrees extension, 50 degrees left straight leg testing and 40 degrees right straight leg
testing.
Dr. Rizzo reported on March 25, 2010 that he had treated appellant since December 1,
2009 for lower back pain, elevated blood pressure, anxiety and uncontrolled diabetes. Diagnoses
included lumbar sprain, diabetes, mixed hyperlipidia and hypertension. Dr. Rizzo indicated that
appellant has been out of work since December 1, 2009 with a return to work contingent on a
specialist consultation and/or improvement in appellant’s clinical status.
By decision dated April 28, 2010, the Office denied appellant’s December 1, 2009
recurrence claim on the grounds that the medical evidence failed to establish that any disability
was due to his accepted employment injuries.
LEGAL PRECEDENT
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.5
The Office’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.6 This term also means an
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness
is withdrawn, (except when such withdrawal occurs for reasons of misconduct, nonperformance
of job duties or a reduction-in-force) or when the physical requirements of such an assignment
are altered so that they exceed his or her established physical limitations.7
ANALYSIS
The Office accepted appellant’s claim for lumbosacral sprain and tendinitis/contusion
over left little finger and provided him a light-duty job. Appellant filed a claim for a recurrence
of disability beginning December 1, 2009 due to the withdrawal of limited-duty job he had been
performing since September 19, 2005. On December 1, 2009 the employing establishment
5

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
6

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Phillip L. Barnes, 55 ECAB 426 (2004).

7

Id. See A.M., Docket No. 09-1895 (issued April 23, 2010); K.S., Docket No. 08-2105 (issued February 11,
2009); Hubert Jones, Jr., 57 ECAB 467 (2006).

5

presented him with a new modified job, which he rejected. Appellant does not allege a change in
the nature or extent of his injury-related condition. In the April 28, 2010 decision, the Office
denied his claim on the grounds that the medical evidence was insufficient to establish
employment-related disability beginning December 1, 2009 and did not address whether the
employing establishment offer of a new job on December 1, 2009 constituted a withdrawal of his
limited-duty job he had been performing since September 19, 2005. Thus, the question
presented is whether the employing establishment withdrew appellant’s job on
December 1, 2009.
The record supports that appellant was working in a limited-duty job since September 19,
2005 and on December 1, 2009, the employing establishment presented appellant with a new
limited-duty job offer within his restrictions. When appellant refused to sign the job offer on
December 1, 2009, the employing establishment advised him to stop working and sent him
home. Appellant then filed a claim for a recurrence of disability due to the withdrawal of his
light-duty job effective December 1, 2009. The December 1, 2009 job offer by the employing
establishment was not found suitable by the Office because it did not comply with all of
appellant’s physical restrictions. The employing establishment presented appellant with a new
modified job on January 28, 2010 which the Office found suitable and was accepted by him.
Based on the Office’s determination that the December 1, 2009 job offer was not suitable, the
Board finds the Office improperly denied appellant’s claim for recurrence. Appellant’s disability
beginning December 1, 2009 was due to the withdrawal of his light-duty job on that day. The
employing establishment’s offer of a modified job on January 28, 2010, which the Office found
suitable, supports appellant’s contention that his work stoppage beginning December 1, 2009
was due to a withdrawal of his light-duty job. The record is unclear as to whether appellant’s
disability following the January 28, 2010 modified job offer was employment related. Appellant
indicated that he had accepted this job offer, but had not returned to work as his physician had
not determined that he was medically able to return to work. Moreover, it appears from evidence
in the record that the Office determined a second opinion evaluation was required to determine
the extent of appellant’s restrictions and whether the additional restrictions noted by him were
causally related to his accepted employment injury. On remand, the Office should undertake
additional development of appellant’s claim and ascertain whether the additional restrictions
noted by him were due to his accepted employment injuries. After this and such other
development as the Office deems necessary, the Office should issue an appropriate decision on
this issue.
CONCLUSION
The Board finds that the Office improperly denied appellant’s claim for recurrence of
disability beginning December 1, 2009 due to removal of his light-duty job assignment.

6

ORDER
IT IS HEREBY ORDERED THAT the April 28, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further development
consistent with the above decision.
Issued: May 25, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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

Docket No. 14-659
Issued: July 7, 2014

Case Submitted on the Record

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

JURISDICTION
On January 30, 2014 appellant filed a timely appeal from a January 10, 2014 Office of
Workers’ Compensation Programs’ (OWCP) merit decision. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish bilateral hearing loss
in the performance of duty, causally related to factors of his federal employment.
On appeal, appellant contends that OWCP’s decision is improper on the basis that his
hearing got worse from 1968 to 2004 while working on the floor, outside, in warehouses and
shop buildings where he was constantly exposed to loud noise.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. In a decision dated August 21, 2013, the
Board set aside OWCP’s February 1, 2013 decision, and remanded the case for further
development of the medical evidence and to obtain a more current second opinion examination
of appellant’s hearing loss to determine whether he developed bilateral hearing loss in the
performance of duty, causally related to factors of his federal employment.2 The facts of the
case, as set forth in the prior decision, are incorporated by reference.
OWCP referred appellant to Dr. David Whitt, a Board-certified otolaryngologist, for a
second opinion evaluation. In his December 9, 2013 report, Dr. Whitt reviewed a statement of
accepted facts, appellant’s medical records and history and conducted a physical examination.
He diagnosed bilateral high frequency sensorineural hearing loss and tinnitus. A December 9,
2013 audiogram performed on his behalf showed the following decibel losses at frequencies of
500, 1,000, 2,000 and 3,000 hertz (Hz): 25, 25, 55 and 85 for the right ear and 40, 25, 50 and 90
for the left ear.3 Dr. Whitt reported appellant’s percent of hearing loss according to the formula
derived by the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (A.M.A., Guides), as 34 percent monaural hearing loss in the right ear, 39 percent
monaural hearing loss in the left ear and 35 percent hearing loss binaurally. He added 5 percent
for tinnitus, equaling 40 percent bilateral hearing loss. Dr. Whitt noted that appellant had a long
history of hearing loss since 1969. He indicated that appellant’s hearing loss had worsened over
the years and opined that it “was not due to additional noise exposure” encountered during his
federal employment. Dr. Whitt attributed the hearing loss “to age not additional noise
exposure.” (Emphasis in the original.) He determined that the date of maximum medical
improvement was December 1, 2013 and recommended hearing aids.
On January 9, 2014 Dr. Ronald Blum, an OWCP medical adviser, reviewed Dr. Whitt’s
report and audiometric test of December 9, 2013. He concurred with Dr. Whitt’s findings and
calculations under the sixth edition of the A.M.A., Guides and concluded that appellant had a 40
percent bilateral hearing loss. Dr. Blum found that workplace noise exposure was “not deemed
sufficient to implicate it as a contributing factor to [appellant’s] hearing loss.” He further opined
that hearing aids should not be authorized as appellant’s hearing loss was not employment
related. Dr. Blum determined that the date of maximum medical improvement was
December 9, 2013.
By decision dated January 10, 2014, OWCP denied the claim on the basis that the
evidence of record failed to establish causal relationship between appellant’s hearing loss and
factors of his federal employment.

2

Docket No. 13-862 (issued August 21, 2013). On July 25, 2002 appellant, then a 53-year-old quality assurance
specialist, filed an occupational disease claim (Form CA-2) alleging that he sustained bilateral hearing loss due to
exposure to electrical and air equipment during the course of his federal employment.
3

The audiological equipment was last calibrated on December 19, 2012.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury5 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.8
ANALYSIS
It is not disputed that appellant was exposed to employment-related noise during the
course of his federal employment. The Board finds, however, that the medical evidence does not
establish that his hearing loss is causally related to accepted employment-related noise exposure.
The Board finds that OWCP properly referred appellant to Dr. Whitt for a second opinion
evaluation who reviewed a statement of accepted facts, appellant’s medical records and history
and conducted a physical examination. Dr. Whitt indicated that appellant had a long history of
hearing loss since 1969. He also indicated that appellant’s hearing loss had worsened over the
years, however, he concluded that it “was not due to additional noise exposure” encountered
during his federal employment and attributed it “to age.”

4

5 U.S.C. § 8101 et seq.

5

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
6

See J.C., Docket No. 09-1630 (issued April 14, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004).

7

Id. See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

8

See I.J., 59 ECAB 408 (2008). See also Victor J. Woodhams, 41 ECAB 345 (1989).

3

On January 9, 2014 Dr. Blum, an OWCP medical adviser, reviewed Dr. Whitt’s report
and audiometric test of December 9, 2013 and concurred with his findings and calculations under
the sixth edition of the A.M.A., Guides. He found that workplace noise exposure was “not
deemed sufficient to implicate it as a contributing factor to [appellant’s] hearing loss.” Dr. Blum
further opined that hearing aids should not be authorized as appellant’s hearing loss was not
employment related.
The reports from Drs. Whitt and Blum represent the weight of the medical evidence and
establish that appellant did not sustain hearing loss due to exposure to noise in the workplace.9
There is no other medical evidence in the record to support that appellant’s hearing loss is
employment related. Appellant has not submitted any medical evidence supporting that his
hearing loss was caused or aggravated by his workplace noise exposure.10 Thus, the Board finds
that the medical evidence does not support that appellant has any hearing loss causally related to
the accepted employment-related noise exposure.11
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.12 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence. As
appellant has not submitted any medical evidence to support his allegation that he sustained an
injury causally related to the indicated employment factors, he failed to meet his burden of proof
to establish a claim.
On appeal, appellant contends that OWCP’s decision is improper on the basis that his
hearing got worse from 1968 to 2004 while working on the floor, outside, in warehouses and
shop buildings where he was constantly exposed to loud noise. Based on the findings and
reasons stated above, the Board finds that appellant’s arguments are not substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
developed bilateral hearing loss in the performance of duty, causally related to factors of his
federal employment.

9

See R.J., Docket No. 11-1644 (issued February 14, 2012); J.L., Docket No. 07-1740 (issued
December 20, 2007).
10

See C.C., Docket No. 13-2162 (issued February 25, 2014).

11

See R.B., Docket No. 13-1858 (issued January 23, 2014).

12

See Anna C. Leanza, 48 ECAB 115 (1996).

4

ORDER
IT IS HEREBY ORDERED THAT the January 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 7, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Hampton, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0664
Issued: August 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 6, 2018 appellant filed a timely appeal from an October 25, 2017 merit
decision and a January 9, 2018 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that a right
wrist/hand condition causally related to the accepted November 28, 2016 employment incident;
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

and (2) whether OWCP properly denied appellant’s request for a review of the written record by
an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124.
FACTUAL HISTORY
On December 1, 2016 appellant, then a 40-year-old registered nurse, filed a traumatic
injury claim (Form CA-1) alleging that on November 28, 2016 she suffered a right wrist strain
attending to a patient while in the performance of duty. She was performing perineal cleaning and
injured her right wrist when turning the patient, who weighed 500 pounds.
Appellant was initially treated at the employing establishment’s health unit. In a
November 29, 2016 radiology report, Dr. Dennis D. Walker, a staff physician, related appellant’s
complaints of right hand and wrist pain and swelling. He noted findings of multilevel joint space
narrowing and relative preservation of the metaphalangeal joints without evidence of erosive or
inflammatory arthropathy. Dr. Walker diagnosed mild diffuse osteoarthritis.
In a December 1, 2016 duty status report (Form CA-17), Michelle A. Barron, a nurse
practitioner, diagnosed right wrist strain. She indicated that appellant could return to work on
December 1, 2016 with restrictions. Ms. Barron saw appellant for a follow up on December 5,
2016 and she extended her work restrictions pending additional diagnostic studies.
A January 6, 2017 right hand magnetic resonance imaging (MRI) scan showed a small
central perforation within the central portion of the articular disc of the triangular fibrocartilage
complex (TFC).
Appellant was treated by Dr. Michael T. Davis, an orthopedic hand surgeon. In a
January 24, 2017 examination report, Dr. Davis noted examination findings of tenderness to
palpation and palpable bony prominence of the mid-dorsal right wrist. Finklestein’s test was
positive. Tinel’s and Phalen’s tests were negative. Dr. Davis diagnosed “right wrist carpal boss
and right wrist de Quervain’s.”
In an August 7, 2017 progress note, Dr. Davis related that appellant’s symptoms had
improved, but she still complained of discomfort of the dorsal wrist and over the dorsal bony
prominence. Physical examination of appellant’s right wrist revealed tenderness to palpation over
the dorsal prominence. Dr. Davis indicated that the computerized tomography (CT) scan
demonstrated a small subchondral cyst at the base of the capitate. He diagnosed left third
carpometacarpal joint and pain, status post attempted arthrodesis.
OWCP received a short-term disability claim form dated August 21, 2017, completed by
Dr. Davis, in which he indicated: “workload exacerbates preexisting condition.” Dr. Davis noted
a diagnosis of radial styloid tenosynovitis. He noted that appellant was pending surgery on
September 8, 2017 and would be disabled from work beginning that date.

2

In an August 29, 2017 attending physician’s report (Form CA-20), Dr. Davis noted a date
of injury of November 28, 2017.3 He related that appellant experienced swelling and pain in her
right wrist and hand after lifting a patient at work. Dr. Davis indicated that she had preexisting a
metacarpal and carpal fracture. He diagnosed right wrist radial styloid tenosynovitis and right
wrist pain. Dr. Davis checked a box marked “yes” indicating that the medical condition was
caused or aggravated by an employment activity. He explained that the “reported incident [was]
more likely than not exacerbated condition.” Dr. Davis noted that appellant was pending surgery.
On September 8, 2017 appellant underwent right wrist surgery performed by Dr. Davis.
The operative report indicated a preoperative diagnosis of right wrist painful carpal
boss/enthesopathy. Appellant stopped work and filed several claims for wage-loss compensation
(Forms CA-7) for total disability beginning September 8, 2017.
In a development letter dated September 22, 2017, OWCP informed appellant that her
claim was initially accepted as a minor injury, but was being reopened for review of the merits
because a claim for wage loss had been received. It requested that she respond to an attached
development questionnaire and provide medical evidence to establish a diagnosed condition as a
result of the alleged employment incident. OWCP afforded appellant 30 days to submit the
necessary evidence.
A September 26, 2017 right wrist radiology report showed postoperative changes of ulnar
positive variance and decreased bone mineral density.
On October 11, 2017 OWCP received appellant’s response to its development letter.
Appellant related that the immediate effects of the injury were pain and difficulty with range of
motion. She explained that she reported the incident to her supervisor and sought medical
treatment at the occupational health office at the employing establishment. Appellant indicated
that she did not sustain any other injury, but that she had a preexisting condition of dislocation of
carpal and metacarpal bone in her right hand.
Appellant submitted several witness statements. In an October 9, 2017 statement, M.E., a
registered nurse, described that she was helping appellant turn a patient who was really heavy. She
noted that appellant pushed the patient and hurt her hand and wrist. In another witness statement,
E.A., a registered nurse, explained that on November 28, 2016 she was helping appellant to clean
a patient who weighed 500 pounds by holding him up and helping to turn him over. She explained
that appellant injured her right hand when she pushed on the patient’s back side in order to clean
the patient better.
In an October 11, 2017 progress note, Dr. Davis noted that appellant had undergone right
wrist surgery. Upon physical examination of appellant’s right wrist, he provided range of motion
findings and noted improved soft tissue swelling. Dr. Davis diagnosed excision of the “right wrist
carpal boss with carpometacarpal arthrodesis and application of demineralized bone graft.” He
indicated that during the operation, it was noticed that appellant demonstrated significant posttraumatic arthritis of the third carpometacarpal joint. Dr. Davis opined: “I believe this area of
3
The alleged date of injury is November 28, 2016. The Board notes that the November 28, 2017 date of injury
appears to be a notation error.

3

arthritis was definitely aggravated by her job load as well as one specific event where she had to
transfer and help lift a very obese patient.” He reported that appellant would need to regain range
of motion and grip strength before she could return to work.
By decision dated October 25, 2017, OWCP denied appellant’s claim. It accepted that the
November 28, 2016 employment incident had occurred as alleged and that a diagnosed right wrist
condition was established, but it denied her claim finding insufficient medical evidence to establish
causal relationship between her right wrist/hand condition and the accepted employment incident.
On November 29, 2017 OWCP received an undated appeal request form requesting a
review of the written record by a representative of OWCP’s Branch of Hearings and Review.
OWCP also received an October 20, 2017 work status note by Dr. Davis. Dr. Davis
indicated that appellant was unable to work from September 8, 2017 through March 1, 2018 due
to an injury.
In a November 29, 2017 progress note, Dr. Davis related that appellant’s condition had
improved, but she was still not completely recovered. He provided examination findings and
diagnosed excision of right wrist carpal boss, 3rd digit, and application of demineralized bone graft
at the union site. Dr. Davis opined: “I do believe that her preexisting wrist condition was
exacerbated by an incident that took place on [November 28, 2016] involving a patient.” He
described that appellant was rolling a 500-pound patient for a bedding change when the weight of
the patient was inadvertently released onto her wrist and caused a “significant compression injury
with the wrist in a semi flexed position.”
On December 20, 2017 OWCP received another appeal request form dated November 7,
2017 and postmarked on December 8, 2017, which indicated that appellant requested a review of
the written record by a representative of OWCP’s Branch of Hearings and Review.
By decision dated January 9, 2018, the Branch of Hearings and Review denied appellant’s
request for a review of the written record, finding that it was untimely filed as it was not
postmarked within 30 days of the issuance of the October 25, 2017 decision. After exercising its
discretion, the Branch of Hearings and Review further found that the issue in the case could equally
well be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 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 of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
4

Supra note 1.

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

4

the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.8 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.9 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.10 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.11
To establish 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.12 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee.13 The weight of the 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.14
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.15

6

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

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
9

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

10

A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 8.
11

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

12

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

13

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
14

James Mack, 43 ECAB 321 (1991).

15

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

5

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish causal
relationship between her right wrist/hand condition and the accepted November 28, 2016
employment incident.
Appellant submitted medical reports from Dr. Davis dated January 24 to
November 29, 2017. Upon initial examination of appellant’s right wrist, he observed tenderness
to palpation and palpable bony prominence of the mid-dorsal wrist. Finklestein’s test was positive.
Tinel’s and Phalen’s tests were negative. Dr. Davis diagnosed right wrist carpal boss and right
wrist de Quervain’s. In an August 21, 2017 short-term disability form, he reported that appellant’s
“workload exacerbates preexisting condition.” In an August 29, 2017 Form CA-20, Dr. Davis
related that appellant experienced right wrist pain and swelling after lifting a patient at work. He
noted that she had preexisting metacarpal and carpal fracture and diagnosed right wrist styloid
tenosynovitis and right wrist pain. Dr. Davis checked a box marked “yes” indicating that the
medical condition was caused or aggravated by an employment activity. He explained that the
“reported incident more likely than not exacerbated condition.” The Board finds that Dr. Davis’
explanation that the reported incident “more likely than not” aggravated appellant’s preexisting
condition is speculative in nature and, therefore, of diminished probative value to establish causal
relationship.16 Dr. Davis did not provide sufficient medical rationale explaining how the
November 28, 2016 incident exacerbated appellant’s preexisting right wrist condition.
Dr. Davis further indicated in an October 11, 2017 progress note that he believed
appellant’s arthritis was “definitely aggravated by her job load as well as one specific event where
she had to transfer and help lift a very obese patient.” However, he did not sufficiently explain the
process of how lifting and rolling an obese patient caused or contributed to appellant’s right wrist
condition. Dr. Davis did not explain the pathophysiological process of how assisting a heavy
patient to turn over would have caused an exacerbation of her preexisting right wrist condition.17
Because he did not provide a reasoned opinion explaining how the November 28, 2016
employment incident caused or contributed to appellant’s right wrist condition, the Board finds
that his reports are insufficient to establish her claim. The need for rationalized medical opinion
evidence is particularly important in this case since appellant had preexisting right wrist arthritis
and metacarpal fracture.
Appellant was also treated by Dr. Walker in the employee health unit. In a November 29,
2016 radiology report, Dr. Walker provided examination findings and diagnosed mild diffuse
osteoarthritis. He did not, however, provide an opinion on whether appellant’s right wrist
condition resulted from the November 28, 2016 employment incident. Similarly, the January 8,
2017 right wrist MRI scan and September 26, 2017 radiology report are insufficient to establish
appellant’s traumatic injury claim. The Board has held that diagnostic reports that do not offer an

16

Medical opinions that are speculative or equivocal in character are not well rationalized and are of diminished
probative value. D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).
17

See B.T., Docket No. 13-0138 (issued March 20, 2013).

6

opinion regarding the cause of an employee’s condition are of no probative value on the issue of
causal relationship.18
The employing establishment health unit treatment notes and the November 29, 2016 duty
status report from Ms. Barron, a nurse practitioner, are also insufficient to meet appellant’s burden
of proof. Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.19
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.20
The remaining work status notes dated July 25, 2016 and Form CA-17s dated July 18 to
August 10, 2016 are also insufficient to establish appellant’s traumatic injury claim as they only
mention her inability to work and do not address the issue of causal relationship. The Board has
held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.21
In order to obtain benefits under FECA an employee 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.22 Because appellant failed to provide such evidence demonstrating that her diagnosed
right wrist/hand condition was causally related to the accepted November 28, 2016 employment
incident, she has not met her burden of proof to establish her traumatic injury claim.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary … is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his [or her] claim before a representative of the
Secretary.”23 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.24 A claimant is entitled to a hearing or review
18

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., No. 17-1549 (issued July 6, 2018).

19

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

20

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). Federal (FECA) Procedure
Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
21

Supra note 18.

22

Supra note 7.

23

5 U.S.C. § 8124(b)(1).

24

20 C.F.R. §§ 10.616, 10.617.

7

of the written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.25 Although there is no right to a review of the written record or an oral hearing,
if not requested within the 30-day time period, OWCP may within its discretionary powers grant
or deny appellant’s request and must exercise its discretion.26
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant’s request for a review of
the written record was untimely filed pursuant to 5 U.S.C. § 8124.
OWCP’s regulations provide that the request for a review of the written record must be
mailed within 30 days of the date of the decision for which a review is sought. Because appellant’s
request was postmarked on December 8, 2017, more than 30 days after OWCP’s October 25, 2017
decision, it was untimely and she was not entitled to a review of the written record as a matter of
right.
Although appellant’s request for a review of the written record was untimely, OWCP has
the discretionary authority to grant the request and it must exercise such discretion.27 In its
January 9, 2018 decision, OWCP’s hearing representative properly exercised her discretion by
notifying appellant that she had considered the matter in relation to the issue of whether appellant
established that the diagnosed right wrist condition was causally related to the accepted
November 28, 2016 employment incident and determined that the issue involved could be equally
well addressed by a request for reconsideration before OWCP. The Board finds that the hearing
representative properly exercised her discretionary authority in denying appellant’s request for a
review of the written record.28 The Board has held that the only limitation on OWCP’s authority
is reasonableness. An abuse of discretion is generally shown through proof of manifest error, a
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts.29 In this case, the evidence of record does not indicate
that OWCP abused its discretion by denying appellant’s request for a review of the written record.
Accordingly, the Board finds that OWCP properly denied appellant’s request for a review of the
written record.
On appeal appellant alleges that she did not receive the October 25, 2017 decision and
attached appeal request form until November 10, 2017. She indicates that she collected and
submitted additional information from her doctors, but contends that because she sent the
additional evidence over the Thanksgiving holidays it may have prevented the delivery of the
material in a timely manner. The record reflects that OWCP’s letter was properly sent to
25

Id. at § 10.616(a).

26

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

27

Id.

28

Mary B. Moss, 40 ECAB 640, 647 (1989).

29

Samuel R. Johnson, 51 ECAB 612 (2000).

8

appellant’s last known address and there is no indication that it was returned as undeliverable.30
Under the mailbox rule, a document mailed in the ordinary course of the sender’s business
practices to the addressee’s last known address is presumed to be received by the addressee. As
explained above, appellant’s request for a review of the written record was untimely filed.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right wrist
condition causally related to the accepted November 28, 2016 employment incident. The Board
further finds that OWCP properly denied her request for review of the written record as untimely
filed pursuant to 5 U.S.C. § 8124.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2018 and October 25, 2017 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 12, 2019
Washington, DC

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

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

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

30
See L.B., Docket No. 17-1892 (issued December 11, 2018). Kenneth E. Harris, 54 ECAB 502, 505 (2003); J.J.,
Docket No. 13-1067 (issued September 20, 2013).

9