United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF AGRICULTURE,
CONFEDERATE TRIBES OF THE GRAND
RONDE, Grand Ronde, OR, Employer
__________________________________________

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

Docket No. 10-744
Issued: October 25, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 25, 2010 appellant filed a timely appeal from the November 16, 2009 merit
decision of the Office of Workers’ Compensation Programs, which denied his recurrence claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on December 17, 2008
causally related to his August 11, 2000 employment injury.
FACTUAL HISTORY
On August 11, 2000 appellant, then a 35-year-old firefighter, on a six-month detail,
sustained an injury in the performance of duty when a burning snag hit him in the head and left
shoulder while he was suppressing a fire. The Office accepted his claim for mild concussion and
left shoulder contusion.

Appellant did not file a claim for compensation due to wage loss. He was held off work
for two weeks and returned to limited duty. Appellant returned to full duty in 2001. He
performed a number of jobs thereafter, including construction laborer, commercial truck driver,
seasonal firefighter and operator of his own firefighting and forestry business.1
Appellant filed a claim alleging that he sustained a recurrence of total disability on
December 17, 2008 causally related to his August 11, 2000 employment injury. He stated that
he was never able to return to his job as a Type 1 firefighter and Class C sawyer. Appellant
stated that he was never without pain or discomfort “for the past several years” due to the snag
falling on him in 2000. He added that he had continuous medical treatment for his original
injury and had many painful aggravations and setbacks extending from that injury.
In a narrative statement, appellant notified the Office that, on December 17, 2008, the
date of his claimed recurrence, he had fallen on the ice at work, which reaggravated his injuries
“to the point where I no longer have the physical or mental ability to pull-through or tough-it-out
again.” A December 17, 2008 treatment note stated that appellant slipped on ice, landing on his
elbow and exacerbating an old shoulder and neck injury. The osteopath diagnosed a left
shoulder strain.2
The Office advised appellant that it appeared he sustained a new injury on December 17,
2008 and that a recurrence was a work stoppage resulting from a worsening of the accepted work
injury without intervening cause. It asked for additional information, including the attending
physician’s opinion on the relationship between appellant’s ability to work and the accepted
work-related conditions. “Your physician’s opinion is crucial to the claim.”
On March 19, 2009 Dr. Melvin D. Herd, Board-certified in family medicine, noted that
appellant had a history of chronic back pain for about 10 years and had been having problems
with his back ever since a tree fell on him in 2000. “Patient states several months ago he
reinjured his back.” Magnetic resonance imaging (MRI) scans on August 17, 2007 showed disc
bulging at C5-6, C6-7 and T1-2 and a mild disc protrusion at L1-2. Dr. Herd diagnosed low
back pain.
In a May 13, 2009 decision, the Office denied appellant’s recurrence claim. It found that
the factual and medical evidence did not establish that the claimed recurrence resulted from the
accepted work injury.

1

The office manager at PCR Inc. in Beavercreek, OR, advised that appellant was an employee from March 2007
off and on until July 2008, depending on the work available. She explained that he was mostly a truck driver, but
the position required more physical work than he was able to perform. Appellant was eventually taking more time
off for his previous back injuries and was unable to perform the tasks. The office manager added that he would have
been currently employed with PCR Inc. if he were able to perform the tasks.
2

A January 5, 2009 treatment note stated: “Patient comes in to tell me how he is sure that the accident where he
slipped and fell out of the Jeep is going to cause his back and shoulders to have another 10 years of misery like he
has suffered over the last 10 years. He went on for probably 15 minutes telling me how horrible the last 25 years
had been suffering with his back and shoulder and he says he gets very angry at times.”

2

On October 2, 2009 Dr. Herd offered the following opinion:
“I had the patient under my care since March 19, 2009. He has been seeing me
for back pain. At this time he has been requiring medications because of his back
pain. The patient has had this continuing back pain problems since his workers’
comp[ensation] injury. It is currently my opinion that his former workers[’]
comp[ensation] injury could have contributed to his current situation with back
pain. We have been unable to verify new damage to his back because we have
been unable to get the patient an MRI [scan] due to insurance problems.”
Dr. Herd also reported that appellant was requesting a letter to be written stating that his
current back problems are due to his old workers’ compensation injury:
“Patient has continued to have some degree of pain since his initial workers[’]
comp[ensation] accident. Patient has been working as a firefighter since then. No
new episodes of trauma have occurred. At this time [we] are not sure whether the
pain is a residual pain from his old injury or is possibly due to his work as a
firefighter.”
In a decision dated November 16, 2009, an Office hearing representative affirmed the
denial of appellant’s recurrence claim. The hearing representative noted that the Office did not
accept his claim for a low back condition and that treatment notes from 2000 to 2004 and from
2006 until late 2008 discussed almost exclusively appellant’s left shoulder and cervical spine.3
The hearing representative also noted that none of the medical reports addressed how the alleged
December 17, 2008 recurrence was causally related to the August 11, 2000 employment injury.
“The evidence is more indicative that [appellant] may have sustained a new injury.
On appeal, appellant argues that the hearing representative never took into account the
many different doctors he has seen over the past nine years, which established a continuing
medical problem and re-aggravation of his original injury. He adds: “My current Doctor
(Dr. Heard) clearly stated in a letter that is part of this record, that in his medical opinion that my
injuries are from the accident in 2000.”
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of his duty.4
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.5

3

Typical is a December 19, 2000 treatment note, four months after the injury, stating that appellant presented for
follow up on his shoulder and neck pain. The diagnosis was cervical strain and bilateral shoulder sprains. The first
mention of some tenderness across the lumbar area appears in May 2001, nine months after the employment injury.
4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f).

3

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 resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.6 An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing 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 who supports that conclusion with sound medical
reasoning.7
ANALYSIS
Appellant sustained injury on August 11, 2000 accepted by the Office for a mild
concussion and left shoulder contusion. He filed a claim alleging that he sustained a recurrence
of total disability on December 17, 2008. Appellant has the burden of proof to establish that his
total disability beginning that date is causally related to his August 11, 2000 employment injury.
The Board notes that the Office accepted his original injury claim for a mild concussion
and a left shoulder contusion. The evidence indicates that appellant’s disability on December 17,
2008 might be better explained by an intervening injury on that date rather than by a spontaneous
change in his accepted medical conditions. It appears that he slipped on ice and landed on the
point of his left elbow, causing a left shoulder strain, as the treatment note that date diagnosed.
Such an intervening injury, although it involves the same shoulder appellant injured on
August 11, 2000, does not constitute a recurrence of disability as the Office defines that phrase.
Appellant may still meet his burden of proof by submitting a report from a physician who,
on the basis of a complete and accurate factual and medical history, concludes that his disability
beginning December 17, 2008 is causally related to the August 11, 2000 employment injury and
who supports that conclusion with sound medical reasoning. While the record contains numerous
treatment notes and other medical documents, there are no medical opinions, based on a complete
and accurate factual and medical history, soundly explaining how the August 11, 2000
employment injury caused appellant to become totally disabled beginning December 17, 2008.
Dr. Herd, the specialist in family medicine, is the only physician to address the issue, but
his opinion is based on an unsubstantiated history. When he first saw appellant on March 19,
2009, appellant related that he had been having problems with his back ever since a tree fell on
him in 2000. So Dr. Herd was under the impression that appellant had injured his back in the
course of his federal employment in 2000 and had been suffering from chronic back pain ever
since. The Office accepted only a mild concussion and a left shoulder contusion, not a back
injury. As the hearing representative noted, and as the Board’s review of the medical evidence
confirms, appellant’s medical record contemporaneous to the August 11, 2000 incident at work
focuses almost exclusively on the head, left shoulder and neck, a transient partial loss of hearing
in the left ear and headaches. There is no mention of the low back pain Dr. Herd diagnosed on
6

Id. at § 10.5(x).

7

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956).

4

March 19, 2009. Medical conclusions based on inaccurate or incomplete histories are of little
probative value.8
Nonetheless, with the understanding that appellant had suffered from continuing back
problems since his employment injury in 2000, Dr. Herd concluded: “It is currently my opinion
that his former workers’ comp[ensation] injury could have contributed to his current situation
with back pain.” The Board finds this opinion speculative and of little probative value.
Dr. Herd’s opinion must be given to a reasonable medical certainty.9 He also stated that he was
not sure whether appellant’s back pain was from his old injury in 2000 or was possibly due to his
subsequent work as a firefighter. This only highlights the uncertainty of his opinion on causal
relationship.
Because appellant has not submitted a well-reasoned medical opinion based on a proper
factual and medical history explaining how his total disability beginning December 17, 2008 was
causally related to his August 11, 2000 employment injury, as opposed to an intervening injury
that date causing him to seek medical attention, the Board finds that appellant has not met his
burden of proof to establish his recurrence claim. The Board will therefore affirm the Office’s
November 16, 2009 decision.
Appellant argues that the hearing representative never took into account the many
different doctors he saw over the past nine years. Both the hearing representative and the Board
have reviewed all the medical evidence submitted, and nowhere does a physician explain that
appellant injured his back in the performance of duty on August 11, 2000. Dr. Herd reported
only that the 2000 injury “could have contributed” to the current situation with appellant’s back
pain, but this is not a persuasive medical opinion, particularly when it appears he based his
opinion on the history appellant provided and not on his own review of the medical evidence.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he sustained a
recurrence of disability on December 17, 2008 causally related to his August 11, 2000
employment injury.

8

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
9

Jennifer Beville, 33 ECAB 1970 (1982) (finding that a physician’s opinion that the employee’s complaints “could
have been” related to her work injury was speculative and of limited probative value).

5

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF THE NAVY,
MARINE CORPS LOGISTIC BASE,
Albany, GA, Employer
__________________________________________

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

Docket No. 11-848
Issued: January 5, 2012

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 February 17, 2011 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) merit decision dated September 15, 2010. 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 sustained a recurrence of disability as of September 6,
1995 causally related to his accepted lumbar conditions.
FACTUAL HISTORY
This case has previously been before the Board. Appellant, then a 27-year-old material
handler, injured his left hip and lower back on May 20, 1992. OWCP accepted the claim for
1

5 U.S.C. § 8101 et seq.

lumbar sprain and commenced payment for temporary total disability compensation. By
decision dated July 11, 1996, it terminated appellant’s compensation benefits. In a December 2,
1998 decision,2 the Board affirmed OWCP’s decision terminating compensation. In a
September 7, 2006 decision,3 the Board affirmed its decision denying a claim for recurrence of
disability as of September 24, 2003. The facts of this case are set forth in the Board’s
December 2, 1998 and September 7, 2006 decisions and by reference herein incorporated.
On April 16, 2007 and May 7, 2008 appellant filed CA-7 forms, claims for compensation,
alleging that he was entitled to compensation for wage loss as of September 6, 1995 and
continuing.
On June 18, 2008 OWCP expanded the claim to include the following accepted
conditions: aggravation of displacement of lumbar intervertebral disc without myeolopathy;
lumbosacral neuritis; radiculitis; sciatica and aggravation of preexisting degeneration of lumbar
or lumbosacral intervertebral disc.
By decision dated June 19, 2008, OWCP denied appellant’s claim for a recurrence of
disability. It found that he failed to submit medical evidence sufficient to establish that the
claimed disability as of September 6, 1995 was caused or aggravated by the accepted conditions.
By letter dated July 3, 2008, appellant’s attorney requested an oral hearing.
By decision dated January 8, 2009, OWCP’s hearing representative affirmed the June 19,
2008 decision.
In a report dated July 7, 2009, Dr. John D. Marshall, Board-certified in family practice,
stated that appellant had an extended history of an aggravated lumbosacral disc, herniated disc at
L5-S1, sciatica and lumbar disc degeneration. He advised that appellant had difficulty with
kneeling and squatting, which produced low back pain.
By decision dated September 2, 2009, OWCP denied modification of the June 19, 2008
decision.
By letter dated August 2, 2010, appellant requested reconsideration.
In a June 3, 2010 report, received by OWCP on August 9, 2010, Dr. Marshall reviewed
appellant’s extensive medical record which documented his history of low back pain. He noted
that a magnetic resonance imaging (MRI) scan dated February 26, 1993 noted a small central
herniation with some degenerative disc disease and that an MRI scan dated December 7, 2005
showed severe degenerative disc disease at the L5-S1 with a probable subligamentous disc
herniation at this level. Dr. Marshall advised that appellant had persistent pathology of
herniation and degenerative disc disease at the L5-S1 level which had progressed more rapidly
than normal since the May 2, 1992 injury as indicated by an MRI scan dated October 23, 2008.
He further stated that appellant had experienced persistent left leg pain and lower extremity
2

Docket No. 97-164 (issued December 2, 1998).

3

Docket No. 06-468 (issued September 7, 2006).

2

radiculopathy since the work injury, nerve root irritation and some atrophy of the left leg.
Dr. Marshall opined that appellant was totally and permanently disabled from any significant
work and could not return to gainful employment due to the severity of his condition. He opined
that the trauma which appellant sustained on May 20, 1992 caused his myelopathy, which is a
permanent disabling condition. Dr. Marshall recommended that appellant continue his pain
management program and find a maintenance exercise program.
By decision dated September 15, 2010, OWCP denied modification of the June 19, 2008
decision.
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 and probative evidence that the disability for which she claims compensation is causally
related to the accepted injury.5
ANALYSIS
Appellant has failed to submit any medical opinion containing a rationalized, probative
report which relates his disability as of September 6, 1995 to his accepted lumbar conditions. He
has failed to submit evidence to show that he sustained a worsening of his low back condition or
was totally disabled from all work after September 6, 1995. As appellant did not submit medical
evidence sufficient to establish that he sustained a recurrence of his work-related lower back
condition, OWCP properly denied compensation in its September 15, 2010 decision.6
In support of his claim, appellant submitted reports from Dr. Marshall. In his July 7,
2009 report, Dr. Marshall stated that appellant had complaints of low back pain and stated that he
had a long history of aggravated lumbosacral disc, herniated disc at L5-S1, sciatica and lumbar
disc degeneration. He noted that kneeling and squatting aggravated appellant’s low back pain.
In his June 3, 2010 report, Dr. Marshall summarized appellant’s history of back pain and
indicated that appellant had persistent pathology of herniation and degenerative disc disease at
the L5-S1 level; he advised that appellant also had persistent left leg pain, lower extremity
radiculopathy and nerve root irritation, which, as indicated by an October 23, 2008 MRI scan,
had developed at a greater than normal pace since his 1992 employment injury. He stated that
appellant was totally and permanently disabled and could not return to gainful employment due
to the severity of his condition. Dr. Marshall opined that the trauma which appellant sustained
on May 20, 1992 caused his myelopathy and his state of permanent disability.
4

R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

5

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman 8 ECAB 508 (1956).

6

S.S., 59 ECAB 315, 319 (2008).

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Dr. Marshall’s reports failed to provide a discussion of how appellant’s accepted
conditions caused or contributed to any disability as of September 6, 1995. While his reports
provided a diagnosis of appellant’s current condition and noted that he complained of disabling
lower back pain since his 1992 employment injury, they did not provide an explanation of how
appellant’s accepted injury caused or contributed to total disability from work as of
September 6, 1995.
Dr. Marshall did not provide a medical explanation as to whether appellant’s condition on
and after September 6, 1995 was a spontaneous change in the accepted lumbar sprain condition,
causing further disability. The Board will affirm the September 15, 2010 OWCP decision.
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 failed to establish that he was entitled to compensation
for a recurrence of disability as of September 6, 1995.
ORDER
IT IS HEREBY ORDERED THAT the September 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 5, 2012
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York City, NY, Employer
__________________________________________

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

Docket No. 07-1142
Issued: September 13, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 21, 2007 appellant filed a timely appeal from the February 6, 2007 decision of
an Office of Workers’ Compensation Programs’ hearing representative, which affirmed a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established that she has more than a 12 percent
impairment of her right upper extremity, for which she received a schedule award. On appeal,
appellant contends that her impairment rating did not account for the pain and sensory deficit
created by her spinal impairment.
FACTUAL HISTORY
On August 17, 1999 appellant, then a 50-year-old traffic management specialist,
sustained cervical and lumbosacral strains and right shoulder impingement syndrome when an
elevator at the employing establishment began to shake violently. On September 7, 1999 the

claim, File No. 020761616, was accepted for cervical strain. On January 24, 2000 appellant
strained her back and neck when the postal vehicle in which she was riding was rear-ended.1 On
February 25, 2000 the claim, File No. 020768300, was accepted for back sprain/whiplash. These
claims were later combined and accepted for a torn right rotator cuff.2
On April 24, 2001 appellant filed a request for a schedule award based on her August 17,
1999 employment injury. Following the Office’s request for medical documentation of
permanent impairment, she submitted the June 5, 2001 report of Dr. Albert Graziosa, her treating
orthopedic surgeon, who stated that appellant had reached maximum medical improvement with
90 degrees of flexion and 90 degrees of adduction in her right shoulder and 120 degrees of
flexion and 90 degrees of adduction in her left shoulder. Based on the American Medical
Association, Guides to the Evaluation of Permanent Impairment (4th ed.), he found 18 percent
impairment of her right arm and 16 percent impairment of her left arm. Dr. Graziosa also opined
that appellant’s cervicothoracic condition resulted in the 25 percent whole person impairment.
The Office provided Dr. Graziosa’s report to an Office medical adviser, to review the
medical records for the 1999 and 2000 injuries together, as they both involved the neck or
cervical spine. When the Office medical adviser found discrepancies between shoulder ranges of
motion in the two files, the Office requested clarification from Dr. Graziosa. He stated that the
different ranges of motion found on different examination dates were based on the normal
waxing and waning of chronic injury symptoms.
The Office referred appellant to Dr. Lester Lieberman, a Board-certified orthopedic
surgeon, for a second opinion on her disability and impairment rating. On December 18, 2001
Dr. Lieberman diagnosed torn right rotator cuff, cervical and lumbar sprain and possible disc
problems. He opined that appellant would not reach maximum medical improvement until her
torn right rotator cuff was repaired. On January 28, 2002 the Office provided this report to
Dr. Graziosa for review. On March 25, 2002 Dr. Graziosa stated that he had discussed
arthroscopic shoulder surgery with appellant and that she was considering it.
On June 20, 2002 Dr. Graziosa reported that appellant declined surgery.
He
recommended that she continue physical therapy to maximize range of motion and prevent the
formation of adhesive capsulitis. Finding that appellant was at maximum medical improvement,
he rated her right arm impairment at 65 percent under the State of New York Workers’
Compensation Board Medical Guidelines. Dr. Graziosa opined that even if appellant later had an
arthroscopy, the “likelihood of significant improvement would be minimal.”
On January 28, 2003 the Office provided the reports of Dr. Graziosa and Dr. Lieberman
to the Office medical adviser who found that a schedule award was not warranted as appellant
had not reached maximum medical improvement.

1

Her title had changed to network management specialist.

2

File Nos. 020761616 and 020768300 were combined on January 10, 2002. A 1997 claim for back spasms was
not combined with the other two files, though it was referenced to in statements of accepted facts.

2

By decision dated April 2, 2003, the Office denied appellant’s claim for a schedule award
on the grounds that she had not reached maximum medical improvement.
On April 25, 2003 appellant requested an oral hearing on this decision. By decision
dated February 17, 2005, the Office hearing representative found that the case was not in posture
for a hearing. She found that there was a conflict of medical opinion evidence between
Dr. Lieberman, who stated that appellant had not yet reached maximum medical improvement,
and Dr. Graziosa, who stated that she had. The Office hearing representative stated that, as the
opinions were of equal weight, an impartial medical examiner was required to resolve the
conflict.
On June 29, 2005 Dr. Martin Barschi, a Board-certified orthopedic surgeon, conducted an
impartial medical examination. He reviewed appellant’s medical history and conducted a
physical examination. Dr. Barschi found that her cervical spine had flexion and extension of
20 degrees, left lateral rotation of 50 degrees and right lateral rotation of 40 degrees. He noted
that she had pain during this process, but no muscle spasms. Dr. Barschi stated that her right
shoulder had abduction of 90 degrees, forward flexion of 90 degrees, internal rotation to the
lower back level, external rotation of 60 degrees and extension of 70 degrees. The only
difference in the left shoulder was internal rotation to the waist level. Appellant reported that she
had tenderness around the right coracoid, but Dr. Barschi found no evidence of atrophy or
deformity and no diminishment of reflexes, sensation or power in either upper extremity. He
stated that appellant’s cervical disc herniations did not involve spinal stenosis or the nerve roots.
Dr. Barschi stated that appellant’s cervical disc herniation “could have occurred during any one
of the three injuries she sustained as well as the normal aging process.” He opined that she had
reached maximum medical improvement four to five years previously, when she stopped
physical therapy. Dr. Barschi stated that appellant’s cervical strain of August 17, 1999 would
have resolved by the year 2005 were it not for the aging process as well as her 2000 motor
vehicle accident, which he found may have contributed to her neck and back symptoms. Using
the A.M.A., Guides (5th ed.), he rated her right upper extremity impairment as 12 percent: 6
percent for forward flexion of 90 degrees, 4 percent for abduction of 90 degrees and 2 percent for
partial loss of internal rotation.3 Dr. Barschi noted that her left shoulder, which had not been
injured in an employment incident, had an impairment rating of 11 percent.
The Office medical adviser reviewed Dr. Barschi’s findings and found that appellant had
a 10 percent impairment rating. He agreed that the A.M.A., Guides, provide for a six percent
rating for 90 degrees of flexion (Figure 16-40, page 476) and a four percent rating for 90 degrees
of abduction (Figure 16-43, page 477). However, he found that 90 degrees of internal rotation
would not yield a two percent rating (Figure 16-40, page 476). On August 8, 2005 the Office
requested clarification of Dr. Barschi’s finding that appellant was entitled to a two percent rating
for loss of internal rotation. On August 15, 2005 Dr. Barschi responded that he had not
measured internal rotation from the neutral position, so the 90 degrees he indicated corresponded

3

Dr. Barschi did not state which tables in the A.M.A., Guides he was referencing to achieve this rating.

3

with a loss of 30 degrees of internal rotation.4 On September 15, 2005 the Office medical
adviser concurred with Dr. Barschi’s finding that 30 degrees of internal rotation loss yielded a
two percent impairment rating based on Table 16-46, page 479, of the A.M.A., Guides.
By decision dated September 20, 2005, the Office awarded appellant compensation for
the 12 percent permanent impairment of her right upper extremity. Appellant received 37.44
weeks of compensation from June 29, 2005 to March 18, 2006.
On October 4, 2005 she requested an oral hearing on the schedule award. Appellant
questioned the Office’s failure to provide a disability rating for her left arm, which Dr. Graziosa
found to be nearly as disabled as her right.
On April 10, 2006 the Office hearing representative informed appellant that her case was
not in posture for a hearing. As the Office had prematurely issued the schedule award decision
without seeking clarification of appellant’s cervical condition and the possible employmentrelated impairment of her upper left extremity. The Office hearing representative found that
Dr. Barschi’s opinion did not explain how appellant’s cervical strain continued several years
after the accepted injuries and whether appellant’s cervical disc herniations were caused by any
of appellant’s accepted injuries. She also directed that Dr. Barschi be asked on whether
appellant’s left shoulder condition was related to the accepted cervical disc herniation.
On July 19, 2006 the Office requested clarification from Dr. Barschi. On August 9, 2006
Dr. Barschi opined that appellant’s cervical disc herniations did not cause any impairment to her
upper extremities and that any impairment was caused by her unrelated shoulder impingement
and carpel tunnel syndrome. He noted that a magnetic resonance imaging (MRI) scan conducted
on November 19, 1999 revealed small anterior focal disc herniations, but no spinal stenosis or
nerve root involvement. Dr. Barschi stated that while these could have been related to her
employment injuries, they were of a type that is more likely related to the normal aging process.
He indicated that the record contained a 2003 electromyogram (EMG) which revealed right
cervical radiculopathy and bilateral carpal tunnel syndrome. Dr. Barschi stated, however, that
appellant’s carpal tunnel syndrome predated her 1999 and 2000 employment injuries and that she
displayed no symptoms of cervical radiculopathy in her June 29, 2005 clinical examination. For
these reasons, he found that her left upper extremity impairment was unrelated to her cervical
condition, which was itself not an employment injury.
On August 24, 2006 the Office medical adviser agreed with Dr. Barschi’s opinion that
appellant’s disc herniations were unrelated to her employment-related upper extremity
impairments. He noted that appellant had not reported any direct cervical trauma and that the
MRI scan did not report any herniations that would result in nerve root impingement. The Office
medical adviser also stated that Dr. Barschi did not find any objective physical evidence of
cervical nerve root dysfunction or neurological deficits that would be caused by cervical disc
problems.
4

Dr. Barschi stated that he had asked appellant to reach toward the middle of her back and so, the fact that she
could only get to the level of her waist represented a 30-degree loss of internal rotation. The Board notes that
Dr. Barshi’s original report stated that appellant’s right shoulder had “internal rotation to the lower back level.”
Appellant’s left shoulder was the one with internal rotation limited to the waist.

4

By decision dated August 25, 2006, the Office found that appellant had no more than
12 percent impairment of the right upper extremity.
On September 15, 2006 appellant requested an oral hearing. She argued that the Office
hearing representative found in her April 10, 2006 decision that Dr. Barschi’s opinion did not
carry the weight of the medical evidence and that the Office failed to follow her directions. On
October 4, 2006 appellant requested that the Office conduct a review of the written record
instead of an oral hearing.
By decision dated February 6, 2007, an Office hearing representative affirmed the
August 25, 2006 decision. She found that the Office properly sought clarification of the
impartial medical examiner’s opinion and that Dr. Barschi supplied his clarification on
August 9, 2006. The Office hearing representative noted that the Office medical adviser
concurred with Dr. Barschi’s opinion. She found that Dr. Barschi’s opinion was properly
accorded the special weight of the medical evidence because it was sufficiently rationalized.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulation6 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss should
be determined. For consistent results and to ensure equal justice under the law for all claimants,
the Office has adopted the A.M.A., Guides as the uniform standards applicable to all claimants.7
Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in 2001, for all
decisions made after February 1, 2001.8
The Act provides that, if there is a disagreement between a physician making an
examination for the United States and the physician of the employee, the Secretary must appoint
a third physician to make an examination.9 Likewise, the implementing regulation states 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 Office medical adviser or consultant, the Office must
appoint a third physician to make an examination. This is called a referee examination and the
Office is required to select a physician who is qualified in the appropriate specialty and who has
had no prior connection with the case.10 It is well established that, when a case is referred to an
impartial medical specialist for the purpose of resolving a conflict, the opinion of such specialist,

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

20 C.F.R. § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

9

5 U.S.C. §§ 8101-8193, 8123(a).

10

20 C.F.R. § 10.321.

5

if sufficiently well rationalized and based on proper factual and medical background, must be
given special weight.11
ANALYSIS
The Office issued a schedule award to compensate appellant for the 12 percent
impairment of her upper right extremity. The issue is whether appellant has established that she
has more than 12 percent impairment of her right upper extremity related to her accepted
employment injuries.
The Office hearing representative found a conflict of medical evidence between
Dr. Graziosa, appellant’s orthopedic surgeon, and second opinion physician Dr. Lieberman, a
Board-certified orthopedic surgeon, and accordingly, the Office properly referred appellant for
an impartial medical examination with Dr. Barschi, a Board-certified orthopedic surgeon. The
Board finds that the opinion of Dr. Barschi carries the special weight of the medical evidence in
establishing appellant’s impairment level.
Dr. Barschi’s June 29, 2005 report included a review of the medical history and findings
from his physical examination. Appellant’s right shoulder had abduction of 90 degrees, forward
flexion of 90 degrees, internal rotation “to the lower back level,” external rotation of 60 degrees
and extension of 70 degrees. Her left shoulder had identical findings except for internal rotation,
which was limited “to the waist level.” Appellant reported tenderness around the right caracoid,
but Dr. Barschi found no objective evidence of atrophy or deformity. Dr. Barschi opined that
she had reached maximum medical improvement four to five years prior, when she stopped
physical therapy. Using the A.M.A., Guides (5th ed.), he rated her right upper extremity
impairment as 12 percent: 6 percent for forward flexion of 90 degrees, 4 percent for abduction
of 90 degrees, and 2 percent for partial loss of internal rotation. Dr. Barschi noted that
appellant’s left shoulder, which had not been injured in an employment incident, had an
impairment rating of 11 percent. On August 15, 2005 at the request of the Office, Dr. Barschi
supplemented his opinion to explain that appellant had lost 30 degrees of internal rotation in her
right shoulder, which yielded a two percent impairment rating.
In a June 29, 2005 report, Dr. Barschi found that appellant’s cervical spine had flexion
and extension of 20 degrees, left lateral rotation of 50 degrees and right lateral rotation of
40 degrees. Appellant reported pain during the examination, but Dr. Barschi noted no muscle
spasms. Dr. Barschi stated that appellant’s cervical disc herniations did not involve spinal
stenosis or the nerve roots. His examination showed no diminishment of reflexes, sensation or
power in either of appellant’s upper extremities. On August 9, 2006 Dr. Barschi noted that,
despite a 2003 EMG showing right cervical radiculopathy, appellant had displayed no symptoms
of upper extremity radiculopathy during her examination. He also stated that her 1999 MRI
scan, which showed herniation on some cervical discs, did not indicate any spinal stenosis or
nerve root involvement. Dr. Barschi stated that appellant’s upper extremity impairments were
related to shoulder impingement and carpal tunnel syndrome, which were not employmentrelated conditions. He also opined that appellant’s spinal herniations were likely not related to
11

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

6

her employment injuries because they were of a type that is generally related to the normal aging
process. The Board finds that Dr. Barschi’s medical opinion, as supplemented, is thorough and
well reasoned and thus carries the special weight of the medical opinion evidence.
The determination of the Office medical adviser concurred with Dr. Barschi’s clinical
findings. He noted that, under Figure 16-40, page 476, of the A.M.A., Guides, 90 degrees of
flexion yielded a 6 percent impairment rating.12 The Office medical adviser stated that Figure
16-43, page 477, yielded a four percent rating for 90 degrees of abduction and that Table 16-46,
page 479, yielded a two percent rating for a 30 degree loss of internal rotation.13 Adding them
together,14 the Office medical adviser found a total right upper extremity impairment rating of
12 percent based on loss of range of motion. In addressing appellant’s cervical condition, he
noted that appellant had not sustained any direct cervical trauma in her employment injuries.
The Office medical adviser also noted that her 1999 cervical MRI scan did not establish that any
herniations involved nerve root impingement and that Dr. Barschi’s clinical findings did not
establish any radiculopahtic symptoms in appellant’s right or left upper extremities. Appellant
has no more than 12 percent impairment of her right upper extremity.
Appellant contended on appeal that the Office did not properly consider her left upper
extremity pain and sensory deficit caused by her cervical condition. The Board notes that the
Office did not issue a schedule award for any left upper extremity impairment. As the Board’s
review in an appeal is limited to final decisions of the Office, appellant’s contentions regarding
her left upper extremity are not properly before the Board on this appeal.
CONCLUSION
The Board finds that appellant has not established that she has more than a 12 percent
impairment of her right upper extremity.

12

A.M.A., Guides 476, Figure 16-40.

13

Id. at 477, Figure 16-43; Id. at 479, Figure 16-46.

14

See Id. at 479, which provides that impairments due to abnormal shoulder motion should be added.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 6, 2007 is affirmed.
Issued: September 13, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 12-526
Issued: July 18, 2012

Case Submitted on the Record

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

JURISDICTION
On January 11, 2012 appellant, through her attorney, filed an appeal from a
December 14, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of total disability
commencing on June 21, 2010 causally related to accepted dysthymia and major depression.
On appeal, counsel asserts that OWCP’s December 14, 2011 decision is “contrary to fact
and law.”

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
By decision dated January 16, 2004, OWCP accepted that on or before March 17, 1999
appellant, then a 46-year-old clerk, sustained major depression and dysthymia related to an
accepted left knee injury on that date.2 She remained under psychiatric care through 2009.
On August 11, 2010, while on light duty, appellant filed a recurrence of disability (Form
CA-2a) claiming that the accepted 1999 emotional condition worsened as of June 21, 2010 such
that she was totally disabled for work. She noted that she had remained under psychiatric
treatment. In an accompanying statement, appellant attributed the claimed recurrence of
disability to uncertainty about future job assignments under the National Reassessment Process
(NRP), providing a physician’s letter explaining her need for frequent bathroom breaks due to
medication side effects, and alleged human resource errors in her annuity and retirement
eligibility dates. In support of her claim, appellant submitted a May 7, 2009 note from
Dr. Vitasta Bazaz, an attending Board-certified psychiatrist, stating that she should be excused
“to use bathroom and water fountain as much as needed by her. [Appellant] is on psychotropic
med[ication]s.” She also submitted personnel forms regarding retirement and annuity
computations and an employing establishment memorandum regarding the NRP.
In a September 23, 2010 letter, OWCP advised appellant of the type of evidence needed
to establish her claim, including her attending physician’s opinion supporting a spontaneous
worsening of the accepted conditions on June 21, 2010.
Appellant submitted a June 23, 2010 chart note from Dr. Bazaz recommending
hospitalization as appellant was suicidal. She was hospitalized from June 25 to July 8, 2010.
Dr. Bazaz submitted chart notes through January 25, 2011.
In an August 16, 2010 report, Dr. Jeffrey Pearch, an attending osteopathic physician
diagnosed recurrent major depressive disorder of moderate severity. He stated that he could not
“comment on relation of current symptoms to past events.” Dr. Pearch submitted progress notes
through October 7, 2010.
In an August 12, 2010 report, Dr. David B. Hartman, an attending Board-certified
orthopedic surgeon, noted treating appellant for a knee condition. He released her to limitedduty work.
On May 16, 2011 OWCP obtained a second opinion from Dr. John Delaney, a Boardcertified psychiatrist, who diagnosed bipolar II disorder with rapid cycling. Dr. Delaney opined
that unspecified work stress following 2005 knee surgery precipitated “a return of depression …
with bipolar features on June 21, 2010.” He opined that appellant was totally and permanently
disabled for work due to bipolar disorder and the accepted depression.
Appellant participated in outpatient group therapy sessions from July 12 to
November 5, 2010.

2

OWCP accepted a March 17, 1999 left knee injury under File No. xxxxxx516.

2

By decision dated June 16, 2011, OWCP denied appellant’s claim for recurrence of
disability on the grounds that causal relationship was not established. It found that she attributed
the claimed recurrence of disability to new work factors, including fear of reassignment,
embarrassment over providing a medical excuse for frequent bathroom breaks and frustration
regarding the employing establishment’s calculation of her annuity. OWCP found that appellant
should have filed a new occupational disease claim based on these intervening factors.
In a July 1, 2011 letter, counsel requested a telephonic oral hearing, held on
October 6, 2011. At the hearing, he asserted that there were no intervening factors because
appellant remained under treatment for the accepted conditions as of June 21, 2010. On
September 6, 2011 counsel submitted three psychiatric appointment slips dated from March 17 to
June 16, 2011.
By decision dated and finalized December 14, 2011, an OWCP hearing representative
affirmed OWCP’s June 16, 2011 decision, finding that the medical evidence failed to establish a
spontaneous worsening of the accepted conditions on June 21, 2010 such that she could no
longer perform her light-duty job.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as “an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.”3 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.4 If the disability results
from new exposure to work factors, the legal chain of causation from the accepted injury is
broken and an appropriate new claim should be filed.5
When 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.6
3

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 Philip L. Barnes, 55 ECAB 426 (2004).
4

See 20 C.F.R. § 10.5(x); see also Hubert Jones, Jr., 57 ECAB 467 (2006).

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3.b(a)(1) (March 2011).
See also Donald T. Pippin, 54 ECAB 631 (2003).
6

J.F., 58 ECAB 124 (2006); Carl C. Graci, 50 ECAB 557 (1999); Mary G. Allen, 50 ECAB 103 (1998); see also
Terry R. Hedman, 38 ECAB 222 (1986).

3

ANALYSIS
OWCP accepted that appellant sustained major depression and dysthymia causally related
to an accepted March 17, 1999 left knee injury. She claimed that she sustained a recurrence of
total disability beginning on June 21, 2010. Appellant asserted both that the accepted conditions
remained active and that anxiety regarding the NRP, a medical excuse and annuity computations
precipitated the claimed recurrence of disability.
In support of her claim, appellant submitted reports from Dr. Bazaz, an attending Boardcertified psychiatrist, who noted a worsening of appellant’s depression on June 23, 2010 but did
not specify a cause. Dr. Pearch, an attending osteopathic physician Board-certified in psychiatry,
diagnosed recurrent major depressive disorder but could not comment on what precipitated the
condition. Thus, neither physician supported a spontaneous worsening of the accepted emotional
conditions as of June 21, 2010 causally related to the March 17, 1999 knee injury.
OWCP obtained a second opinion from Dr. Delaney, a Board-certified psychiatrist, who
found that unspecified work events after 2005 knee surgery precipitated a worsening of the
accepted depression as of June 21, 2010. Dr. Delaney’s opinion supports that new factors
worsened the accepted emotional conditions.
In a September 23, 2010 letter, OWCP advised appellant to submit a rationalized report
from her attending physician supporting a spontaneous worsening of the accepted depression and
dysthymia. However, appellant did not do so. Rather, she asserted that stress from new work
factors worsened her condition. The exposure to work factors broke the chain of causation
stemming from the accepted emotional conditions. The circumstances did not involve a
spontaneous change in the accepted conditions.7 For this reason, OWCP’s December 14, 2011
decision denying the claimed recurrence of disability was proper under the law and facts of the
case.8
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.
On appeal, counsel asserts that OWCP’s December 14, 2011 decision is “contrary to fact
and law.” As stated, OWCP properly found that appellant did not establish that she sustained a
recurrence of disability commencing June 21, 2010 as she alleged intervening causes.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an employment-related recurrence of total disability commencing June 21, 2010
causally related to accepted dysthymia and depression.

7

Bryant F. Blackmon, 56 ECAB 752 (2005).

8

Beverly A. Spencer, 55 ECAB 501 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 14, 2011 is affirmed.
Issued: July 18, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Vicksburg, MS, Employer
__________________________________________

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

Docket No. 14-54
Issued: April 10, 2014

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 October 17, 2013 appellant filed a timely appeal from the June 11, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his claim for
compensation as untimely filed. 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. The Board also has jurisdiction to review OWCP’s July 11, 2013 nonmerit decision
denying reconsideration.
ISSUES
The issues are: (1) whether appellant’s occupational disease claim was timely filed
pursuant to the time limitation provisions of FECA; and (2) whether OWCP properly denied his
reconsideration request.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 14, 2013 appellant, a former deck hand, filed an occupational disease claim
alleging that the ringing in his ears was a result of exposure to noise in his federal employment.
He first became aware of the disease or illness on September 18, 1987. Appellant indicated that
he first realized, on that same date, that the disease or illness was caused or aggravated by his
employment.
The employing establishment advised that appellant retired in 1993. Appellant confirmed
that he was last exposed to hazardous noise at work on December 14, 1993.
OWCP informed appellant that his claim did not appear timely. It asked him to submit
evidence that his claim was filed within the applicable time limitation.
OWCP also asked the employing establishment to submit additional information,
including comments from a knowledgeable supervisor and copies of all medical examinations
pertaining to hearing or ear problems.
Appellant explained that he went through doctors’ tests “and my medical report is in the
letter that was sent to me.”
OWCP received a November 1, 1993 correspondence from the State of Louisiana
Department of Social Services, Office of Family Support, Disability Determinations Services.
The correspondence informed appellant that the Social Security Administration had forwarded
his disability claim for a determination. “After review of your claim, we find that we need more
medical evidence about your back/eyesight/lungs/dizzy/ring in ears condition.”
The
correspondence notified appellant of a psychological examination to be conducted by Dr. Frank
Bennett on December 14, 1993.
In a decision dated June 11, 2013, OWCP denied appellant’s claim. It found that his
claim for compensation was untimely filed. It found no evidence that the employing
establishment had knowledge of the claimed medical condition.
On June 21, 2013 OWCP received appellant’s reconsideration request. Appellant noted
that his injury was an occupational injury and that he was sending in a copy of his social security
card.
In a decision dated July 11, 2013, OWCP denied appellant’s reconsideration request. It
found that it did not warrant a merit review of his case.
On appeal, appellant described the work he performed as a deck hand. He stated that
Dr. Bennett performed an examination and determined that he had loss of hearing and ringing in
his ears “and they have never stopped.”

2

LEGAL PRECEDENT -- ISSUE 1
A claimant seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence,2 including that he or she filed his or her claim within the applicable time limitation.3
In cases of injury on or after September 7, 1974, section 8122(a) of FECA provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death. Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”4
The three-year period begins to run from the time the employee is aware, or by the
exercise of reasonable diligence should have been aware, that his condition is causally related to
the employment. To establish actual knowledge by an immediate superior, an employee must
show not only that the immediate superior knew that he was injured, but also knew or reasonably
should have known that it was an on-the-job injury.5
Even if an original claim for compensation for disability or death is not filed within three
years after the injury or death, compensation for disability or death may be allowed if written
notice of injury or death as specified in section 8119 was given within 30 days. Section 8119
provides that a notice of injury or death shall be given within 30 days after the injury or death; be
given to the immediate superior of the employee by personal delivery or by depositing it in the
mail properly stamped and addressed; be in writing; state the name and address of the employee;
state the year, month, day and hour when and the particular locality where the injury or death
occurred; state the cause and nature of the injury or, in the case of death, the employment factors
believed to be the cause; and be signed by and contain the address of the individual giving the
notice.6 Actual knowledge and written notice of injury under section 8119 serve to satisfy the
statutory period for filing an original claim for compensation.7
2

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

3

Paul S. Devlin, 39 ECAB 715 (1988); Emmet L. Pickens, 33 ECAB 1807 (1982); Kathryn A. O’Donnell, 7 ECAB
227 (1954).
4

5 U.S.C. § 8122(a).

5

Duet Brinson, 52 ECAB 168 (2000).

6

Larry E. Young, 52 ECAB 264 (2001).

7

Laura L. Harrison, 52 ECAB 515 (2001).

3

In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he has a condition which has been adversely affected by factors of
his federal employment, the limitation period begins to run even if the employee does not know
the precise nature of the impairment or whether the ultimate result of such affect will be
temporary or permanent.8 Where the employee continues in the same employment after he
reasonably should have been aware that he has a condition which has been adversely affected by
factors of the federal employment awareness, the time limitation begins to run on the date of the
last exposure to the implicated factors.9
The time limitation in section 8122(a) does not (1) begin to run against a minor until he
reaches 21 years of age or has had a legal representative appointed, (2) run against an
incompetent individual while he is incompetent and has no duly appointed legal representative or
(3) run against any individual whose failure to comply is excused by the Secretary on the ground
that such notice could not be given because of exceptional circumstances.10
ANALYSIS -- ISSUE 1
Appellant filed an occupational disease claim alleging that the ringing in his ears was a
result of noise exposure in his federal employment. He first realized on September 18, 1987 that
the disease or illness was caused or aggravated by his federal employment. Appellant clarified
that the date of his last exposure to hazardous noise was December 14, 1993, which was when he
retired.
As the time limitation for filing an occupational disease claim began to run on the date of
his last exposure to the implicated factors, appellant had three years from December 14, 1993, or
until December 14, 1996, to file his claim. His March 14, 2013 claim is thus over 16 years late.
There is no evidence that appellant’s immediate superior had actual knowledge of his
occupational disease within 30 days of the date of last exposure, that is, knowledge not only that
appellant was injured, but also knowledge that the injury was an on-the-job injury.
Further, there is no evidence that written notice of injury, as specified in section 8119 of
FECA, was given within 30 days.
Accordingly, appellant’s failure to file his occupational disease claim within three years
of the date of his last exposure renders his claim untimely. As there appears to be no basis for
tolling the statute of limitations for incompetency or exceptional circumstances, the Board will
affirm OWCP’s June 11, 2013 decision denying appellant’s claim

8

Larry E. Young, supra note 6.

9

Supra note 4.

10

Id. at § 8122(d).

4

On appeal, appellant notes that Dr. Bennett performed an examination and determined
that he had loss of hearing and ringing in his ears that never stopped. It appears that Dr. Bennett
examined appellant as part of social security disability determination. His findings are not a part
of the record, and it is unclear how this evidence would satisfy the requirement that appellant’s
immediate superior had actual knowledge of his occupational disease within 30 days of the date
of last exposure.
As the Board explained in the case of Hazelee K. Anderson,11 the Social Security Act and
FECA have different standards of medical proof on the question of disability. Disability under
one statute does not prove disability under the other. Furthermore, under FECA, the claimant’s
conditions must be shown to be causally related to federal employment. Under the Social
Security Act, conditions which are not employment related may be taken into consideration in
rendering a disability determination.12 Thus, even the identification of hearing loss or ringing in
the ears, together with a finding of disability by the Social Security Administration, would not
alone establish that appellant’s immediate superior had knowledge of an on-the-job injury within
30 days.
LEGAL PRECEDENT -- ISSUE 2
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.13 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.14
A request for reconsideration must be received by OWCP within one year of the date of
its decision for which review is sought.15 A timely request for reconsideration may be granted if
OWCP 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, OWCP
will deny the request for reconsideration without reopening the case for a review on the merits.16

11

37 ECAB 277 (1986).

12

Id. at 277, 282-83 (1986) (citations omitted).

13

5 U.S.C. § 8128(a).

14

20 C.F.R. § 10.606(b)(3).

15

Id. at § 10.607(a).

16

Id. at § 10.608.

5

ANALYSIS -- ISSUE 2
OWCP received appellant’s reconsideration request within one year of the June 11, 2013
denial of his claim. His request was therefore timely. The question for determination, therefore,
is whether that request met at least one of the three standards for obtaining a merit review of
appellant’s case.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law. He did not identify a specific point of law or show that OWCP erroneously applied or
interpreted it.
Appellant did not advance a relevant legal argument not previously considered by
OWCP. He noted that his was an occupational disease claim, not a traumatic injury claim.
Appellant did not explain how this in any way supported that his claim was timely. Even under
the rules for filing occupational disease claims, he missed the deadline by 16 years.
A claimant may be entitled to a merit review by submitting evidence that constitutes
relevant and pertinent new evidence not previously considered by OWCP. Appellant submitted a
copy of his social security card, but this is not relevant or pertinent to whether his immediate
superior had actual knowledge of his occupational disease within 30 days of the date of last
exposure.
Accordingly, the Board finds that appellant did not meet any of the requirements for
obtaining a merit review of his case. The Board will therefore affirm OWCP’s July 11, 2013
nonmerit decision.
CONCLUSION
The Board finds that appellant’s occupational disease claim is untimely filed. The Board
also finds that OWCP properly denied his reconsideration request.

6

ORDER
IT IS HEREBY ORDERED THAT the July 11 and June 11, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 10, 2014
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

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Appearances:
Gregory A. Hall, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 12-1846; 13-349
Issued: March 14, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 30, 2012 appellant, through her attorney, filed a timely appeal from the
May 18, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). On
November 27, 2012 she filed a timely appeal from a November 15, 2012 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 her burden of proof to modify OWCP’s December 7,
2007 wage-earning capacity determination.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on October 5, 2000 appellant, then a 35-year-old mail processor,
sustained left hand/wrist tenosynovitis due to lifting mail from a tub to a ledge at work.2 After
her October 5, 2000 injury, she worked for various periods in limited-duty positions for 40 hours
per week.
OWCP accepted that on October 12, 2004 appellant sustained lumbar, thoracic and left
shoulder and upper arm sprains due to lifting mail at work. It also accepted that on October 10,
2005 she sustained a left sacroiliac sprain and permanent degeneration of lumbar degenerative
disc disease due to bending her body, lifting magazine mail and putting it in a mail container.3
Appellant continued to work in limited-duty positions for 40 hours per week.
On September 29, 2007 appellant began working as a modified mail processing clerk on
a full-time basis.
In a December 7, 2007 decision, OWCP reduced appellant’s compensation to zero
effective September 29, 2007 based on its determination that her actual earnings as a modified
mail processing clerk fairly and reasonably represented her wage-earning capacity. It noted that
her actual wages exceeded the current wages of the position she held when injured.4
Effective February 25, 2010, appellant’s limited-duty work was withdrawn under the
National Reassessment Process (NRP) and she stopped work on the date.5
Beginning on February 26, 2010, appellant filed claims for compensation in connection
with the file for her October 10, 2005 injury alleging entitlement to disability compensation for
February 25, 2010 and continuing. She claimed that she lost time due to the withdrawal of her
limited-duty work under NRP and asserted that OWCP’s December 7, 2007 wage-earning
capacity determination should be modified. Appellant submitted medical evidence in support of
her case.
In an April 22, 2010 decision, OWCP found that appellant did not meet her burden of
proof to modify OWCP’s December 7, 2007 wage-earning capacity determination. On
January 12, 2011 an OWCP hearing representative affirmed OWCP’s April 22, 2010 decision.6

2

Appellant’s claim was later expanded to include acceptance of left carpal tunnel syndrome.

3

The October 12, 2004 and October 10, 2005 injuries were developed under files that were separate from the file
for the October 5, 2000 injury.
4

OWCP’s wage-earning determination was issued under the file for the October 10, 2005 injury but it took into
consideration all of appellant’s work injuries.
5

Appellant was offered a limited-duty job as a modified mail processing clerk for 15 hours per week, but she did
not work again until July 2011 when she began working in a part-time position.
6

In decisions dated November 17, 2011 and March 9, 2012, OWCP again found that appellant did not meet her
burden of proof to modify OWCP’s December 7, 2007 wage-earning capacity determination.

2

Beginning on August 2011, appellant filed claims for compensation in connection with
the file for her October 5, 2000 injury for the period July 30, 2011 and continuing. OWCP
denied her case in decisions dated January 10 and 26, March12, April 23 and June 15, 2012.
In an August 9, 2012 decision, an OWCP hearing representative remanded the case to
OWCP for consideration of whether, in the context of the withdrawal of limited-duty work under
NRP, OWCP’s December 7, 2007 wage-earning capacity determination should be modified.7
In a May 18, 2012 decision, OWCP denied appellant’s claim on the grounds that she did
not meet her burden of proof to modify OWCP’s December 7, 2007 wage-earning capacity
determination.8 It found that she had not shown that the original wage-earning capacity
determination was erroneous or that she had suffered a material change in the nature and extent
of her injury-related condition. OWCP determined that appellant was not entitled to receive
disability compensation on or after February 25, 2010, the date that her limited-duty work was
withdrawn under NRP.
In a November 15, 2012 decision, OWCP denied appellant’s claim on the grounds that
she did not meet her burden of proof to modify OWCP’s December 7, 2007 wage-earning
capacity determination.9 It determined that she was not entitled to receive disability
compensation on or after February 25, 2010.
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.10 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.11 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.12
Modification of a standing wage-earning capacity determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated or the original determination was

7

This decision was issued in connection with the file for appellant’s October 5, 2000 injury.

8

This decision was issued under the file for appellant’s October 10, 2005 injury.

9

This decision was issued under the file for appellant’s October 5, 2000 injury. OWCP indicated that the
position in which appellant was rated was not a makeshift or odd-lot position.
10

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
11

K.R., supra note 10; Roy Matthew Lyon, 27 ECAB 186, 190 (1975). Ernest Donelson, Sr., 35 ECAB 503,
505 (1984).
12

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

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erroneous.13 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.14
FECA Bulletin No. 09-05 outlines OWCP’s procedures when limited-duty positions are
withdrawn pursuant to NRP. If, as in the present case a formal wage-earning capacity decision
has been issued, OWCP must develop the evidence to determine whether a modification of that
decision is appropriate.15
ANALYSIS
OWCP analyzed this case under the customary criteria for modifying a loss of wageearning capacity determination. It did not fully follow the procedures outlined in FECA Bulletin
No. 09-05 for claims, such as this, in which limited-duty positions are withdrawn pursuant to
NRP.16
When a loss of wage-earning capacity decision has been issued, FECA Bulletin No. 0905 requires OWCP to develop the evidence to determine whether a modification of the decision
is appropriate.17 To this end, the Bulletin asks OWCP to confirm that the file contains
documentary evidence supporting that the position was an actual bona fide position. It requires
OWCP to review whether a current medical report supports work-related disability and
establishes that the current need for limited duty or medical treatment is a result of injury-related
residuals and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.18
The Bulletin states that OWCP, in an effort to proactively manage these types of cases,
may undertake further nonmedical development, such as requiring that the employing
establishment address in writing whether the position on which the wage-earning capacity
determination was based was a bona fide position at the time of the rating and to direct the
employing establishment to review its files for contemporaneous evidence concerning the
position.19
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside OWCP’s May 18 and November 15, 2012 decisions and remand the case for further
consideration. After proper compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall

13

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

14

Selden H. Swartz, 55 ECAB 272, 278 (2004).

15

FECA Bulletin No. 09-05 (issued August 18, 2009).

16

See M.A., Docket No. 12-316 (issued July 24, 2012).

17

FECA Bulletin No. 09-05, supra note 15.

18

Id. at §§ I.A.1-2.

19

Id. at § I.A.3.

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issue an appropriate de novo decision on appellant’s entitlement to wage-loss compensation
beginning February 25, 2010.
CONCLUSION
The Board finds that this case is not in posture for determination on whether modification
of OWCP’s December 7, 2007 wage-earning capacity determination is appropriate. Further
action by OWCP is warranted.
ORDER
IT IS HEREBY ORDERED THAT the November 15 and May 18, 2012 decisions of
the Office of Workers’ Compensation Programs are set aside and the case remanded for further
action.
Issued: March 14, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, STOCKYARD POST
OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 20-0735
Issued: October 23, 2020

Case Submitted on the Record

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

JURISDICTION
On February 17, 2020 appellant, through counsel, filed a timely appeal from a
September 24, 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.
ISSUE
The issue is whether OWCP properly determined that appellant forfeited her entitlement
to wage-loss compensation for the period May 26, 2016 through January 20, 2017 as she
knowingly failed to report employment activities and earnings, pursuant to 5 U.S.C. § 8106(b).

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.

FACTUAL HISTORY
On January 22, 2016 appellant, then a 53-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that on December 23, 2015 she sustained an injury to her left
foot when a shelf from an automated postal center fell on her left foot while in the performance of
duty. She stopped work on January 23, 2016 and returned to modified-duty work on
February 3, 2016. OWCP accepted her claim for displaced fracture of the second metatarsal bone
of the left foot, and paid her wage-loss compensation on the supplemental rolls, beginning on
May 4, 2016.
On July 5, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for
intermittent dates of total and partial disability, beginning May 4, 2016, indicating that she was in
a leave without pay (LWOP) status because there was no work available. Section 3 of the CA-7
form advised her that she must report any and all earnings from employment, self-employment, or
involvement in a business enterprise for which she received a salary, wages, income, commissions,
or payment of any kind during the period(s) claimed. Appellant checked a box marked “No”
indicating that she had not performed work outside of her federal job for the period claimed on the
form. The Form CA-7 also contains a warning that fraudulent concealment of employment or
failure to report income may result in forfeiture of compensation benefits and/or criminal
prosecution.
Appellant additionally submitted CA-7 forms requesting wage-loss compensation for
intermittent periods of partial and total disability for the period June 30, 2016 through
January 20, 2017. She indicated on the forms that she was in LWOP status and, thus, had not
worked during the periods claimed.
OWCP paid appellant wage-loss compensation on the supplemental rolls for the claimed
dates of disability from May 4, 2016 through January 20, 2017. On January 25, 2017 appellant
accepted a part-time job offer as a limited-duty carrier.
In a July 13, 2018 case summary report, the employing establishment’s Office of the
Inspector General (OIG) advised that appellant had failed to disclose her earnings as a Lyft and
UBER driver and benefits from the Supplemental Nutrition Assistance Program (SNAP). The
employing establishment’s OIG provided several Memorandum of Activity reports, which detailed
the employing establishment’s OIG’s investigative activities, along with attachments that
documented surveillance, internet research, and findings.
In a May 23, 2017 memorandum, an employing establishment OIG agent indicated that he
had reviewed the amount of income reported by UBER, Lyft, and SNAP for appellant from
June 2016 to February 2017 and calculated that appellant had received $3,923.86 from UBER,
$751.69 from Lyft, and received $3,213.00 in SNAP benefits.
In a sworn OIG statement dated April 4, 2017, appellant noted that she was driving for
UBER and Lyft because OWCP had not paid her in a bi-weekly manner and had withheld her
paychecks. She explained that she had to find a part-time job because she was not receiving any
money and had dependents to support. Appellant reported that she did not know that she had to
report this part-time income.

2

In an April 6, 2017 memorandum, an employing establishment OIG agent summarized his
interview with appellant on that date. Appellant explained the difficulty that she had experienced
in receiving compensation from OWCP. She indicated that she started driving for UBER and Lyft
in August 2016 and stopped around November 2016. Appellant also noted that she had and was
receiving public assistance to help take care of her household. The OIG agent reported that he
read Section 7 of the CA-7 form and appellant indicated that she understood the section. Appellant
explained that she did not report her income from UBER and Lyft or her supplemental public
assistance because she was not operating outside of her medical restrictions and she did not think
it was necessary.
OWCP received a February 27, 2017 letter from UBER in response to a subpoena. It noted
that appellant’s UBER account began on May 26, 2016 and provided the dates that she drove from
June 11 through October 23, 2016.
OWCP also received a May 2, 2017 letter from Lyft, which indicated that it was providing
information in response to a subpoena. It noted that appellant was approved as a driver on June 19,
2016, and provided her driver payouts from July 6, 2016 to February 1, 2017.
By decision dated March 28, 2019, OWCP found that appellant had forfeited her
entitlement to compensation for the period May 26, 2016 through January 20, 2017 because she
knowingly failed to disclose her outside earnings and employment, pursuant to 5 U.S.C. § 8106(b).
It explained that she had knowingly failed to report earnings and employment activities when
submitting CA-7 forms covering the period May 14, 2016 through January 20, 2017.2
On April 2, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review regarding the March 28, 2019
forfeiture decision. The telephonic hearing was held on July 17, 2019. Appellant testified that she
did not know that she had to report her employment with UBER and Lyft because she was working
within her physical restrictions.
By decision dated September 24, 2019, an OWCP hearing representative affirmed the
March 28, 2019 decision.
LEGAL PRECEDENT
Section 8106(b) of FECA provides that an employee who fails to make an affidavit or
report when required or knowingly omits or understates any part of her earnings, forfeits his or her
right to compensation with respect to any period for which the affidavit or report was required.3

2

On April 2, 2019 OWCP advised appellant of its preliminary determination that she had received a $13,963.50
overpayment of compensation as she forfeited entitlement to compensation from May 26, 2016 through January 20,
2017 and that she was at fault in its creation. By decision dated July 26, 2019, OWCP finalized the preliminary
overpayment determination in the amount of $13,963.50 for the period May 26, 2016 through January 20, 2017. The
July 26, 2019 overpayment determination is not before the Board as it was issued more than 180 days from the date
of docketing of the current appeal. See 20 C.F.R. § 501.3.
3

5 U.S.C. § 8106(b).

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An employee, however, can only be subjected to the forfeiture provision of 5 U.S.C. § 8106
if he or she knowingly failed to report employment or earnings. It is not enough to merely establish
that there were unreported earnings.4 OWCP procedures recognize that forfeiture is a penalty,5
and, as a penalty provision, it must be narrowly construed.6 The term knowingly is defined within
OWCP’s regulations as with knowledge, consciously, willfully, or intentionally.7
OWCP regulations define earnings from employment or self-employment as: (1) gross
earnings or wages before any deductions and includes the value of subsistence, quarters,
reimbursed expenses and any offer goods or services received in kind as remuneration; or (2) a
reasonable estimate of the cost to have someone else perform the duties of an individual who
accepts no remuneration.8 Neither lack of profits nor the characterization of the duties as a hobby
removes an unremunerated individual’s responsibility to report the estimated cost to have someone
else perform his or her duties.9
ANALYSIS
The Board finds that OWCP properly determined that appellant forfeited her entitlement
to wage-loss compensation for the period June 11, 2016 through January 20, 2017 as she
knowingly failed to report employment activities and earnings, pursuant to 5 U.S.C. § 8106(b).
OWCP accepted appellant’s claim for displaced fracture of the second metatarsal bone of
the left foot and paid wage-loss compensation for partial and total disability on the supplemental
rolls from May 4, 2016 to January 20, 2017.
According to a July 13, 2016 case summary report by the employing establishment’s OIG,
appellant had failed to disclose her earnings as a Lyft and UBER driver from June 2016 to
January 2017. In a May 23, 2017 memorandum, an employing establishment OIG agent indicated
that he had reviewed the income reported by UBER and Lyft for appellant from June 2016 to
February 2017 and calculated that appellant had received $3,923.86 in earnings from UBER and
$751.69 in earnings from Lyft. The employing establishment’s OIG provided a May 2, 2017 letter
from Lyft, which noted that appellant was approved as a driver on June 19, 2016 and provided her
driver payouts from July 6, 2016 to February 1, 2017. It also submitted a February 27, 2017 letter
from UBER, which indicated that appellant’s UBER? account began on May 26, 2016, and
provided the dates that she drove from June 11 through October 23, 2016.

4

T.G., Docket No. 19-0051 (issued August 20, 2019); P.H., Docket No. 17-1362 (issued March 13, 2018).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Forfeiture, Chapter 2.1402.8 (May 2012).

6

Christine P. Burgess, 43 ECAB 449 (1992).

7

20 C.F.R. § 10.5(n); R.A., Docket No. 18-0406 (issued January 28, 2019); Anthony A. Nobile, 44 ECAB
268 (1992).
8

Id. at § 10.5(g).

9

Id.

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The Board finds that the evidence of record establishes that appellant received earnings
from employment as a driver for Lyft and UBER during the period June 11, 2016 to February 1,
2017 and failed to report her employment and earnings on CA-7 forms she had filed between
July 5, 2016 and January 20, 2017. Accordingly, the Board finds that OWCP properly found that
appellant had forfeited her entitlement to compensation for the period June 11, 2016 through
January 20, 2017 as she failed to report earnings from employment on the CA-7 forms covering
this period.10
The Board further finds, however, that OWCP improperly determined that appellant had
forfeited her entitlement to compensation for the period May 26 through June 10, 2016 because
the evidence of record does not support that appellant was engaged in employment activity or
received earnings during this period.11 The February 27, 2017 letter from UBER demonstrates
that the earliest record of appellant working as a driver was on June 11, 2016. Although the letter
indicates that appellant’s UBER account began on May 26, 2016, there is no evidence of record
that appellant had any earnings or actually worked as a driver beginning May 26, 2016. The Board
has held that OWCP may not base its application of the forfeiture provision strictly on conclusions
drawn in an investigation, but rather the evidence of record must establish that the claimant has
had unreported earnings from employment, which were knowingly not reported.12 Because the
evidence of record fails to establish that appellant had any earnings from May 26 through June 10,
2016, there can be no finding that she “knowingly” failed to report earnings or employment
activities during that period. Therefore, OWCP did not properly invoke the penalty provision
under 5 U.S.C. § 8106(b) to find forfeiture of appellant’s entitlement to compensation for the
period May 26 through June 10, 2016.
CONCLUSION
The Board finds that OWCP properly determined that appellant forfeited her entitlement
to wage-loss compensation for the period June 11, 2016 through January 20, 2017, pursuant to
5 U.S.C. § 8106(b). The Board also finds, however, that OWCP improperly determined that
appellant forfeited her entitlement to wage-loss compensation for the period May 26 through
June 10, 2016.

10

See G.Z., Docket No. 16-0892 (issued May 19, 2017); see also E.V., Docket No. 15-0803 (issued
October 15, 2015).
11

See L.B., Docket No. 15-1648 (issued September 18, 2017).

12
R.M., Docket No. 13-2169 (issued August 26, 2014); B.Y., Docket No. 11-1798 (issued July 24, 2012); Louis P.
McKenna, Jr., 46 ECAB 328 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the September 24, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part.
Issued: October 23, 2020
Washington, DC

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

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

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

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