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

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Appearances:
Elaine Cole, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-705
Issued: September 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 5, 2013 appellant, through his representative, filed a timely appeal from a
September 21, 2012 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.
ISSUE
The issue is whether appellant met his burden of proof to establish that a June 30, 2011
wage-earning capacity decision should be modified.
On appeal appellant asserts that there was no conflict in medical opinion evidence
regarding the number of hours he could work at the time he was referred for an impartial
evaluation and that the physician selected was biased.

1

5 U.S.C. §§ 8101-8193. By order dated May 2, 2013, the Board denied appellant’s request for oral argument.

FACTUAL HISTORY
On January 16, 1997 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim alleging that he injured his lower back and both knees when he slipped and fell while
delivering mail. He did not stop work.2 OWCP accepted that appellant sustained a left knee
strain, a lumbar strain, and a right knee abrasion and that he sustained a recurrence of disability
on September 9, 2004. Appellant returned to six hours of modified duty on March 7, 2005. On
July 25, 2005 OWCP reduced his compensation based on his reemployment. In a September 16,
2008 report, Dr. Robert A. Caifano, an attending Board-certified internist, diagnosed spinal
stenosis. He advised that appellant’s back pain had increased and advised that he should not
work for the rest of the month. The employing establishment withdrew appellant’s limited-duty
position, effective November 12, 2008, and he was placed on the periodic compensation rolls.
In December 2008, appellant was referred for vocational rehabilitation and underwent
vocational assessment in March 2009. In May 2009, OWCP referred appellant to Dr. Arlen K.
Snyder, a Board-certified orthopedic surgeon, for a second-opinion evaluation.
In an initial evaluation dated June 2, 2009, Dr. Clifford J. Ameduri, an attending Boardcertified physiatrist, described the history of injury and appellant’s complaint of increasing back
pain. He noted that appellant had last worked in November 2008. Dr. Ameduri described
appellant’s physical examination findings and diagnosed back pain due to nuclear bulge,
discogenic spondyloarthrosis, stable facet syndrome, spinal stenosis, and lumbar sacral sprain
and strain, all due to the January 16, 1997 work injury. He recommended diagnostic studies,
physical therapy and trigger point injections.
Dr. Snyder provided a second-opinion evaluation on June 8, 2009 in which he noted his
review of the statement of accepted facts and medical record. He described the January 16, 1997
work injury and appellant’s symptoms of constant radiating right low back pain. Dr. Snyder
discussed physical examination findings and diagnosed chronic low back pain involving the right
lower back and right leg, caused by the January 16, 1997 employment injury. He advised that
appellant could never carry out the duties of a letter carrier because of subjective low back pain,
and that he had reached maximum medical improvement. Dr. Snyder advised that appellant
could work, beginning four hours a day, with sitting limited to three hours; walking and standing
to two hours; occasional bending and stooping; one hour of operating a motor vehicle to and
from work; pushing and pulling of 20 pounds for two hours; and lifting 15 pounds for two hours.
In July 2009, a vocational rehabilitation counselor identified the positions of information
clerk and customer complaints clerk as within appellant’s physical limitations. A rehabilitation
plan was approved on July 14, 2009 and appellant began a training program in office and
computer skills in August 2009. Appellant completed the program in November 2009.

2

A May 7, 1997 computerized tomography (CT) scan of the lumbosacral spine demonstrated a tiny L5-S1
herniation on the right. An October 16, 1998 magnetic resonance imaging (MRI) scan of the lumbar spine indicated
that the L5-S1 herniation had extended with impingement on the thecal sac. A June 4, 1999 electrodiagnostic study
of the lower extremities showed minimal evidence of right S1 radiculopathy.

2

Dr. Ameduri continued to submit reports reiterating his diagnoses and describing
appellant’s condition and treatment. By letter dated November 20, 2009, OWCP asked the
physician whether appellant continued to be partially disabled due to the January 16, 1997 work
injury, whether he was at maximum medical improvement, and for a description of his current
restrictions. In a work capacity evaluation dated November 30, 2009, Dr. Ameduri advised that
appellant could not perform his usual job and could work four hours a day with limitations that
would apply for 90 days. He indicated that appellant could sit for two hours, walk and stand for
30 minutes each, could not bend or stoop and could operate a motor vehicle to/from work for one
hour. Pushing, pulling and lifting were restricted to 10 pounds, 30 minutes each. On
December 4, 2009 Dr. Ameduri responded to OWCP’s inquiry, indicating that appellant was still
partially disabled due to the January 16, 1997 employment injury and was not at maximum
medical improvement.
In December 2009, OWCP determined that a conflict in medical opinion had been
created between Dr. Ameduri and Dr. Snyder regarding appellant’s physical restrictions,
specifically that Dr. Ameduri limited appellant’s walking, standing, pushing, pulling and lifting
to no more than 30 minutes a day whereas Dr. Snyder opined that appellant could walk, stand,
push, pull, or lift for up to two hours daily. It referred appellant to Dr. Austin Leve, a Boardcertified orthopedic surgeon, for an impartial evaluation. Dr. Leve was provided a statement of
accepted facts, a set of questions and the medical record. In a December 17, 2009 letter, OWCP
informed appellant of the scheduled appointment, indicating that a conflict in medical evidence
had been created regarding the necessity of surgery for treatment of the accepted condition.
In a December 4, 2009 work capacity evaluation, Dr. Ameduri diagnosed severe back
pain and recommended surgical evaluation. He indicated that appellant could not work but also
indicated that appellant could sit for two hours; walk, stand, operate a motor vehicle, repetitively
move his wrists and elbows, push and pull for 15 minutes; and could not reach, reach above
shoulder, twist, bend, stoop, lifting squat, kneel or climb.
A January 11, 2010 lumbar myelogram demonstrated mild degenerative changes. A postmyelogram CT scan of the lumbar spine demonstrated protrusion/extrusion at L5-S1 with
foraminal spurring on the right; a tiny protrusion at L4-5; anterolisthesis and a small protrusion
at L3-4 and multilevel facet arthropathy.
In a January 15, 2010 report, Dr. Leve noted the history of injury and his review of the
statement of accepted facts and extensive review of the medical record. He indicated that
appellant reported that his back pain was located in the right lumbar region. Dr. Leve provided a
thorough description of physical examination findings, including full neck range of motion with
no spasm, full range of motion of upper extremity joints with good grip bilaterally, no spasm and
some limitation of low back range of motion. He advised that appellant could not return to his
regular job but was capable of eight hours of daily light, largely sedentary-type work at a job
where he is able to sit, stand and move about at will, with a 10-pound intermittent lifting limit for
comfort. Dr. Leve indicated that appellant had been at maximum medical improvement since he
began light-duty work, and did not think any benefit would be derived from a work hardening or
conditioning program or a functional capacity evaluation. He concluded that appellant’s
restrictions were the result of the 1997 work injury and that he had no nonwork-related disabling
conditions. In an attached work capacity evaluation, Dr. Leve advised that appellant remained

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partially disabled but could work eight hours. He provided permanent restrictions of eight hours
sitting in a comfortable chair; ad lib walking and standing for comfort; and advised that he
should avoid twisting, bending, stooping, pushing and pulling with intermittent lifting of 10
pounds.
In a February 24, 2010 treatment note, Dr. Steven Lasser, a Board-certified orthopedic
surgeon, noted appellant’s complaint of radiating low back pain. Physical examination findings
included tenderness around the L5-S1 level on the right. Lower extremity neurologic
examination was intact. Dr. Lasser reviewed the diagnostic studies and diagnosed L5-S1 disc
protrusion with right-sided foraminal stenosis, L5-S1 facet arthropathy and L3-4 degenerative
spondylolisthesis. He recommended continued conservative care and weight loss and indicated
that appellant had a marked, partial disability.
On March 26, 2010 a vocational rehabilitation counselor identified the positions of
information clerk and receptionist as within appellant’s physical limitations. On June 15, 2010
Dr. Ameduri advised that appellant could work four hours a day with sitting restricted to two
hours; walking, standing, driving, repetitive wrist and elbow movements, pushing and pulling
limited to 15 minutes; no reaching, twisting, bending, stooping, lifting, squatting, kneeling or
climbing. Appellant began a part-time residential support staff position at the Veterans Outreach
Center, Inc., on July 1, 2010.3 In a July 14, 2010 treatment note, Dr. Lasser reported that
appellant was doing well and had begun part-time work of two- to six-hour shifts, which the
physician found reasonable. He reiterated his diagnoses and conclusions.
On September 21, 2010 OWCP reduced appellant’s compensation to reflect his part-time
earnings.4 Dr. Ameduri continued to submit reports describing appellant’s condition and care.
On October 29, 2010 a vocational rehabilitation counselor, M. Susie Webster, identified
the positions of customer service representative, information clerk and customer complaint clerk
as within appellant’s physical limitations. She advised that the positions were reasonably
available in the local labor market at weekly wages of $407.69, $374.23 and $407.69
respectively. OWCP obtained updated salary information from the employing establishment.
By letter dated December 29, 2010, OWCP proposed to reduce appellant’s compensation
benefits based on his capacity to earn wages as a customer service representative. It indicated
that, based on the opinion of Dr. Leve, appellant could return to full-time work, and that the
customer service representative position was within the permanent restrictions identified by
Dr. Leve. OWCP further noted that the labor market survey prepared by the rehabilitation
counselor indicated that the position was reasonably available in the local labor market at a
weekly wage of $407.69. The physical demands indicated that the position was sedentary with

3

OWCP reimbursed the Veterans Outreach Center 70 percent of appellant’s wages.

4

On September 17, 2010 OWCP made a preliminary determination that an overpayment of compensation in the
amount of $495.58 had been created because appellant continued to receive compensation at the full rate after he
returned to work on July 1, 2010. By letter dated October 18, 2010, it notified him that it had elected not to pursue
collection actions.

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no climbing, balancing, stooping, kneeling, crouching, crawling, and occasional reaching,
handling and fingering.
Appellant disagreed with the proposed reduction and submitted reports from Dr. Ameduri
dated January 24, March 3 and April 11, 2011, who noted appellant’s complaint of continued
back and leg pain, provided physical examination findings and advised that appellant could work
four hours a day.
On April 19, 2011 Ms. Webster updated the job classification information regarding
customer service representative, information clerk and customer complaint clerk positions,
noting that they remained reasonably available with the previously reported weekly wages.
OWCP obtained updated salary information from the employing establishment.
By letter dated May 11, 2011, OWCP again proposed to reduce appellant’s compensation
based on his capacity to earn wages as a full-time customer service representative. It again
found that the weight of the medical evidence rested with the opinion of Dr. Leve.
In a May 11, 2011 treatment note, Dr. Ameduri reported that appellant’s job at the
Veterans Outreach Center entailed driving, filing, and using the computer, and that he was able
to change positions frequently. He reiterated that appellant could work only four hours daily.
On June 30, 2011 OWCP found that the weight of the medical evidence rested with the
opinion of Dr. Leve and reduced appellant’s compensation benefits, effective July 2, 2011, based
on his capacity to earn wages as a full-time customer service representative, which yielded a 62
percent loss of wage-earning capacity.5
On June 21, 2012 appellant requested reconsideration. He disagreed with Dr. Leve’s
opinion that he could work full time, asserting that, based on Dr. Ameduri’s opinion, he could
work a maximum of four hours daily. Appellant also noted that an OWCP referral physician
also advised that he could only work four hours a day. He submitted treatment notes from
Dr. Ameduri dated August 10, 2011 to March 7, 2012 in which the physician noted complaints
of radiating low back pain. Dr. Ameduri reiterated his diagnoses and recommended that
appellant continue the same medication regimen. On March 16, 2012 he advised that appellant
could sit for four hours daily, stand for one-half hour, walk for one-quarter hour, and not bend,
squat, kneel, twist, lift, climb, reach above the shoulder or perform repetitive activities.
Dr. Ameduri could perform normal hand functions and fine manipulation and drive a motor
vehicle.
In reports dated May 14, July 24 and September 6, 2012, Dr. Svetlana Trounina, a
physiatrist, described the January 16, 1997 fall and stated that at that time appellant was
diagnosed with a herniated disc and radiculopathy but continued to work until 2008 and currently
worked four hours a day. She described complaints of radiating low back pain and repeated the
diagnoses of Dr. Ameduri.6 On a work capacity evaluation dated July 24, 2012, Dr. Trounina
5

On September 26, 2011 OWCP suspended appellant’s compensation because he failed to submit a requested
OWCP 1032 form. Compensation was reinstated when he returned the completed form.
6

Dr. Trounina and Dr. Ameduri are associates at the New York Physical Medicine Center in Rochester, NY.

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advised that appellant could work for four hours daily and would never achieve an eight-hour
workday, noting that he was 65 years old. She provided restrictions that appellant could sit for 5
hours a day; walk, stand, and reach for 1/4 hour daily; push and pull five pounds for 6-1/4 hours;
and lift five pounds for 1/4 hour daily, with 15-minute breaks every 4 hours.
In a merit decision dated September 21, 2012, OWCP stated that appellant’s request for
reconsideration and the new evidence submitted had been reviewed on the merits and found that
the evidence submitted did not support how his partial disability was not based on his wageearning capacity and his ability to earn wages in the open labor market under normal
employment conditions, given the nature of his injury and degree of physical impairment, age,
vocational qualifications and the availability of suitable employment.7
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.8
OWCP procedures in effect at the time OWCP rendered its December 21, 2012 decision
provided that, “[i]f a formal loss of wage-earning capacity decision has been issued, the rating
should be left in place unless the claimant requests resumption of compensation for total wage
loss. In this instance the [claims examiner] will need to evaluate the request according to the
customary criteria for modifying a formal loss of wage-earning capacity.”9
The procedures contained provisions regarding the modification of a formal loss of wageearning capacity. The relevant part provides that a formal loss of wage-earning capacity will be
modified when: (1) the original rating was in error; (2) the claimant’s medical condition has
changed; or (3) the claimant has been vocationally rehabilitated. OWCP procedures further
provided that the party seeking modification of a formal loss of wage-earning capacity decision
has the burden to prove that one of these criteria has been met. If OWCP is seeking
modification, it must establish that the original rating was in error, that the injury-related
condition has improved or that the claimant has been vocationally rehabilitated.10

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In August 13, 2012 correspondence, OWCP notified appellant that his compensation was being reduced because
it had recently learned that he was receiving social security retirement benefits. On August 14, 2012 it issued a
preliminary determination that an overpayment of compensation in the amount of $27,485.89 had been created
because appellant had been receiving both social security retirement benefits and OWCP disability compensation for
the period July 1, 2009 through July 28, 2012. Appellant timely requested a hearing regarding the overpayment but
no decision was issued before this appeal was filed on February 5, 2013. Thus, the Board has no jurisdiction over
this matter. See Eugene Van Dyk, 53 ECAB 706 (2002).
8

Katherine T. Kreger, 55 ECAB 633 (2004).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995); see Chapter 2.1501.3 (June 2013).
10

Id. at Chapter 2.814.11 (June 1996).

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Section 8123(a) of FECA provides that, 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.11 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.12 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.13
ANALYSIS
The June 30, 2011 wage-earning capacity determination was premised on appellant’s
ability to work full time as a customer service representative. The Board finds that OWCP failed
to establish that the full-time position of customer service representative represented appellant’s
wage-earning capacity because a conflict in medical evidence has been created between the
opinions of Dr. Ameduri, an attending physiatrist, and Dr. Leve, an orthopedic surgeon, who
provided a referee opinion for OWCP regarding appellant’s physical restrictions. A conflict did
not exist regarding whether appellant could work part or full time when he was referred to
Dr. Leve because both appellant’s physician, Dr. Ameduri, and OWCP’s referral physician,
Dr. Snyder, advised that appellant could work four hours a day. Rather, OWCP properly
determined that a conflict had been created between Dr. Ameduri and Dr. Snyder regarding
appellant’s physical restrictions for walking, standing, pushing, pulling and lifting.
In his January 15, 2010 report, Dr. Leve, however, advised that appellant could work
eight hours of sedentary to light duty daily, and OWCP inappropriately accorded special weight
to Dr. Leve with regard to whether appellant could perform the full-time duties of the customer
service representative position. He only served as an impartial medical examiner with regard to
appellant’s physical restrictions, specifically regarding his capabilities in walking, standing,
pushing, pulling and lifting. OWCP did not specifically ask Dr. Leve to render an opinion
regarding the number of hours appellant could work each day. Therefore, Dr. Leve’s opinion
that appellant could work eight hours was not entitled to the special weight accorded to impartial
medical examiners on this issue. Instead, he created a new conflict with the opinion of
Dr. Ameduri regarding whether appellant could work part or full time and the June 30, 2011
decision was erroneous in this regard.14

11

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

12

20 C.F.R. § 10.321.

13

V.G., 59 ECAB 635 (2008).

14

See R.M., Docket No. 11-1093 (issued November 18, 2011).

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Moreover, as noted above, OWCP issued its formal decision on appellant’s wage-earning
capacity on June 30, 2011 and appellant requested reconsideration on June 21, 2012. Board
precedent and OWCP procedures direct the claims examiner to consider the criteria for
modification when a claimant requests resumption of compensation for total wage loss.15 While
appellant used the term reconsideration in his June 21, 2012 correspondence, he asserted that the
previous decision was in error. The Board finds that OWCP should have adjudicated the issue of
modification of the wage-earning capacity determination.16
Finally, the Board notes that OWCP misinformed appellant regarding the conflict in
medical evidence, stating in its December 17, 2009 letter informing him of the appointment with
Dr. Leve that a conflict had been created with regard to the necessity of surgery for the accepted
conditions.
For these reasons, OWCP’s September 21, 2012 decision must be reversed.
CONCLUSION
The Board finds that OWCP did not properly determine that the selected position of
customer service representative represented appellant’s wage-earning capacity.

15

Katherine T. Kreger, supra note 8; Sharon C. Clement, 55 ECAB 552 (2004); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.9(a)
(December 1995) (if a formal decision on loss of wage-earning capacity is issued, the rating should be left in lace
unless the claimant requests resumption of compensation for total wage loss, in which instance OWCP will need to
evaluate the request according to the customary criteria for modifying a formal loss of wage-earning capacity
determination).
16

W.W., Docket No. 09-1934 (issued February 24, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the September 21, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 4, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
James Wright, for the appellant
Office of Solicitor, for the Director

Docket No. 07-2396
Issued: March 20, 2008

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 September 24, 2007 appellant filed a timely appeal from the June 21, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review this nonmerit denial. The Board has no jurisdiction to review the Office’s March 31 and
June 20, 2006 merit decisions denying appellant’s claim for compensation, as he filed his appeal
to the Board more than one year after the dates of those decisions.
ISSUE
The issue is whether the Office properly denied appellant’s June 13, 2007 request for
reconsideration.
FACTUAL HISTORY
On November 25, 2005 appellant, then a 47-year-old general clerk, filed a claim alleging
that his bilateral carpal tunnel syndrome, ulnar nerve pain and stress were a result of his federal
employment: “I returned to [the Las Vegas Post Office] at the end of May as an Expediter on the

platforms. I started to become very irritated and was having pain in both hands and right forearm
area. Stress became a factor along with the pain.”1
The Office asked appellant for additional information, including a comprehensive
medical report from his treating physician that described his symptoms, the results of
examination and tests, his diagnosis, his treatment, the effect of treatment and the doctor’s
opinion, with medical reasons, on the cause of his condition. “Specifically,” the Office stated,
“if your doctor feels that exposure or incidents in your federal employment contributed to your
condition, an explanation of how such exposure contributed should be provided.”
After appellant offered a statement, the Office again requested that he submit a
comprehensive medical opinion addressing the issue of causal relationship: “This information is
crucial to the consideration of your claim. You may wish to provide your treating physician with
a copy of this letter.” Appellant offered another statement.
In a decision dated March 31, 2006, the Office denied appellant’s claim. The Office
found that the evidence of file appeared to support that the claimed events occurred as alleged,
but there was no medical opinion providing a diagnosis that could be connected to the events.
Appellant requested reconsideration. He submitted a functional capacity evaluation, a
neurological impression of bilateral carpal tunnel syndrome, rule out cervical radiculopathy, and
an April 13, 2006 report from Dr. Carl N. Williams, Jr., a hand surgeon, who reported that he
had treated appellant in the past for bilateral carpal tunnel syndrome and ulnar nerve
compression. Dr. Williams reported that an electromyogram showed that appellant once again
had bilateral carpal tunnel syndrome; his symptoms were back and needed to be addressed. He
requested approval for carpal tunnel surgery.
In a decision dated June 20, 2006, the Office reviewed the merits of appellant’s case and
denied modification of its March 31, 2006 decision. The Office found that Dr. Williams did not
clearly state that appellant’s condition was connected with or causally related to his work
activities since May 2005. The medical evidence did not establish an emotional or cardiac
condition causally related to the alleged stress and anxiety of his work activities.
On June 13, 2007 appellant, through his representative, requested reconsideration. He
stated that he disagreed with the Office’s June 20, 2006 decision and asserted that the Office
should grant reconsideration for the following reasons: (1) the decision involved a clearly
erroneous interpretation of material fact or law; (2) there are legal arguments not previously
considered by the Office; and (3) there is relevant and pertinent new evidence not previously
considered by the Office. Appellant explained that he was in the process of having a medical
evaluation report completed and submitted as medical evidence. He requested additional time to
submit this evidence and legal arguments “that will substantiate the claim.”
In a decision dated June 21, 2007, the Office denied appellant’s request for
reconsideration.
1

Under OWCP File No. 131210344, the Office accepted bilateral carpal tunnel syndrome and bilateral ulnar
neuropathy with multiple surgical releases performed from 2000 to 2003.

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against payment of compensation at any time on its own motion or upon
application.2 The employee shall exercise this right through a request to the district Office. The
request, along with the supporting statements and evidence, is called the “application for
reconsideration.”3
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.4
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.5 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.6
ANALYSIS
Appellant filed his June 13, 2007 request for reconsideration within one year of the
Office’s June 20, 2006 merit decision denying his claim for compensation. His request is
therefore timely. The question before the Board is whether this request meets at least one of the
standards for obtaining a merit review of his case.
The Board finds that appellant’s request meets none of the applicable standards.
Appellant did not show that the Office erroneously applied or interpreted a specific point of law.
He did not advance a relevant legal argument not previously considered by the Office and he
submitted no materials constituting relevant and pertinent new evidence not previously
considered by the Office.

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.605 (1999).

4

Id. at § 10.606.

5

Id. at § 10.607(a).

6

Id. at § 10.608.

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Appellant disagreed with the Office’s decision, but only repeated the legal standards he
had to meet in order to obtain a merit review of his case. He alleged that the Office’s decision
involved a clearly erroneous interpretation of material fact or law, but he did not specify any
error and he made no showing. Appellant alleged that there were legal arguments not previously
considered by the Office, but he did not advance any arguments. He alleged that “there is
relevant and pertinent new evidence” not previously considered by the Office, but he did not
submit that evidence. Appellant’s June 13, 2007 request for reconsideration was not, in fact,
supported by any new legal argument or new evidence. Lacking any specific argument or
evidence, it is insufficient on its face. Because appellant’s request does not meet at least one of
the standards for obtaining a merit review of his case, the Board will affirm the Office’s June 21,
2007 decision denying reconsideration.7
CONCLUSION
The Board finds that the Office properly denied appellant’s June 13, 2007 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the June 21, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 20, 2008
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
7

The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its final
decision. 20 C.F.R. § 501.2(c). The Board therefore has no jurisdiction to review the new evidence and legal
argument appellant submitted on appeal. This evidence and argument was not before the Office when it issued its
June 21, 2007 decision to deny his request for reconsideration.

4


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

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

Docket No. 20-0010
Issued: May 19, 2020

Case Submitted on the Record

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

JURISDICTION
On October 2, 2019 appellant, through counsel, filed a timely appeal from a June 3, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish bilateral knee
conditions causally related to the accepted June 23, 2018 employment incident.
FACTUAL HISTORY
On July 7, 2018 appellant, then a 50-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 23, 2018 he sustained abrasions and scratches to his right leg
when a case fell on him while in the performance of duty. He stopped work on June 25, 2018 and
returned to work on July 3, 2018. On the reverse side of the claim form, appellant’s supervisor,
R.S., indicated that appellant had not reported the incident until July 3, 2019 and provided no
medical documentation in support of his claim that he sustained extensive bruising as a result of
the alleged incident. R.S. further asserted that while the case did fall, it did not fall on appellant’s
leg and there were no visible abrasions or cuts or no bleeding or bruising observed.
In a handwritten statement dated July 7, 2018, appellant noted that when he returned from
his usual route on June 23, 2018, he needed to put away some supplies in his case. When he
attempted to open the case by moving one of the sections in the case, it fell down and hit his right
leg. Appellant asserted that because of this incident, he sustained bruising and extensive swelling
to his lower right leg. He further noted that he missed four days of work as a result of his injury
and spent that time icing and elevating his leg and treating with pain medication.
In a development letter dated July 18, 2018, OWCP informed appellant of the deficiencies
in his claim. It advised him of the type of factual and medical evidence necessary to establish his
claim and provided a factual questionnaire for completion. OWCP afforded appellant 30 days to
respond.
In an August 8, 2018 response to OWCP’s development questionnaire, appellant reiterated
his account of the June 23, 2018 employment incident, noting that when he went to move part of
his case it fell down, hitting his leg before landing on the ground. He indicated that he was very
upset following the incident and spoke with his supervisor, who assured him that it was not his
fault that the case fell. Appellant reported that he had cuts to his leg under his knee, as well as
bruising and swelling of the leg. OWCP received seven photographs of his leg on
August 16, 2018. Appellant again noted that this injury caused him to miss four days of work.
By decision dated August 22, 2018, OWCP accepted that the June 23, 2018 incident
occurred, as alleged. However, it denied appellant’s claim finding that there was no medical
evidence containing a diagnosis in connection with the accepted June 23, 2018 incident. OWCP
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
On March 14, 2019 appellant requested reconsideration of the August 22, 2018 decision.
In an accompanying statement dated March 11, 2019, he asserted that he had significant pain in
his leg and could not obtain a doctor’s appointment until January 4, 2019. Appellant noted that
his doctor referred him for a magnetic resonance imaging (MRI) scan, which was completed on
February 14, 2019 and revealed a meniscal tear in his right knee. He also noted that he had not

2

worked since January 26, 2019, due to another injury he sustained on that day to his right leg and
foot when he exited his postal truck to deliver a parcel.
OWCP received a copy of the February 14, 2019 right knee MRI scan report, which
revealed an impaction deformity along the anteromedial aspect of the medial femoral condyle and
a lateral meniscus tear.
In a February 25, 2019 medical report, Dr. Samir Rajani, Board-certified in internal
medicine, opined that appellant could not return to work until March 7, 2019 because of a right
knee meniscal tear and an injury to cartilage of his right knee.
In a March 7, 2019 medical report, Dr. Joel R. Wolfe, a Board-certified orthopedic
surgeon, diagnosed an acute right knee lateral meniscus tear. In a work status report of even date,
he indicated that appellant’s right knee lateral meniscus tear was a work-related injury and opined
that appellant could return to work on March 8, 2019 with restrictions.
In a work status report dated April 18, 2019, Dr. Wolf diagnosed a left knee lateral
meniscus tear and opined that appellant could return to work without restrictions on
April 20, 2019.
By decision dated June 3, 2019, OWCP modified its prior decision finding that appellant
had established both the factual and medical components of fact of injury. However, appellant’s
claim remained denied because the medical evidence of record was insufficient to establish that
his diagnosed bilateral knee meniscus tears were causally related to the accepted June 23, 2018
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including 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,4 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 the
employment injury.5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
3

Supra note 2.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

are two components involved in establishing fact of injury. 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. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 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 specific employment factors
identified by the employee.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish bilateral knee
conditions causally related to the accepted June 23, 2018 employment incident.
In a February 25, 2019 medical report, Dr. Rajani diagnosed a right knee meniscal tear, but
offered no history of injury or opinion regarding causal relationship between appellant’s right knee
meniscal tear and the accepted June 23, 2018 employment incident. Similarly, in an April 18,
2019 work status report, Dr. Wolfe diagnosed a left knee meniscus tear, but offered no opinion on
the cause of appellant’s diagnosed condition. The Board has held that medical evidence which
does not offer an opinion on causal relationship is of no probative value on the issue of causal
relationship.10 Therefore Dr. Rajani’s February 25, 2019 report and Dr. Wolfe’s April 18, 2019
report, are insufficient to establish appellant’s claim.
In a March 7, 2019 medical report and a work status report, Dr. Wolfe diagnosed an acute
right knee lateral meniscus tear and opined that it was a work-related injury. The Board finds that
although he supported causal relationship, he did not provide medical rationale explaining the basis
of his conclusory opinion. The Board has held that a medical report is of limited probative value
on the issue of causal relationship if it contains a conclusion regarding causal relationship which
is unsupported by medical rationale.11 Dr. Wolfe did not sufficiently explain how or why the
accepted June 23, 2018 employment incident could have resulted in or contributed to the diagnosed
condition. Therefore, this report is also insufficient to establish appellant’s claim.

7
T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

M.F., Docket No. 19-1573 (issued March 16, 2020); T.G., Docket No. 19-1441 (issued January 28, 2020); D.B.,
Docket No. 19-0514 (issued January 27, 2020); L.T., Docket No. 18-1603 (issued February 21, 2019).
11

J.W., Docket No. 18-0678 (issued March 3, 2020); D.L., Docket No. 19-0900 (issued October 28, 2019).

4

Appellant also submitted the results of a February 14, 2019 MRI scan. The Board has held
that diagnostic studies, standing alone, lack probative value on the issue of causal relationship as
they do not address whether the employment incident caused any of the diagnosed conditions.12
This report is therefore insufficient to establish the claim.
As none of the medical evidence appellant submitted constitutes rationalized medical
evidence sufficient to establish causal relationship between the accepted June 23, 2018
employment incident and his diagnosed bilateral knee conditions, the Board finds that he has not
met his burden of proof.13
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 bilateral knee
conditions causally related to the accepted June 23, 2018 employment incident.

12

K.S., Docket No. 19-1623 (issued March 19, 2020); M.J., Docket No. 19-1287 (issued January 13, 2020).

13

R.G., Docket No. 18-0792 (issued March 11, 2020).

5

ORDER
IT IS HEREBY ORDERED THAT the June 3, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 19, 2020
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

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

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

2

IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Andover, MA, Employer
__________________________________________

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Appearances:
Steve Connor, for the appellant
Office of Solicitor, for the Director

Docket No. 13-150
Issued: March 28, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 26, 2012 appellant, through her representative, filed a timely appeal from the
April 27, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which found her at fault in the creation of an overpayment. 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.
ISSUES
The issues are: (1) whether appellant received a $17,112.36 overpayment of
compensation from September 14, 2004 through June 6, 2009; and (2) whether she was at fault
in the creation of the overpayment, thereby precluding waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
As the Board noted in the prior appeal,2 appellant, a 62-year-old mail clerk, filed a claim
for compensation in 1995 alleging that exposure to chemical fumes in the course of her federal
employment caused chronic laryngitis. OWCP accepted her claim for rhinitis and blepharitis.
Appellant received compensation for temporary total disability at the augmented rate for
dependents.
In 2001 appellant appointed her son to be her power of attorney, effective upon any
subsequent disability or incapacity, mental or physical, that rendered her unable to administer her
affairs. “Such disability shall be certified in writing by an accredited medical doctor.” Appellant
and her husband were granted a divorce on September 14, 2004.
In January 2005 appellant’s son brought her to a mental health center. Appellant
presented with visual hallucinations. She was having issues with the neighbors, which
intensified over the preceding five months. Appellant stated that people were always coming
onto her property -- all kinds of people with costumes and big pointed hats. She was very upset
about this. Although there was no evidence of it from the snow on the ground, still appellant
insisted. It was fixed in her mind that this was real.
A December 2004 computerized tomography (CT) scan reportedly showed no physical
cause for appellant’s behavior. A nurse practitioner at the mental health center noted that she
was currently taking antipsychotic medication. Appellant’s attention span was short and fixed on
the hallucinations. She had difficulty with her judgment and insight secondary to her level of
depression and cognitive loss. The nurse practitioner offered a possible diagnosis of major
depressive disorder, recurrent, with psychotic features, senile dementia of the Alzheimer’s type,
versus Lewy Body dementia.
Appellant continued to report that she was married and living with her husband. She
completed and signed EN1032 forms to this effect in March 2005, April 2006 and March 2007.
Dr. Paul Fallon, a Board-certified psychiatrist, first saw appellant in February 2007.
Appellant had a history of dementia and had been on two medications for Alzheimer’s disease.
Dr. Fallon reviewed her treatment since she originally appeared at the clinic in 2005 with
paranoid ideation, feeling that people were wandering in the back yard planning to harm her.
Appellant’s symptoms waxed and waned over the years. Her son found it difficult to care for his
mother and deal with her obsessive focus on certain issues; she did not understand that she was
demented. Dr. Fallon identified the admitting diagnosis as major depression, recurrent, with
psychotic features and dementia.
On this first visit, the son sensed that, if Dr. Fallon told appellant not to drive, she would
never come back for help. Dr. Fallon noted that she showed obvious memory difficulties.
Appellant asked twice in a similar fashion what had happened with the last person who had
treated her. She did not recall taking medications or know why she was taking them. Appellant
2

Docket No. 10-936 (issued January 20, 2011). The facts of this case as set forth in the Board’s prior decision
are hereby incorporated by reference.

2

showed flashes of anger toward her son when he presented information that she disagreed with,
such as her not driving.
Dr. Fallon saw appellant again in June 2007. Appellant’s son was concerned that she was
becoming very upset around discussions about her driving. On examination, appellant showed
no insight into concern about her driving and repeated that she had driven all of her 74 years.
She felt that, if it were a problem, she would stop. Appellant did not recall her son previously
talking to her about the car. The son noted that this was pretty much a daily argument, though
she continued to refrain from driving. When Dr. Fallon told her that she should not drive on
medications, she did not return to the clinic.
In September 2007 Dr. Ping Cui, a Board-certified psychiatrist, examined appellant and
declared her mentally ill and incapable of caring for her personal or financial needs. He found
her a candidate for medical guardianship: “[Appellant] does not understand the risk, benefit of
the treatment. She has no capacity to properly understand and follow through with medical
needs. [Appellant’s] lacks of capacity to manage funds that are spent reasonably to pay for her
needs.”
In March 2008 appellant completed and signed another Form EN1032, again indicating
that she was married and living with her husband. Appellant’s son, exercising power of attorney,
completed a Form EN1032 in March 2009. He, too, indicated that appellant was married and
living with her husband. Appellant’s son would later explain that he followed the advice of
appellant’s attorney and simply copied what appellant had filled out the previous year. “Taking
care of my mother by myself has been mentally and emotionally taxing to say the least. I truly
have done the very best I could and the mix-up was purely unintentional.”
OWCP continued to pay compensation at the augmented rate for dependents. Effective
June 7, 2009, however, it received a copy of the Final Decree of Divorce began paying
compensation at the basic rate for no dependents.
OWCP issued a preliminary decision finding that appellant received a $17,112.36
overpayment of compensation from September 14, 2004 through June 6, 2009 because she
received augmented compensation for dependents after her divorce. It paid her at the incorrect
rate of $493.83 per week instead of the correct pay rate of $474.51. OWCP found appellant at
fault in creating the overpayment: after her divorce, she continued to report each year that she
was married and living with her husband. It finalized its overpayment findings in a
December 9, 2009 decision.
In the prior appeal, the Board set aside OWCP’s overpayment decision. OWCP had not
addressed the issue of appellant’s mental capacity, which bore on the issue of fault.
In a decision dated April 27, 2012, OWCP found that appellant was at fault in creating
the $17,112.36 overpayment because she was divorced in 2004 but continued to report that she
was married and living with her spouse for the calendar years 2004 through 2008. In addition,
her power of attorney reported the same for calendar year 2009. OWCP noted that the son’s
power of attorney would have become effective on September 14, 2007 the date she was placed

3

in medical guardianship. It determined that the recovery should be made by deducting $100.00
from her continuing compensation payments.
Appellant’s representative argues that he has been appellant’s dependent since
September 2009. “I have been a 24/7 caregiver for my mother since December of 2004. I
believe I am [the] second person reliant on my mother’s workers’ compensation check due to the
fact that she has required around the clock supervision and care caused by Alzheimer’s disease.”
Since the reduction in her compensation, he has been providing food for his mother with the use
of his credit cards, which has resulted in his filing for bankruptcy.
LEGAL PRECEDENT -- ISSUE 1
FECA pays compensation for the disability of an employee resulting from personal injury
sustained while in the performance of her duty.3 A disabled employee with one or more
dependents is entitled to have her basic compensation augmented from two-thirds to threefourths of her monthly pay.4 A “dependent” means a husband if (a) he is a member of the same
household as the employee; (b) he is receiving regular contributions from the employee for his
support; or (c) the employee has been ordered by a court to contribute to his support.5
ANALYSIS -- ISSUE 1
Appellant and her husband were granted a divorce on September 14, 2004. The record
confirms that she continued to receive compensation at the augmented rate for dependents
through June 6, 2009. An overpayment of compensation is therefore established. The amount of
compensation actually paid during this period ($110,654.46) less the compensation appellant
should have received at the correct pay rate ($93,542.10) establishes the amount of the
overpayment ($17,112.36). Compensation payment worksheets in the record confirm these
figures. The Board will therefore affirm OWCP’s April 27, 2012 decision on the issues of fact
and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments she received
from OWCP are proper. The recipient must show good faith and exercise a high degree of care
in reporting events that may affect entitlement to or the amount of benefits.
A recipient who has done any of the following will be found to be at fault with respect to
creating an overpayment: (1) Made an incorrect statement as to a material fact which she knew
or should have known to be incorrect; or (2) Failed to provide information which she knew or
3

5 U.S.C. § 8102(a).

4

Id. at § 8110(b).

5

Id. at § 8110(a)(2).

4

should have known to be material; or (3) Accepted a payment which she knew or should have
known to be incorrect (this provision applies only to the overpaid individual).6
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances. The degree of care expected may
vary with the complexity of those circumstances and the individual’s capacity to realize that she
is being overpaid.7
ANALYSIS -- ISSUE 2
OWCP found appellant at fault in the creation of the overpayment on the grounds that she
made an incorrect statement as to a material fact which she knew or should have known to be
incorrect, namely, that she was still married and living with her husband. In the prior appeal, the
Board remanded the case for OWCP to consider the issue of her mental capacity. OWCP
considered the matter and reasoned that appellant was not placed in medical guardianship until
September 14, 2007, at which point her son’s power of attorney became effective. It concluded
that she was at fault for the entire amount.
Dr. Cui, a psychiatrist, confirmed that appellant was mentally ill on September 14, 2007,
but there is no evidence that she suddenly became mentally ill on or about that date. Rather, her
mental difficulties appear to have arisen years earlier. The record makes clear that she began to
display psychotic features by the end of 2004, around the time of her divorce. Appellant’s issues
with her neighbors intensified thereafter to the point that she underwent diagnostic testing in
December 2004 to determine if there was any organic basis for her behavior. She began taking
antipsychotic medication and in January 2005 her son took her to a mental health center, where
she presented with visual hallucinations. Two months later appellant completed and signed the
first Form EN1032 that is at issue in this case.
Dr. Fallon, a psychiatrist, first saw appellant in February 2007. Appellant had a history
of dementia and was taking two medications for Alzheimer’s disease. She showed obvious
memory difficulties. Appellant completed the second Form EN1032 in 2006. She would
complete the third one month after seeing Dr. Fallon.
As noted, whether an individual was at fault with respect to the creation of an
overpayment depends on the circumstances. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that she is being
overpaid. Under the circumstances presented in this case, the Board finds that appellant did not
have the capacity to realize that the information she was providing on the EN1032 forms was
incorrect. That appellant would be declared a candidate for medical guardianship in
September 2007 does not establish what she knew or should have known in March 2005,
April 2006 or March 2007.

6

20 C.F.R. § 10.433(a).

7

Id. at § 10.433(b).

5

OWCP did not adequately explain its finding that appellant was at fault in creating the
overpayment when she completed and signed the fourth Form EN1032 in March 2008, half a
year after being declared mentally ill and a candidate for medical guardianship. As her son’s
power of attorney became effective in September 2007, she was mentally incompetent to handle
her own affairs when she completed the form in March 2008.
The Board finds that appellant is without fault in the creation of the overpayment based
on the forms she signed in March 2005, April 2006, March 2007 and March 2008. The Board
will set aside OWCP’s April 27, 2012 fault determination in this regard and remand the case for
consideration of waiver of recovery of the overpayment based on appellant’s current financial
information.
In March 2009, appellant’s son, exercising power of attorney, completed a Form EN1032
advising that appellant was married and living with her husband. He explained that he simply
copied, on the advice of appellant’s attorney, what she had filled out the previous year.
Although the mistake may have been purely unintentional, appellant’s son made an incorrect
statement as to a material fact that he knew or should have known to be incorrect. Under the
circumstances, the Board finds that appellant, through her power of attorney, was at fault in
creating the overpayment attributable to the information contained in the March 2009 Form
EN1032. Appellant is therefore not eligible for consideration of waiver for that position of the
overpayment of compensation so created.
CONCLUSION
The Board finds that appellant received a $17,112.36 overpayment of compensation from
September 14, 2004 through June 6, 2009. The Board finds that she was not at fault in the
creation of the overpayment attributable to the EN1032 forms she completed and signed in
March 2005, April 2006, March 2007 and March 2008. Appellant is therefore eligible for
consideration of waiver of recovery of the overpayment. The Board further finds that appellant
is at fault, through her power of attorney, in the creation of the overpayment attributable to the
Form EN1032 that he completed and signed in March 2009, thereby precluding waiver of
recovery of that amount.

6

ORDER
IT IS HEREBY ORDERED THAT the April 27, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed on the issue of fact and amount of overpayment
and on the issue of fault with respect to the March 2009 Form EN1032. OWCP’s decision is
otherwise set aside and the case returned for further action in conformance with this decision.
Issued: March 28, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Methuen, MA, Employer
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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-119
Issued: May 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On October 12, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) August 11, 2011 merit decision denying her traumatic injury
claim and the September 29, 2011 nonmerit decision denying her request for reconsideration.
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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a traumatic injury to her abdomen or left leg in the performance of duty on June 23,
2011; and (2) whether OWCP properly refused to reopen her case for further review of the merits
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 25, 2011 appellant, then a 45-year-old correspondence examiner, filed a
traumatic injury claim alleging that she sustained injuries to her lower abdomen and left leg on
June 23, 2011 when she stopped quickly while walking down an aisle to avoid being hit by a
coworker who was waving her arms. She alleged that the incident caused pain in the area of an
incision from a recent bowel surgery. The employing establishment controverted the claim.
By letter dated July 6, 2011, OWCP advised appellant that the information submitted was
insufficient to establish her claim. It requested additional factual and medical evidence,
including a physician’s report with a diagnosis and a rationalized opinion explaining how the
diagnosed condition was causally related to the claimed event.
In a July 7, 2011 report, Dr. Peter Hartman, a Board-certified surgeon, stated that
appellant had subjective pain in her lower abdomen, which she reportedly developed after being
bumped at work. On examination, appellant’s abdomen was soft with mild bilateral lower
abdominal tenderness. Dr. Hartman reassured her that he did not feel that anything significant
had happened. He diagnosed diverticulitis and placed appellant on limited duty, as she
requested. In attending physician’s reports dated July 7 and 21, 2011, Dr. Hartman provided a
history of injury as reported by appellant. Appellant stated that, while walking down a hall at
work on June 22, 2011, she experienced abdominal pain when she stopped quickly to avoid
running into someone who was waving her hands. Dr. Hartman diagnosed abdominal strain and
indicated by placing a checkmark in the “yes” box, his belief that her condition was caused or
aggravated by employment activities.
Appellant submitted an accident report dated June 23, 2011 in which she reiterated the
history of injury as stated in her traumatic injury claim form.
In an August 11, 2011 decision, OWCP denied appellant’s claim on the grounds that the
evidence failed to establish that she sustained a diagnosed condition causally related to factors of
employment.
On August 18, 2011 appellant requested reconsideration. She submitted duty status
reports from Dr. Hartman dated August 4 and 16, 2011. Dr. Hartman noted appellant’s belief
that she was unable to perform certain employment duties, including: sitting, standing, simple
grasping, walking and fine manipulation. He indicated by placing a checkmark in the “yes” box
that the history of injury provided by appellant corresponded with that provided by OWCP.
Appellant also submitted a position description for her job as a correspondence examination
technician.
By decision dated September 29, 2011, OWCP denied appellant’s request for
reconsideration, finding that the evidence submitted was insufficient to warrant merit review.
On appeal, appellant contends that the evidence of record is sufficient to establish her
traumatic injury claim. In the alternative, the evidence submitted on reconsideration is sufficient
to warrant merit review.

2

LEGAL PRECEDENT -- ISSUE 1
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.2 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, arising out of and in the
course of employment.3
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of her claim, including the fact that she is an employee of the United States
within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 When an employee claims that she sustained a traumatic injury in the
performance of duty, she must establish the fact of injury, consisting of two components, which
must be considered in conjunction with one another. The first is whether the employee actually
experienced the incident that is alleged to have occurred at the time, place and in the manner
alleged. The second is whether the employment incident caused a personal injury and generally
this can be established only by medical evidence.5
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship.7 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.8 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under FECA.9

2

5 U.S.C. § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004).

5

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury” as defined by FECA, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q)(ee).
6

Katherine J. Friday, 47 ECAB 591, 594 (1996).

7

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

8

Id.

9

20 C.F.R. § 10.303(a).

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Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is evidence that includes a physician’s rationalized opinion on whether there is
a causal relationship between the claimant’s diagnosed condition and the established incident or
factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant was a federal employee, that she timely filed her claim for
compensation benefits, and that the June 23, 2011 workplace incident occurred as alleged. The
issue is whether she has submitted sufficient medical evidence to establish that the employment
incident caused an injury. The medical evidence presented does not contain a rationalized
medical opinion from a physician establishing that the work-related incident caused or
aggravated a medical condition or disability. Therefore, appellant has failed to satisfy her burden
of proof.
The medical evidence of record includes reports from appellant’s treating physician,
Dr. Hartman. On July 7, 2011 appellant complained of pain in her lower abdomen, which she
attributed to being bumped at work. Dr. Hartman provided examination findings and diagnosed
diverticulitis. He did not, however, provide any opinion as to the cause of appellant’s condition.
Medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.11
In attending physician’s reports dated July 7 and 21, 2011, Dr. Hartman listed a history of
injury as reported by appellant. He diagnosed abdominal strain and indicated by placing a
checkmark in the “yes” box, his belief that appellant’s condition was caused or aggravated by
employment activities. A checkmark or affirmative notation in response to a form question on
causal relationship is not sufficient to establish a claim.12 The Board has held that a report that
addresses causal relationship with a checkmark, without a medical rationale explaining how the
work conditions caused the alleged injury, is of diminished probative value and is insufficient to
establish causal relationship.13 In this case, Dr. Hartman failed to explain how the events of
June 23, 2011 were competent to cause appellant’s diagnosed condition. Such an explanation is
particularly important in light of appellant’s recent abdominal surgery.
The record does not contain an opinion by a physician supporting appellant’s contention
that her abdominal or leg condition was causally related to the June 23, 2011 incident. Appellant

10

John W. Montoya, 54 ECAB 306 (2003).

11

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

12

See Gary J. Watling, 52 ECAB 278 (2001).

13

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

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expressed her belief that these conditions resulted from the accepted employment incident.14 The
Board has held that the mere fact that a condition manifests itself during a period of employment
does not raise an inference that there is a causal relationship between the two.15 Neither the fact
that the condition became apparent during a period of employment, nor the belief that the
condition was caused or aggravated by employment factors or incidents, is sufficient to establish
causal relationship.16 Causal relationship must be substantiated by reasoned medical opinion
evidence, which it is appellant’s responsibility to submit. Therefore, appellant’s belief that her
condition was caused by the work-related incident is not determinative.
OWCP advised appellant that it was her responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of her condition. Appellant failed to submit
appropriate medical documentation in response to OWCP’s request. As there is no probative,
rationalized medical evidence addressing how her claimed condition was caused or aggravated
by her employment, appellant has not met her burden of proof to establish that she sustained an
injury in the performance of duty causally related to factors of her federal employment.
On appeal, appellant contends that the evidence of record is sufficient to establish her
traumatic injury claim. For reasons stated, the Board finds that appellant has failed to meet her
burden of proof in this case.
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
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,17
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.18 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.19 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
14

The Board notes that there is no medical evidence of record that contains a diagnosis relating to appellant’s
claimed left leg injury.
15

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

16

Id.

17

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
18

20 C.F.R. § 10.606(b)(2).

19

Id. at § 10.607(a).

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reopening the case for review on the merits.20 The Board has held that the submission of
evidence which does not address the particular issue involved does not constitute a basis for
reopening a case.
ANALYSIS -- ISSUE 2
By decision dated August 11, 2011, OWCP denied appellant’s traumatic injury claim on
the grounds that the medical evidence of record failed to establish a causal relationship between
the June 23, 2011 incident and a diagnosed condition. The issue is whether the evidence and
argument submitted in support of appellant’s August 18, 2011 request for reconsideration is
sufficient to warrant further merit review pursuant to 20 C.F.R. § 10.606(b)(2).
In her application for reconsideration, appellant did not identify a specific point of law or
show that it was erroneously applied or interpreted. She did not advance a new and relevant
legal argument.21 A claimant may be entitled to a merit review by submitting new and relevant
evidence. Appellant did not, however, submit new and relevant medical evidence in this case.
The Board finds that OWCP properly determined that appellant was not entitled to further review
of the merits.
The evidence received in support of the reconsideration request included duty status
reports from Dr. Hartman dated August 4 and 16, 2011 and a position description for appellant’s
job with the employing establishment. The position description submitted by appellant is
irrelevant to the issue in this case, which is medical in nature. As noted, the submission of
evidence which does not address the particular issue involved does not constitute a basis for
reopening a case.22 Dr. Hartman’s duty status reports do not address the relevant issue in this
case, namely whether the diagnosed condition is causally related to the June 23, 2011 incident.
Rather, they merely repeat information contained in reports previously received into evidence
and are thus cumulative and duplicative in nature.23 The Board finds that the evidence submitted
by appellant does not constitute relevant and pertinent new evidence not previously considered
by OWCP.24 Therefore, OWCP properly determined that this evidence did not constitute a basis
for reopening the case for a merit review.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
20

Id. at § 10.608(b).

21

The Board notes that no specific allegations were made and no evidence was submitted to support claims of
bias on the part of OWCP’s referral physicians.
22

Edward Matthew Diekemper, 31 ECAB 224 (1979).

23

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
24

See Susan A. Filkins, 57 ECAB 630 (2006).

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On appeal, appellant contends that the evidence submitted on reconsideration is sufficient
to warrant merit review. For reasons stated, the Board finds that the evidence submitted in
support of appellant’s request for reconsideration is insufficient to warrant further merit review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an abdominal or leg injury in the performance of duty. The Board further finds that
OWCP properly refused to reopen appellant’s case for further review of the merits pursuant to
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 29 and August 11, 2011 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: May 9, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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