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

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

Docket No. 19-1404
Issued: April 14, 2020

Case Submitted on the Record

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

JURISDICTION
On June 14, 2019 appellant filed a timely appeal from a May 2, 2019 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 appellant has met her burden of proof to establish that an incident
occurred in the performance of duty on March 7, 2019, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the May 2, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

FACTUAL HISTORY
On March 8, 2019 appellant, then a 45-year-old data collection technician, filed a traumatic
injury claim (Form CA-1) alleging that on March 7, 2019 at 1:30 p.m. she sprained her back when
she lifted a 40-pound package out of a hamper and felt a pinch in her back while in the performance
of duty. She explained that at the time she did not think anything of it. On the reverse side of the
claim form, the employing establishment indicated that appellant was injured in the performance
of duty and first received medical care on March 8, 2019. It also related that appellant stopped
work on March 11, 2019 and had not returned. The employing establishment noted its
disagreement with appellant’s statements because appellant worked the rest of her shift on the day
of the alleged injury and worked six hours the next day before reporting the incident.
A March 8, 2019 state workers’ compensation form report signed by Dr. Katherine
Martineau, a family medicine specialist, noted that appellant sought treatment for a work-related
injury. Dr. Martineau diagnosed a low back muscle strain and sprain and had no preexisting
conditions contributing to her diagnosis. She noted that appellant’s injury was the major cause for
the reported medical condition and listed a series of work restrictions.
In a March 11, 2019 report, Dina Garabedian, a certified physician assistant, noted that
appellant presented with back discomfort. She indicated that on March 7, 2019 while at work,
appellant lifted an oversized box weighing 16 kilograms. The box was inside a large container,
which prevented appellant from properly lifting the box. When she lifted the box she felt a pinch
in her back, and when she returned home she took pain medication, but the pain did not subside.
Appellant then had x-rays taken which showed she had not broken or dislocated any bones.
Ms. Garabedian noted that appellant was experiencing soft tissue pain and had difficulty bending,
sitting, standing, and laying down for long periods of time. A physical examination revealed
tenderness in appellant’s back. Ms. Garabedian diagnosed muscle spasms, soft tissue disorder,
lumbago, radiculopathy, and lumbar spine instability. She recommended a lumbar spine MRI
scan.
A March 11, 2019 duty status report (Form CA-17) completed by Ms. Garabedian noted
that on March 7, 2019 appellant strained her lower back when removing a heavy parcel from a
hamper. The report included the clinical findings of muscle spasms and lumbago and related that
appellant could not resume work.
In a March 29, 2019 development letter, OWCP advised appellant that additional evidence
was required in support of her claim. It noted that the evidence was insufficient to establish that
appellant actually experienced the incident or employment factor alleged to have caused injury.
OWCP requested that appellant submit a comprehensive narrative medical report from a qualified
physician that included a diagnosis and an opinion, supported by medical rationale, addressing
how the claimed employment incident caused or aggravated a medical condition and attached a
questionnaire for her completion. It afforded appellant 30 days to submit the requested evidence.
In March 8, 2019 urgent care records, Dr. Martineau noted that appellant presented with
low back pain. She further noted that on March 7, 2018 appellant lifted a 45-pound box and twisted
her back, and then experienced pain in her right lower back over her sacroiliac joint which radiated
into her right buttock upon movement. Dr. Martineau related that appellant may have had low

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back pain many years ago, but denied chronic back pain. She conducted a physical examination,
reviewed appellant’s lumbosacral x-ray, and diagnosed low back pain consistent with muscle strain
and spasm and degenerative changes.
April 15, 2019 medical records by Ms. Garabedian noted that appellant’s MRI scan
revealed an annular bulge at L3-L4 and an annual bulge with radiculopathy affecting the heal of
appellant’s right foot at L5-S1. She referred appellant for pain management for possible epidural
injections.
In an April 15, 2019 duty status report (Form CA-17), Ms. Garabedian noted that appellant
strained her lower back while removing a heavy parcel from a hamper on March 7, 2019 and
reported clinical findings of a bulging disc at L3-L4 and L5-S1.
By decision dated May 2, 2019, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record failed to establish fact of injury as appellant had not established that
the alleged incident occurred as alleged. It concluded, therefore, that the requirements had not
been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease. 6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 7 Fact of injury
consists of two components that must be considered in conjunction with one another. The first

3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

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

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

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component is whether the employee actually experienced the employment incident that allegedly
occurred.8 The second component is whether the employment incident caused a personal injury. 9
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.10 The employee has not met his or her burden of proof of establishing the occurrence of
an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s
statements in determining whether a case has been established. An employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence. 11
ANALYSIS
The Board finds that appellant has met her burden of proof to establish that the March 7,
2019 employment incident occurred in the performance of duty, as alleged.
Appellant indicated on her claim form filed on March 8, 2019 that she sprained her lower
back on March 7, 2019 while she was lifting a heavy package out of a hamper at work. The claim
form was signed by appellant’s supervisor who indicated that appellant was injured in the
performance of duty, but noted that he disagreed with appellant’s statements because she worked
the rest of her shift on the day of the alleged injury and worked six hours the next day before
reporting the incident.
The Board finds that the evidence of record is sufficient to establish that the employment
incident occurred on March 7, 2019 as alleged. There are no sufficient discrepancies in the case
record regarding appellant’s claimed March 7, 2019 employment incident so as to cast serious
doubt on the fact that it had occurred on that date in the manner alleged. 12 Appellant’s claim of a
March 7, 2019 employment incident has not been refuted by strong or persuasive evidence.
8

See M.F., Docket No. 18-1162 (issued April 9, 2019); D.S., Docket No. 17-1422 (issued November 9, 2017);
Elaine Pendleton, 40 ECAB 1143 (1989).
9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a
medical question that generally requires rationalized medical opinion evidence to resolve the issue. Robert G. Morris,
48 ECAB 238 (1996). A physician’s opinion on whether there is causal relationship between the diagnosed condition
and the implicated employment factor(s) must be based on a complete factual and medical background. Victor J.
Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and appellant’s specific employment factor(s). Id.
10

See M.F., supra note 8; Charles B. Ward, 38 ECAB 667, 67-71 (1987).

11

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

12

See D.L., Docket No. 18-1189 (issued February 15, 2019).

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On March 8, 2019 appellant went to urgent care, and Dr. Martineau noted that she
presented with low back pain and had lifted a heavy box the day before. On that same date,
Dr. Martineau signed a state workers’ compensation form report indicating that appellant
experienced a work-related injury. In March 11, 2019 medical records, Ms. Garabedian noted that
on March 7, 2019 while at work appellant lifted an oversized box inside a large container.
The Board finds that appellant has provided a consistent account of the time, place, and
manner of injury. Appellant consistently described a lower back injury due to lifting a heavy box
from inside a larger container. While the employing establishment noted that it disagreed with her
claim, appellant provided a singular account of the mechanism of injury and her actions
surrounding the incident corroborate her description. 13 She continued working and tried to treat
the pain with medication, but the pain did not subside so the next day she sought medical treatment.
As appellant has established that the March 7, 2019 employment incident factually
occurred, the question becomes whether this incident caused an injury.
The Board will therefore remand the case for consideration of the medical evidence on the
issue of causal relationship. Following such further development as deemed necessary, OWCP
shall issue a de novo decision addressing whether appellant has met her burden of proof to establish
an injury causally related to the accepted March 7, 2019 employment incident. 14
CONCLUSION
The Board finds that appellant has met her burden of proof to establish that the March 7,
2019 employment incident occurred in the performance of duty, as alleged. The case is not in
posture for decision, however, with regard to whether she has established an injury causally related
to the accepted March 7, 2019 employment incident.

13

See G.G., Docket No. 19-0490 (issued October 3, 2019).

14

Id.

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ORDER
IT IS HEREBY ORDERED THAT the May 2, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: April 14, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Z.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
AERONAUTICAL SYSTEMS CENTER,
WRIGHT-PATTERSON AIR FORCE BASE,
OH, Employer
__________________________________________

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

Docket No. 11-842
Issued: October 7, 2011

Oral Argument August 17, 2011

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

JURISDICTION
On January 20, 2011 appellant filed a timely appeal from an August 4, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration without further merit review. Pursuant to the Federal Employees’ Compensation
Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this decision.
Because more than 180 days elapsed from April 27, 2010, the date of the most recent OWCP
merit decision, to the filing of this appeal, the Board lacks jurisdiction to review the merits of the
case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 29, 2004 appellant, then a 57-year-old logistics management specialist, filed
a traumatic injury claim alleging that she was walking to her automobile on January 27, 2004
when she slipped on ice, fell on her rear and struck her head.2 OWCP accepted the claim for
back, face, scalp and neck contusions, but found the medical evidence insufficient to establish an
employment-related left hip condition.
Appellant filed an occupational disease claim on September 15, 2006, alleging that she
sustained severe left hip joint pain resulting from her temporary assignment in Germany.3 She
was stationed at Rhein-Main Air Base for the period April 27 to June 9, 2005 and that her job
duties alternated during 8-to-12-hour shifts between sedentary computer work, lifting and
frequent use of a manual transmission automobile. Appellant also routinely climbed five flights
of stairs to her lodging facility. After her return, she was advised in July 2005 to obtain medical
treatment at the employing establishment’s occupational health center. Appellant was
subsequently referred to physical therapy starting August 30, 2005. She noted that a physical
therapy technician performed a maneuver “applying downward pressure on my left hip and leg
while I was lying on a table with my right leg resting on his shoulder” on multiple occasions.
Following the fourth session, appellant experienced considerable pain and, by September 18,
2005, was unable to ambulate without a cane. She underwent left hip replacement surgery on
December 28, 2006.
On November 30, 2007 OWCP referred appellant for a second opinion examination to
Dr. Rudolf A. Hofmann, a Board-certified orthopedic surgeon.4 After reviewing the medical file
and conducting a physical examination, Dr. Hofmann opined in a December 18, 2007 report that
her diagnosed left hip osteoarthritis was not causally related to her temporary assignment in
Germany.
By decision dated February 1, 2008, OWCP denied appellant’s occupational disease
claim, finding that Dr. Hofmann’s report constituted the weight of the medical evidence.
On August 18, 2008 OWCP’s hearing representative affirmed the February 1, 2008
decision following a June 3, 2008 telephonic hearing. She determined, however, that a formal
decision was not made as to whether appellant’s left hip condition was causally related to the
accepted January 27, 2004 employment incident. OWCP’s hearing representative ordered
OWCP on remand to combine the claims, conduct further development as needed and issue a
decision.
On September 9, 2008 appellant filed a second occupational disease claim, alleging that
her left hip joint symptoms were exacerbated by five sessions of physical therapy, particularly
2

OWCP File No. xxxxxx160.

3

OWCP File No. xxxxxx470.

4

OWCP denied appellant’s occupational disease claim by decision dated December 28, 2006. On October 4,
2007 its hearing representative set aside the December 28, 2006 decision and remanded the case, finding the medical
evidence sufficient to warrant further development.

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the “manual hip extractions,” furnished by the employing establishment in September 2005.
OWCP informed her in an October 7, 2008 letter that the new claim was an extension of the
September 15, 2006 claim and that “[c]laiming ‘medical treatment’ is not a basis for filing a new
claim.”5
On April 29, 2009 OWCP referred appellant for a second opinion examination to
Dr. Pietro Seni, a Board-certified orthopedic surgeon. In a May 13, 2009 report, Dr. Seni
reviewed the medical record, diagnosed femoroacetabular impingement of the left hip and
concluded that the January 27, 2004 employment incident, which temporarily aggravated
preexisting hip osteoarthritis, did not otherwise result in permanent damage.6 He opined that
appellant’s left hip arthroplasty was necessary due to the deterioration symptomatic of
femoroacetabular impingement. Dr. Seni also diagnosed femoroacetabular impingement of the
right hip, but ruled out any causal relationship to the January 27, 2004 incident.
By decisions dated December 15 and 18, 2009, OWCP accepted appellant’s claim for
temporary aggravation of preexisting left hip osteoarthritis, but did not authorize bilateral hip
replacements.
Appellant requested a review of the written record on January 14, 2010. She submitted a
January 22, 2010 letter with attachments that contended, inter alia, that her September 9, 2008
occupational disease claim should have been addressed in the manner prescribed in Chapter
2.804.19(a) of OWCP’s procedure manual.7
By decision dated April 27, 2010, OWCP’s hearing representative affirmed the
December 15 and 18, 2009 decisions. She also pointed out that OWCP correctly combined the
September 15, 2006 and September 9, 2008 occupational disease claims as the latter was “not
new.” OWCP’s hearing representative did not specifically address appellant’s argument
regarding application of Chapter 2.804.19(a) of OWCP’s procedure manual.
On June 23, 2010 appellant requested reconsideration and reiterated her previous legal
argument.8 She asserted that her left hip condition was permanently aggravated by physical
therapy at work in 2005 and that this necessitated her hip surgery. Appellant resubmitted her
January 22, 2010 letter with attachments.
On August 4, 2010 OWCP denied the request on the basis that she did not present new
evidence or legal contentions warranting further merit review.

5

An October 30, 2009 letter from OWCP restated that “medical treatment is not work related.”

6

Dr. Seni indicated that appellant brought five or six binders of unofficial documents for him to review during the
visit. They also discussed the details of her case for over an hour. As a result, Dr. Seni was unable to conduct a
physical examination.
7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.19(a)
(March 1994).
8

Appellant also requested a second hearing before OWCP’s Branch of Hearings and Review on May 19, 2010,
which was denied.

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LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9 its
regulations provide that the evidence or argument submitted by a claimant must either: (1) show
that OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant
legal argument not previously considered by it; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.10 Where the request for reconsideration fails to
meet at least one of these standards, OWCP will deny the application for reconsideration without
reopening the case for a review on the merits.11
ANALYSIS
On reconsideration of the April 27, 2010 merit decision, as well as on oral argument
before the Board, appellant argued that OWCP did not properly consider her September 9, 2008
occupational disease claim, which alleged that her left hip joint condition was aggravated by
physical therapy furnished by the employing establishment in September 2005.12 By decision
dated August, 4, 2010, OWCP refused to reopen the case for merit review on the grounds that
she did not present new evidence or legal contentions.
On reconsideration appellant argued that OWCP erroneously applied or interpreted a
specific point of law,13 namely Chapter 2.804.19(a) of FECA Procedure Manual.14 This
provision states that an employee who participates voluntarily in an employing establishment’s
health service program is considered in the performance of duty on those occasions when such
participation causes absence from regular duties for the specific purpose of obtaining the medical
service offered by the employing establishment. Deleterious effects such as injury while
undergoing periodic medical examination, reaction to agency-sponsored inoculation or disease
contracted from instrumentation are compensable.15 After appellant filed her September 9, 2008
occupational disease claim, OWCP mistakenly informed her on at least two occasions that she
could not claim compensation for the deleterious effects resulting from her physical therapy.
While she frequently asserted that its action contradicted the explicit terms of Chapter
2.804.19(a), OWCP never addressed the substance of the argument.

9

5 U.S.C. § 8128(a).

10

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

11

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

12

Appellant also made numerous arguments with respect to OWCP decisions issued in 2006, 2007, 2008 and
2009. However, as noted, the Board only has jurisdiction to review the August 4, 2010 nonmerit decision.
13

See Charles A. Jackson, 53 ECAB 671 (2002).

14

See supra note 7. See also E.S., Docket No. 10-1756 (issued April 1, 2011); P.T., Docket No. 09-728 (issued
December 11, 2009).
15

See supra note 7.

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The standard for reopening a claim for merit review does not require the claimant to
submit all evidence that may be necessary to discharge her burden of proof.16 Furthermore, a
request for reconsideration predicated on a legal premise need only contain an assertion of an
adequate legal premise having some reasonable color of validity.17 In this case, appellant
contended that OWCP erroneously applied or interpreted a specific point of law. The case shall
be remanded to OWCP to conduct a merit review of the claim. After such further development
as is deemed necessary, OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 4, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further merit review.
Issued: October 7, 2011
Washington, DC

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

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

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

16

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. Tschantz, 39 ECAB 1382 (1988).

17

See Daniel O’Toole, 1 ECAB 107 (1948).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.I., Appellant
and
U.S. POSTAL SERVICE, NORTH TEXAS
PROCESSING & DISTRIBUTION CENTER,
Coppell, TX, Employer
__________________________________________

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

Docket No. 19-1614
Issued: January 29, 2021

Case Submitted on the Record

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

JURISDICTION
On July 25, 2019 appellant filed a timely appeal from a June 10, 2019 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
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $12,329.15 for the period May 7 through November 14, 2015 for which she was without
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 10, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

fault, as she continued to receive total disability compensation following her return to work in the
private sector; and (2) whether OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On May 15, 2008 appellant, then a 36-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that she fell on her left knee and hand that day while in the
performance of duty. OWCP initially accepted the claim for left knee and lower leg contusion,
left wrist contusion, left wrist sprain, and left knee and leg sprain of unspecified sites. Later, it
expanded the acceptance of the claim to include reflex sympathetic dystrophy (RSD) of the upper
extremity and left chronic pain syndrome. OWCP also authorized an August 23, 2010 left wrist
arthroscopy. Appellant worked intermittently and OWCP paid her wage-loss compensation on the
supplemental rolls. In a letter dated October 14, 2011, OWCP notified her that she was to receive
wage-loss compensation on the periodic rolls and, in order to avoid an overpayment, it advised
appellant to, “Notify this office immediately when you return to work.” It subsequently placed
appellant on the periodic rolls, effective October 23, 2011.4
On March 23, 2015 OWCP received a completed Form EN1032 dated February 26, 2015.
Appellant noted that she worked from January 6 to April 16, 2015, in a temporary data input job
with an outside employer. On March 15, 2016 she advised OWCP that she worked for a private
sector employer as a contractor from April 13, 2015 through April 15, 2016. OWCP received a
completed Form EN1032 dated April 5, 2016. Appellant indicated that she had returned to work
on January 6, 2015 and continued to be employed.
On December 6, 2018 OWCP identified an overpayment of compensation. In a manual
adjustment form, it explained that appellant was paid compensation on the periodic rolls for
temporary total disability from May 7 through November 14, 2015, but she earned wages
following a return to work in the private sector on April 13, 2015. OWCP noted that appellant
was entitled to compensation for loss of wage-earning capacity (LWEC), not temporary total
disability from work.

3

Docket No. 15-0285 (issued August 7, 2015).

4
By decision dated July 28, 2014, OWCP granted appellant a schedule award for 13 percent permanent impairment
of the left upper extremity. The period of the award was from July 27, 2014 to May 6, 2015. Appellant appealed the
July 28, 2014 decision to the Board. Following the schedule award, OWCP resumed paying appellant wage-loss
compensation for temporary total disability on the periodic rolls effective May 7, 2015. By decision dated August 7,
2015, the Board found that the schedule award claim was not in posture for decision due to a conflict in medical
opinion evidence regarding the degree of appellant’s permanent impairment. See supra note 3. Upon further
development of the claim, on December 9, 2015, OWCP issued a schedule award for an additional 10 percent
permanent impairment of the left upper extremity and 0 percent for the left lower extremity. The period of the
increased schedule award was from November 15, 2015 to June 20, 2016.

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OWCP determined that during the period from May 7 through November 14, 2015,
appellant was entitled to $7,888.71 for LWEC using the formula set forth in Albert C. Shadrick.5
It determined that appellant’s actual earnings during the overpayment period were $570.66 per
week. OWCP calculated the weekly earnings amount by averaging appellant’s earnings during
the period. Appellant submitted pay stubs, which revealed that she had actual earnings as follows:
for the period May 4 to 10, 2015, $640.00; for the period May 11 to 17, 2015, $640.00; for the
period May 18 to 24, 2015, $760.00; for the period May 25 to 31, 2015, $512.00; for the period
June 1 to 7, 2015, $636.00; for the period June 8 to 14, 2015, $385.60; for the period June 22 to
26, 2015, $640.00; for the period June 29 to July 3, 2015, $504.96; for the period July 6 to 10,
2015, $640.00; for the period July 13 to 19, 2015, $640.00; for the period July 20 to 26, 2015,
$790.00; for the period July 27 to August 2, 2015, $584.00; for the period August 3 to 9, 2015,
$640.00; for the period August 10 to 16, 2015, $640.00; for the period August 17 to 23, 2015,
$512.00; for the period August 24 to 30, 2015, $621.28; for the period August 31 to September 6,
2015, $440.00; for the period September 7 to 13, 2015, $512.00; for the period September 14 to
20, 2015, $640.00; for the period September 21 to 27, 2015, $609.28; for the period September 28
to October 4, 2015, $536.00; for the period October 5 to 11, 2015, $640.00; for the period
October 12 to 18, 2015, $496.00; for the period October 19 to 25, 2015, $456.00; for the period
October 26 to November 1, 2015, $650.08; for the period November 2 to 8, 2015, $640.00; and
for the period November 9 to 15, 2015, $573.92. The sum total of wages during this 28-week
period was $15,978.52, which resulted in average actual earnings per week of $570.66.
Pursuant to the Shadrick formula, OWCP determined that the current weekly pay rate for
appellant’s job when injured was $934.79. Dividing appellant’s current weekly earnings of
$570.66 by the current pay rate for her job when injured of $934.79 revealed that appellant had a
wage-earning capacity (WEC) of 61 percent. OWCP determined that appellant’s pay rate when
her disability began was $920.00. Applying the WEC of 61 percent to her pay rate when the
disability began revealed that appellant had a WEC of $561.20, and subtracting this amount from
the weekly pay rate of $920.00 revealed that appellant had a weekly earnings loss of $358.80.
Because appellant had dependents, OWCP applied the 75 percent compensation pay rate to the
weekly earnings loss of $358.80, which resulted in a weekly compensation rate of $269.10. This
amount was adjusted to a weekly compensation amount of $301.00 based on the consumer price
index (CPI) and this weekly rate resulted in a four-week compensation amount of $1,204.00.
In a January 17, 2019 preliminary determination, OWCP notified appellant that she was
overpaid compensation benefits for the period May 7 through November 14, 2015, in the amount
of $12,329.15, after she had returned to work with a private sector employer and received total
disability compensation for the same period. It explained that appellant received total disability
compensation in the amount of $20,214.86 and should have received partial wage-loss
compensation in the amount of $7,885.71, which resulted in the overpayment of $12,329.15.
OWCP further found that she was without fault in the creation of the overpayment. It advised
appellant that if she disagreed with the fact or amount of the overpayment, she had the right to
submit new evidence and to request a prerecoupment hearing before a representative of OWCP’s
Branch of Hearings and Review. OWCP further advised that she should submit supporting
5

5 ECAB 376 (1953), codified at 20 C.F.R. § 10.403.

3

documentation along with a completed overpayment action request and overpayment recovery
questionnaire (Form OWCP-20) within 30 days from the date of the preliminary determination.
On February 9, 2019 appellant completed the Form OWCP-20. She listed her income as
$3,200.00 per month and her expenses as approximately $3,369.00. Appellant provided a copy of
a tax return and an account history. She argued that she did not know that an incorrect payment
was made to her, that she always reported her income, and that she was not at fault in the creation
of the overpayment.
On June 10, 2019 OWCP finalized the preliminary determination that appellant had
received an overpayment of compensation in the amount of $12,329.15 for the period May 7
through November 14, 2015.6 It found that appellant was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment. OWCP required recovery of the
overpayment by paying $250.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 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
duty.7 Section 8129(a) of FECA provides, in pertinent part, when an overpayment has been made
to an individual under this subchapter 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 an
individual is entitled.8
OWCP’s regulations provide in pertinent part: “Compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.”9 A
claimant is not entitled to receive temporary total disability benefits and actual earnings for the
same period.10 OWCP’s procedures also provide that an overpayment of compensation is created
when a claimant returns to work, but continues to receive wage-loss compensation.11

6

OWCP indicated that a worksheet was provided to show its calculation of the partial wage-loss compensation for
the period May 7 through November 14, 2015. However, such a worksheet is not found in the case record.
7

Supra note 1 at § 8102.

8

Id. at § 8129(a).

9

20 C.F.R. § 10.500.

10
See J.L., Docket No. 18-1266 (issued February 15, 2019); K.E., Docket No. 18-0687 (issued October 25, 2018);
M.S., Docket No. 16-0289 (issued April 21, 2016); L.S., 59 ECAB 350, 352-53 (2008).
11

See J.S., Docket No. 17-0260 (issued December 28, 2017); B.H., Docket No. 09-0292 (issued September 1,
2009); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.1
(September 2018).

4

If the claimant is entitled to compensation for partial wage loss after returning to work, the
claims examiner should compute entitlement using the Shadrick formula and authorize
compensation on a 28-day payment cycle.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for the period May 7 through November 14, 2015 for which she was without
fault, as she continued to receive total disability compensation following her return to work in the
private sector. Thus, OWCP has established fact of overpayment.
However, the Board further finds that the case is not in posture for decision with regard to
the amount of the overpayment as OWCP did not explain how it calculated that appellant was
entitled to partial wage-loss compensation in the amount of $7,885.71.
The Board notes that OWCP applied the Shadrick formula and determined that appellant’s
average weekly earnings were $570.66, the current weekly pay rate for appellant’s job when
injured was $934.79 and, therefore, appellant had a WEC of 61 percent. OWCP applied the WEC
of 61 percent to appellant’s pay rate when her disability began of $920.00 and determined that
appellant had WEC of $561.20, and subtracting this amount from the weekly pay rate of $920.00,
determined that appellant had a weekly earnings loss of $358.80. Applying the 75 percent
compensation pay rate to the earnings loss of $358.80, OWCP determined a weekly LWEC
compensation rate of $269.10, which it adjusted to $301.00 based on the CPI, and OWCP indicated
that this weekly rate resulted in a four-week compensation rate of $1,204.00. However, it did not
explain how it calculated that appellant was entitled to total LWEC compensation of $7,885.71 for
the 28-week period in question, since the weekly rate of $301.00 times 28 weeks results in total
compensation of $8,428.00, as does the four-week rate of $1,204.00 times (28 weeks divided by 4
equals 7 four-week periods times $1,204.00 equals $8,428.00). Since OWCP failed to explain
how it calculated that appellant was entitled to LWEC compensation of $7,885.71, it also failed to
explain how it calculated the overpayment amount of $12,329.15. Due to an inadequate
explanation as to how the overpayment was calculated, the Board is unable to adequately review
this aspect of the case.
A claimant is entitled to an overpayment decision that clearly explains how the amount
was calculated.13 OWCP’s overpayment finding does not set forth an explanation as to how it
calculated the overpayment, as there is a discrepancy between both the weekly compensation
amount and the four-week compensation amount, as compared to the total amount of $7,885.71
for the 28 weeks in question. Therefore, the amount of overpayment has not been established.

12
Id. atat Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual Earnings, Chapter 2.815.3(b)
(June 2013). See Albert C. Shadrick, supra note 5; P.B., Docket No. 19-0329 (issued December 31, 2019); C.Y.,
Docket No. 18-0263 (issued September 14, 2018).
13

G.H., Docket No. 19-0770 (issued March 5, 2020); E.R., Docket No. 19-1365 (issued December 23, 2019); see
M.M., Docket No. 17-0560 (issued August 23, 2017); R.H., Docket No. 08-2025 (issued July 20, 2009); see also O.R.,
59 ECAB 432 (2008).

5

On remand OWCP shall prepare detailed calculations setting forth how it determined the
overpayment. It should then issue a new preliminary overpayment determination, along with an
overpayment action request, Form OWCP-20, and instructions for appellant to provide supporting
financial information. After this and other such further development as deemed necessary, OWCP
shall issue a de novo decision.14
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for the period May 7 through November 14, 2015 for which she was without
fault, as she continued to receive total disability compensation following her return to work in the
private sector. The Board further finds, however, that this case is not in posture for decision with
regard to the amount of overpayment.
ORDER
IT IS HEREBY ORDERED THAT the June 10, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part. The case is remanded for further
proceedings consistent with this decision of the Board.15
Issued: January 29, 2021
Washington, DC

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

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

14

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

15

Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board after January 20, 2021.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Manchester, NH,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0989
Issued: December 4, 2017

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 5, 2017 appellant, through counsel, filed a timely appeal from a December 7,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish a right shoulder injury
causally related to the accepted January 6, 2012 employment incident.
FACTUAL HISTORY
On January 24, 2012 appellant, then a 36-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on January 6, 2012 he experienced a burning sensation in
his right shoulder and lower shoulder blade after taking down mail.
In a statement accompanying his claim, appellant related that he experienced low back
pain sweeping mail beginning September 2011, when he started working on the Delivery Bar
Code Sorter (DBCS) machine. In December 2011 he had burning in his right hip feeding mail.
Appellant asserted that on January 6, 2012 he was sweeping the top row of mail on the machine
when he felt burning in his right shoulder and lower shoulder blade. He took medication and
completed his shift, but the medication was not effective so he stopped work due to the
combined pain in his back, right hip, and right shoulder.
Dr. Phat Nguyen, an osteopath, completed a state workers’ compensation form on
January 20, 2012. He related that appellant had complained of low back pain since 2011, a
burning in his right hip since December 2011, and pain and burning in his right shoulder and
shoulder blade. Dr. Nguyen diagnosed lumbar strain, trochanteric bursitis, and sciatica and
indicated that the conditions were due to the described injury. He advised that appellant could
resume work on January 27, 2012. In a progress report dated January 26, 2012, Dr. Nguyen
evaluated appellant for right shoulder, right hip, and back pain, noting that he did not experience
“any specific injury” and that his symptoms began after he started his positon at the employing
establishment. He diagnosed low back pain and right hip bursitis.
By letter dated February 7, 2012, the employing establishment controverted the claim,
noting that appellant had filed an occupational disease claim for a back and hip condition and a
traumatic injury claim for the right shoulder. It submitted an undated statement from his
supervisor, B.L. B.L. advised that appellant attributed his injury both to sweeping lower stackers
and to sweeping upper stackers. She questioned his truthfulness, noting that he continued to
work for nine days after the alleged January 6, 2012 employment injury.
OWCP, by letter dated February 21, 2012, requested that appellant provide additional
factual and medical information, including a detailed report from his attending physician
addressing the causal relationship between the diagnosed conditions and the claimed work
incident.
Appellant, in a March 21, 2012 response, attributed his right shoulder injury to sweeping
the top row of mail on a mail processing machine and his back injury to sweeping mail on the
bottom row of the machine. He related, “Both injuries are from constant repeated motions over
long periods of time during the course of a shift.” Appellant advised that he continued working
after his injury because he was afraid he might lose his job.

2

By decision dated March 28, 2012, OWCP denied appellant’s traumatic injury claim as
the medical evidence was insufficient to establish a right shoulder condition as a result of the
accepted work incident. Thus, fact of injury was not established. OWCP noted that it was
developing his claim for a back and hip condition under a separate file number.
In a report dated January 20, 2012, received by OWCP on April 30, 2012, Dr. Joohahn
John Kim, a Board-certified internist, evaluated appellant for pain in his right hip and back. He
noted that appellant also complained of shoulder pain beginning the past week due to repetitive
employment duties. Dr. Kim diagnosed lumbar strain, possible trochanteric bursitis, and
sacroiliac dysfunction.
In an April 2, 2012 progress report, Dr. Nguyen obtained a history of appellant
experiencing right shoulder pain that “developed after [appellant] had repetitive use of his
shoulders especially lifting things over his head. [He] does not have any history of [a] specific
shoulder injury or pain in the past.” On examination, he found mild right shoulder pain at the
acromioclavicular joint and subacromial bursa on palpation and movement. Dr. Nguyen
diagnosed shoulder tendinitis and possible subacromial bursitis and advised that appellant “has
no history of injury except for repetitive injury at work due to physical work as above.” He
opined that appellant’s “problems could have been caused by repetitive injury from his physical
work.” In an April 2, 2012 state workers’ compensation form, Dr. Nguyen recommended a
functional capacity evaluation.3
Dr. Nguyen, in a June 15, 2012 progress report, noted that appellant had low back, right
hip, and right shoulder pain beginning September 2011. He indicated that appellant developed
pain in his right shoulder after repetitive use, particularly lifting, without any past shoulder
injury. Dr. Nguyen diagnosed right shoulder tendinitis and possible subacromial bursitis.
On August 16, 2012 Dr. Mark Scheffer, an orthopedic surgeon, discussed appellant’s
complaints of shoulder pain for the past eight months after doing repetitive motion at the
employing establishment. He diagnosed shoulder bursitis and recommended a magnetic
resonance imaging (MRI) scan study. An August 21, 2012 MRI scan of the right shoulder
showed mild supraspinatus and subscapularis tendinopathy. Dr. Scheffer, in an August 30, 2012
report, provided a history of appellant feeling a sharp pain in his right shoulder after sweeping
mail on January 6, 2012. He diagnosed rotator cuff tendinitis. Dr. Scheffer advised appellant
that his condition was not related to work because he had only been at his positon for three
months. He found that appellant could perform his usual employment.
On March 28, 2013 appellant requested reconsideration. He provided a March 22, 2013
report from Dr. Nguyen, who related:
“[Appellant] has sustained right anterior shoulder pain consistent with bicipital
tendinopathy and thoracic outlet syndrome, along with right lateral hip pain
consistent with piriformis syndrome. It is my medical opinion [his] right shoulder
injury and right hip injur[ies] are work related. The repetitive movements that his

3

Dr. Nguyen provided a similar report on June 15, 2012.

3

work requires at [the employing establishment] have caused him to sustain these
injuries, causing pain and dysfunction in these joints.”
In a decision dated April 4, 2013 OWCP denied modification of its March 28, 2012
decision, finding that appellant had not submitted sufficient medical evidence to establish an
employment-related diagnosed condition.
On July 26, 2013 Dr. Jason A. Oliviero, a Board-certified orthopedic surgeon, evaluated
appellant for right shoulder pain beginning January 20, 2012 when he was “reaching upwards
with his right arm overhead, and sweeping away several mail items. [Appellant] felt a strain in
his right shoulder at that point and had difficulty lifting his arm overhead.” Dr. Oliviero
diagnosed rotator cuff tendinitis and possible bicipital tendinitis. He related, “There is a
time[-]related association between [appellant’s] injury and his development of pain. I think
therefore the work[-]related injury and his shoulder pain are related.” Dr. Oliviero recommended
physical therapy and found that appellant could perform his regular employment.
Appellant, through counsel, requested reconsideration on April 1, 2014.
In a decision dated June 16, 2014, OWCP denied modification of its April 4, 2013
decision. It noted that the medical evidence and appellant’s Form CA-1 provided differing dates
of injury and mechanisms of injury. OWCP noted that Dr. Oliviero described an injury on
January 20, 2012. It further advised that due to factual inconsistencies it was unable to
determine whether appellant was claiming a traumatic injury or occupational disease.
Counsel, on March 23, 2015, notified OWCP that he had not received a copy of the
June 16, 2014 decision. On June 19, 2015 he requested reconsideration based on a May 12, 2015
report from Dr. Nguyen. In the May 12, 2015 report, Dr. Nguyen diagnosed bicipital
tendinopathy of the right shoulder and thoracic outlet syndrome. He attributed the conditions to
repetitive movements during appellant’s work for the employing establishment.4
By decision dated July 16, 2015, OWCP vacated the June 16, 2014 decision as it had not
been sent to counsel. In another decision dated July 16, 2015, it denied modification of its
April 4, 2013 decision. OWCP found that the medical evidence was insufficient to show that
appellant sustained a right shoulder condition due to the accepted January 6, 2012 work incident.
Dr. Oliviero, in a July 6, 2016 report, advised that he provided the date of injury as
January 20, 2012 in error and that the date of injury was January 6, 2012 “as self reported by
[appellant] and as reported by Dr. Nguyen’s note.”
On July 14, 2016 appellant, through counsel, requested reconsideration.
OWCP, in a December 7, 2016 decision, denied modification of its July 16, 2015
decision. It found that the medical evidence remained insufficient to show that appellant
experienced a right shoulder condition as a result of work activities on January 6, 2012.

4

Dr. Nguyen, on March 28, 2014, also submitted a report identical to his March 22, 2013 opinion.

4

On appeal counsel contends that appellant’s physician corrected the date of injury, the
stated reason for the denial by OWCP.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether fact of injury is established. First, an employee has the
burden of proof to demonstrate the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative, and substantial evidence.8 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.9 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.10
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 The opinion of the
physician must be based on a complete factual and medical background of the claimant,12 must
be one of reasonable medical certainty13 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.14

5

Supra note 2.

6

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

7

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

8

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

9

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

10

Id.

11

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

12

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, supra note 9.

13

Supra note 11.

14

Judy C. Rogers, 54 ECAB 693 (2003).

5

ANALYSIS
Appellant filed a traumatic injury claim (Form CA-1) alleging that he sustained an injury
on January 6, 2012 taking down mail from the top row of a machine. In a March 21, 2012
statement, he advised that he experienced a right shoulder injury as the result of performing
repetitive work activities for extended periods of time during the course of a work shift. A
traumatic injury is defined as a “condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift.”15 An occupational disease is
defined as a condition produced by the work environment over a period longer than a single
workday or shift.”16 OWCP determined in its July 16, 2014 decision that appellant had not
submitted sufficient evidence to demonstrate whether he was claiming a traumatic injury or
occupational disease due to inconsistencies. However, it subsequently denied his claim for a
traumatic right shoulder injury as the medical evidence was insufficient to establish a diagnosed
condition due to accepted work activity of sweeping mail on January 6, 2012.
The Board finds that the medical evidence is insufficient to establish an employmentrelated right shoulder injury on January 6, 2012. On January 20, 2012 Dr. Kim discussed
appellant’s complaints of shoulder pain beginning over the last week due to repetitive work and
worsening back pain. He diagnosed lumbar strain, possible trochanteric bursitis, and sacroiliac
dysfunction. Dr. Kim did not provide a history of the January 6, 2012 work incident or diagnose
a shoulder condition. Without a relevant diagnosis supported by medical rationale, the report is
of little probative value.17
In reports dated January 20 and 26, 2012, Dr. Nguyen noted appellant’s complaints of
right shoulder and shoulder blade pain, low back pain, and right hip burning. He diagnosed
lumbar strain, trochanteric bursitis, and sciatica. Dr. Nguyen also failed to provide a history of
the January 6, 2012 work incident or a right shoulder diagnosis. A physician must provide a
narrative description of the employment incident and a reasoned opinion on whether the
employment incident described caused or contributed to appellant’s diagnosed medical
condition.18 Dr. Nguyen, on April 2, 2012, evaluated appellant for right shoulder pain that began
after repetitive work duties without a specific shoulder injury. He diagnosed shoulder tendinitis
and possible subacromial bursitis and found that the diagnosed conditions “could have been
caused” by repetitive employment duties. Dr. Nguyen provided a history of appellant
experiencing shoulder pain over time rather than due to an injury on January 6, 2012.
Additionally, his opinion that work duties could have caused shoulder tendinitis and possible
bursitis is speculative in nature and thus of diminished probative value.19 Other reports from
15

20 C.F.R. § 10.5(ee).

16

Id. at § 10.5(q).

17

See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease
was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).
18

See supra note 11.

19

Rickey S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need
not be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).

6

Dr. Nguyen, such as his June 15, 2012, March 22, 2013, and May 12, 2015 reports, attributed
appellant’s condition to repetitive work duties. He did not relate a diagnosed condition to the
January 6, 2012 work incident. Therefore, Dr. Nguyen’s opinion is of limited probative value
and insufficient to meet appellant’s burden of proof.20
Dr. Scheffer, on August 16, 2012, evaluated appellant for right shoulder pain for the past
eight months that began after he performed repetitive work at the employing establishment. He
diagnosed shoulder bursitis. On August 30, 2012 after reviewing the results of an MRI scan,
Dr. Scheffer diagnosed rotator cuff tendinitis and advised that the condition was not related to
appellant’s employment due to the short time that he had been in his position. As he found that
appellant’s condition was not work related, it does not support that he sustained the claimed
traumatic employment injury.
On July 26, 2013 Dr. Oliviero related that appellant experienced pain in his right shoulder
on January 20, 2012 sweeping mail with his arm over his head. He diagnosed rotator cuff
tendinitis and possible bicipital tendinitis. Dr. Oliviero determined that the injury and shoulder
pain were related due to the “time[-]related association.” On July 6, 2016 he indicated that the
date of injury was January 6, 2012 rather than January 20, 2012. The Board has held, however,
that the mere fact that a disease or condition manifests itself during a period of employment does
not raise an inference of causal relationship between the condition and the employment.21
Further, a medical opinion that a condition is causally related to an employment injury because
the employee was asymptomatic before the injury, but symptomatic after it is insufficient,
without supporting rationale, to establish causal relationship.22 Dr. Oliviero did not explain how
work duties on January 6, 2012 resulted in a diagnosed condition and thus his opinion is of little
probative value.23
On appeal counsel contends that appellant’s physician provided the correct date of injury.
As noted, however, appellant did not meet his burden of proof to submit rationalized medical
evidence supporting a diagnosed condition due to the January 6, 2012 work incident. Therefore,
he has not established a right shoulder injury causally related to the accepted employment
incident.24
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.

20

See generally, A.R., Docket No. 16-1416 (issued April 10, 2017). See also J.C., Docket No. 16-1496 (issued
May 3, 2017) (the Board has held that medical opinions based on an inaccurate or incomplete history are of
diminished probative value).
21

D.E., 58 ECAB 448 (2007); Roy L. Humphrey, 57 ECAB 238 (2005).

22

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

23

See M.B., Docket No. 16-0878 (issued December 12, 2016).

24

See D.S., Docket No. 16-1801 (issued May 8, 2017).

7

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right
shoulder injury causally related to the accepted January 6, 2012 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 7, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 4, 2017
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
NEW ORLEANS INTERNATIONAL AIRPORT, )
Metairie, LA, Employer
)
__________________________________________ )
P.D., Appellant

Appearances:
Stephen Dale Cronin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1690
Issued: February 21, 2013

Case Submitted on the Record

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

JURISDICTION
On August 6, 2012 appellant, through her attorney, filed a timely appeal from merit
decisions of the Office of Workers’ Compensation Programs (OWCP) dated March 21
and 30, 2012. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that she was disabled for the period
July 20, 2007 to June 11, 2008; and (2) whether OWCP met its burden of proof to terminate
appellant’s medical benefits on August 25, 2011 on the grounds that she had no residuals of the
accepted cervical condition.
On appeal appellant’s attorney asserts that as she continues to have employment-related
residuals she is entitled to compensation for the claimed period. He further asserts that OWCP
1

5 U.S.C. §§ 8101-8193.

“doctor shopped” and improperly gave the weight to the medical opinion of an OWCP referral
physician.
FACTUAL HISTORY
On July 22, 2005 appellant, then a 63-year-old supervisory transportation security
screener, filed a traumatic injury claim alleging that on July 19, 2005 she sustained tingling and
shooting pain in the upper and lower back, into the arms and feet while loading luggage. She
began treatment with Dr. Douglas A. Swift, Board-certified in occupational medicine. On
September 7, 2005 OWCP accepted sprain/strain of the neck. An October 21, 2005 magnetic
resonance imaging (MRI) scan of the cervical spine demonstrated mild cervical spondylosis at
C3-4 through C6-7 without significant stenosis.
Appellant filed a claim for compensation for the period October 27, 2005 to
March 18, 2006. In a May 17, 2006 decision, OWCP denied the claim. In an August 3, 2006
decision, it denied her request for a hearing as untimely.
Appellant relocated from River Bridge, Louisiana to Pass Christian, Mississippi. By
letter dated August 9, 2007, the employing establishment informed OWCP that her physical
limitations were such that there was no work available at either its New Orleans, Louisiana or
Gulfport, Mississippi facilities. Dr. Swift submitted additional reports in which he diagnosed
sprain/strain of neck and cervical spondylosis. He advised that appellant could perform light
duty as of August 16, 2005. On April 27, 2007 Dr. Swift diagnosed unspecified sprain/strain of
the back.
On August 22, 2007 appellant filed a claim for compensation for the period August 31,
2005 to June 30, 2007. On July 22, 2008 Dr. Swift added the diagnoses of lumbosacral
spondylosis and myelopathy and shoulder sprain. In a February 27, 2009 report, he advised that
appellant continued to be treated for chronic cervical pain, opining that the employment injury
aggravated her preexisting cervical degenerative condition. Dr. Swift advised that she had
reached maximum medical improvement and could perform sedentary duties.
In March 2009 OWCP referred appellant to Dr. Charlton Barnes, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In an April 8, 2009 report, Dr. Barnes
noted appellant’s complaint of neck, shoulder and low back pain. On physical examination,
range of motion was normal but painful and there was no muscle loss. Dr. Barnes diagnosed
cervical and lumbar strain and nonemployment-related diabetes. He advised that any
aggravation of the underlying degenerative cervical disease or a lumbar strain would have
resolved two years after the injury. Dr. Barnes concluded that appellant had reached maximum
medical improvement. In an attached work capacity evaluation, he provided permanent
restrictions and stated that she was not strong enough to lift baggage. In a supplementary report
dated May 12, 2009, Dr. Barnes indicated that appellant had cervical and lumbar pain, but it was
difficult to determine exactly how much. He advised that there was no objective evidence to
support that her cervical condition was currently active, but that she had a permanent soft tissue
injury that kept her from returning to her position as a security screener.

2

OWCP determined that a conflict in medical opinion arose between Dr. Swift and
Dr. Barnes regarding appellant’s residuals and work capacity. On August 20, 2009 it referred
appellant to Dr. James L. West, III, Board-certified in orthopedic surgery, for an impartial
evaluation.
In a September 14, 2009 report, Dr. West noted appellant’s complaint of constant neck,
shoulder, arm, upper thoracic and lumbar pain. He indicated that, while she would not move her
neck on physical examination, she moved it during the interview. Waddell’s signs were present.
Dr. West reviewed x-ray and MRI scan studies and concluded that appellant’s symptoms were
related to her underlying degenerative disc disease and not the employment injury.
In correspondence dated October 6 and November 13, 2009 and January 4, 2010, OWCP
asked Dr. West to supplement his opinion as to whether appellant had a work-related aggravation
of her preexisting cervical degenerative condition and, if so, whether it was temporary or
permanent and whether it was disabling. He was also asked to provide an opinion as to whether
appellant’s diagnosed low back condition was employment related and whether she continued to
require treatment for the accepted conditions.
In a February 4, 2010 report, Dr. West advised that there had been no additional
aggravation of the cervical or lumbar spine, that appellant had returned to preinjury status and
that her lumbar condition was not employment related. He reiterated that she had no restrictions.
In letters dated February 18, March 19 and April 19, 2010, OWCP asked Dr. West when
appellant’s work-related cervical strain became no longer active or disabling.
In a May 28, 2010 report, Dr. Eric C. Puestow, a Board-certified internist and OWCP
medical adviser, opined that appellant ceased to be symptomatic from the accepted cervical
strain four weeks after the employment injury. He recommended that his report be forwarded to
Dr. West for review. On July 6, 2010 Dr. West agreed with Dr. Puestow.
By decision dated August 6, 2010, OWCP denied appellant’s claim for wage-loss
compensation for the period commencing August 31, 2005.
Appellant requested a hearing that was held on January 26, 2011. In an April 14, 2011
decision, an OWCP hearing representative found there was insufficient evidence to support a
conflict in medical evidence between Dr. Barnes and Dr. Swift, but a conflict arose between
Dr. Swift and Dr. West as to whether appellant’s residuals and ongoing disability. The case was
remanded for OWCP to refer appellant for an impartial evaluation on this issue.
On April 26, 2011 OWCP referred appellant to Dr. Gordon P. Nutik, a Board-certified
orthopedic surgeon, selected as an impartial specialist. In a June 2, 2011 report, Dr. Nutik
reviewed the medical record and appellant’s complaints of neck, shoulder and back pain with
finger numbness. Neck examination demonstrated no spasm and pain to palpation. Shoulder
and back examination demonstrated pain to palpation with normal sensation to light touch of all
extremities. X-rays of the cervical and lumbar spine demonstrated nonspecific degenerative
changes. Dr. Nutik advised that appellant had an employment-related neck strain and possibly
an employment-related low back strain and that the soft tissue strains should have resolved over
a three- to six-month period. The aggravation of appellant’s cervical and low back degenerative

3

condition was temporary and resolved a year or two after the employment injury. Dr. Nutik
concluded that she needed no further treatment due to the employment injury, but due to her
nonemployment-related degenerative disease, she should work in a sedentary position. In a
June 2, 2011 work capacity evaluation, he advised that appellant had reached maximum medical
improvement and could work eight hours. Dr. Nutik provided restrictions of no reaching or
squatting, with bending, stooping and kneeling limited to one hour daily, twisting, pushing and
pulling to two hours daily, and lifting limited to 5 pounds frequently for three hours daily with a
10-pound maximum weight restriction. In a supplementary report dated June 30, 2011, he
advised that he did not feel there were any objective findings to support a material worsening of
appellant’s preexisting cervical and lumbar degenerative changes and that any work-related
aggravation would have resolved within a year or two after the July 19, 2005 employment injury.
On July 22, 2011 OWCP paid appellant compensation for the period August 31, 2005
through March 1, 2006. It proposed to terminate her medical benefits on the grounds that the
medical evidence established that her work-related conditions had resolved.
In a decision dated July 22, 2011, OWCP denied appellant’s claim for wage-loss
compensation after March 1, 2006.
On August 10, 2011 appellant, through her attorney, requested a hearing regarding the
July 22, 2011 decision. She did not respond to the proposed termination.
By decision dated August 25, 2011, OWCP finalized the termination of medical benefits.
On September 12, 2011 appellant, through her attorney, requested a hearing regarding the
August 25, 2011 termination decision.
Separate hearings were conducted on January 3, 2012. The first hearing concerned the
July 22, 2011 decision finding that appellant was not entitled to wage-loss compensation after
March 1, 2006. Appellant’s attorney asserted that OWCP erred in finding a conflict between the
opinions of Dr. Swift and Dr. West. Since Dr. West had initially been considered a referee
physician, he was not a “physician making an examination for the United States” as provided in
section 8123 of FECA. Counsel further asserted that, at a minimum, appellant was entitled to
wage-loss compensation through July 19, 2007, based on Dr. Nutik’s opinion that her
employment-related condition resolved within one to two years of the July 19, 2005 employment
injury. At the hearing regarding the August 25, 2011 termination of medical benefits, appellant’s
attorney again asserted that the medical opinion evidence was improperly weighed by OWCP.
As appellant continued to have residuals of the employment injury, she was entitled to continued
medical benefits.
In a March 21, 2012 decision, OWCP’s hearing representative found that OWCP met its
burden of proof to terminate appellant’s medical benefits and affirmed the August 25, 2011
decision. She noted that it was appropriate for OWCP to find a conflict between appellant’s
physician, Dr. Swift, and Dr. West, even though Dr. West had initially been characterized as a
referee physician. Dr. West’s status was that of a second opinion physician. The hearing
representative found that the weight of the evidence rested with the opinion of Dr. Nutik who
provided an impartial medical evaluation and found that appellant’s work injury had resolved.

4

In a March 30, 2012 decision, the hearing representative affirmed in part and reversed in
part the July 22, 2011 OWCP decision. She found that the weight of the medical evidence rested
with the referee opinion of Dr. Nutik; however, appellant was entitled to wage-loss
compensation for the period March 2, 2006 to July 19, 2007. Appellant was not entitled to
wage-loss compensation after that date.2
LEGAL PRECEDENT -- ISSUE 1
Under FECA, the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.3 Disability is
thus not synonymous with physical impairment which may or may not result in incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA,4 and whether a particular
injury causes an employee disability for employment is a medical issue which must be resolved
by competent medical evidence.5 Whether a particular injury causes an employee to be disabled
for work, and the duration of that disability, are medical issues that must be proved by a
preponderance of the reliable, probative and substantial medical evidence.6
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.7 Furthermore, it is well established that medical conclusions
unsupported by rationale are of diminished probative value.8
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.9 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed

2

Appellant was thereafter paid wage-loss compensation from March 2, 2006 through July 19, 2007.

3

See Prince E. Wallace, 52 ECAB 357 (2001).

4

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

5

Donald E. Ewals, 51 ECAB 428 (2000).

6

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id.

7

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

condition and the specific employment factors identified by the claimant.10 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.11
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.12 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that she was disabled due to her
accepted injury after July 19, 2007.
Appellant’s claim was accepted for a sprain/strain of the neck based on the reports of her
attending physician, Dr. Swift. In 2008, Dr. Swift added the diagnoses of lumbosacral
spondylosis and shoulder sprain. He reported that the employment injury aggravated the
preexisting degenerative disease of the cervical spine. Appellant was thereafter referred for
examination to Dr. Barnes, who diagnosed cervical and lumbar strain and nonemploymentrelated diabetes. Dr. Barnes opined that any aggravation of appellant’s underlying degenerative
disease resolved within two years. OWCP found a conflict in medical opinion between Dr. Swift
and Dr. Barnes and referred appellant for examination by Dr. West, designated as an impartial
medical specialist. Dr. West found that appellant’s ongoing back symptoms were related to her
underlying degenerative disease and not the accepted employment injury. He stated there was no
additional aggravation of either the cervical or lumbar spine due to the injury and that she had
returned to her preinjury status.
An OWCP hearing representative found on review that the opinion of Dr. Barnes was not
well rationalized such that a conflict in medical opinion did not arise until receipt of the report of
Dr. West, who was found to be a second opinion examiner. While counsel contends that OWCP
engaged in doctor shopping, the Board notes that the hearing representative’s determination
accords with Board case precedent.14

10

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

11

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

12

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

13

Manuel Gill, 52 ECAB 282 (2001).

14

See Bailey Varnado, Jr., 53 ECAB 755 (2002); Mary L. Henninger, 52 ECAB 408 (2001); Cleopatra
McDougal-Saddler, 47 ECAB 480 (1996).

6

Dr. Swift found that appellant was totally disabled due to the employment injury.
Dr. West, OWCP’s referral physician, advised that appellant’s symptoms were due to her
preexisting degenerative condition and were not related to the employment injury, and any workrelated symptoms ceased four weeks after the employment injury.
Based on this conflict in medical opinion, regarding the extent of residuals and period of
disability due to the employment injury, OWCP properly referred appellant to Dr. Nutik for an
impartial evaluation.15 In his comprehensive reports dated June 2 and 30, 2011, Dr. Nutik
provided examination findings and advised that appellant’s current condition was due to
preexisting degenerative changes. He clearly advised that the employment-related cervical strain
and any work-related aggravation of appellant’s preexisting degenerative changes would have
resolved no later than two years after the employment injury.
The Board has carefully reviewed the opinion of Dr. Nutik and finds that it has reliability,
probative value and convincing quality with respect to its conclusions regarding the relevant
issue in the present case. Dr. Nutik’s opinion is based on a proper factual and medical history
and he thoroughly reviewed the factual and medical history and accurately summarized the
relevant medical evidence.16 He provided medical rationale for his opinion by explaining that
any employment-related aggravation of appellant’s preexisting cervical degenerative disease
ceased no later than two years after the July 19, 2005 employment injury. Dr. Nutik’s opinion is
entitled to special weight as the impartial medical examiner and establishes that appellant is not
entitled to wage-loss compensation after July 19, 2007.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the
employment.17 OWCP’s burden of proof in terminating compensation includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.18 The right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability. To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.19

15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.9, 11 (September 2010).
16

See Melvina Jackson, 38 ECAB 443 (1987).

17

Jaja K. Asaramo, 55 ECAB 200 (2004).

18

Id.

19

Fred Simpson, 53 ECAB 768 (2002).

7

ANALYSIS -- ISSUE 2
The Board finds that OWCP met its burden of proof to terminate appellant’s medical
benefits on August 25, 2011. The accepted condition is sprain/strain of the neck due to a
July 19, 2005 employment injury. As discussed above, OWCP determined that a conflict in
medical evidence had been created regarding whether appellant continued to have disabling
residuals of the employment injury and properly referred her to Dr. Nutik for an impartial
evaluation. In reports dated June 2 and 30, 2011, Dr. Nutik clearly advised that the employmentrelated neck strain had resolved and that any aggravation of her preexisting degenerative cervical
condition ended no later than two years after the employment injury, or July 19, 2007. He
further indicated that she required no further treatment for the employment injury. The most
recent medical report from appellant’s attending physician, Dr. Swift, is dated March 23, 2010,
well before the termination of medical benefits on August 25, 2011. Dr. Nutik’s opinion is
therefore entitled to the special weight accorded an impartial examiner and constitutes the weight
of the medical evidence.20 OWCP therefore properly terminated appellant’s medical benefits on
August 25, 2011.21
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 did not establish that she was entitled to monetary
compensation for the period July 20, 2007 to June 11, 2008 and that OWCP properly terminated
her medical benefits on August 25, 2011.

20

See Sharyn D. Bannick, 54 ECAB 537 (2003).

21

Manuel Gill, supra note 13.

8

ORDER
IT IS HEREBY ORDERED THAT the March 30 and 21, 2012 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: February 21, 2013
Washington, DC

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

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

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

9


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

)
)
)
)
)
)
)
)

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

Docket No. 15-0487
Issued: May 5, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On January 1, 2015 appellant filed a timely appeal from a November 24, 2014 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.
ISSUES
The issues are: (1) whether appellant received a $1,407.78 overpayment of compensation
for the period April 16, 2013 to June 27, 2014 due to an incorrect pay rate; (2) whether OWCP
abused its discretion in denying waiver of the overpayment; and (3) whether OWCP properly
recovered the amount of overpayment from appellant’s schedule award issued
December 31, 2014.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on February 23, 2013 appellant, then a 53-year-old mail processing
clerk, developed bilateral carpal tunnel syndrome as a result of his federal employment duties.
On August 6, 2013 appellant filed Forms CA-7 for compensation beginning April 13,
2013 and continuing.2
In an August 14, 2013 (Form CA-110) telephone note, a claims examiner reported that
appellant was entitled to 1.5 hours of Sunday premium for work from his 5:00 p.m. to 1:30 a.m.
Saturday shift.
In an August 14, 2013 pay rate memorandum, OWCP noted that appellant worked
40 hours per week full time with the fixed schedule of Tuesday through Saturday from 5:00 p.m.
to 1:30 a.m. Appellant’s pay rate date was noted as April 16, 2013, the date disability began,
with an annual salary of $53,840.00. His annual salary was divided by 52 to calculate a weekly
rate of $1,035.38. Appellant’s annual Sunday premium of $1,795.86 was divided by 52 to
calculate a weekly rate of $34.54 a week for the 1.5 hours a week of Sunday work. The claims
examiner noted that appellant was receiving Sunday premium because his fixed schedule shift on
Saturday night rolled into Sunday, resulting in 1.5 hours of Sunday premium per week.
Appellant’s weekly night differential was determined to be 10 percent of $25.88 per hour times
35 hours a week at night differential to equal $90.60. Combining the weekly base pay rate of
$1,035.38 to the weekly Sunday premium of $34.54 and the weekly night differential of $90.60,
his pay rate totaled $1,160.52.
Appellant received wage-loss compensation for temporary total disability from April 16,
2013 to February 3, 2014, and partial disability during the period February 4 through June 27,
2014 after he returned to part-time light-duty work.3
On September 24, 2014 appellant filed a claim for a schedule award (Form CA-7).
In a preliminary determination dated October 24, 2014, OWCP found that an
overpayment of $1,407.78 arose from April 16, 2013 to June 27, 2014, because appellant was
paid at an incorrect pay rate. It found him without fault and explained that he should have
received compensation based on a weekly pay rate of $1,101.76 instead of $1,160.52. OWCP
explained that the initial weekly pay rate had included incorrect amounts for Sunday premium
and night differential, resulting in a weekly overpayment of $58.76. It based its pay rate
calculation on the date disability began, April 16, 2013 and noted that appellant worked a fixed
2

On the reverse side of the form, the employing establishment’s human resource specialist reported that appellant
worked 40 hours per week and stopped work on April 13, 2013. As of April 13, 2013, appellant’s base pay rate was
$53,840.00 per year, $1,795.86 per year for Sunday premium, and $1,870.89 per year for night differential.
3

The Board notes that, on March 6, 2014, OWCP issued a preliminary finding that an overpayment of $630.38
arose from January 12 to February 8, 2014 because appellant had returned to work on February 4, 2014 for four
hours a day, but continued to receive wage-loss compensation. On March 27, 2014 OWCP informed him that it had
received his check for $630.38 as repayment of his overpayment of compensation. Appellant’s overpayment
account was deemed fully liquidated and administratively closed.

2

schedule and was entitled to the same amount of Sunday premium and night differential
regularly.4 However, the employing establishment provided a yearly amount for these premiums
when OWCP should have requested the weekly, or hourly amounts. Moreover, OWCP
calculated 10 percent of the night differential, but this figure was not verified by the employing
establishment as being correct.
Hourly rates were then obtained from the employing establishment which established an
hourly pay rate of $6.45 for Sunday premium and an hourly rate of $1.62 for night differential.
At $6.45 per hour for 1.5 hours per week, appellant was entitled to $9.68 weekly for Sunday
premium. For the night differential, at $1.62 per hour for 35 hours per week, he was entitled to
$56.70 weekly. Adding the weekly base pay rate of $1,035.38 with the new $9.68 weekly
Sunday premium rate and $56.70 weekly night differential rate, a weekly pay rate of $1,101.76
was obtained. A memorandum containing the calculation of the noted overpayment for the
period April 16, 2013 to June 27, 2014, explained that appellant was paid $40,708.46 when he
was actually entitled to $39,300.68, resulting in an overpayment of $1,407.78. Appellant was
informed that, if he wished a waiver of the overpayment, he was to submit financial information
and a completed overpayment recovery questionnaire (OWCP-20) within 30 days.
On November 10, 2014 appellant contested the overpayment decision and requested a
waiver of recovery of the overpayment. He stated that the $6.45 hourly Sunday premium and
$1.62 hourly night differential rates were correct. However, appellant argued that he was
entitled to 8 hours per week for Sunday premium as opposed to the 1.5 hours weekly rate
calculated by OWCP in its overpayment decision, alleging that when any period of a daily shift
includes Sunday premium pay, the entire daily shift is to be paid at the Sunday premium pay
rate. No other evidence was provided and he did not submit the overpayment recovery
questionnaire with supporting financial documentation.
By decision dated November 24, 2014, OWCP affirmed the overpayment in the amount
of $1,407.78 for the period April 16, 2013 to June 27, 2014, because appellant had been paid at
an incorrect pay rate. As to his argument regarding Sunday premium pay, it noted that pay rate
information had to be based on that furnished by the employing establishment. OWCP found
that appellant was without fault in the creation of the overpayment, but denied waiver of
recovery because he had failed to submit the requested OWCP-20 form and financial
documentation to determine his income, expenses, liabilities, or funds. It requested payment of
the full amount within 30 days.5

4

The senior claims examiner used April 16, 2013, the date disability began, to calculate appellant’s pay rate
which was determined to be more than the February 23, 2013 date-of-injury rate.
5

By decision dated December 31, 2014, OWCP granted appellant a schedule award claim for two percent
permanent impairment of the right upper extremity (hand) and one percent permanent impairment of the left upper
extremity (hand). It determined that he was entitled to $6,048.66 for the period September 2 to October 23, 2014,
but as he had an outstanding overpayment amount of $1,407.78, OWCP deducted that amount from his $6,048.66
schedule award, resulting in a $4,640.88 schedule award. By letter dated December 31, 2014, OWCP informed
appellant that his overpayment of $1,407.78 was withheld from his schedule award and thus, repaid in full. The
overpayment account was deemed fully liquidated and closed.

3

LEGAL PRECEDENT
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.6 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
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 an
individual is entitled.”7
An employee is paid compensation for total disability equal to a percentage of his or her
monthly pay.8 To calculate monthly pay, the initial issue is the determination of the specific time
when the employee’s monthly pay will be calculated. Under 5 U.S.C. § 8101(4), the monthly
pay is determined at the time of injury, the time disability begins, or the time compensable
disability recurs, if the recurrence begins more than six months after a return to regular full-time
employment.
Once the proper time period is determined, the pay rate is determined under 5 U.S.C.
§ 8114(d). This section provides a specific methodology for determining pay rate:
“(1) If the employee worked in the employment in which he was employed at the
time of his injury during substantially the whole year immediately preceding the
injury and the employment was in a position for which an annual rate of pay-(A) was fixed, the average annual earnings are the annual rate of pay.”
OWCP procedures further provide that night or shift differential is to be included in the
pay rate determination and it is to also include any extra compensation for Sunday or holiday
work paid to regular employees of the postal service.9 The procedures note that extra
compensation for performing work on Sundays or holidays paid to regular employees of the
postal service will be included in computing an employee’s pay rate.10 It also notes, citing
5 U.S.C. § 5546(a), that for health professionals working for the Department of Veterans Affairs,
extra pay is usually paid when an employee’s regular work schedule includes an eight-hour

6

5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

8

Supra note 4 at § 8106(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rate, Chapter 2.900.6(b)(3)
(March 2011).
10

Id.

4

period, any part of which falls on a Sunday or described as being within the period commencing
at 12:00 a.m. Saturday and ending at 12:00 a.m. Sunday.11
5 U.S.C. § 5546(a) states that “[a]n employee who performs work during a regularly
scheduled [eight]-hour period of service which is not overtime work as defined by section
5542(a) of this title a part of which is performed on Sunday is entitled to pay for the entire period
of service at the rate of his basic pay, plus premium pay at a rate equal to 25 percent of his rate of
basic pay.”12
ANALYSIS
The Board finds that this case is not in posture for a decision. The case must be
remanded to OWCP for further development.13
In its November 24, 2014 preliminary determination, OWCP provided a discussion of the
amounts of premium pay appellant received annually in addition to base pay. It explained that
the initial weekly pay rate had included incorrect amounts for Sunday premium and night
differential, resulting in a weekly overpayment of $58.76. At $6.45 per hour for 1.5 hours per
week, OWCP determined that appellant was entitled to $9.68 weekly for Sunday premium for
1.5 hours of Sunday premium pay weekly because his Saturday shift spanned from 5:00 p.m. to
1:30 a.m., establishing Sunday work from 12:00 a.m. to 1:30 a.m.
Appellant contested the preliminary overpayment decision and stated that, although the
$6.45 Sunday premium and $1.62 night differential hourly rates were correct, he argued that he
was entitled to 8 hours per week for Sunday premium as opposed to the 1.5 hours used by
OWCP.
The Board finds that the November 24, 2014 OWCP decision failed to address
appellant’s argument and did not provide adequate facts and findings for its determination that he
received a $1,407.78 overpayment for the period April 16, 2013 to June 27, 2014.14
In the November 24, 2014 decision, OWCP generally stated that appellant’s pay rate
“must be determined according to pay rate information furnished by the employing
establishment.” No further explanation was provided. In the absence of a detailed explanation
as to the proper handling of Sunday premium pay the Board will remand the case to OWCP for

11

See supra note 9 at Chapter 2.900.6(b)(4) as it relates to health professionals working for the Department of
Veterans Affairs. See also generally Paul W. Catalano, 24 ECAB 170 (1973).
12

5 U.S.C. § 5546(a).

13

A.F., Docket No. 13-1514 (issued September 25, 2014).

14

5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or
against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
shall contain findings of fact and a statement of reasons.

5

further development of appellant’s pay rate, as to the fact, and amount of the claimed
overpayment of compensation.15
Upon remand, OWCP shall determine appellant’s pay rate and, after such further
development as necessary, issue a de novo decision containing findings of fact and a statement of
reasons.
CONCLUSION
The Board finds that the case is not in posture for a decision as to fact and amount of
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 24, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.16
Issued: May 5, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

15

Given the disposition of this case, a determination on eligibility for waiver of recovery of the overpayment and
recovery of the overpayment, by deducting the amount of overpayment from his December 31, 2014 schedule
award, is premature.
16

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

6