United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
GETTYSBURG NATIONAL MILITARY PARK, )
Gettysburg, PA, Employer
)
__________________________________________ )
M.B., Appellant

Appearances:
Ronald T. Tomasko, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-19
Issued: October 5, 2012

Case Submitted on the Record

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

JURISDICTION
On October 3, 2011 appellant, through his counsel, filed a timely appeal from the
August 29, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
finding an overpayment of compensation and denying waiver of the recovery of the
overpayment. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP improperly denied appellant’s request for a
prerecoupment hearing; (2) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $9,471.93; and (3) whether OWCP properly
denied waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant, through counsel, argues that he timely requested a prerecoupment
hearing. He further contends that he was without fault in the creation of the overpayment and
that it would be against equity and good conscience to allow recovery.
FACTUAL HISTORY
On November 7, 2003 appellant sustained an injury to his right shoulder and arm while
removing a fence and carrying fence rails to the truck. OWCP accepted his claim for right
shoulder tendinitis, a herniated disc at C5-6, brachial neuritis and right brachial plexopathy.2 It
paid medical and wage-loss compensation benefits.
OWCP issued an April 13, 2007 loss of wage-earning capacity decision, reducing
appellant’s wage-loss benefits effective May 13, 2007 based on his capacity to earn wages in the
constructed position of photographer (photojournalist). It determined that he was capable of
earning $357.20 per week and compensation was set at $929.40 every four weeks.
Compensation was paid based on the new amount. OWCP denied modification of this decision
by decisions dated February 7 and May 9, 2008. Appellant filed an appeal with the Board.
While the case was pending before the Board, appellant telephoned OWCP on April 3,
2009 to advise that he had returned to work. In an April 6, 2009 letter, OWCP noted that had he
returned to work and asked that he forward job information within the next 15 days. Depending
upon the amount appellant earned, he might be entitled to ongoing benefits. OWCP received the
requested information on April 22, 2009. On a copy of his pay stub appellant noted that he
called OWCP three days after he got the job and stated that compensation should make up the
difference between the two jobs. He noted that he did not get a pay stub right away.
Subsequently, appellant submitted an earnings statement that he started work on March 1, 2009.
In an April 24, 2009 letter, OWCP advised him that it was in the process of collecting additional
information in order to determine whether any adjustment was required with regard to his
ongoing compensation benefits.
In a decision dated September 28, 2009, the Board found that OWCP improperly denied
modification of appellant’s wage-earning capacity based on the constructed position of
photojournalist and reversed the February 7, 2008 decision. The findings of fact as set forth in
the Board’s September 28, 2009 decision are hereby incorporated into this decision.3
By letter to appellant dated October 9, 2009, OWCP requested that he submit earning
statements for the period commencing April 13, 2007. By letter dated October 23, 2009,
appellant’s attorney referenced the Board’s decision and asked about OWCP’s plans to make
appellant whole. In a November 19, 2009 letter, OWCP requested that he review a Form SSA581 and correct any information that was incorrect. In a December 16, 2009 note to OWCP,
appellant reiterated that he started full-time work on March 1, 2009 and that OWCP had to stop
sending payments. In an August 23, 2010 letter, his attorney stated that appellant’s position paid
2

Appellant previously filed a claim for a work injury that occurred on December 17, 2002 this claim was
approved for right rotator cuff strain.
3

Docket No. 08-2366 (issued September 28, 2009).

2

the same as his preinjury position. He was not sure whether appellant should receive partial
wage-loss benefits. On December 15, 2009 appellant completed the authorization to obtain
earnings data from the Social Security Administration. On a December 16, 2009 he wrote, “As I
have stated before and Mr. Tomasko has told you, I started a full time March 1, 2009 at
Letterkenny Army Depot. You need to stop sending my OWCP payments. I stated this before.
I also have been paying for my health insurance on my paycheck and through OWCP. We need
to straighten this out.”
In an August 31, 2010 letter, appellant’s attorney advised OWCP that appellant’s new
position paid the same as his preinjury position. As a consequence, he was not sure whether
appellant was eligible for partial wage-loss benefits. Counsel stated, “In other words, if all
monies owed [appellant] as a result of the [Board decision of September 28, 2009] have now
been paid, ongoing partial wage loss no longer appears appropriate in light of [his] current
federal earnings.” He enclosed copies of appellant’s earning statements from December 19
through 31, 2009 and August 28 through September 9, 2010. By letter dated April 12, 2011
appellant, through his attorney, advised OWCP that he had an increase of earnings, but noted that
his physical restrictions remained the same. Counsel also noted that appellant never received a
lump sum of past due partial wage loss to which he was entitled as a result of the September 28,
2009 decision.
In a letter dated June 15, 2011, OWCP determined that appellant would be refunded
$3,127.02 as OWCP erroneously deducted health insurance premiums from March 1 through
November 21, 2009, while he had these deductions taken from his salary. Payment was made to
him on June 17, 2011. On June 9, 2011 OWCP paid appellant compensation by direct deposit of
$25,120.60, an amount that it noted that he was underpaid for wages from May 13, 2007 through
February 28, 2009, as the Board found that OWCP improperly set his loss of wage-earning
capacity with regard to the constructed position of a photojournalist and he was entitled to full
compensation for that period.
On June 15, 2011 OWCP issued a preliminary determination that appellant was overpaid
compensation in the amount of $9,471.93. It explained that the Board found that it had
incorrectly determined his loss of wage-earning capacity. OWCP also noted that appellant had
actual earnings starting on March 1, 2009. It explained that the difference between what he was
actually paid and the amount of benefits he should have received resulted in the overpayment.
OWCP also made a preliminary determination that appellant was at fault in the creation of the
overpayment because he accepted a payment that he should have known was incorrect. It
provided instructions with regard to challenging the overpayment finding and requesting waiver
of recovery of the overpayment.
In a June 23, 2011 decision, OWCP found that appellant’s actual earnings as of August 1,
2010 exceeded the current wages for the job he held when injured. Therefore, according to the
provisions of 5 U.S.C. § 8106 and 5 U.S.C. § 8115, his entitlement to wage loss ended on
August 1, 2010, as he had no loss in earning capacity effective that date.
By decision dated August 29, 2011, OWCP finalized the overpayment determination in
the amount of $9,471.93 and that appellant was at fault in its creation. From March 1 to
November 21, 2009, appellant received compensation based on the pay rate of the constructed

3

loss of wage-earning capacity position in the amount of $8,870.53. However, he should have
been paid based on his actual earnings or $1,149.50. The difference resulted in an overpayment
of $7,721.03. For the period December 6, 2009 to July 31, 2010, appellant was paid in the
amount of $1,050.50, but should have been paid in the amount of $427.50, resulting in an
overpayment of $623.00. For the period August 1, 2010 to April 9, 2011, he received
compensation in the amount of $1,127.90 but should have been paid $0.00, resulting in an
overpayment of $1,127.90. The total amount of the overpayments ($7,721.03 + $623.00 +
$1,127.90) was $9,471.93.
On August 29, 2011 the date of its decision, OWCP received appellant’s financial data
with regard to the recovery of the overpayment as well as a request for a prerecoupment hearing
and a request for waiver of recovery of the overpayment. Appellant had signed these documents
on July 12, 2011. The record also contains an envelope for these documents. The date stamp on
the envelope is not completely legible, but reflects that it was mailed in August 2011.
LEGAL PRECEDENT -- ISSUE 1
In response to a preliminary notice of overpayment, an individual may present evidence
to OWCP in writing or at a prerecoupment hearing. The evidence must be presented or the
hearing requested within 30 days of the date of the written notice of overpayment. Failure to
request the hearing within the 30-day time period shall constitute a waiver of that right.4
ANALYSIS -- ISSUE 1
The Board finds that appellant did not timely request a prerecoupment hearing. The
preliminary notice of overpayment was dated June 15, 2011. Appellant’s request for a hearing
was received by OWCP on August 29, 2011. The request was signed on July 12, 2011; however,
OWCP kept a copy of the envelope which contained his request. Although the exact date it was
mailed is not legible from the stamp, the request was date stamped in August 2011. This
established that the request was mailed after the 30-day period for requesting a prerecoupment
hearing had expired. Accordingly, the Board finds that OWCP properly determinate that
appellant failed to timely request a prerecoupment hearing.
LEGAL PRECEDENT -- ISSUE 2
Section 8102 of FECA5 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 duty.6 Section 8129(a) of FECA provides that when an overpayment has been
made to an individual under this subchapter because of an error of factor or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor.7
4

20 C.F.R. § 10.432.

5

5 U.S.C. §§ 8101-8193.

6

Id. at § 8102(a).

7

Id. at § 8129(a).

4

ANALYSIS -- ISSUE 2
The Board finds that appellant received an overpayment of wage-loss benefits in the
amount of $9,471.93. Effective May 13, 2007, OWCP reduced his compensation for wage loss
as it determined that he had the capacity to earn wages as a photojournalist. This determination
was reversed by the Board in a September 28, 2009 decision. In the interim, appellant had
commenced work at Letterkenny Army Depot on March 1, 2009. The difference between what
he was paid and what he was due, a determination that changed with the issuance of the Board’s
September 28, 2009 decision, resulted in an underpayment and overpayments.
With regard to the underpayment, for the period from May 13, 2007 to February 28,
2009, appellant was entitled to compensation not reduced by the wage-earning capacity
determination. The amount of the underpayment was calculated by OWCP as $25,120.60. The
record reflects that this amount was paid to appellant by direct deposit on June 9, 2011.
With regard to the overpayments, these began after appellant returned to work on
March 1, 2009. From March 1 to November 21, 2009, appellant received compensation based
on his loss of wage-earning capacity rate in the amount of $8,870.53; but, he should have been
paid based on his actual earnings in the amount of $1,149.50. This resulted in an overpayment of
$7,721.03.8 Appellant received pay increases while at Letterkenny Army Depot. From
December 6, 2009 to July 31, 2010, he received compensation in the amount of $1,050.50 but he
should have been paid in the amount of $427.50, resulting in an overpayment of $623.00.
Starting August 1, 2011 appellant was entitled to no further wage-loss compensation as his salary
increased to be more than that of his date-of-injury job. For the period August 1, 2010 to
April 9, 2011, he received the amount of $1,127.90 but this entire amount was an overpayment.
The total of the overpayments equaled $9,471.93. Accordingly, OWCP properly determined that
appellant received an overpayment of compensation in the amount of $9,471.93.
LEGAL PRECEDENT -- ISSUE 3
According to 5 U.S.C. § 8129(b): Adjustment or recovery by the United States may not
be made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience. No waiver of an overpayment is possible if the claimant is at fault in creating the
overpayment.9
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault
if he or she has done any of the following: (1) Made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (2) Failed to provide information

8

As was noted above, an additional error was made by OWCP because during this time period it continued to
erroneously deduct health insurance premiums in the amount of $3,127.02. Health insurance premiums were
improperly deducted because deductions were being taken from appellant’s pay check at Letterkenny Army Depot.
However, OWCP made a payment to appellant for this amount on June 8, 2011.
9

L.A., Docket No. 11-374 (issued October 21, 2011); Gregg B. Manston, 45 ECAB 344 (1994).

5

which he or she knew or should have known to be material; or (3) Accepted a payment which he
or she knew or should have known was incorrect.
ANALYSIS -- ISSUE 3
The Board finds that OWCP improperly determined that appellant was at fault in the
creation of the overpayment. OWCP found that he accepted payments he knew or should have
known to be incorrect. It stated that appellant should have known that he could not accept
compensation after he returned to work.
The Board finds that OWCP improperly determined that appellant accepted a payment he
knew or should have known to be incorrect. Appellant has not been found to have made an
incorrect statement as to a material fact and he promptly responded to OWCP’s request for
information as to his earnings. However, this is not a case where he returned to work at full
salary. When appellant returned to work on March 1, 200, he was due compensation with regard
to the difference between his wages at his date-of-injury job and his salary at his new job at
Letterkenny Army Depot. He would not be expected to calculate his own loss of wage-earning
capacity once he returned to work to determine if he was entitled to further compensation.10 The
matter of the overpayment in this case was compounded by the fact that the Board’s
September 28, 2009 decision that reversed OWCP’s determination of his loss of wage-earning
capacity, OWCP owed appellant money and this underpayment was not paid until June 9, 2011.
Appellant cooperated with OWCP at all times and advised that there was a problem with the
payments. He could not be expected to have known the correct amount of his compensation
checks with regard to this complicated matter. In addition, OWCP did not refer to any probative
evidence of record establishing that appellant knew or should have known that the pay rate was
incorrect.11
The Board will set aside OWCP’s June 15, 2011 decision on the issue of fault. The
Board will remand the case for further development of appellant’s financial circumstances and
consideration of waiver of the recovery of the overpayment.12 OWCP shall issue an appropriate
decision regarding whether waiver of recovery of the overpayment is warranted.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely filed and properly determined that he was overpaid in the amount of
$9,471.93. The finding that appellant was at fault in the creation of the overpayment is reversed
and the case is remanded for further consideration on the issue of waiver.

10

Kathryn M. Nichols, Docket No. 04-377 (issued January 28, 2005).

11

B.A., Docket No. 10-2202 (issued July 5, 2011).

12

M.E., Docket No. 11-1735 (issued March 5, 2012).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 29, 2011 is affirmed in part and reversed in part.
Issued: October 5, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.V., Appellant
and
DEPARTMENT OF THE ARMY, PENTAGON,
OFFICE OF THE ASSISTANT SECRETARY,
FINANCIAL MANAGEMENT &
COMPTROLLER, Arlington, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Richard Kulick, for the appellant
Office of Solicitor, for the Director

Docket No. 13-2108
Issued: June 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 18, 2013 appellant, through her representative, filed a timely appeal from a
March 27, 2013 overpayment 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 OWCP properly determined that appellant received an
overpayment of compensation in the amount of $35,791.14 for the period July 8, 2007 through
December 17, 2011; (2) whether she was at fault in the creation of the overpayment and not
entitled to waiver of recovery; and (3) whether OWCP properly determined that the overpayment
should be recovered by deducting $509.20 from continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

On appeal appellant, through her representative, contests the amount of the overpayment
the fault determination. Appellant’s representative also argued that the overpayment was beyond
appellant’s means to repay in its entirety.
FACTUAL HISTORY
Appellant, then a 48-year-old budget analyst, has an accepted occupational disease claim
for post-traumatic stress disorder. On September 11, 2001 she was on the telephone with a
colleague who was killed when the plane hit the Pentagon.
Appellant completed CA-7 claim forms on March 21, April 2 and May 19, 2007 and
listed no dependents. In a claim for compensation form (CA-7) dated June 5, 2007, she listed her
nephew, who was born on October 31, 2001, as a dependent. Appellant also submitted an order
from the Circuit Court for Prince George’s County, Maryland dated June 12, 2007 appointing her
as the legal guardian, pendent lite, of her minor nephew. OWCP initially paid appellant
compensation based on the statutory 66 2/3 rate. After receipt of the court order, it paid
compensation at the augmented rate of 75 percent as of July 8, 2007. Appellant submitted
CA-1032 forms listing her nephew as a dependent on April 8, 2008, April 2, 2009, March 23
2010 and April 30, 2011.
OWCP reduced appellant’s compensation rate to 66 2/3 effective December 18, 2011.
On January 9, 2012 appellant inquired as to why her compensation was reduced. On January 10,
2012 an OWCP claims examiner advised her that guardianship was not grounds for augmented
compensation. To be eligible for augmented compensation, a child had to be legally adopted.
The record reflects telephone calls between OWCP and appellant’s attorney regarding the
dependency status of the minor living with her. By letter dated January 30, 2012, OWCP
informed appellant’s attorney that her compensation rate was reduced because she did not have
any dependents and she had not legally adopted her nephew. By letter dated March 31, 2012,
appellant’s representative contended that pursuant to 5 U.S.C. § 8110(a)(3), a dependent
included an unmarried child who, while living with the employee or receiving regular
contribution from the employee toward his support, is under age of 18. By letter dated May 9,
2012, OWCP responded that 20 C.F.R. § 8101(9) of FECA provided for three specific
relationships in addition to the biological relationship to establish a child: stepchildren, adopted
children and posthumous children. It reiterated that a nephew was not included among the
definitions of child under FECA. Therefore, appellant was not entitled to augmented
compensation.
On September 20, 2012 OWCP made a preliminary determination that appellant received
an overpayment of compensation in the amount of $35,791.14 because she had no eligible
dependents from July 8, 2007 through December 17, 2011, but received compensation at the
augmented rate of 75 percent. It also made a preliminary determination that she was at fault in
the creation of this overpayment because she accepted payments that she knew or reasonably
should have known to be incorrect. OWCP noted that appellant had signed and returned a Form
EN-1032 which provided that she understood that she must immediately report any change in the
status of her claimed dependents. It forwarded to her instructions and forms for challenging the
overpayment and requested that she complete financial forms. For the period July 8, 2007
through December 17, 2011, appellant was paid at the augmented rate and received $318,808.51

2

but should have been paid at the rate for a person without dependents in the total amount of
$283,017.37. The difference represented an overpayment of $35,791.14.
On October 17, 2012 appellant disagreed that an overpayment occurred and contended
that she was without fault. She requested waiver of the recovery of the overpayment. Appellant
requested that OWCP review the written evidence. She stated that her sister was unable to
properly care for her infant, so an older sister took care of the nephew until he was four years
old. When the older sister died in 2007, appellant took care of him. She stated that the only
mother her nephew knew was her and that she was his legal guardian. Appellant submitted
financial information listing her total assets as $10,118.70, and her monthly income as $581.00
($400.00 Supplemental Security Income payment and $181.00 welfare payment). She listed
monthly expenses as $6,089.00, including $3,430.00 for rent/mortgage/property tax, $600.00 for
food, $100.00 for clothing, $936.00 for utilities and $1,023.00 for miscellaneous. The total of
appellant’s regular monthly expenses was $6,089.00. She also listed $960.00 for monthly debt
payments. In support of her financial information, appellant submitted a copy of her account
activity at Wells Fargo, a breakdown of payments for rent/mortgage property tax listing
$1,100.00 in rent, $2,089.00 for a mortgage and $241.00 for taxes, copies of money gram
payments, a copy of bill from Schewel Furniture Company, and a copy of a bill from Century
Link for telephone and Internet services.
In a letter to appellant dated February 27, 2013, a senior claims examiner advised that she
tried to reach appellant on February 20 and 27, 2013 but was unsuccessful. She noted that she
would contact appellant on March 12, 2012 to conduct a telephone conference. The claims
examiner was unable to contact appellant for the conference. On March 1, 2013 OWCP sent
appellant a new CA-1032 to complete. Appellant completed the form and signed it on
March 20, 2013. By letter dated March 20, 2013, she informed OWCP that she had moved and
provided a new telephone number and address.
By decision dated March 27, 2013, OWCP finalized the overpayment of compensation in
the amount of $35,791.14. Appellant was at fault in the creation of the overpayment. OWCP
directed that $509.20 be withheld from her continuing compensation payments beginning
April 7, 2013 until the overpayment was recovered.
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.2 If the disability is total, the United States shall pay the employee during the period of total
disability the basic compensation rate of 66 2/3 of his or her monthly pay. A disabled employee
is entitled to an augmented compensation rate of 75 percent if he or she has one or more
dependents.3

2

5 U.S.C. § 8102.

3

O.R., 59 ECAB 432 (2008).

3

A dependent includes an unmarried child who, while living with the employee or
receiving regular contributions from the employee toward his or her support, is either 18 years of
age or over 18 years of age and incapable of self-support due to a physical or mental disability.4
A child is also considered a dependent if he or she is an unmarried student under 23 years of age
who has not completed 4 years of education beyond the high school level and is currently
pursuing a full-time course of study at a qualifying college, university or training program.5
ANALYSIS -- ISSUE 1
Appellant initially received compensation payments at the statutory rate of 66 2/3. After
she submitted a court order showing that she was guardian for her nephew, OWCP began paying
her compensation payments at the augmented rate of 75 percent effective July 8, 2007. The
Board notes, however, that a nephew is not recognized as an eligible dependent for purposes of
augmented compensation. Pursuant to 5 U.S.C. § 8101(9) the term child under FECA may
include stepchildren, adopted children or posthumous children. The Board has specifically held
that when a claimant has legal guardianship over a nephew, this does not qualify the child as a
dependent if the recipient of compensation has not adopted the child.6 Although appellant’s
nephew may be living with her and she may be his legal guardian, appellant did not legally
adopted her nephew. Therefore, he does not qualify as an eligible dependent
The record indicates that appellant was erroneously paid compensation based on the
augmented rate of 75 percent for a person with a dependent for the period July 8, 2007 through
December 17, 2011. Appellant was paid $318,808.51 but should have received $283,017.37.
OWCP properly determined that the difference of $35,791.14, is the amount of the overpayment.
The Board finds that OWCP properly determined the fact and amount of the overpayment in this
case.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or be against equity and good conscience.7

4

5 U.S.C. § 8129(b).

5

E.G., 59 ECAB 599 (2008); see also C.T., Docket No. 13-886 (issued July 19, 2013).

6

Aretha Hudson, 28 ECAB 423 (1988).

7

W.M., Docket No. 11-2000 (issued May 21, 2012).

4

In determining whether an individual is not without fault or alternatively, with fault,
section 10.433(a) of OWCP’s regulations provide in relevant part:
“An individual is with fault in the creation of an overpayment who -Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
Failed to provide information which he or she knew or should have known
to be material; or
Accepted a payment which he or she knew or should have known to be
incorrect.”8
The regulations further provide that each recipient of compensation benefits is
responsible to ensure that payments he or she receives from OWCP are proper.9 Whether or not
OWCP determines that an individual was at fault with respect to the creation of the overpayment
depends on the circumstances surrounding the overpayment.10
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in the creation of the overpayment because she
accepted payments that she knew or should have known to be incorrect. With respect to whether
an individual is with fault, section 10.433(b) of OWCP’s regulations provide that whether or not
OWCP determines that individual was without fault with respect to the creation of the
overpayment depends on the circumstances surrounding the overpayment. The degree of care
expected may vary with the complexity of the circumstances and the individual’s capacity to
realize that he or she is being overpaid. The Board has also noted that in applying the tests to
determine fault, OWCP should apply a reasonable person test.11
The Board finds that appellant was at fault in the creation of the overpayment. The
Board notes that appellant accepted payments that she knew or should have known to be
incorrect. The initial award notification advised appellant of her responsibility to correctly
identify her eligible dependents. Appellant submitted multiple financial statements, Forms CA1032, which provided notification of who and under what circumstances a person could be
claimed as a dependent. In submitting the completed forms, appellant certified that she read and
understood the basis on which her benefits were made. The Board finds that appellant is at fault
in creating the overpayment of benefits.12 For more than three years, she accepted payments she
8

5 U.S.C. § 8129(b)

9

20 C.F.R. § 10.433(a)

10

Id.

11

C.D., Docket No. 12-193 (issued August 2, 2013).

12

See C.A., Docket No. 08-1889 (issued June 17, 2009); Julia M. Butler, Docket No. 04-1107 (issued
November 15, 2004).

5

knew or should have known to be incorrect. Because appellant was at fault, she is not eligible
for a waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that when an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made by decreasing later
payments to which the individual is entitled.13
Section 10.441 of OWCP’s regulations provide that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors so as to minimize any hardship.14
ANALYSIS -- ISSUE 3
OWCP determined that it would collect appellant’s overpayment by deducting $509.20
from each compensation check.
OWCP was unable to contact appellant on the date of the hearing. Appellant did not
provide any reason prior to the hearing for not being available on the date scheduled. The Board
notes that a notice of hearing was sent to appellant at her address of record. The Board has found
that, in the absence of evidence to the contrary, a letter properly addressed and mailed in the due
course of business, is presumed to have arrived at the mailing address in due course. This is
known as the mailbox rule.15 As OWCP properly mailed this notice to appellant at her address
of record, it is presumed to have arrived at her mailing address. The Board further notes that
appellant received and completed the Form CA-1032 that was mailed to her the same month. On
appeal, appellant’s counsel makes various arguments about appellant’s health and her inability to
handle stress during this period. The Board cannot consider the reasons provided by appellant’s
representative for the first time on appeal.16
The Board notes that the financial information submitted by appellant was not sufficient
to give OWCP a clear picture of her finances. Although certain financial documents were
submitted, she listed monthly expenses that are not supported financial records such as official
documentation supporting that she pays $3,430.00 for rent/mortgage/taxes or $600.00 for food.
There is only partial documentation for appellant’s listing that she spends $936.00 for utilities
and $1,023.00 for miscellaneous expenses. She also did not include her compensation payments
under her monthly income. Because appellant did not provide adequate financial documentation
13

20 C.F.R. § 10.436.

14

Id. at § 10.441(a).

15

M.T., Docket No. 12-74 (issued May 21, 2012).

16

Z.S., Docket No. 07-415 (issued June 6, 2007).

6

and failed to make herself available for the telephonic hearing, OWCP did not have the
appropriate financial information. Its procedures provide that when an individual fails to provide
requested financial information, it should follow minimum collection guidelines designed to
collect the debt promptly and in full.17 Because appellant failed to provide the necessary
financial documentation, OWCP did not abuse its discretion in directing recovery by withholding
$509.20 from appellant’s continuing compensation payments.18
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $35,791.14 for the period July 8, 2007 through
December 17, 2011, that appellant was at fault in the creation of the overpayment and therefore
not entitled to waiver of recovery and that OWCP may collect the overpayment by deducting
$509.20 per 28 days from each of appellant’s continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 27, 2013 is affirmed.
Issued: June 17, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

17

C.S., Docket No. 13-1423 (issued October 23, 2013).

18

See N.R., Docket No. 12-1853 (issued June 10, 2013).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE,
)
McGUIRE AIR FORCE BASE, Wrightstown, NJ, )
Employer
)
__________________________________________ )
G.G., Executor of the estate of J.G., Appellant

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

Docket No. 09-1863
Issued: June 14, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 14, 2009 appellant filed a timely appeal of an April 17, 2009 decision of the
Office of Workers’ Compensation Programs affirming the September 4, 2008 termination of the
employee’s compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate the employee’s
compensation benefits for her back and left foot condition effective September 4, 2008.
FACTUAL HISTORY
On April 22, 2007 the employee, then a 50-year-old security clerk, injured her left foot on
April 22, 2007 after slipping on a wet bathroom floor. She stopped work on April 22, 2007 and
did not return. The Office accepted the claim for lumbar and left foot sprain and paid
appropriate compensation benefits.

In an August 13, 2007 report, Dr. Alan Carr, an osteopath specializing in anesthesiology,
noted a history of low back pain from the lumbar spine through the left leg and foot. He
diagnosed status post slip and fall, stress fracture of the third metatarsal of the left foot and
traumatic lumbar facet syndrome secondary to sustaining a slip and metastatic breast cancer.
On August 14, 2007 the Office referred the employee with a statement of accepted facts
to Dr. Zohar Stark, a Board-certified orthopedic surgeon, for a second opinion evaluation. In an
August 28, 2007 report, Dr. Stark found restricted lumbosacral range of motion. He diagnosed
metastatic bone disease, discogenic and degenerative joint disease of the lumbar spine and healed
left foot stress fracture. Dr. Stark noted no objective findings of the accepted conditions. He
also noted that the diagnoses were not caused or aggravated by the accepted work injury.
Dr. Stark opined that the employee was not capable of performing her job but that this disability
was related to her preexisting discogenic disc and joint disease condition of the lumbar spine and
metastatic bone disease. He also opined that the employee’s work restrictions were not related to
the accepted injury and that she did not require further treatment for the accepted injury.
In a September 21, 2007 letter, the employee requested that the Office expand her
accepted conditions to include fracture to the third metatarsal of the left foot based on Dr. Carr’s
August 13, 2007 report.
On October 4, 2007 the Office issued a proposed notice of termination of medical
benefits finding that the weight of the medical evidence rested with Dr. Stark who found that the
employee’s accepted condition had ceased.
The employee continued submitting claims for compensation. In an October 16, 2007
statement, she reiterated her request to expand the accepted conditions of her claim based on
Dr. Carr’s report. The employee also suggested a conflict in medical opinion between Drs. Stark
and Carr.
On October 18, 2007 Dr. Richard Adler, a podiatrist, noted the employee’s complaint of
pain in the lateral aspect of her left foot and exquisite tenderness upon palpation. X-rays taken
that day showed a flake fracture at the lateral plantar aspect of the left cuboid. Dr. Adler noted
that a flake fracture was present in a previous x-ray but that the radiologist did not notice it.
In a September 27, 2007 report, Dr. Carr noted that x-rays of the employee’s left foot did
not show complete healing of the fracture to the third metatarsal. His examination revealed pain
through the left foot and mild myofascial pain through the lumbar spine. Dr. Carr advised that
the employee remain off work due to her foot and back condition. He also noted that he could
not perform a lumbar epidural steroid injection as the employee had metastatic cancer of the
lumbar spine. On November 8, 2007 Dr. Carr noted that Dr. Stark inaccurately addressed the
employee’s chronic left foot condition. He indicated that Dr. Stark found no swelling of the left
foot when Dr. Adler found tenderness over the lateral aspect of the ankle and foot. Dr. Carr also
indicated that the flake fracture was related to the work injury. He advised that Dr. Stark was
wrong about the employee’s back pain being caused by metastatic bone disease as this was a
preexisting condition and that the lumbar pain did not start until after the April 22, 2007 fall.
The employee continued submitting claims for compensation.

2

In an undated attending physician’s report, Dr. Adler diagnosed left foot cuboid fracture.
He advised that the employee’s total disability began on October 18, 2007 with no end date
specified. On November 29, 2007 Dr. Adler opined that, while the employee may have had a
fracture of the third metatarsal, she also had a small fracture of the cuboid related to her fall. He
noted that Dr. Stark’s findings contradicted themselves and that the employee requested further
treatment. On February 26, 2008 Dr. Adler noted the employee’s continued need for treatment
as her fracture had not been noted or immobilized. He also noted this condition was related to
the employee’s present total disability. Dr. Adler advised that the employee could return to full
duty in eight weeks.
On February 15, 2008 the Office requested a supplemental report from Dr. Stark. In a
March 13, 2008 supplemental report, Dr. Stark indicated that his opinion remained unchanged.
He noted that his review of a June 27, 2007 magnetic resonance imaging (MRI) scan of the left
foot showed bone edema in the third metatarsal shaft but no fracture was visible. He also noted
that an August 23, 2007 x-ray of the left foot suggested mild sclerosis in the proximal
metaphyseal region of the third metatarsal base in the area which does not correspond to the area
of increased marrow edema on the June 27, 2007 MRI scan. Dr. Stark further noted that the
x-ray also showed that the remainder of the osseous structures of the left foot was intact. He
indicated that, as the statement of accepted facts indicated that only lumbar sprain and left foot
sprain were accepted conditions, his diagnosis of metastatic bone disease, discogenic and
degenerative joint disease of the lumbar spine and healed stress fracture of the left foot were not
work-related conditions.
On March 19, 2008 the Office requested a supplemental report from Dr. Stark regarding
whether the employee’s fractures of the third metatarsal and the cuboid were caused or
aggravated by the accepted injury. In a March 20, 2008 supplemental report, Dr. Stark opined
that the employee’s fractures of the third metatarsal and cuboid were not caused or aggravated by
the April 22, 2007 injury. He opined that the accepted conditions of lumbar and left foot sprain
had resolved. Dr. Stark also opined that the employee could return to work without restrictions.
In a May 30, 2008 report, Dr. Steven Kahn, an osteopath specializing in orthopedic
surgery, noted the history of the April 22, 2007 work injury and set forth findings on
examination. He diagnosed post-traumatic thoracolumbar lumbar strain/sprain with associated
myofasciitis, lumbar spondylosis, L4-5 spondylitic disc bulge and bony medications to the
thoracolumbar spine bilateral iliac bones. Dr. Kahn deferred to Dr. Adler regarding the
employee’s left foot and her work status. For the employee’s mid low back pain, he
recommended physical therapy and anti-inflammatory medication.
On June 4, 2008 the Office referred the employee with a statement of accepted facts to
Dr. Howard Zeidman, a Board-certified orthopedic surgeon, for a referee evaluation to resolve
difference in medical opinion.1 In a June 19, 2008 report, Dr. Zeidman summarized the
employee’s history of injury and noted her complaints of low back and left foot pain. Upon
examination, he found some mild tenderness in the low back but no spasm. Dr. Zeidman also
1

The Board notes the Office’s typographical error as it inadvertently referenced a conflict between Drs. Carr
and Adler. However, the conflict in medical opinion existed between Dr. Stark, the second opinion physician, and
Drs. Carr and Adler, the treating physicians.

3

found that the employee’s left foot had some tenderness in the lateral foot across the dorsum with
good motion through the foot, ankle and toes with no edema. X-rays of the low back were
unremarkable but showed mild evidence of minimal degenerative changes but no narrowing,
fractures or lytic lesions. Left foot x-rays were unremarkable but found calcification in the
lateral cuboid region. Dr. Zeidman noted that the employee had a preexisting carcinoma
condition of the breast. He also noted that an MRI scan report of record showed diffuse lytic
lesions consistent with metastatic disease but that current x-rays show no evidence of this
problem. Dr. Zeidman indicated there was no evidence of any fracture or similar problem that
could be related to the April 22, 2007 injury. Regarding the employee’s left foot, the physician
noted that the flake fracture described in prior medical reports appeared similar to the present left
foot x-ray. Dr. Zeidman opined that, although an MRI scan of the left foot showed evidence of a
possible stress fracture or similar problem in the metatarsal, it did not describe any changes in
the cuboid bone which might be associated with a recent fracture related to April 22, 2007. He
also opined that the presence of calcification did not appear work related. Dr. Zeidman advised
that the employee had recovered from sprains and strain in her back and left foot related to her
work injury. He also advised that she was able to return to work in any position not physically
arduous. Dr. Zeidman noted that the employee had other medical conditions, such as metastatic
breast carcinoma, that may affect her work status but that these were not work-related conditions.
On July 24, 2008 the Office issued a notice of proposed termination of compensation
benefits finding that the weight of the medical evidence rested with Dr. Zeidman who found that
the employee no longer had any disability or residuals due to the accepted work-related
conditions.
In a July 18, 2008 report, Dr. Kahn noted that the employee presented for treatment of
her work-related injury of April 22, 2007. The employee complained of low back pain
predominantly on the left side. Dr. Kahn’s examination revealed palpatory tenderness over the
paravertebral region more pronounced on the left. He diagnosed post-traumatic thoracolumbar
strain/sprain with associated myofasciitis, lumbar spondylosis, L4-5 spondylitic disc bulge, bony
metastasis thoracolumbar spine and bilateral iliac bones. Dr. Kahn recommended physical
therapy.
In an August 4, 2008 statement, the employee questioned if Dr. Zeidman was properly
selected as an impartial specialist. She also asserted that Dr. Zeidman incorrectly indicated that
the employee sustained left foot sprain when diagnostic tests showed flake fracture of the left
cuboid. The employee noted this was a necessary distinction as the physician must determine
whether the employee recovered from residuals of her work injury. She noted that
Dr. Zeidman’s findings were speculative and that he should have to submit work restrictions for
recommending that the employee return to work.
In an August 22, 2008 report, Dr. Kahn reevaluated the employee for her work injury.
His examination of the thoracolumbar spine revealed palpatory tenderness over the paravertebral
region but not over the spinous process. Dr. Kahn reiterated his diagnoses of post-traumatic
thoracolumbar strain/sprain with associated myofasciitis, lumbar spondylosis, L4-5 spondylitic
disc bulge, bony metastasis thoracolumbar spine and bilateral iliac bones. He noted that the
employee could return to limited duty on August 25, 2008 with restrictions on sitting, walking
and lifting.

4

In a September 4, 2008 decision, the Office terminated the employee’s compensation
benefits effective that day finding that she did not submit sufficient evidence to alter the
recommendation to terminate her compensation benefits.
On September 9, 2008 the employee requested an oral hearing that was held on
January 12, 2009. In an April 6, 2009 statement, her representative indicated that the employee
died on March 19, 2009 and that her estate would pursue her claim.
In an April 17, 2009 decision, an Office hearing representative affirmed the September 4,
2008 decision finding that the Office had met its burden of proof to support that the employee
had no remaining work-related disability or residuals as a result of the accepted injury.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 After it has determined that an employee has disability
causally related to his federal employment, the Office may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.3 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.
To terminate authorization for medical treatment, the Office must establish that the claimant no
longer has residuals of an employment-related condition, which requires further medical
treatment.5
ANALYSIS
The Office accepted that the employee’s April 22, 2007 work injury caused a left foot
and lumbar sprain. The Board finds that the Office has met its burden to establish that all
residuals of the employee’s accepted employment conditions had resolved effective
September 4, 2008.
The Office properly found a conflict in the medical evidence regarding whether the
employee had any disability or residuals due to her accepted lumbar and left foot condition. The
employee’s treating physician, Dr. Adler, submitted reports indicating that the employee had
been totally disabled since October 18, 2007 and that continued treatment was necessary. He
diagnosed left foot cuboid fracture and opined that this condition was related to the employee’s
disability. Likewise, Dr. Carr disagreed with Dr. Stark’s opinion and indicated that the employee
remained disabled due to her work-related foot and back conditions. On the other hand, the
second opinion physician, Dr. Stark, submitted reports diagnosing metastatic bone disease,
2

Id.; Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).

3

Vivien L. Minor, 37 ECAB 541 (1986).

4

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

5

E.J., 59 ECAB ___ (Docket No. 08-1350, issued September 8, 2008).

5

discogenic and degenerative joint disease of the lumbar spine and healed left foot stress fracture.
However, he opined that none of these diagnoses were work related and that the employee’s
disability and work restrictions related to her preexisting conditions. Dr. Stark advised that the
employee’s accepted conditions had resolved enabling her to return to work without restrictions.
The Office properly referred the employee to Dr. Zeidman for a referee medical
evaluation to resolve the conflict in medical opinion as to whether the employee had any
disability or residuals due to the accepted lumbar and left foot condition.6 In a June 19, 2008
report, Dr. Zeidman noted examining the employee and determined that she ceased to have any
residuals from her April 22, 2007 injury. He reviewed the medical record, reported findings on
examination and reviewed diagnostic testing and x-rays of the left foot and low back. On
examination, the employee had some mild tenderness in the low back but no spasm. Straight leg
raising was unremarkable. Sensory and motor functions were intact. Deep tendon reflexes were
equal and active. In the left foot, there was some tenderness in the lateral foot and across the
dorsum. There was good motion through the foot, ankle, and toes and no edema noted.
Dr. Zeidman explained that, although an MRI scan of the left foot showed evidence of a possible
stress fracture or similar problem in the metatarsal, it did not describe any changes in the cuboid
bone that could be associated with the work injury. He also noted that the calcification in the left
foot was not related to the work injury. Moreover, Dr. Zeidman also found that the employee’s
work-related low back sprain had resolved. Furthermore, he noted that, other medical
conditions, such as calcification of the left lateral cuboid region, stress fractures and metastatic
breast carcinoma, were not accepted conditions, and therefore, any existing disability or residuals
were not related to the accepted work injury. Based on these findings, Dr. Zeidman concluded
that the employee’s lumbar and left foot condition had fully resolved with no disability or
residuals, which allowed the employee to return to her nonarduous preinjury work. His opinion
was based on proper factual and medical history as he had a statement of accepted facts and his
report accurately summarized the relevant medical evidence. Dr. Zeidman found no basis on
which to attribute any continuing condition or disability to the April 22, 2007 work injury.
The Board finds that Dr. Zeidman’s opinion is sufficiently well rationalized and based
upon a proper factual background such that it is entitled to special weight7 and establishes that
residuals of the employee’s accepted conditions had resolved.
The Board also finds that medical evidence submitted by the employee is not sufficient to
overcome the weight of Dr. Zeidman’s opinion or to create another conflict. The employee
submitted reports from Dr. Kahn contemporaneous with and subsequent to Dr. Zeidman’s report.
However, Dr. Kahn, while noting that he was treating the employee for a work injury, did not
provide a reasoned or rationalized medical opinion supporting that the employee had any

6

See 5 U.S.C. § 8123(a) (section 8123(a) 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).
7

See Y.A., 59 ECAB ___ (Docket No. 08-254, issued September 9, 2008) (when a case is referred to an impartial
medical specialist for the purpose of resolving a conflict in medical opinion, the opinion of such specialist, if
sufficiently well rationalized and based on a proper background, must be given special weight).

6

continuing condition or disability causally related to the accepted work injury.8 He noted the
employee’s diagnoses but did not attempt to explain the reasons why any continuing condition or
disability would be causally related to the April 22, 2007 work injury that was accepted for a left
foot and a lumbar sprain.
On appeal, appellant asserts that Dr. Zeidman was insufficient and that the medical
evidence establishes that the employee had residuals from her work injury as both Drs. Kahn and
Stark indicated that she could return to sedentary work with restrictions. However, as noted,
Dr. Stark was on one side of a conflict that was resolved by Dr. Zeidman who, in resolving the
conflict, considered the entire medical record and current findings and determined that no
disability or residuals were due to the April 22, 2007 work injury. Also, Dr. Kahn’s reports as
noted provided insufficient medical rationale with regard to any work-related condition.
Appellant also asserts that Dr. Zeidman was not properly selected as an independent medical
examiner. However, in a June 12, 2008 letter, the employee’s representative confirmed receipt
of a June 4, 2008 letter scheduling a referee evaluation with Dr. Zeidman and requested that the
physician provide him with a copy of his report. The employee’s representative did not object to
Dr. Zeidman’s selection until August 4, 2008, two months after he had performed his
evaluation.9 Appellant further asserts that Dr. Zeidman opined that the employee could return to
work but that he did not provide any specific work restrictions. However, Dr. Zeidman was
evaluating the employee with regard to whether she had any continuing work-related condition
or disability. As he indicated that she had no work-related disability or residuals, there was no
reason for him to set forth any work restrictions.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate the employee’s
compensation benefits for her lumbar and left foot condition effective September 4, 2008.

8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
9

See G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008) (the Board found that appellant did not
establish any error with respect to the selection of the impartial medical specialist where appellant object to the
selection until several months after the notification of the selection and the examination by the physician and made a
general allegation of error that the Office bypassed qualified physicians without providing probative evidence).

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated April 17, 2009 and September 4, 2008 are affirmed.
Issued: June 14, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF AGRICULTURE,
AGRICULTURAL MARKETING SERVICE,
Blakely, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-0881
Issued: August 21, 2015

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 March 13, 2015 appellant filed a timely appeal from a January 27, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish an occupational
disease in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The Board noted that appellant submitted new evidence on appeal. However, the Board lacks jurisdiction to
review new evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On March 5, 2014 appellant, then a 50-year-old physical science technician, filed an
occupational disease claim alleging that he developed carpal tunnel in the performance of duty.
He advised that lifting 50-pound bags, and blending and grinding samples caused his condition.
Appellant noted that he became aware of his condition and its relation to his federal employment
on February 1, 2011. He did not stop work.
In a February 28, 2011 report, Dr. O.H. Chitwood, III, a Board-certified orthopedic
surgeon specializing in hand surgery, advised that appellant was experiencing numbness and
tingling in his hands. He noted that appellant would wake up at night with symptoms that came
and went but it bothered him primarily in the mornings. On physical examination Dr. Chitwood
advised that appellant was neurovascularly intact, his elbows, wrists, and digits had full range of
motion, positive Tinel’s bilaterally, negative carpal tunnel compression test, and negative
Phalen’s maneuver. He assessed mild carpal tunnel syndrome.
In a January 10, 2014 report, Dr. Chitwood advised that appellant’s symptoms were
worsening and that his prescribed medication was no longer helping. He noted that he discussed
surgery and steroid injections as possible treatment options. On examination Dr. Chitwood
noted full range of motion, positive Tinel’s at the carpal tunnel bilaterally, negative carpal tunnel
compression tests, and intact motor and sensory examinations.
Appellant noted that from 1985 to 1996 he worked in a nonfederal position operating a
forklift. He worked at the employing establishment from 1997 to the present testing and
grinding samples.
By letter dated March 6, 2014, OWCP notified appellant that the evidence was
insufficient to establish his claim. Appellant was instructed to submit a questionnaire
establishing the factual element of his claim and also advised of the type of medical evidence
needed to establish the claim. Also on March 6, 2014 OWCP requested that the employing
establishment submit a statement from a knowledgeable supervisor regarding the assertions
made by appellant.
In a February 11, 2014 statement, appellant advised that his job duties include lifting
bags, grinding samples, using a pipet to measure mixtures, recordkeeping, and typing results. In
a February 3, 2014 letter, appellant’s former nonfederal employer advised that he worked as a
forklift operator, stacker, and lead person at the bag out location from 1985 until 1996.
In a March 10, 2014 report, Dr. Chitwood advised that he was asked to determine
whether appellant’s condition was work related. He explained that because appellant’s
symptoms often occurred at night or when he was asleep it was impossible to determine whether
his work duties caused his condition. Dr. Chitwood noted that appellant’s condition could
potentially be idiopathic carpal tunnel. He advised appellant to seek a second opinion.
In a March 17, 2014 report, Dr. Chitwood advised that appellant’s symptoms were
worsening. On examination he found full range of motion, no atrophy, positive Tinel’s over the

2

carpal tunnel, and decreased sensation in the median nerve distribution bilaterally. Dr. Chitwood
noted that he would order a nerve conduction study.
In a March 31, 2014 statement, an employing establishment supervisor advised that
appellant performed computer-related tasks as well as working with samples. She stated that
these duties could be tedious and could potentially cause tension in the wrist and hand area. The
supervisor noted that no other staff member had developed problems performing these tasks.
The employing establishment also provided a copy of appellant’s job description.
By decision dated April 10, 2014, OWCP denied the claim because medical evidence was
insufficient to establish that the diagnosed condition was causally related to factors of his
employment.
In an April 18, 2014 diagnostic report, Dr. Bonnie Dungan, a Board-certified physiatrist,
advised that an electromyogram (EMG) and nerve conduction testing revealed that appellant had
bilateral median motor and sensory carpal tunnel, bilateral ulnar cubital tunnel syndrome, and
cervical spondylosis without evidence of active radiculopathy.
In an April 28, 2014 report, Dr. Chitwood noted seeing appellant for followup of his
EMG. He advised that the EMG showed changes consistent with advanced carpal tunnel
syndrome. Dr. Chitwood reported that because appellant first related that his symptoms started
at night then developed during the day he could not say that his condition was related to his
work. He opined that appellant’s carpal tunnel was idiopathic. Dr. Chitwood reiterated that it
was possible that a different physician could have a differing opinion.
In a letter postmarked May 8, 2014, appellant requested an oral hearing. He also
submitted an April 21, 2014 statement noting his work duties and his belief that his employment
contributed to his condition. Appellant subsequently submitted photographs of his workstations
with descriptions of his job duties.
In a July 25, 2014 report, Dr. David Rehak, a Board-certified orthopedic surgeon
specializing in hand surgery, advised that he discussed proposed surgery with appellant. On
examination he noted positive Tinel’s at the cubital tunnel, mild thenar weakness, and positive
Tinel’s sign at the median nerve. Dr. Rehak noted that appellant worked for the employing
establishment since 1997 and that his duties included lifting 50-pound bags, preparing samples,
and manually squeezing a pneumatic device. He opined that, if the job duties as described by
appellant were accurate, then these duties could have caused or exacerbated his current
diagnosis. In an August 14, 2014 addendum, Dr. Rehak advised that he reviewed appellant’s job
description and pictures and opined that appellant’s job caused or exacerbated his current
diagnosis.
In an August 25, 2014 statement, appellant advised that his former physician
Dr. Chitwood told him he would no longer see him as a patient and that he should find another
physician. He noted seeing other physicians, including Dr. Rehak, and advised that he had
surgery on August 7, 2014.
In the December 10, 2014 oral hearing, appellant described the work duties that he
believed caused his carpal tunnel syndrome. The hearing representative explained that his claim
3

needed medical evidence to establish a causal relationship between the diagnosed condition and
his employment. He acknowledged that Dr. Rehak opined that appellant’s condition was caused
or exacerbate by his work duties; however, he explained that his report needed medical reasoning
to support this position. The hearing representative advised that the record would be held open
for 30 days to allow for the submission of additional medical evidence.
A January 8, 2015 addendum report, signed by a medical assistant in Dr. Rehak’s office,
advised that appellant’s job may not have caused appellant’s diagnosis of carpal tunnel, but his
job certainly could have exacerbated his diagnosis of carpal tunnel. It further noted that
nocturnal symptoms are typical of carpal tunnel syndrome.
By decision dated January 27, 2015, an OWCP hearing representative affirmed the
April 10, 2014 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden 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, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.3 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.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.6
The weight of medical evidence is determined by its reliability, its probative value, its

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

I.J., 59 ECAB 408 (2008); supra note 3.

4

convincing quality, the care of analysis manifested, and the medical rationale expressed in
support of the physician’s opinion.7
ANALYSIS
The record confirms that appellant’s job involves lifting, typing, and grinding samples.
However, the medical evidence of record is insufficient to establish that these duties caused or
exacerbated his bilateral carpal tunnel syndrome or other conditions.
In his July 25, 2014 report, Dr. Rehak noted that appellant’s duties included lifting 50pound bags, preparing samples, and manually squeezing a pneumatic device. He opined that if
the job duties as described by appellant were accurate, they could have caused or exacerbated his
current diagnosis. Although Dr. Rehak described appellant’s duties and found that those duties
could have caused or exacerbated his condition, the Board has held that medical opinions which
are speculative or equivocal are of diminished probative value.8 As a result, this report is
insufficient to discharge appellant’s burden of proof. In his August 14, 2014 addendum,
Dr. Rehak stated that he had reviewed appellant’s job description and pictures and more
explicitly stated that appellant’s job was causally related to his diagnosis. Although he provides
an opinion on causation the report lacks medical rationale to support his opinion. The Board has
long held that medical opinions not containing rationale on causal relation are of diminished
probative value and are generally insufficient to meet appellant’s burden of proof.9
In his March 10, 2014 report, Dr. Chitwood explained that because appellant’s symptoms
often occurred when he was asleep it was impossible to determine whether his work duties
caused his condition. In his April 28, 2014 report, he advised that because appellant reported
that his symptoms started at night and developed during the day he could not say that his
condition was related to his work. Dr. Chitwood opined that appellant’s carpal tunnel was
idiopathic. These reports do not support causal relationship and instead suggest that his
condition was caused by factors outside of the workplace. Other reports by Dr. Chitwood do not
address causal relationship.
The April 18, 2014 diagnostic report from Dr. Dungan is insufficient to establish the
claim as the physician did not address causal relationship.10
In a January 8, 2015 addendum report a medical assistant in Dr. Rehak’s office opined
that appellant’s job might not have caused appellant’s carpal tunnel, but his job certainly could
have exacerbated that condition. A medical assistant is not a physician as defined under
7

James Mack, 43 ECAB 321 (1991).

8

See S.E., Docket No. 08-2214 (issued May 6, 2009) (finding that opinions such as the condition is probably
related, most likely related or could be related are speculative and diminish the probative value of the medical
opinion); Cecilia M. Corley, 56 ECAB 662, 669 (2005) (finding that medical opinions which are speculative or
equivocal are of diminished probative value).
9

Carolyn F. Allen, 47 ECAB 240 (1995).

10

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship).

5

FECA.11 Thus, records from medical assistants have no probative medical weight and are
insufficient to establish the claim.
On appeal appellant reiterated the work duties that he believed contributed to his
condition. However, he has not submitted medical evidence explaining how the established
work factors caused or contributed to the diagnosed condition. As noted, causal relationship is a
medical question that must be established by probative medical opinion from a physician.12 The
physician must accurately describe appellant’s work duties and medically explain the process by
which these duties caused or aggravated his condition.13 Because appellant has not provided
such medical opinion evidence in this case, he has failed to meet his burden of proof.
Appellant may submit new evidence or argument as part of a formal 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 he sustained an occupational disease
caused by factors of his employment.

11

A.C., Docket No. 08-1453 (issued November 18, 2008). Under FECA, a “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law. 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208,
211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).
12

See supra note 5.

13

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).

6

ORDER
IT IS HEREBY ORDERED THAT the January 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Detroit, MI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-621
Issued: January 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On January 11, 2011 appellant filed a timely appeal of the October 21, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error. The Board docketed the appeal as No. 11-621.
This case has previously been before the Board.1 In an April 30, 2001 decision, the
Board affirmed OWCP decisions dated July 28 and November 4, 1998 and found that OWCP
properly reduced appellant’s compensation based on its determination that the constructed
position of electronics technician represented his wage-earning capacity effective July 18, 1998.2
In a January 16, 2009 letter, appellant, through his congressional representative,
requested reconsideration of OWCP’s wage-earning capacity decision. He submitted medical

1
2

Docket No. 99-1091 (issued April 30, 2001).

OWCP accepted that on August 26, 1986 appellant, then a 38-year-old engineering technician, sustained a back
strain and aggravation of preexisting spondylolisthesis as a result of lifting a case of 300-watt lamps at work. It also
authorized his back surgeries which were performed in 1987 and 1988.

reports and diagnostic test results dated April 29, 1997 through April 6, 2007 which addressed
his lumbar conditions and total disability for work.
In a March 4, 2009 decision, OWCP denied appellant’s request for modification of its
July 28, 1998 decision. It found that the evidence submitted failed to establish a material
worsening of his accepted conditions or provide a rationalized medical opinion explaining why
he could not perform the duties of the constructed electronics technician position.
On June 28, 2010 OWCP referred appellant, together with a statement of accepted facts
and the case record to, Dr. James F. Bethea, a Board-certified orthopedic surgeon, for a second
opinion. In a July 21, 2010 report, Dr. Bethea reviewed a history of the accepted August 26,
1986 employment injuries and appellant’s medical treatment. Appellant rated his pain which
radiated to both feet equally as 10 out of 10. He complained about numbness in his toes on both
feet. Appellant had difficulty with walking, sitting, standing, bending, lying down and sleeping.
Dr. Bethea listed his findings on physical examination and reviewed diagnostic test results
related to the back. He diagnosed chronic lumbar syndrome status post lumbar spine surgery.
Dr. Bethea advised that the accepted aggravation of preexisting spondylolisthesis had not
resolved. He stated that the authorized surgery had not stopped his symptoms. Dr. Bethea
concluded that appellant could not return to his regular job as an engineering technician.
On October 1, 2010 appellant requested reconsideration of his claim based on
Dr. Bethea’s July 21, 2010 report.
In an October 21, 2010 decision, OWCP denied appellant’s October 1, 2010 request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error in the last merit decision dated March 4, 2009.
As noted above, OWCP issued a formal decision on appellant’s wage-earning capacity on
July 28, 1998, prior to the time he requested reconsideration on October 1, 2010. Board
precedent and OWCP’s procedures direct the claims examiner to consider the criteria for
modification when a claimant requests resumption of compensation for total wage loss.3 While
appellant used the term reconsideration in his October 1, 2010 request, he implicitly asserted that
the medical evidence obtained by OWCP established that his employment-related condition had
worsened.4 The Board finds that OWCP should have adjudicated the issue of modification of the
wage-earning capacity determination.5 The Board will therefore remand the case to OWCP for
3

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004); Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.9(a)
(December 1995) (if a formal decision on loss of wage-earning capacity is issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss, in which instance OWCP will need to
evaluate the request according to the customary criteria for modifying a formal loss of wage-earning capacity
determination).
4

Once the wage-earning capacity of an injured employee is determined, a modification of such determination is
not warranted unless there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated, or the original determination was, in fact, erroneous.
Stanley B. Plotkin, 51 ECAB 700 (2000); see Federal (FECA) Procedure Manual, id. at Chapter 2.814.11
(June 1996).
5

F.B., Docket No. 09-99 (issued July 21, 2010).

2

proper adjudication, to be followed by an appropriate merit decision to preserve appellant’s
appeal rights.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: January 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.C., Appellant
and
DEPARTMENT OF THE NAVY, PEARL
HARBOR NAVAL SHIPYARD,
Pearl Harbor, HI, Employer
__________________________________________

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

Docket No. 09-334
Issued: August 12, 2009

Case Submitted on the Record

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

JURISDICTION
On November 17, 2008 appellant filed a timely appeal from an August 28, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error. Because more than one year has elapsed between the most recent merit decision dated
May 14, 2007 and the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely and failed to
demonstrate clear evidence of error.

1

See 20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
On March 28, 2007 appellant, a 50-year-old office automation assistant, filed an
occupational disease claim alleging that he developed numbness, tingling and a shocking feeling
radiating down to his low back, shoulders, arms, hands and fingers, as a result of employment
activities. He stated that he first realized that his condition was causally related to employment
factors on March 3, 2007.
On April 9, 2007 the Office informed appellant that the information and evidence
submitted was insufficient to establish that his claimed medical condition was related to
employment activities. It advised appellant to submit a physician’s report containing a diagnosis
and an opinion as to how his claimed condition was related to employment factors.
Appellant submitted an undated statement alleging that his duties at the employing
establishment since 1978 caused his alleged back and radicular conditions. His duties included
pushing, pulling and carrying heavy equipment, bending, twisting, reaching and standing and
carrying 20-pound bags.
Appellant submitted reports from Dr. Paul J. Smith, Board-certified in the field of
occupational medicine.
On April 12, 2007 Dr. Smith diagnosed degenerative lumbar
intervertebral disc disease and left lower extremity paresthesias. He noted that appellant was
experiencing increased pain associated with new job activities. On April 24, 2007 Dr. Smith
reiterated his diagnosis and opined that appellant was able to work full time with restrictions.
By decision dated May 14, 2007, the Office denied appellant’s claim. It found that
appellant had not submitted sufficient medical evidence to establish that his claimed back
condition was causally related to established work events.
On May 21, 2008 appellant submitted an appeal request form requesting reconsideration
of the Office’s May 14, 2007 decision. He also submitted an undated letter requesting
reconsideration, which was received by the Office on June 9, 2008. The lower portion of the
letter contained several “date stamps,” including a May 8, 2008 date stamp, in which the number
“8” was crossed out and replaced with a number “12.” The letter also contains a partially
illegible date stamp, reflecting the date: “May 21, 2008.” Appellant stated that his current
position required him to work in a cold environment, which aggravated and caused numbness,
tingling and a shocking feeling radiating to his shoulders, fingers and back. He also claimed to
be experiencing constant back spasms.
On April 12, 2007 Dr. Smith stated that appellant presented for evaluation of bilateral
upper extremity, generalized mid back and generalized lower back problems, which he attributed
to work activity, repetitive computer-related activities and exposure to the cold environment of
computer room. Results of a neurological examination were grossly normal. Appellant’s neck
was supple without rigidity. Dr. Smith found tenderness in the lower back, normal muscle tone,
no tremors and 5/5 strength. Testing revealed no decreased range of motion. Dr. Smith stated
that additional testing was required for a determination of causation.

2

In follow-up reports dated May 23 and June 15, 2007, Dr. Smith stated that appellant was
experiencing lower back pain associated with myospasm, which he experienced more frequently
in a cold environment. He diagnosed degeneration of the lumbar intervertebral disc and
paresthesia of the upper limbs and opined that appellant could work full time with restrictions.
On July 27, 2007 Dr. Smith reiterated appellant’s work restrictions and indicated that the
employing establishment had accommodated his limitations due to his lower back condition.
On August 31, 2007 Dr. Smith repeated his diagnosis of low back pain and degeneration
of lumbar intervertebral disc disease. He opined that while the cause of appellant’s condition
was shivering, which was a nonindustrial condition, but that the temperature extremes
experienced in the work environment temporarily exacerbated his preexisting mid- to lower-back
pain. Dr. Smith stated that appellant’s condition was primarily subjective, with minimal
objective substantiation. The record contains follow-up notes and work restrictions from him
dated October 12 and December 10, 2007.
On December 10, 2007 Dr. Smith diagnosed paresthesia of the upper limb, bilateral hand
numbness and tingling, low back pain and degeneration of the lumbar intervertebral disc. He
opined that appellant’s current upper extremity paresthesia had no association with the alleged
work-related conditions. Dr. Smith noted that prior cervical films demonstrated significant
degenerative changes of the cervical spine and that electrodiagnostic studies were negative for
motor radiculopathy and peripheral entrapment problem.
Appellant submitted follow-up notes and restrictions from Dr. Smith dated January 18,
March 29, May 3, June 13 and July 12, 2008, in which he reiterated his diagnoses and discussed
work status. He also submitted copies of previously submitted reports from Dr. Smith, including
reports dated April 12 and April 24, 2007.
The record contains a May 23, 2007 report of an electromyogram (EMG) scan and a
nerve conduction study (NCS) from Dr. Coswink Saito, a Board-certified physiatrist, an
April 12, 2007 report of a magnetic resonance imaging (MRI) scan of the cervical spine; and a
January 19, 2008 report of an MRI scan of the cervical spine.
In a decision dated August 29, 2008, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.2
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.3 In implementing the one-year time
limitation, the Office’s procedures provide that the one-year time limitation period for requesting

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

3

reconsideration begins on the date of the original Office decision. However, a right to
reconsideration within one year accompanies any subsequent merit decision on the issues.4
When an application for review is untimely, the Office undertakes a limited review to
determine whether the application presents clear evidence that the Office’s final merit decision
was in error.5 Its procedures state that the Office will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s
application for review shows clear evidence of error on the part of the Office.6 In this regard, the
Office will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record,
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to raise a substantial question as to the correctness of the Office’s decision.9 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of the Office, such that the Office abused its discretion in denying merit
review in the face of such evidence.10
ANALYSIS
The Board has duly reviewed the case record and concludes that the Office properly
determined that appellant’s May 21, 2008 request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

4

Veletta C. Coleman, 48 ECAB 367 (1997); Larry L. Lilton, 44 ECAB 243 (1992).

5

Id.

6

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “[The Office] will consider an
untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of
[it] in its most recent decision. The application must establish, on its face, that such decision was erroneous.”
20 C.F.R. § 10.607(b).
7

See Nelson T. Thompson, 43 ECAB 919 (1992).

8

Leon J. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 ECAB 143 (2003).

9

Id.

10

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

4

The Office properly determined that appellant failed to file a timely application for
review. Section 10.607(a) provides that an application for reconsideration must be sent within
one year of the date of decision for which review is sought.11 In this case, the one-year time
limitation began to run the day following the issuance of the May 14, 2007 decision, the most
recent merit decision in the case.12 The regulations further provide that the application will be
deemed timely if postmarked within the time period allowed.13 The Office received appellant’s
undated letter requesting reconsideration on June 9, 2008. The appeal request form was dated
May 21, 2008. The record does not include a copy of the envelope in which appellant submitted
either document, or any other probative evidence of mailing, or receipt that would otherwise
establish a timely filing.14 The letter was undated, the appeal request form was dated outside the
one-year restriction and the record is devoid of any additional information that would render his
request timely. Therefore, the Office properly relied on the May 21, 2008 date of the appeal
request form, rendering the request untimely.15 Because appellant’s request for reconsideration
was dated more than one year after its May 14, 2007 merit decision, he must demonstrate clear
evidence of error on the part of the Office in rendering its decision.16
In support of his request for reconsideration, appellant submitted medical reports from
Dr. Smith for the period from April 12, 2007 through July 20, 2008. On April 12, 2007
Dr. Smith stated that he presented for evaluation of bilateral upper extremity, generalized mid
back and generalized lower back problems, which he attributed to work activity, repetitive
computer-related activities and exposure to the cold environment of computer room. On May 23
and June 15, 2007 he stated that appellant was experiencing lower back pain associated with
myospasm, which he experienced more frequently in a cold environment. Dr. Smith diagnosed
degeneration of the lumbar intervertebral disc and paresthesia of the upper limbs and opined that
appellant could work full time with restrictions. On August 31, 2007 he opined that, while the
cause of appellant’s condition was shivering, which was a nonindustrial condition, the
temperature extremes experienced in the work environment temporarily exacerbated his
11

20 C.F.R. § 10.607(a) (1999).

12

See Angel M. Lebron, Jr., 51 ECAB 488 (2000).

13

Supra note 11.

14

The Office’s procedures require that an imaged copy of the envelope that enclosed the request for
reconsideration should be in the case record. If there is no postmark or it is not legible, other evidence such as a
certified mail receipt, a certificate of service and affidavits may be used to establish the mailing date. In the absence
of such evidence, the date of the letter itself should be used. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004).
On appeal, appellant contends that his request for reconsideration was timely filed, and that the Office did not
respond to his first appeal letter. However, the Board is unable to determine the date of his letter requesting
reconsideration from the information provided. Appellant failed to date his letter, and the unclear and
undocumented date stamps do not constitute probative evidence of the date of mailing, or the date the letter was
composed.
15

The Board notes that, had the Office relied instead on the date of receipt of appellant’s letter (June 9, 2008), his
request would have been untimely.
16

Supra note 11. See Anna Marie Feeley, Docket No. 05-1643 (issued October 17, 2005).

5

preexisting mid- to lower-back pain. On December 10, 2007 Dr. Smith diagnosed paresthesia of
the upper limb, bilateral hand numbness and tingling, low back pain and degeneration of the
lumbar intervertebral disc. He opined that appellant’s current upper extremity paresthesias had
no association with the alleged work-related conditions. In January 18, March 29, May 3,
June 13 and July 12, 2008 follow-up notes, Dr. Smith reiterated his diagnoses and discussed
work status.
The term “clear evidence of error” is intended to represent a difficult standard. The
submission of a detailed well-rationalized medical report which, if submitted before the denial
was issued, would have created a conflict in medical opinion requiring further development, is
not clear evidence of error.17 None of the medical reports submitted manifests on its face that the
Office committed an error in denying appellant’s occupational disease claim.18 Rather, they are
cumulative in nature, and merely repeat diagnoses and opinions previously provided. Thus, the
reports are insufficient to establish clear evidence of error.
Appellant submitted a personal statement, reiterating his claim that working in a cold
environment aggravated his back and radicular conditions. He also claimed to be experiencing
constant back spasms statements. Appellant’s reiteration of arguments previously presented to
the Office, does not constitute clear evidence of error.
EMG/NCS reports and MRI scan reports submitted by appellant do not contain an
opinion as to the cause of his diagnosed condition. As these reports do not address the issue that
was before the Office in its May 14, 2007 decision, namely whether the established employment
incidents caused or aggravated a diagnosed condition, they are irrelevant and therefore do not
establish clear evidence of error.19
Appellant also submitted copies of medical documents which were previously considered
by the Office. Material which is repetitious or duplicative of that already in the case record is of
no evidentiary value in establishing a claim,20 and lack sufficient probative value to prima facie
shift the weight of the evidence in favor of him or to raise a substantial question as to the
correctness of the Office’s decision.21

17

Joseph R. Santos, 57 ECAB 554 (2006).

18

The Board notes that, in its March 12, 2002 decision, the Board modified the Office’s September 13, 1999
decision to reflect that the evidence of record was sufficient to establish a compensable factor of employment,
namely that appellant had been harassed by her supervisor, Ms. Hutchinson, who called her a whore. However, the
Board determined that the medical opinion evidence submitted by appellant was not sufficiently rationalized to meet
her burden of proof. Accordingly, the Board affirmed the Office’s decision denying the claim, as modified.
19

See Dean D. Beets, 43 ECAB 1153 (1992). (To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office.)
20

Lawrence Ellis Myers, 27 ECAB 262 (1976).

21

Id.

6

The Board finds that the evidence submitted does not constitute positive, precise and
explicit evidence, which manifests on its face that an error was committed, and fails to raise a
substantial question as to the correctness of the Office’s May 14, 2007 decision.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely and failed to
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 12, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7