United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
MEDICAL COMMAND, Camp Lejeune, NC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0628
Issued: June 28, 2017

Case Submitted on the Record

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

JURISDICTION
On January 27, 2017 appellant filed a timely appeal from a November 22, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days elapsed from February 1, 2016, the date of the most recent merit decision, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of the claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 11, 2013 appellant, then a 58-year-old office secretary, filed a traumatic
injury claim (Form CA-1) alleging that on January 9, 2013, she injured her wrists and left foot
when she tripped and fell on a tiled floor. She stopped work on January 9, 2013.
By decision dated September 11, 2013, OWCP accepted appellant’s claim for a closed
fracture of the fifth left metatarsal bone. On September 19, 2013 it updated appellant’s list of
accepted conditions to include cellulitis of the left foot, except for the toes. Appellant received
medical benefits and wage-loss compensation benefits on the supplemental rolls as of August 20,
2013 and on the periodic rolls as of October 20, 2013.
Appellant filed a claim for a schedule award (Form CA-7) on May 23, 2014. OWCP
thereafter received a July 23, 2014 report from Keith L. Blankenship, a physical therapist, who
rated appellant’s left 5th metatarsal shaft fracture under the sixth edition of the A.M.A., Guides as
three percent permanent impairment of the left lower extremity. This report was reviewed by
Dr. James W. Dyer, a Board-certified orthopedic surgeon, acting as OWCP’s medical adviser, on
November 19, 2014. Dr. Dyer concurred that pursuant to the A.M.A., Guides, Table 16-2, page
504, a 5th metatarsal fracture with complete healing was equal to three percent permanent
impairment of the left lower extremity.2
On December 15, 2014 OWCP issued a schedule award for three percent permanent
impairment of the left lower extremity. Appellant requested reconsideration of this decision on
January 26, 2015.
On April 27, 2015 OWCP received a report from Dr. Sean P. Scully, a Board certified
orthopedic surgeon. Dr. Scully noted that appellant’s diagnosis was closed fracture of the
metatarsal bone. He also noted his belief that she was developing post-traumatic midfoot
arthritis. Dr. Scully related that pursuant to the A.M.A., Guides, if appellant’s arthritis was
incorporated into an impairment rating she would be entitled to an award for six percent
permanent impairment of the left lower extremity.
On June 4, 2015 another OWCP medical adviser reviewed Dr. Scully’s report.3 This
medical adviser related that appellant had reached maximum medical improvement on March 26,
2015 and that he concurred with Dr. Scully’s assessment that pursuant to Table 16-2 of the
A.M.A., Guides appellant had an additional three percent permanent impairment of the left lower
extremity.
On June 10, 2015 OWCP issued a schedule award for an additional three percent
permanent impairment of the left lower extremity leg for a total six percent permanent
impairment.
2

For schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A.,
Guides, published in 2009. See D.T., Docket No. 12-503 (issued August 21, 2012); Federal (FECA) Procedure
Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013).
3

The physician’s signature is illegible.

2

Appellant again requested reconsideration on August 20, 2015. With her request she
submitted a narrative statement, hospital records, and a narrative report dated September 17,
2013 signed by a nurse practitioner.
By decision dated August 31, 2015, OWCP reviewed the merits of appellant’s claim and
affirmed its prior decision of June 10, 2015. It noted that none of the evidence submitted by
appellant contained evidence of a higher impairment rating.
On November 23, 2015 appellant again requested reconsideration. OWCP received a
September 13, 2013 emergency room report signed by Dr. Marshall Frink, a family practitioner.
In this report, Dr. Frink related that appellant had developed postoperative cellulitis after
hardware was removed from her left foot on August 23, 2013. Appellant submitted medical
evidence already of record from Dr. Scully. She also submitted a hospital discharge report dated
February 27, 2014, signed by Dr. Scully, which noted that appellant had undergone a total left
knee arthroplasty on February 24, 2014.
By decision dated February 1, 2016, OWCP reviewed the merits of appellant’s claim and
denied modification of the decision of August 31, 2015. It noted that she had not provided
sufficient evidence to warrant an increased schedule award.
By letter dated July 10, 2016 and received July 18, 2016, appellant requested
reconsideration of OWCP’s February 1, 2016 decision. With her request, she attached a
narrative statement that referenced the A.M.A., Guides; a medical report dated February 17,
2016 from Dr. Scully, diagnosing her with a bunion; several results of diagnostic testing of her
right knee and foot; an undated and unsigned document recommending an impairment rating of
“more than [three] percent”; an undated letter from her Board-certified psychiatrist, Dr. Tavid
Tipton; a letter dated April 14, 2014 from Dr. Scully noting that her knee problems may stem
from a left foot injury; a brief from an attorney requesting acceptance of major depressive
disorder as a condition under appellant’s claim; various records from counselors; and records of
her prescribed medications.
By decision dated November 22, 2016, OWCP denied appellant’s request for
reconsideration. It found that appellant had submitted repetitious or irrelevant evidence and
argument in support of her request for reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.4 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three

4

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

3

requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.5
ANALYSIS
OWCP issued a June 10, 2015 decision granting appellant a schedule award for six
percent permanent impairment of the left lower extremity.
The last merit decision in this claim was a February 1, 2016 OWCP decision denying
modification of the schedule award for six percent. By letter dated July 10, 2016, appellant
requested reconsideration of the February 1, 2016 decision. With her request, she attached a
narrative statement; a medical report dated February 17, 2016 from Dr. Scully diagnosing her
with a bunion; several results of diagnostic testing of her right knee and foot; an undated and
unsigned document recommending an impairment rating of “more than 3 percent”; an undated
letter from her Board-certified psychiatrist, Dr. Tavid Tipton; a letter dated April 14, 2014 from
Dr. Scully, noting that her knee problems may stem from a left foot injury; a brief from an
attorney requesting acceptance of major depressive disorder as a condition under appellant’s
claim; various records from counselors; and records of her prescribed medications.
By decision dated November 22, 2016, OWCP denied appellant’s request for
reconsideration. It found that appellant had submitted only repetitious or irrelevant evidence in
support of her request for reconsideration of the decision of February 1, 2016.
The Board first finds that OWCP properly considered appellant’s letter as a request for
reconsideration and not as a claim for an increased schedule award. In her July 10, 2016 letter,
appellant specifically claimed reconsideration of facts which she alleged had not been considered
in the February 1, 2016 decision.6 She was not claiming a new award based on a new rating of
permanent impairment.7 The issue presented on appeal is whether appellant met any of the
requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the
merits of her claim. In her July 10, 2016 request for reconsideration, she did not show that
OWCP erroneously applied or interpreted a specific point of law, or advance a new and relevant
legal argument not previously considered. Thus, she is not entitled to a review of the merits of
her claim based on the first and second above-noted requirements under section 10.606(b)(3).
The underlying issue is whether appellant has submitted sufficient evidence to establish
entitlement to a schedule award greater than the six percent already awarded. A claimant may be
entitled to a merit review by submitting relevant and pertinent new evidence, but appellant did
not submit any pertinent new and relevant evidence with her request for reconsideration.
Appellant did not submit any medical evidence containing a greater impairment rating than six
percent permanent impairment of her left lower extremity and none of the medical evidence
submitted was relevant to the extent of her permanent impairment. While appellant submitted a
5

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

6

See S.H., Docket No. 17-0373 (issued April 12, 2017).

7

See A.C., Docket No. 13-1810 (issued January 6, 2014).

4

narrative statement in which she referenced the A.M.A., Guides, appellant is not a physician and
her own interpretation of the calculation of her permanent impairment is not medical evidence
and is thus irrelevant.8 As such, the evidence submitted on reconsideration of the February 1,
2016 decision was irrelevant, and insufficient to warrant reconsideration of appellant’s claim.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3) and thus properly denied merit review. She did not establish that
OWCP erroneously applied or interpreted a specific point of law, advance a relevant legal
argument not previously considered by OWCP, or submit relevant and pertinent new evidence
not previously considered.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 22, 2016 is affirmed.
Issued: June 28, 2017
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
8

See C.A., Docket No. 13-1877 (issued April 8, 2014).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.A., Appellant
and
U.S. POSTAL SERVICE, MAIL RECOVERY
CENTER, Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0321
Issued: July 5, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 26, 2018 appellant filed a timely appeal from a June 27, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from the last merit decision dated April 26, 2017 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 27, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On December 8, 2015 appellant, then a 60-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that she sustained neck, right shoulder, wrist, and arm conditions due
to repetitively throwing parcels and packages, reaching above the shoulder, pushing, twisting,
pulling, bending, and prolonged standing, while in the performance of duty. She did not stop work.
OWCP accepted the claim for C3-4 and C6-7 cervical disc displacement and right shoulder
bursitis.
On August 26, 2016 appellant accepted a modified mail recovery clerk position.
On March 15, 2017 OWCP received claims for compensation (Form CA-7) requesting
wage-loss compensation for the periods February 4 to 17, 2017 and February 24 to March 3, 2017.
In a development letter dated March 16, 2017, OWCP advised appellant that her claim was
“not payable in its entirety at this time.” It authorized payment of four hours of wage-loss
compensation for February 17, 2017, four hours for February 24, 2017, and four hours for
March 7, 2017. OWCP informed appellant as to the evidence required to support her claim for
compensation for the unpaid periods of time claimed and afforded her 30 days to provide additional
medical evidence.
In response to OWCP’s request appellant submitted a clinic note indicating that she was
seen on February 27, 2017 by Mary Charlot, advanced registered nurse practitioner. Ms. Charlot
noted that appellant was disabled from work at that time, but could return to work on
March 6, 2017.
By decision dated April 26, 2017, OWCP authorized payment of four hours of wage-loss
compensation for February 27, 2017, but denied appellant’s claim for compensation for 36 hours
of wage loss for the period February 27 to March 3, 2017. It found that she failed to submit any
medical evidence signed by a licensed physician explaining how her disability for this period of
time was due to her accepted employment conditions.
On July 26, 2017 OWCP received a Form CA-7 claiming wage-loss compensation for the
period February 27 to March 3, 2017.
By letter dated August 1, 2017, OWCP informed appellant that a decision had previously
been issued denying her claim for 36 hours of wage-loss compensation for the period February 27
to March 3, 2017. It informed her that no further action would be taken on her claim for the
aforementioned period and advised that she may follow the appeal rights that accompanied the
April 26, 2017 decision if she disagreed with that decision.
On June 19, 2018 OWCP received appellant’s request for reconsideration of the April 26,
2017 decision.
2

In support of her request for reconsideration appellant submitted a November 20, 2017
report from Dr. Jay Bender, a Board-certified orthopedic surgeon. Dr. Bender related that from
February 27 through March 3, 2017 she had experienced an acute exacerbation causing total
disability. He explained that in the days leading up to February 27, 2017 appellant’s repetitive
employment duties exacerbated her preexisting conditions and that she was diagnosed with a right
shoulder torn rotator cuff and right carpal tunnel syndrome.
By decision dated June 27, 2018, OWCP denied appellant’s June 19, 2018 reconsideration
request, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.3 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.4 Timeliness is determined by the document receipt date (i.e.,
the received date in OWCP’s integrated Federal Employees’ Compensation System).5 Imposition
of this one-year filing limitation does not constitute an abuse of discretion.6
When an application for review is untimely, OWCP undertakes a limited review to
determine whether the application presents clear evidence that OWCP’s final merit decision was
in error.7 Its procedures state that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s
application for review shows clear evidence of error on the part of OWCP.8 In this regard, OWCP
will limit its focus to a review of how the newly submitted evidence bears on the prior evidence
of record.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.10 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
3

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.4(b) (February 2016).

6

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
7
See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
8

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 5 at Chapter 2.1602.5 (February 2016).
9

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

10

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 5 at Chapter 2.1602.5(a) (February 2016).

3

substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or show a clear procedural error, but must be of sufficient probative value to
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP decision.11
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations12 and procedures13 establish a one-year time limitation for requesting
reconsideration, which begins on the date of the original OWCP merit decision. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.14
The most recent merit decision was OWCP’s April 26, 2017 decision which found that the
evidence of record was insufficient to establish that appellant was totally disabled for the period
alleged. As her request for reconsideration was not received by OWCP until June 19, 2018, more
than one year after the April 26, 2017 decision, it was untimely filed.15 Because appellant’s request
was untimely, she must demonstrate clear evidence of error on the part of OWCP in having denied
total disability compensation for the period alleged.
On reconsideration appellant submitted Dr. Bender’s November 20, 2017 report.
Dr. Bender explained that in the days leading up to February 27, 2017 she experienced an
exacerbation of her preexisting condition causing total disability. He also diagnosed additional
medical conditions. The Board finds that this evidence does not raise a substantial question as to
the correctness of OWCP’s last merit decision. Clear evidence of error is intended to represent a
difficult standard. Even the submission of a detailed, well-rationalized medical report which, if
submitted before the merit decision was issued, would have required further development, is

11

Supra note 9.

12
F.N., Docket No. 18-1543 (issued March 6, 2019); 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB
247 (2005).
13

Supra note 5 at Chapter 2.1602.4 (February 2016); see Veletta C. Coleman, 48 ECAB 367, 370 (1997).

14

J.W., supra note 9; Robert F. Stone, 57 ECAB 292 (2005).

15

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

4

insufficient to demonstrate clear evidence of error.16 As such, the Board finds that appellant has
not demonstrated clear evidence of error.17
Accordingly, the Board finds that OWCP properly denied appellant’s reconsideration
request, as it was untimely filed and failed to demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration, as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 27, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 5, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

S.C., supra note 10.

17

Id.; see also Nancy Marcano, 50 ECAB 110 (1998).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, VISTA STATION
POST OFFICE, Sparks, NV, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Lisa Varughese, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1289
Issued: April 8, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 8, 2020 appellant, through counsel, filed a timely appeal from a February 4, 2020
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.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $24,081.41, for which she was without fault,
because she concurrently received FECA wage-loss compensation and Social Security
Administration (SSA) age-related retirement benefits for the period September 1, 2016 through
November 9, 2019, without an appropriate offset; (2) whether OWCP properly denied waiver of
recovery of the overpayment; and (3) whether OWCP properly required recovery of the
overpayment by deducting $679.25 from her continuing compensation payments every 28 days.
FACTUAL HISTORY
On November 1, 2002 appellant, then a 52-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on September 25, 2002 she sustained an injury to her upper right leg
and hip joint when computers shifted on a hand truck, causing her to fall backward into a shelf.
Her retirement coverage was noted on the claim form as Federal Employees Retirement System
(FERS). OWCP accepted the claim for lumbar sprain, displacement of lumbar intervertebral disc
without myelopathy, degeneration of lumbar or lumbosacral intervertebral disc, and spinal stenosis
lumbar region. On November 16, 2005 appellant underwent a lumbar spine fusion and
laminectomy. She stopped work on November 16, 2005. OWCP paid appellant wage-loss
compensation on the supplemental rolls effective November 16, 2005, and on the periodic rolls
effective April 15, 2007. By decision dated November 27, 2007, it reduced her compensation
based on her capacity to earn wages in the constructed position of cashier.
On October 9, 2019 OWCP forwarded a FERS/SSA benefits calculation transmittal form
to the SSA to obtain information necessary for a determination of whether an offset of
compensation benefits was required.
On October 28, 2019 OWCP received from SSA an October 16, 2019 FERS/SSA dual
benefits calculation which established that appellant had been in receipt of SSA age-related
retirement benefits since September 2016. The form showed appellant’s SSA benefit rates with
and without a FERS offset. Beginning September 2016, the SSA rate with FERS was $1,217.20
and without FERS was $604.50; beginning December 2016, the SSA rate with FERS was
$1,220.80 and without FERS was $606.30; beginning December 2017, the SSA rate with FERS
was $1,245.20 and without FERS was $618.40; and beginning December 2018, the SSA rate with
FERS was $1,280.00 and without FERS was $635.70.
OWCP completed a FERS offset calculation worksheet on November 19, 2019. It
calculated the overpayment amount by determining the daily FERS offset amount and multiplying
that amount by the number of days in each period from September 1, 2016 through November 9,
2019, resulting in an overpayment of $24,081.41. The form indicated that, from September 1
through November 30, 2016, appellant received an overpayment in the amount of $1,838.10; from
December 1, 2016 through November 30, 2017, she received an overpayment in the amount of
$7,394.26; from December 1, 2017 through November 30, 2018, she received an overpayment in
the amount of $7,542.26; and from December 1, 2018 through November 9, 2019, she received an
overpayment in the amount of $7,306.79.
In a November 19, 2019 letter, OWCP informed appellant that it would begin deducting
the portion of SSA age-related retirement benefits attributable to her federal service from her 282

day periodic compensation benefits. It noted that her gross FECA compensation benefit of
$2,717.00, every 28 days, would be offset by $594.74, which was her monthly $644.30 SSA
benefit attributable to federal service adjusted to a 28-day amount of $594.74. OWCP further
explained that, after appellant’s health insurance deduction of $513.08, her net compensation
benefit every 28 days would be $1,609.18.
On December 16, 2019 OWCP issued a preliminary overpayment determination, finding
that an overpayment of compensation in the amount of $24,081.41 had been created because it had
failed to reduce appellant’s wage-loss compensation payments for the period September 1, 2016
through November 9, 2019 to offset her SSA age-related retirement benefits that were attributable
to federal service. It also determined that she was without fault in the creation of the overpayment.
OWCP requested that appellant submit a completed overpayment recovery questionnaire (Form
OWCP-20) to determine a reasonable repayment method and advised her that she could request
waiver of recovery of the overpayment. It further requested that she provide supporting financial
documentation, including copies of income tax returns, bank account statements, bills, pay slips,
and any other records to support income and expenses. Additionally, OWCP notified appellant
that, within 30 days of the date of the letter, she could request a telephone conference, a final
decision based on the written evidence, or a prerecoupment hearing.
On December 20, 2019 OWCP received the first page of appellant’s overpayment action
request form. Appellant requested waiver and argued that she was without fault in the creation of
the overpayment. She noted that, every year after she received the form, she spoke with OWCP
and SSA to determine her SSA benefit and responded according to the information she was
provided. No additional evidence was received.
By decision dated February 4, 2020, OWCP finalized the December 16, 2019 preliminary
overpayment determination. It found that appellant had received an overpayment of compensation
in the amount of $24,081.41. OWCP further found that she was not at fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment due to the lack of financial
information/documentation. It required recovery by deducting $679.25 every 28 days from
appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment.4 Section 8116 limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.5 When an overpayment of compensation has
been made to an individual because of an error of fact or law, adjustment shall be made under
regulations prescribed by the Secretary of Labor by decreasing later payments to which the
individual is entitled.6

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

3

Section 10.421(d) of FECA implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA age-related retirement benefits that are attributable
to federal service of the employee.7 FECA Bulletin No. 97-09 provides that FECA benefits have
to be adjusted for the FERS portion of SSA age-related retirement benefits because the portion of
the SSA benefit earned as a federal employee is part of the FERS retirement package, and the
receipt of FECA benefits and federal retirement concurrently is a prohibited dual benefit.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $24,081.41, for which she was without fault, because she
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
the period September 1, 2016 through November 9, 2019, without an appropriate offset.9
The evidence of record indicates that, while appellant was receiving wage-loss
compensation benefits under FECA, she also was receiving SSA age-related retirement benefits
based upon her federal service. A claimant cannot receive both compensation for wage-loss
compensation benefits under FECA and SSA age-related retirement benefits attributable to federal
service for the same period.10 The information provided by SSA established that appellant
received SSA age-related retirement benefits that were attributable to federal service during the
period September 1, 2016 through November 9, 2019. Consequently, the fact of overpayment has
been established.
To determine the amount of the overpayment, the portion of SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to the specific rates of SSA age-related retirement benefits
that were attributable to federal service. SSA provided its rate with FERS and without FERS for
specific periods from September 1, 2016 through November 9, 2019. OWCP provided its
calculations for each relevant period based on the SSA worksheet and determined that appellant
received an overpayment in the amount of $24,081.41.
The Board thus finds that appellant received prohibited dual benefits for the period
September 1, 2016 through November 9, 2019, totaling $24,081.41.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.11
Thus, a finding that appellant was without fault does not automatically result in waiver of the
7

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); L.J., 59 ECAB 264 (2007).

8

FECA Bulletin No. 97-09 (issued February 3, 1997).

9
P.B., Docket No. 20-0862 (issued November 25, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020);
A.F., Docket No. 19-0054 (issued June 12, 2019).
10

20 C.F.R. § 10.421(d); see T.B., supra note 7; L.J., supra note 7.

11

5 U.S.C. § 8129(a)(b).

4

overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good conscience.12
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt;
and when an individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.13
Section 10.438 of the implementing regulations provides that the individual who received
the overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery on an
overpayment would defeat the purpose of FECA or be against equity and good conscience. The
information is also used to determine the repayment schedule, if necessary.14 Failure to submit
the requested information within 30 days of the request shall result in denial of waiver.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.16 Appellant,
however, had the responsibility to provide the appropriate financial information to OWCP.17
In its preliminary overpayment determination dated December 16, 2019, OWCP requested
that appellant submit a completed overpayment questionnaire with supporting financial
documentation, including copies of income tax returns, bank account statements, bills, pay slips,
and any other records to support income and expenses. It advised him that it would deny waiver
of recovery if she failed to furnish the requested financial information within 30 days. Appellant,
however, did not submit a completed Form OWCP-20 or submit the supporting financial
documentation necessary for OWCP to determine whether recovery of the overpayment would
defeat the purpose of FECA or whether recovery would be against equity and good conscience.
As appellant did not submit the information required under section 10.438 of OWCP’s
regulations, which was necessary to determine her eligibility for waiver, OWCP properly denied
waiver of recovery of the overpayment.18
12

L.S., 59 ECAB 350 (2008).

13

20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

14

20 C.F.R. at § 10.438(a).

15

Id. at § 10.438.

16

Id. at § 10.436.

17

Supra note 15.

18

D.C., Docket No. 19-0118 (issued January 15, 2020); see S.B., Docket No. 16-1795 (issued March 2, 2017).

5

LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.19
Section 10.441(a) of OWCP’s regulations20 provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”21
ANALYSIS -- ISSUE 3
The Board finds that OWCP improperly required recovery of the overpayment by
deducting $679.25 from appellant’s continuing compensation payment every 28 days.
The record reflects that appellant continues to receive wage-loss compensation under
FECA. As noted, she did not provide the information necessary for OWCP to consider the amount
to be withheld from her continuing compensation. When, as in this case, no response is received
to the preliminary overpayment determination, OWCP’s procedures require that the rate of
repayment be set at 25 percent of the 28-day net compensation amount.22
In a letter dated November 19, 2019, OWCP indicated that appellant’s gross compensation
was $2,717.00 and her net compensation (after deductions for health insurance and FERS offset)
was $1,609.18. In the final overpayment determination dated February 4, 2020, it indicated that it
would recover the overpayment by deduction of $679.25 every 28 days from her continuing
compensation benefits. However, the amount of $679.25 represents 25 percent of appellant’s gross
compensation of $2,717.00, and not 25 percent of her net compensation of $1,609.18. The Board
finds that 25 percent of $1,609.18 of her net compensation benefit is $402.30. On remand, OWCP
shall revise the amount of recovery to reflect that $402.30 should be withheld from appellant’s
continuing compensation benefits every 28 days.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $24,081.41, for which she was without fault, because she
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
19

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

20

Id. at § 10.441(a).

21

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

22

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment ions, Chapter 6.500.8(c)(1)
(September 2018).

6

the period September 1, 2016 through November 9, 2019, without an appropriate offset. The
Board further finds that OWCP properly denied waiver of recovery of the overpayment.
Additionally, the Board finds that OWCP improperly required recovery of the overpayment by
deducting $679.25 from appellant’s continuing compensation payments every 28 days. As such,
OWCP shall recover the overpayment by deducting $420.30 from her continuing compensation
payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the February 4, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: April 8, 2021
Washington, DC

Alec J. Koromilas, 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

7


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

)
)
)
)
)
)
)
)

Appearances:
Michael D. Overman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1582
Issued: November 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 15, 2015 appellant, through counsel, filed a timely appeal from a February 26,
2015 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 disability commencing
October 5, 2013 causally related to accepted brachial, thoracic, and lumbosacral
neuritis/radiculitis.
FACTUAL HISTORY
On August 20, 2013 appellant, then a 51-year-old mail processing clerk in light-duty
status, filed an occupational disease (Form CA-2) claiming that on or before October 1, 2010 she
1

5 U.S.C. § 8101 et seq.

sustained conditions of her neck, both arms, both wrists, both hands, and back due to repetitive
reaching, pulling, bending, and lifting. She first realized that these conditions were work related
on May 29, 2013. Appellant did not stop work. She was in modified-duty status as of the date
of the claim.2
Appellant was followed by Dr. Nasser Ani, an attending Board-certified orthopedic
surgeon. In an August 5, 2013 report, Dr. Ani noted her complaints of back and neck pain at
work since 2011. He diagnosed bilateral carpal tunnel syndrome,3 a cervical disc bulge, lumbar
disc bulge, a degenerative C4 disc, cervical radiculitis, lumbar radiculopathy, and sprains and
strains of the both and hands. In an August 16, 2013 report, Dr. Ani additionally diagnosed
small disc herniations at C4-5, C5-6, and C6-7, improved since 2011, a small left-sided herniated
nucleus pulposus at L3-4 with mild foraminal stenosis.4
On September 7, 2013 OWCP accepted that appellant sustained brachial, thoracic, and
lumbosacral neuritis or radiculitis.
In a September 27, 2013 letter, appellant described repetitive lifting, bending, twisting,
pulling, pushing, reaching, and grasping as a mail handler and mail sorter beginning in 1994.
She noted that she began work at the employing establishment in June 2013, working flats.
Appellant filed a claim for compensation (Form CA-7) commencing October 5, 2013.
She stopped work on October 6, 2013. Appellant claimed compensation through November 15,
2013 and continuing.
In November 14, 2013 and January 7, 2014 letters, OWCP advised appellant of the
additional evidence needed to establish her claim, including her physician’s explanation of why
the accepted conditions would disable her for work on and after October 5, 2013. It afforded her
30 days to submit such evidence.
In response, appellant submitted a September 23, 2013 slip from Dr. Ani releasing her to
light duty, with lifting limited to 15 pounds and driving restricted to 20 minutes at a time.
Counsel contended that when she presented Dr. Ani’s September 23, 2013 restrictions to her

2

OWCP denied appellant’s six prior claims: File No. xxxxxx158 for erythema nodosum sustained on or before
November 12, 2008; File No. xxxxxx551 for an allergic reaction to dust on March 19, 2009; File No. xxxxxx991 for
bilateral shoulder conditions, bilateral carpal tunnel syndrome, and tendinitis of the upper extremities sustained on or
before March 27, 2009 and a surgery to the left hand October 27, 2009; File No. xxxxxx997 for multiple cervical
disc herniations sustained on or before September 5, 2009; File No. xxxxxx835 for multiple cervical disc herniations
sustained on or before May 19, 2011; and File No. xxxxxx418 for tenosynovitis of the left hand, wrist, and index
finger sustained on or before June 9, 2012. File No. xxxxxx418 was before the Board under Docket No. 13-0518,
with a decision and order issued May 16, 2013 affirming OWCP’s October 4, 2012 merit decision denying the
claim. Appellant’s prior claims are not before the Board on the present appeal.
3

September 10, 2013 electromyography and nerve condition velocity studies showed bilateral median nerve
neuropathies at both wrists, with no evidence of cervical radiculopathy.
4

An August 16, 2013 magnetic resonance imaging scan showed cervical spondylosis slightly improved when
compared to 2011 studies, with osteophytes from C3 to C7, and mild disc protrusions at C4-5 and C6-7.

2

supervisor on October 6, 2013 she was “told that [appellant] must live by her restrictions and
was not offered suitable limited[-]duty work.”
On November 20, 2013 Dr. Ani recommended bilateral median nerve releases as
conservative treatment failed to relieve appellant’s carpal tunnel syndrome. He opined that her
condition was “directly related to the accident” and that delay in treatment would affect her
prognosis. Dr. Ani renewed restrictions against lifting more than 15 pounds or driving for longer
than 20 minutes at a time. He prescribed additional physical therapy. Renewed diagnoses and
restrictions on December 18, 2013.
In a December 10, 2013 letter, Dr. Ani noted that appellant presented on August 5, 2013
complaining of neck and back pain “since an injury that [appellant] sustained at work on
multiple occasions.” Appellant had restricted cervical and lumbar motion with some pain on
palpation. Dr. Ani diagnosed C4-5, C5-6, C6-7, and L3-4 disc herniations, and bilateral carpal
tunnel syndrome. He opined that the lumbar disc herniation and carpal tunnel syndrome were
“directly related” to appellant’s postal employment, that the cervical disc herniations were
possibly related to repetitive motion at work.
On December 23, 2013 Dr. Ani explained that the work restrictions prescribed on
September 23, 2013 were “directly related to the conditions of brachial neuritis/radiculitis and/or
thoracic/lumbosacral neuritis/radiculitis.”
On January 15, 2014 Dr. Ani released appellant to work for four hours a day, with no
pulling, twisting, bending, repetitive lifting, sitting from a standing position, “[s]imply standing
for a certain amount of time,” “[w]alking for certain distance,” climbing up or down stairs, and
driving for more than 20 minutes at a time. In a February 3, 2014 letter, he explained that the
prescribed work restrictions were “necessary to avoid aggravating the conditions in which
[appellant] sustained at work on October 1, 2010.”5
By decision dated February 27, 2014, OWCP denied appellant’s claim for compensation
from October 5, 2013 onward as she did not submit medical evidence supporting total disability
for the claimed period.
Appellant disagreed and on March 6, 2014 requested a hearing, before an OWCP hearing
representative later changed to a request to a review of the written record.6
On April 21, 2014 appellant submitted a November 26, 2013 notice of recurrence (Form
CA-2a) claiming total disability from October 6, 2013 onward. Appellant’s supervisor stated
that, as of October 5, 2013, appellant was on modified duty, with “work in manual letters or
flats.”
5

Appellant participated in physical therapy in January and February 2014.

6

On February 25, 2014 the employing establishment offered appellant a modified-duty position for four hours a
day, with sitting or standing two hours, lifting, reaching and simple grasping for up to two hours, intermittent
twisting for two hours, and dispatching trays or buckets weighing less than six pounds for up to two hours.
Appellant declined the offer of February 28, 2014, stating that she could not accept a job until her physician
approved it.

3

In a May 16, 2014 letter, OWCP advised appellant of the additional evidence needed to
establish her claim for recurrence of disability, including her physician’s statement explaining
how and why the accepted brachial or thoracic neuritis would cause total disability for work on
and after October 5, 2013.
In response, appellant provided her June 5, 2014 letter, contending that on October 6,
2013 the employing establishment informed her that no work was available within Dr. Ani’s
September 23, 2013 restrictions. She asserted that she remained unable to work eight hours a
day or to drive for more than 20 minutes.
Appellant submitted chart notes from Dr. Ani dated from April 16 to June 12, 2014,
finding her neck, thoracic, and lumbar pain unchanged, with continuing bilateral carpal tunnel
syndrome. Dr. Ani released her to work four hours a day with no pushing, pulling, or twisting,
and no driving more than 20 minutes at a time.
Dr. Adeel Ahmad, an attending Board-certified physiatrist, administered C7-T1 epidural
steroid injections on April 17, 2014, authorized by OWCP. Appellant participated in physical
therapy from January to May 2014.
By decision dated July 17, 2014, OWCP denied appellant’s recurrence claim as the
medical evidence did not establish that she was totally disabled for work on and after October 6,
2013 due to the accepted brachial, thoracic, or lumbosacral radiculitis/neuritis.7
Appellant disagreed with the July 17, 2014 decision, and on July 24, 2014, through
counsel, requested a video hearing, held December 5, 2014. At the hearing, appellant contended
that she was sent home from work on October 6, 2013 as the employing establishment could not
accommodate her work limitations. She alleged that she was not given written modified-duty
assignments, but that her duties were explained to her ad hoc. Appellant explained that she could
no longer commute to work as her duty station was a 45-minute drive from her home, more than
the 20 minutes allowed by Dr. Ani. She noted that there was no public transportation available
and that she did not have family members available to drive her.
Following the hearing, appellant submitted additional evidence. In chart notes from
July 23, 2013 to November 6, 2014, Dr. Ani found her condition unchanged. He released
appellant to modified duty on November 6, 2014 within previous restrictions. Dr. Ani noted that
she must rest 30 minutes for every 30 minutes of driving. In a December 4, 2014 letter, he
affirmed the work restrictions he listed on January 15, 2014, explaining that they were
“necessary to avoid worsening of the conditions in which [appellant] sustained at work on
October 1, 2010.” Appellant underwent additional lumbosacral injections. Her condition
remained unchanged as of January 8, 2015.
7

Appellant filed claims for compensation (Form CA-7) for the periods August 10, 2012 to May 17, 2013 and
July 11 to October 3, 2013. In a September 3, 2014 letter, OWCP advised her that because her recurrence claim was
denied, her claim for compensation from August 10, 2012 to May 17, 2013 was not payable. By decision dated
October 23, 2014, it denied appellant’s claims for wage-loss compensation from July 11 to October 3, 2013 as there
was insufficient medical evidence supporting total disability for work for that period due to the accepted cervical,
thoracic, and lumbosacral neuritis.

4

By decision dated February 26, 2015, an OWCP hearing representative affirmed the
July 17, 2014 decision, finding that the medical evidence had not established that appellant was
disabled for work on and after October 5, 2013 due to accepted brachial, thoracic, or lumbosacral
neuritis/radiculitis. The hearing representative found that there was no evidence of a change in
her light-duty job requirements. Also, appellant had failed to submit sufficient evidence that she
had no other means of commuting to and from work.
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.8 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 is
withdrawn or when the physical requirements of such an assignment are altered such that they
exceed the employee’s physical limitations.9 Appellant has the burden of establishing that there
was no medically appropriate light duty available for the claimed period.10
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. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.11 This includes the necessity of
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
employment factors and supports that conclusion with sound medical reasoning.12 An award of
compensation may not be made on the basis of surmise, conjecture, speculation or on appellant’s
unsupported belief of causal relation.13
ANALYSIS
OWCP accepted that appellant sustained brachial, thoracic, and lumbosacral neuritis or
radiculitis on or before October 1, 2010. On October 22, 2013 appellant claimed a recurrence of
8

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.b
(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004).
9

J.F., 58 ECAB 124 (2006).

10

Id.

11

Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986).

12

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

13

Patricia J. Glenn, 53 ECAB 159 (2001); Ausberto Guzman, 25 ECAB 362 (1974).

5

disability commencing October 5, 2013 while on light duty. She has the burden of providing
sufficient rationalized medical evidence supporting a spontaneous worsening of the accepted
brachial, thoracic, and lumbosacral neuritis.14 However, appellant did not assert or establish that
the accepted conditions deteriorated on their own. Rather, she contended that the employing
establishment withdrew light-duty work or refused to accommodate her medical restrictions.
The Board has held that withdrawal of a light-duty job formulated to comply with an
employee’s work-related medical limitations can constitute a recurrence of disability.15
However, there was no withdrawal of light duty established in this case.
Counsel contended that on October 6, 2013 when appellant presented restrictions to her
supervisor from Dr. Ani, an attending Board-certified orthopedic surgeon, the employing
establishment stated that it had no work within those limitations. Appellant repeated this
contention in her June 5, 2014 letter, and at the December 5, 2014 hearing. She contended that
her assignments were given orally and that she did not have an official job description.
However, appellant did not submit any evidence supporting that the employing establishment
withdrew light duty as of October 5, 2013. She did not provide a statement from her supervisor,
job descriptions, witness statements, or other documentation corroborating her account of events.
An additional difficulty with this case is Dr. Ani’s admission that the work restrictions he
prescribed were preventative in nature. He asserted that the restrictions were directly related to
the accepted brachial, thoracic, and lumbosacral radiculitis, but in the sense that they were
necessary to avoid worsening those conditions. However, the Board has long held that
prophylactic work restrictions do not establish a basis for wage-loss compensation.16 A fear of
future injury is not compensable under FECA.17
The Board finds that appellant did not submit sufficient medical evidence to establish a
spontaneous worsening of the accepted conditions, or a withdrawal of light duty. OWCP’s
February 26, 2015 decision denying the recurrence claim is therefore proper under the law and
facts of this case.
On appeal, counsel contends that under the Board’s holding in Jackie B. Wilson,18 a
claimant’s showing that there was no light-duty work available within his or her restrictions
constitutes a recurrence of disability. He asserts that appellant’s statements at the hearing are
sufficient to meet her burden of proof in this regard. However, as stated, there is no official job
description of record for her duties as of October 5, 2013, nor is there evidence that her job
duties changed or that the position was withdrawn.

14

Ricky S. Storms, 52 ECAB 349 (2001).

15

Supra note 9.

16

S.O., Docket No. 14-1303 (issued April 29, 2015).

17

Manuel Gill, 52 ECAB 282 (2001).

18

39 ECAB 195 (1988).

6

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of disability commencing
October 5, 2013 causally related to accepted brachial, thoracic, and lumbosacral neuritis and
radiculitis.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Program dated February 26, 2015 is affirmed.
Issued: November 9, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.Y., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Newark, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1278
Issued: February 2, 2010

Case Submitted on the Record

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

JURISDICTION
On April 17, 2009 appellant, through his representative, filed a timely appeal from a
February 9, 2009 merit decision of the Office of Workers’ Compensation Programs denying his
traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUE
The issue is whether appellant established that he sustained an injury on July 2, 2007, as
alleged.
On appeal, counsel contends that appellant submitted sufficient medical evidence to
establish that he sustained a work-related left knee injury.

FACTUAL HISTORY
On July 13, 2007 appellant, then a 49-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on July 2, 2007 he injured his left knee while
bending to perform a pat down.1
In a July 10, 2007 prescription note, Dr. Miroslaw Florczyk, a Board-certified internist,
stated that he treated appellant for left shoulder, left elbow and left knee work injuries. He took
appellant off work until July 17, 2007 for therapy.
By letter dated July 23, 2007, the Office notified appellant of the deficiencies in his claim
and requested he provide additional factual and medical evidence.
In an undated statement, appellant stated that he previously sustained an employment
injury to his left knee on November 24, 2004 but that this condition was never accepted by the
Office.
In a July 13, 2007 medical report, Dr. Lewis Levine, a Board-certified orthopedic
surgeon, stated that appellant apparently injured his left shoulder, elbow and knee in 2004 while
drawing a heavy mailbag. He noted that appellant had complex issues regarding his health and
had a significant number of prior orthopedic surgeries. Physical examination revealed pain in
the posterior aspect and medial and joint line pain and global pain about the knee. X-rays were
normal. Dr. Levine diagnosed knee pain. In an August 3, 2007 report, he stated that appellant’s
left knee was still bothering him. A magnetic resonance imaging (MRI) scan revealed a small
discoid meniscus with a very small radial tear. Dr. Levine noted that appellant’s symptoms
appeared to be related to the patellofemoral joint.
By decision dated August 23, 2007, the Office denied the claim on the grounds that
appellant did not establish that he sustained an injury on July 2, 2007 causally related to his
employment. It found that Dr. Levine did not explain whether the employment injury was a new
injury or an aggravation of the preexisting left knee condition.
On August 29, 2007 appellant, through his attorney, filed a request for an oral hearing
before an Office hearing representative.
In an August 27, 2007 medical report, Dr. Levine stated that the history appellant
provided him on the initial visit was incorrect. Appellant reported that he injured his left knee
while squatting at work in July 2007. Dr. Levine opined that the July 2007 injury certainly could
have caused a torn meniscus in the left knee. He stated that within a reasonable degree of
medical certainty appellant did sustain an injury due to the most recent work event.
Appellant submitted hospital records dated July 5, 2007. Dr. Thomas Hildebrand, Boardcertified in emergency medicine, stated that appellant was performing a deep knee bend when he

1

Appellant also filed a recurrence claim for a June 26, 2007 shoulder injury. This claim was given a separate
Office file number and is not at issue in the current appeal.

2

experienced pain in his left knee. He diagnosed left knee sprain by history and took him off
work until a follow-up appointment with Dr. Levine.
An oral hearing before an Office hearing representative was held on December 20, 2007.
Counsel argued that the August 27, 2007 medical report from Dr. Levine established a prima
facie case that appellant’s left knee injury was caused by the July 2007 employment injury.
By decision dated March 5, 2008, an Office hearing representative affirmed the
August 23, 2007 decision, finding that appellant did not submit sufficient medical evidence to
support that his left knee condition was related to the employment injury. She found that the
August 27, 2007 medical report from Dr. Levine was equivocal and lacked medical rationale.2
On November 17, 2008 appellant, through his representative, filed a request for
reconsideration.
In a May 27, 2008 medical report, Edgar Q. Martirez, M.D., stated that he treated
appellant for a July 2, 2007 work-related left knee injury. He reported that appellant sustained a
hyperflexion injury of the left knee while performing a “buddy” search when he experienced a
sudden, severe onset of left knee pain after kneeling down. An MRI scan revealed a tear of the
lateral meniscus, which was about a year old. Dr. Martirez noted that appellant may require
arthroscopic surgery. In a prescription note dated June 17, 2008, he placed appellant on light
duty until left knee surgery.
By decision dated February 9, 2009, the Office denied modification of the prior decisions
on the grounds that the evidence did not establish with medical rationale that appellant’s
employment injury caused his left knee condition.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act3
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,4 including that he is an “employee” within the meaning of
the Act5 and that he filed his claim within the applicable time limitation.6 The employee must

2

On June 10, 2008 appellant, through his attorney, filed an appeal with the Board from the March 5, 2008
decision. The appeal was docketed as No. 08-1838. By letter dated November 13, 2008, appellant, through his
attorney, withdrew the appeal before the Board in order to request reconsideration from the Office.
3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
5

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
6

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.

3

also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.8 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
The issue is whether appellant established that he sustained a left knee injury on July 2,
2007 while bending at work. The Board finds he has not submitted sufficient medical evidence
to meet his burden of proof.
Appellant submitted several medical reports from Dr. Levine. On July 13, 2007
Dr. Levine diagnosed knee pain stating that appellant apparently injured his knee in 2004 while
drawing a heavy mailbag and had undergone a significant number of orthopedic surgeries. In an
August 3, 2007 report, he interpreted an MRI scan as revealing a small discoid meniscus with a
small radial tear and noted that appellant’s symptoms of left knee pain seemed to be related to
the patellofemoral joint. On August 27, 2007 Dr. Levine stated that appellant provided an
incorrect history on his initial visit and had injured his left knee while squatting at work in
July 2007. He opined that within a reasonable degree of medical certainty appellant sustained an
injury due to the most recent work event and that the July 2, 2007 injury certainly could have
caused a torn meniscus in the left knee.

7

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

9

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
10

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

4

The Board finds that Dr. Levine’s opinion on causation is insufficient to meet appellant’s
burden of proof. Dr. Levine did not provide adequate rationale to support his conclusion that the
alleged July 2, 2007 employment injury caused a torn meniscus of the left knee. Specifically, he
did not describe how the mechanisms associated with appellant’s squatting at work tore the left
knee meniscus.11 Dr. Levine did not provide a consistent, comprehensive history of appellant’s
left knee injury.12 In the July 13, 2007 medical report, he initially described the cause of
appellant’s injury as a 2004 work event, however, he later stated that this was incorrect.
Notably, appellant alleged that he previously sustained a left knee work injury on November 24,
2004 but that the Office did not accept it. Dr. Levine did not provided a complete history
describing the prior 2004 knee condition or how it was related to appellant’s current condition.
He did not address whether the current torn meniscus of the left knee was due to the 2004 injury
or whether the alleged July 2, 2007 work injury was the sole cause of the current condition.
Moreover, Dr. Levine did not discuss whether the 2004 injury had healed or predisposed
appellant to a future knee injury. He did not give a comprehensive and consistent history of
appellant’s knee condition, or provide a rationalized medical opinion relating the torn meniscus
to the July 2, 2007 employment injury. The Board finds Dr. Levine’s reports are insufficient to
establish appellant’s claim.13 Additionally, his August 27, 2007 report was couched in
speculative terms in that he reported that the alleged July 2, 2007 injury could have caused a torn
left meniscus. Without medical rationale to explain his conclusion, it is of diminished probative
value and insufficient to establish appellant’s claim.14
In a July 10, 2007 prescription note, Dr. Florczyk treated appellant for left knee, shoulder
and elbow work injuries and placed him off work. He did not describe how appellant injured his
left knee at work or provide a compensable diagnosis pertaining to the left knee injury.
Dr. Florczyk’s report does not establish appellant’s claim.15
Appellant also submitted July 5, 2007 hospital records in which Dr. Hildebrand stated
that appellant was performing a deep knee bend when he experienced left knee pain.
Dr. Hildebrand diagnosed left knee sprain. He also failed to provide a rationalized medical
opinion explaining how the mechanisms of appellant’s bending could cause a left knee sprain.
Thus, these records are also of diminished probative value.16
In a May 27, 2008 medical report, Dr. Martirez stated that he treated appellant for a
July 2, 2007 work-related left knee injury. He reported that appellant sustained hyperflexion of
the knee after kneeling down while performing a search. Dr. Martirez diagnosed a tear of the
lateral meniscus. In a June 17, 2008 prescription note, he placed appellant on light duty until left
knee surgery. This report is similarly insufficient to meet appellant’s burden of proof as
11

See C.B., 60 ECAB ___ (Docket No. 08-1583, issued December 9, 2008); T.H., supra note 9.

12

See Jennifer Atkerson, 55 ECAB 317 (2004).

13

Id.

14

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009); Kathy A. Kelley, 55 ECAB 206 (2004).

15

See Claudio Vazquez, 52 ECAB 496 (2001).

16

See Daniel J. Overfield, 42 ECAB 718 (1991).

5

Dr. Martirez did not provide a fully-rationalized opinion explaining how appellant’s kneeling
caused the lateral meniscus tear. Dr. Martirez stated that appellant sustained a hyperflexion
injury, however, he did not explain the type of hyperflexion injury that appellant experienced or
how it caused a lateral meniscus tear. Thus, his report does not establish that appellant sustained
a left knee condition causally related to his July 2, 2007 employment injury.17
None of the remaining medical evidence of record addresses the cause of appellant’s left
knee injury or otherwise provides an opinion that his left knee condition was causally related to
his July 2, 2007 employment injury. Thus, the Board finds that appellant did not establish his
claim.
CONCLUSION
The Board finds that appellant did not establish that he sustained an injury on July 2,
2007 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 9, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 2, 2010
Washington, DC

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

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

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

17

See id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.O., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Philadelphia, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1146
Issued: February 2, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 24, 2015 appellant, through counsel, filed a timely appeal of a February 20,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation for wage-loss
and medical benefits effective August 24, 2014 as she no longer had any residuals or disability
causally related to her accepted employment-related injury.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 20, 2015 decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. §§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal counsel argues that there was no true conflict in the medical opinion evidence
at the time OWCP referred appellant for an impartial medical examination, as both the second
opinion physician and appellant’s treating physician concluded that she continued to have
residuals, but had a minor disagreement on work restrictions. Next, counsel argues that the issue
pending at the time of the referral to the impartial medical examiner was whether her claim
should be expanded to include a cervical condition. Lastly, counsel argued that there is now an
unresolved conflict between appellant’s treating physician and the physician selected as an
impartial medical examiner as to whether appellant continues to have residuals and disability due
to her accepted employment injuries.
FACTUAL HISTORY
On November 29, 2011 appellant, then a 45-year-old sourcing strategy specialist, filed an
occupational disease claim (Form CA-2) alleging that she first became aware of her bilateral
carpal tunnel condition on November 7, 2011, but was not aware that it was causally related to
her working on a computer until November 10, 2011. OWCP accepted her claim for bilateral
carpal tunnel syndrome, right radial tenosynovitis, left cubital tunnel, and posterior occipital
neuralgia. By letter dated October 4, 2012, it placed appellant on the periodic rolls for temporary
total disability effective August 29, 2012. Appellant returned to work on October 12, 2012
working six hours per day for three days per week. She stopped work on April 16, 2013 and has
not returned. By decision dated May 28, 2013, OWCP accepted appellant’s April 9, 2013
recurrence of total disability.
In a March 12, 2013 progress report, Dr. Scott M. Fried, a treating osteopath, provided
physical examination findings and indicated that appellant was capable of part-time light-duty
work. He opined that she was disabled from performing her usual work duties and requested she
be able to work at home in an ergonomic setting. Diagnoses included tendinitis, bilateral carpal
tunnel median neuropathy, right de Quervain’s tenosynovitis, right radial neuropathy, left ulnar
neuropathy, right brachial plexopathy/cervical radiculopathy, and bilateral carpal tunnel median
neuropathy. In concluding, Dr. Fried indicated that appellant was capable of part-time light-duty
work.
On April 22, 2013 OWCP referred appellant to Dr. Robert F. Draper, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine appellant’s work capabilities
and whether she continued to suffer from her accepted employment injuries.
On May 9, 2013 appellant declined a light-duty accommodated job offer of a sourcing
strategy specialist from the employing establishment working six hours per day and three days
per week. She noted that Dr. Fried concluded that the offered job was not within her restrictions.
In an attending physician’s report Dr. Fried indicated that appellant was partially disabled for the
period May 1 to 9, 2013 and totally disabled for the period May 9 to July 22, 2013.
In a May 17, 2013 report, Dr. Draper diagnosed bilateral carpal tunnel syndrome, left
cubital tunnel syndrome, and bilateral wrist de Quervain’s tenosynovitis. He opined that
appellant continued to have residuals from the diagnosed conditions, but concluded that she was
capable of performing sedentary work with restrictions three days per week for six hours per day.

2

The restrictions included occasional lifting of up to10 pounds, frequent lifting of up to 5 pounds,
no excessive overuse of both hands, and no repetitive typing on a keyboard.
On July 31, 2013 OWCP referred appellant to Dr. William H. Simon, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion evidence between Drs. Draper
and Fried on the issue of her work capability and restrictions.
In an August 19, 2013 report, Dr. Simon, based upon a review of the medical evidence,
statement of accepted facts (SOAP) injury, medical history, and physical examination, opined
that appellant no longer had any residuals or disability due to her accepted conditions of bilateral
carpal tunnel syndrome, right radial tenosynovitis, left cubital tunnel, and posterior occipital
neuralgia. He identified the conflict between Drs. Fried and Draper concerning her work
restrictions and job duties. A physical examination revealed normal lumbar and cervical range
of motion; full range of motion of her shoulders, elbows, wrist, and hands, no evidence of
bilateral upper arm, forearm, or hand atrophy, some left palm thenar muscle atrophy, negative
bilateral Phalen’s test, and negative Finkelstein’s test. Dr. Simon diagnosed long-standing and
progressive cervical degenerative joint disease and intervertebral disc disease and subjective
symptoms of bilateral cervical radiculopathy, which were unconfirmed by electromyogram
(EMG). He opined that three months of treatment for carpal tunnel syndrome should have been
sufficient to relieve the symptoms. Next, Dr. Simon explained that a diagnosis of bilateral carpal
tunnel condition could not be made by the EMG, which found no median nerve bilateral wrist
compression neuropathy. He opined that appellant did not have any symptoms causally related
to recurrent use of her bilateral upper extremities. Dr. Simon attributed appellant’s current
condition and symptoms to underlying progressive cervical radiculopathy due to progressive
cervical degenerative disc and joint diseases and opined that these conditions were not work
related. In addition, he related that he found no evidence of bilateral de Quervain’s, ulnar nerve
changes, or brachial plexus that could be the result of a repetitive stress injury. Dr. Simon
concluded that he agreed with the work restrictions provided by Dr. Draper. However, he
explained that the work restrictions were due to her progressive cervical degenerative condition
and unrelated to any work-related repetitive stress condition.
In a September 17, 2013 report, Dr. Fried diagnosed bilateral carpal tunnel median
neuropathy/repetitive strain injury, tendinitis, right de Quervain’s tenosynovitis, right posterior
occipital neuralgia, right radial neuropathy, left ulnar neuropathy, and right cervical
radiculopathy/brachial plexopathy, which were all work related. He noted that appellant was
currently disabled from working due to her employment injuries and that she was applying for
disability retirement. Physical examination findings were unchanged from prior reports.
Dr. Fried recommended an updated functional capacity evaluation (FCE) once appellant’s
symptoms were stable enough to determine work restrictions.
In an October 4, 2013 report, Dr. Fried noted a medical and employment history of injury
from 2011 until 2013 and reviewed diagnostic data including orthopedic neuromusculoskeletal
ultrasound. Diagnoses were unchanged from his prior report. Physical examination findings
included positive Tinel’s sign at the medial, radial, and ulnar nerve and right thoracic outlet
infraclavicular fossa, positive compression testing of the right radial nerve at the elbow, positive
bilateral wrist compression testing, and positive Phalen’s test in the right hand. Dr. Fried opined
that appellant had significant and ongoing bilateral upper extremity nerve injury due to her work

3

activities which prevented her from performing her usual duties. He noted that she was unable to
use a mouse, perform regular keying, reaching, gripping, speaking on a telephone, prolonged
neck and head posturing activities, pushing, and pulling. Dr. Fried explained that appellant has
attempted multiple times to return to work, even a modified job, and has been unable to do so as
a result of her physical limitations. He reported that she had multiple positive tests including
neuromusculoskeletal ultrasound evaluation, nerve conduction studies, and Tinel’s, Phalen’s,
Roos, Hunter’s, and Compression tests. Dr. Fried opined that appellant was disabled from
performing her regular or a similar job as she has strict sedentary requirements and is unable to
regularly use her arms and hands.
In progress reports dated February 24, April 10, and May 19, 2014, Dr. Fried noted that
appellant was seen for her continued bilateral carpal tunnel, left ulnar, right cervical, and right
wrist conditions. Appellant reported that the biggest issue was pain and associated spasms.
Dr. Fried noted that appellant continued to be off work due to her accepted employment injuries.
In office notes dated April 1 and May 28, 2014, Dr. Bruce H. Grolssinger, an examining
Board-certified neurgologist and pain medicine physician, noted that appellant was currently out
of work and continuked to have recurrent headaches, bilateral carpal tunnel pain, greater on the
right, and burning neck pain, which extended to both shoulders, midscapular region, and arm. A
physical examination revealed reduced cervical range of motion on forward flexion and greater
with right lateral rotation, positive bilateral Tinel’s sign, and bilateral low paravertebral muscle
spasm. Dr. Grossinger opined that appellant continued to have evidence of brachial plexopathy,
cervical sprain with right-sided greater joccipatal neuralgia, forearm tendinitis with epicondylitis,
bilateral carpal tunnel syndrome, and left ulnar neuropathy, which were due to the accepted
November 7, 2011 work injury.
On June 12, 2014 OWCP issued a notice proposing to terminate appellant’s
compensation benefits based on Dr. Simon’s opinion that she no longer had any disability or
residuals due to her accepted work-related injuries.
By letter dated June 23, 2014, appellant’s counsel disagreed with the proposal to
terminate appellant’s benefits and argued that there was not a conflict in the medical opinion
evidence between Drs. Draper and Simon. Counsel also raised arguments regarding whether
Dr. Simon was properly selected as the impartial medical examiner.
In a July 1, 2014 letter, counsel argued that Dr. Simon’s report was insufficient to
represent the weight of the evidence particularly as he disagrees that appellant has bilateral
carpal tunnel syndrome, which is an accepted condition. Counsel argued that Dr. Simon’s
opinion was also in conflict with the opinions of Dr. Fried, appellant’s treating physician, and
Dr. Draper, an OWCP second opinion physician. Thus, counsel argued that Dr. Simon’s opinion
created a new conflict and referral to a new impartial medical examiner is required under section
8123(a). Next, counsel argues that Dr. Simon diagnosed cervical radiculopathy or a cervical
degenerative condition, but offers no opinion as to whether these conditions were caused or
aggravated by appellant’s employment duties. Counsel requested that appellant’s claim be
expanded to include the cervical conditions.

4

In progress reports dated July 8, 2014, Dr. Fried reiterated findings from prior reports.
He related that appellant’s sypmtoms were definitely impacted by activities and use and that she
was currently disabled from working.
A July 8, 2014 neuromusculoskelatal ultrasound procedure report revealed radial tunnel
nerve compression at 70 percent, substantial nerve swelling at a grade 2, substantial Vascular
Leash of Henry, grade 2 perineural scarring, and markedly positive compression testing.
In a July 10, 2014 report, Dr. Fried provided a history of appellant’s injury and
summarized report findings by Drs. Draper and Simon. He related that he had never found
appellant totally disabled as she was capable of working with restrictions. Dr. Fried explained
that, following her return to work in 2012, she reported an increase in her fatigue and pain as
well as an increase in her hand symptoms. He explained that he diagnosed bilateral carpal tunnel
syndrome or repetitive strain injury based on the findings of posterior occipital neuralgia,
tenosynovitis, radial neuropathy, and evidence of C5-T1 radiculopathy. Dr. Fried explained that
T5-T1 radiculopathy was cervical radiculopathy which he attributed to appellant’s work injury
and main scarring of the brachial plexus and paracervical musculature, which he opines was
consistent with cervical syndrome. He reiterated his opinion that she was capable of working
with restrictions including limited keying, reaching, pushing, pulling, grasping, and writing.
Dr. Fried noted that when appellant attempted to work six hours per day performing activities
within her restrictions that she severely aggravated and exacerbated her work-related conditions.
He then summarized the restrictions recommended in a December 16, 2013 FCE. In concluding,
Dr. Fried noted his disagreement with Dr. Simon’s report and that appellant continues to have
residuals and disability as the result of her employment injuries.
On July 22, 2014 OWCP provided Dr. Fried’s July 10, 2014 report to Dr. Simon to
review and provide an addendum report.
In a July 25, 2014 addendum, Dr. Simon noted that he agreed with the work restrictions
set by Dr. Draper and that appellant should not return to using a keyboard or computer. He noted
that the conditions accepted by OWCP included bilateral carpal tunnel syndrome, right radial
tenosynovitis, left cubital tunnel, and posterior occipital neuralgia. However, Dr. Simon noted
that the SOAF did not indicate whether one or all of the accepted conditions were due to
repetitive trauma. He further noted that, while he has to accept the diagnoses noted by OWCP,
he does “not have to accept the persistence of those diagnoses” when he examined appellant two
years later. Dr. Simon concluded by noting that Dr. Fried, Dr. Draper, and he were all in
agreement that appellant could return to modified work using Dragon software, a dictation
machine, and headphone for answering the telephone. The only disagreement he noted concerns
his opinion that appellant’s current impairment is unrelated to her work duties or to repetitive
trauma.
By decision dated August 19, 2014, OWCP finalized the termination of appellant’s
compensation benefits effective August 24, 2014.
In a fax request and letter dated August 21, 2014, appellant’s counsel requested a hearing
before an OWCP hearing representative. A video hearing was held on December 5, 2014.

5

By decision dated February 20, 2015, an OWCP hearing representative affirmed the
termination of appellant’s compensation.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification, or termination of an employee’s benefits.3 After it has determined that an
employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.4 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of a work-related condition, which would require
further medical treatment.7
Section 8123(a) of FECA provides in pertinent part: if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.8 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.9
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel, right radial tenosynovitis,
left cubital tunnel, and posterior occipital neuralgia. By decision dated August 19, 2014, it
terminated her medical and compensation benefits effective August 24, 2014. In making this
determination, OWCP gave special weight to the opinion of Dr. Simon as the impartial medical
examiner. An OWCP hearing representative affirmed the decision terminating appellant’s
compensation benefits on February 20, 2015. The Board finds that OWCP improperly
terminated her compensation benefits.

3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

8

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

9

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

6

OWCP referred appellant to Dr. Simon for an impartial medical examination. At the time
of the referral, however, there was no conflict as to whether she had continuing residuals from
her accepted conditions. Dr. Fried believed that appellant continued to have residuals and
disability due to her accepted conditions, but found that she was able to return to part-time work.
He noted in multiple reports that her accepted bilateral carpal tunnel, right radial tenosynovitis,
left cubital tunnel, and posterior occipital neuralgia had not resolved. Dr. Draper, the second
opinion physician, agreed that appellant continued to have residuals from the accepted bilateral
carpal tunnel syndrome, left cubital tunnel syndrome, and bilateral wrist de Quervain’s
tenosynovitis, but also found that she could return to part-time work.
OWCP referred appellant to Dr. Simon to resolve a conflict in the medical opinion
evidence regarding her work capability. In his July 25, 2014 addendum, Dr. Simon noted that he
agrees with both Drs. Draper and Fried that she is capable of working with restrictions and
concurs with the restrictions set by Dr. Draper. He noted that the only disagreement between his
opinion and the opinions of Drs. Draper and Fried was whether appellant’s current disability is
related to her work duties or repetitive trauma. There was no conflict regarding her ability to
work at the time of the referral. Although Dr. Simon’s report is not entitled to the special weight
afforded to the opinion of an impartial medical specialist, his report can still be considered as a
second opinion.10 He finds appellant able to work part time, but the restrictions refer only to
cervical issues unrelated to work. Dr. Simon finds that all the accepted conditions had resolved.
Subsequent to Dr. Simon’s opinion, Dr. Fried has determined that appellant remained disabled as
a result of the employment injuries and that a new FCE was needed to determine her work
restrictions.
The Board finds that there now exists an unresolved conflict in the medical evidence
between Dr. Fried and Dr. Simon as to whether appellant is able to return to work and whether
she has any residuals from her employment injury. Because OWCP bears the burden of proof to
terminate benefits, the Board will reverse the hearing representative’s decision affirming the
termination of benefits.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation effective August 24, 2014.

10

R.C., Docket No. 09-2217 (issued September 8, 2010).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 20, 2015 is reversed.
Issued: February 2, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8