United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
North Little Rock, AR, Employer
__________________________________________

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

Docket No. 17-0580
Issued: March 12, 2018

Case Submitted on the Record

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

JURISDICTION
On January 18, 2017 appellant filed a timely appeal from a January 9, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
employment-related injury in the performance of duty on January 6, 2016, as alleged.
1

Appellant timely requested oral argument pursuant to section 501.5(b) of Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). By order dated July 27, 2017, the Board exercised its discretion and denied the request, finding
that the arguments on appeal could adequately be addressed based on the case record. Order Denying Request for
Oral Argument, Docket No. 17-0580 (issued July 27, 2017).
2

5 U.S.C. § 8101 et seq.

On appeal appellant asserts that the evidence of record establishes that his fall on
January 6, 2016 occurred in the performance of duty.
FACTUAL HISTORY
On January 8, 2016 appellant, then a 54-year-old supervisory contract specialist, filed a
traumatic injury claim (Form CA-1) alleging that he was injured when he slipped going down
stairs at 3:30 p.m. on January 6, 2016. In an attached narrative statement, he indicated that, on
the date of injury, he was wearing a sling on his left shoulder and was carrying his back pack
over his right shoulder. Appellant stopped to get water to take a pain pill, took a few steps and
slipped. He fell backward, striking his back, hip, and elbow. Coworkers stayed with him until
an ambulance arrived. The employing establishment is located in North Little Rock, Arkansas.
Appellant lives in the San Antonio, Texas, area when not working.
An employing establishment manager signed the reverse side of the claim form on
January 13, 2016. He affirmatively indicated by check mark that the injury was caused by the
employee’s willful misconduct, intoxication, or intent to injure self or another, stating that a
medical diagnosis on an emergency department report showed a diagnosis of drug intoxication.
The manager also noted that appellant was instructed not to use the stairs without assistance.
Continuation of pay was authorized through February 12, 2016.
Medical evidence submitted included a December 28, 2015 report in which Dr. Patrick
Simon, a Board-certified orthopedic surgeon, advised that, due to previous left shoulder surgery,
appellant had restrictions of no use of left arm, no walking up the stairs due to balance issues,
and no driving. He indicated that appellant could work from home and that the restrictions
would be for six weeks.
A summary of hospitalization dated January 6, 2016, from Baptist Health emergency
department, noted that appellant was seen by Dr. Dannetta Grisham, Board-certified in
emergency medicine. It listed diagnoses of lightheadedness and drug intoxication and included a
list of discharge medications and instructions.
In reports dated January 22 and 29, 2016, Dr. Danilo Hoyumpa, Board-certified in family
medicine, noted a history that appellant fell down stairs injuring his back, neck, and shoulder.
He diagnosed left shoulder strain, cervical strain, low back strain, and advised that appellant
could return to restricted duty, but must work from home due to medications and until seen by an
orthopedist. Dr. Hoyumpa’s reports were accompanied by treatment notes from Mark Wilson, a
nurse practitioner, and Mike Hedspeth, a physician assistant, dated January 22 and 29, 2016
respectively.
In a January 27, 2016 letter, the employing establishment controverted the claim,
indicating that medical documentation listed diagnoses of lightheadedness and drug intoxication.
It noted that appellant had a preexisting history of left shoulder surgery that was not employment
related, and maintained that there was no loose tread on the staircase. Pictures of the staircase
were enclosed. Documentation regarding appellant’s requests for accommodation to telework
full time in June and October 2015 were also included. This indicated that appellant had
requested to telework full time to accommodate his 100 percent service-connected disability and

2

was offered some accommodation by the employing establishment that he rejected.3 Email
correspondence from the employing establishment to appellant indicated that he was offered an
additional accommodation on January 14, 2016, which he did not accept.
On February 4, 2016 OWCP informed appellant that, when his claim was received, it
appeared to be a minor injury that resulted in minimal or no lost time from work and, thus, had
not been formally adjudicated at that time, but was now being reopened for formal adjudication.
It advised him of the evidence needed to support his claim. OWCP also asked the employing
establishment to provide its policy regarding the use of intoxicating substances, prescription or
otherwise, while on its premises.
In a February 19, 2016 response, appellant noted that he had been denied
accommodations before the January 6, 2016 injury, was forced to climb stairs, had to pay for
transportation to and from work, and was never offered assistance from the employing
establishment. He stated that he was originally prescribed Hydrocodone by Stephanie Fraser, a
nurse practitioner, when pain shots no longer relieved his shoulder and back pain, and that
Dr. Simon, his orthopedic surgeon, later prescribed the medication after December 9, 2015
shoulder surgery. Appellant indicated that both Ms. Fraser and Dr. Simon advised that he work
from home while on the medication, but no accommodations were made. Appellant noted that
coworker E.K. witnessed his fall.
A Department of Veterans Affairs (VA) document indicated that appellant is 100 percent
disabled with service-connected right hand burn scars, right knee degenerative arthritis, right
little finger burn scars and fracture, left great toe surgical scarring, right great toe degenerative
arthritis, lumbar spine spondylosis, right leg radiculopathy, left hip degenerative arthritis,
degenerative osteoarthritis of the left foot, bursitis of the right and left elbow and forearm,
acromioclavicular (AC) joint separation of the left shoulder, nasal fractures, gout, hypertension,
gastrointestinal reflux, obstructive sleep apnea, dysphagia, and tinnitus.
January 6, 2016 records from Baptist Health emergency department indicate that
appellant arrived at 4:32 p.m. and was discharged at 7:43 p.m. Dr. Grisham noted appellant’s
complaints of dizziness and fall at work. She related a history that he slid down approximately
15 steps, and that he recently underwent left shoulder rotator cuff surgery and was wearing a left
shoulder immobilizer. Appellant told her that he took 20 mg of Hydrocodone when he got to
work, took 20 mg more four hours later, took one more dose after that, and then fell at work
because he felt lightheaded. Dr. Grisham indicated that appellant reported that he had no injury
from his fall, but took two more 10 mg Hydrocodone pills while he was waiting to be seen in the
emergency room because of pain. Her examination demonstrated that appellant had slightly
slurred speech and was obviously somewhat sleepy. Appellant’s neck was supple with normal
range of motion. There was no edema or tenderness on musculoskeletal examination with
normal range of motion. Judgment and thought content were normal. Dr. Grisham diagnosed
lightheadedness and acute narcotic intoxication. Electrocardiogram was abnormal and a prior
3

In a request for accommodation dated October 24, 2015, appellant noted that his medical care was located in
Texas, and that, if his pain shots wore off, he would then have to take medication while at work, making it unsafe
for himself and others. He also requested that transportation be provided to and from work.

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anterior infarct could not be ruled out. Discharge instructions included that appellant need not
work while taking narcotics and should have his orthopedic surgeon recheck his shoulder.
Appellant was advised to establish treatment with a doctor in Arkansas where he worked.
Appellant also submitted a health information document that listed his medication history
from August 2, 2015 to February 14, 2016. This included a notation that a right shoulder x-ray
on August 2, 2015 showed degenerative changes of the AC joint. An August 28, 2015 left
shoulder magnetic resonance imaging (MRI) scan demonstrated a partial thickness supraspinatus
tear, mild osteoarthritis of the AC joint, bursitis, and post-traumatic scarring.
On April 15, 2015 Dr. Yickui Li, Board-certified in family medicine, noted a history of
chronic lower back, left shoulder, knee, and foot pain that limited appellant’s ability to sit, stand,
or walk. Dr. Li advised that, if appellant could work from home, he could be productive in an
environment that was more comfortable and would provide less stress on his joints.
In a January 20, 2016 form report, Ms. Fraser noted a history of left shoulder surgery and
January 6, 2016 fall. She listed his restrictions, including no use of left arm, walking upstairs, or
driving while taking narcotics. Ms. Fraser advised that he could work from home.
On a form report dated February 13, 2016, Dr. Hoyumpa indicated that appellant was
prevented from returning to work through February 22, 2016 because he could not drive due to
drowsiness from medication and must work from home. He diagnosed low back, neck, and left
shoulder pain.
Appellant began seeing Dr. Daniel Beltran, a chiropractor, on February 18, 2016. He
noted that on January 6, 2016 appellant slipped on a loose stair and fell back, landing on his
spine. Current complaints were neck, left arm, lower back, and bilateral leg pain. Dr. Beltran
described findings and diagnosed cervical sprain/strain, lumbar sprain/strain, possible herniated
nucleus pulposus (HNP), left shoulder sprain/strain with internal derangement, and myofascial
pain. On March 3, 2016 he noted that appellant could not work.
Email correspondence dated December 17, 2015 to January 11, 2016 between appellant
and the employing establishment, documents that appellant was on approved annual and sick
leave through January 15, 2016 and was told not to perform any work function. He requested
reasonable accommodation to telework from his Texas home or administrative leave for his
absence. The employing establishment denied his request. Appellant arrived for work at 4:46
a.m. on January 4, 2016. He advised that “liberal leave is useless” and noted that no
accommodations were made to his office. Appellant requested transportation for four to six
months and accommodation of his San Antonio medical appointments. At 6:47 a.m. that day the
employing establishment advised that it was working with management to address his office
concerns and requested additional medical documentation. The employing establishment denied
his request for reimbursement of transportation expenses.
On January 5, 2016 the employing establishment noted that appellant’s restrictions of no
lifting, reaching, walking up the stairs, and no driving for six weeks limited his ability to perform
the functions of his position and noted that he had been provided liberal leave to accommodate
his condition. Appellant noted that he was not feeling well that day as he had no one to prepare

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his meal and had to take his medication on an empty stomach, which caused nausea and
dizziness. He advised that he lost his balance going up stairs. The employing establishment
responded that appellant get help navigating the stairs and again recommended that he take the
approved leave.
At 7:15 a.m. on January 6, 2015 he again reported difficulty with the stairs and reported
that his office heating was not working. At 7:53 a.m. appellant requested help with the stairs. At
3:24 p.m. on January 7, 2016 the employing establishment noted his fall the previous day. It
instructed appellant that, based on medical documentation received, he should get help going
down stairs and when going home. The employing establishment indicated that appellant could
not return to work until medically cleared. Appellant requested telework or administrative leave,
which was denied.
On February 22, 2016 the employing establishment notified OWCP that there was no
elevator or escalator available to appellant, that he was offered assistance in navigating the stairs,
and that there were no witnesses to the January 6, 2016 fall, other than the driver who was there
to pick up appellant.
By decision dated March 9, 2016, OWCP denied appellant’s claim, finding that he had
not submitted sufficient medical evidence to establish causal relationship between his claimed
condition and the January 6, 2016 fall, and that his intoxication was the proximate cause of the
injury.
Counsel timely requested a hearing with a representative of OWCP’s Branch of Hearings
and Review. Additional evidence submitted included correspondence regarding a 2015
alternative accommodation request, a grievance appellant filed in August 2015, medical evidence
that predated the January 6, 2016 injury, a January 30, 2016 letter from appellant to his
Congressman, a January 30, 2016 letter in which appellant rejected the employing
establishment’s offer of alternative accommodation and his March 1, 2016 appeal, and e-mail
communications between appellant and the employing establishment dated January 14 to
March 21, 2016 which mainly dealt with his request to work from home in Texas. The e-mails
included a list of his medications and schedule of his weekly medical appointments.
A July 13, 2015 computerized tomography (CT) scan of appellant’s head was normal. A
July 13, 2015 lumbar spine MRI scan revealed disc bulges at L4-5 and L5-S1 with mild neural
foraminal narrowing and facet degenerative changes. A July 23, 2015 x-ray of the cervical spine
demonstrated minimal degenerative spurring and no other significant abnormalities.4 A
December 19, 2015 discharge note indicated that appellant had left shoulder surgery. It noted
that he should not bear weight with his left arm and should wear a sling at all times. One to two
tablets of Norco, every four to six hours, was prescribed for pain.5
4

The record also contains March 15, 2016 cervical and spine MRI reports showing a protrusion-subligamentous
disc herniation at C3-4 and a protrusion-subligamentous disc herniations at L3-4, L4-5, L5-S1. A May 8, 2016
cervical spine x-ray showed minimal degenerative spurring.
5

The medical provider signature is illegible.

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Dr. Hoyumpa provided a treatment note dated February 13, 2016. He noted that
appellant was originally seen on January 22, 2016 for a January 6, 2016 employment injury
when he fell down stairs while carrying a back pack, injuring his left shoulder, neck, and lower
back. Dr. Hoyumpa noted appellant’s complaint of continued sharp pain for which he was
taking Hydrocodone. He diagnosed strains of the left upper extremity and neck and low back
pain, all improved. Dr. Hoyumpa advised that appellant should remain off work, noting that his
medication caused drowsiness.
In a March 19, 2016 report, Jeff Dickerson, a nurse practitioner, noted a history that
appellant fell down a flight of stairs on January 6, 2016, and listed appellant’s complaints of
continued cervical and lumbar spine pain. He reviewed results of diagnostic testing, described
findings, and offered diagnoses for the cervical and lumbar spine. Mr. Dickerson advised that
appellant’s subjective complaints, combined with his physical examination and imaging studies,
were consistent with the reported mechanism of injury. Dr. Beltran continued to submit duty
status reports (CA-17 forms) advising that appellant could not work.
In a treatment note dated March 30, 2016, Dr. Johnny White, Board-certified in
anesthesiology and pain medicine, listed January 6, 2016 as the date of injury and slip and fall
under a heading “causation.” He described appellant’s complaints of radiating back pain and left
shoulder pain with difficulty standing erect, fatigue in legs with walking, sleep dysfunction, right
leg tingling, and bilateral leg swelling and heaviness with ambulation. Low back examination
demonstrated positive straight leg raising bilaterally and tenderness over the paravertebral
muscles. Dr. White reviewed the March 23, 2016 lumbar spine MRI scan and diagnosed sprain
of ligaments of lumbar spine, intervertebral disc disorders with radiculopathy, lumbosacral
region. He recommended epidural injections.
In correspondence dated March 31, 2016, appellant requested that Baptist Health amend
its medical record regarding inaccuracies in its medical report.
On May 5, 2016 Dr. Beltran advised that appellant must work from home due to
medication. In an amended May 5, 2016 duty status report (Form CA-17), the chiropractor also
indicated that appellant needed physical therapy three times per week. He continued to submit
reports indicating that appellant must work from home due to medication. On May 16, 2016
Dr. Simon advised that appellant could perform light duty, but must work from home and would
have physical therapy appointments.
Appellant filed an additional grievance in May 2016.
May 13, 2016.

He returned to duty on

During the hearing, held on November 8, 2016, appellant testified that he did not work
from January to July 2016 and had been instructed to return to work. He indicated that on
January 6, 2016 he could not drive because he had undergone nonemployment-related rotator
cuff surgery and was taking Hydrocodone and Naprosyn for pain and additional medication for
hypertension and gout, and had restrictions provided by Dr. Simon on December 31, 2015 of no
stair-climbing and no driving. Appellant stated that he felt lightheaded and sick to his stomach at
work on January 6, 2016, and that his driver E.K., a friend, came his office and walked in front
of him as he went down the stairs. He stated that he took Hydrocodone just as he left, picked up

6

his backpack, took a few steps and slid almost to the landing. Appellant noted that the building
had no elevator and the employing establishment would not give him a first floor office. He
related that coworkers helped him sit up until he was taken to an emergency room. Appellant
maintained that the Hydrocodone had kicked in and made him groggy and sleepy, and that the
emergency room report was incorrect. He indicated that he also had a history of bilateral total
knee replacements and needed a hip replacement. Appellant stated that he returned to work the
next day, but was sent home. He claimed that he injured his back, left shoulder, and neck. The
hearing representative advised him to get a statement from his driver and provide supportive
medical evidence. The record was left open for 30 days.
The only evidence received by OWCP after the hearing were duplicates of the March 15,
2016 MRI scans, and an October 5, 2016 report in which Dr. Beltran described examination
findings. Dr. Beltran reviewed the March 15, 2016 MRI scans and diagnosed cervical and
lumbar herniated discs, left shoulder sprain/strain with internal derangement, and myofascial
pain. He noted that appellant had left shoulder surgery on December 9, 2015 and returned to
work on January 4, 2016. Dr. Beltran indicated that the January 6, 2016 fall caused a worsening
of left shoulder symptoms, and neck and lower back pain. He opined that, within reasonable
medical probability, appellant’s history, mechanism of injury, and physical examination findings
were consistent with injuries to his cervical spine, lumbar spine, and left shoulder.
By decision dated January 9, 2017, OWCP’s hearing representative found that appellant’s
fall on January 6, 2016 was caused by medication intoxication and, assuming arguendo that it
was not caused by narcotic intoxication, it was an idiopathic fall related to appellant’s left
shoulder injury. The hearing representative affirmed the March 9, 2016 decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA6 has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,7 including that he or she is an employee within the meaning of FECA, that the claim
was filed within the applicable time limitation,8 and that he or she sustained an injury in the
performance of duty as alleged. The employee must also prove that any disability from work
was causally related to the employment injury.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
6

Supra note 2.

7

J.P., 59 ECAB 178 (2007).

8

R.C., 59 ECAB 427 (2008).

9

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989). OWCP regulations define a traumatic injury as a condition
of the body caused by a specific event or incident or series of events or incidents within a single workday or shift.
20 C.F.R. § 10.5(ee). OWCP regulations define the term “occupational disease or illness” as a condition produced
by the work environment over a period longer than a single workday or shift.” 20 C.F.R. § 10.5(q).

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There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged. Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.10
Under FECA, OWCP shall pay compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of duty, unless the injury or
death is proximately caused by the intoxication of the injured employee.11 Intoxication is an
affirmative defense and, if invoked, OWCP must do so during the initial adjudication of the
claim.12 In order to correctly invoke section 8102(a)(3), OWCP must establish by reliable,
probative, and substantial evidence that intoxication was the proximate cause of injury or
death.13
OWCP procedures provide that where intoxication may be the proximate cause of the
injury, the record must contain all available evidence showing: (a) the extent to which the
employee was intoxicated at the time of injury; and (b) the particular manner in which the
intoxication caused the injury. It is not enough merely to show that the employee was
intoxicated. It is also OWCP’s burden to show that the intoxication caused the injury. An
intoxicant may be alcohol or any other drug.14
In addition to obtaining statements from the supervisor/official superior, the employee
and any coworkers or other witnesses, the procedures also indicate that a statement should be
obtained from the physician and the hospital where the employee was examined following the
injury which describes as fully as possible the extent to which the employee was intoxicated and
the manner in which the intoxicant was affecting the employee’s activities.15 Moreover, the
results of any tests made by the physician or hospital to determine the extent of intoxication
should be obtained.16
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to deny this claim by raising
the affirmative defense of intoxication.

10

T.H., 59 ECAB 388 (2008).

11

5 U.S.C. § 8102(a)(3).

12

T.F., Docket No. 08-1256 (issued November 12, 2008).

13

Id.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 1.804.14.c(1)
(September 1995).
15

Id. at Chapter 1.804.14.c(2)(3).

16

Id.

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As noted, OWCP’s use of an affirmative defense must be invoked in the original
adjudication of the claim, and OWCP has the burden to prove such a defense.17 The evidence to
establish this defense must be reliable, probative, and substantial.18 When intoxication is
invoked as an affirmative defense, the Board has explained that the statutory test under FECA is
“proximate cause.” Therefore, OWCP must show that the employee was in fact intoxicated
when the injury occurred and that such intoxication was the proximate cause of such injury. A
mere showing that intoxication existed concurrently with the injury is insufficient.19 FECA does
not intend that compensation shall be denied where intoxication is one cause of injury or death,
on the theory that if an employee is intoxicated he or she is not in the performance of
duty. Intoxication as a cause does not, ipso facto, take the case out of the performance of duty.20
In defining what is meant by proximate cause, the Board has stated that intoxication as one cause
of an injury does not destroy the possibility of an injury arising out of and in the course of
employment, and that intoxication does not bring the case within the statutory language under
which benefits may be denied, unless the injury was occasioned solely by or was proximately
caused by intoxication.21 Something more is necessary than a mere showing that intoxication
existed concurrently with injury. If the injury was solely caused by intoxication, then the statute
requires denial of benefits, but this test can only be applied where the injury is one arising out of
and in the course of employment from other aspects, as this fundamental prerequisite must be
satisfied first before applying the secondary “cause” test. If the first test is not met, then there is
no need to apply the second test.22
In the case at hand, at the time of appellant’s injury at 3:30 p.m. on January 6, 2016, he
was just ending his day as a contract specialist. To arise in the course of employment, an injury
must occur at a time when the employee may reasonably be said to be engaged in his master’s
business, at a place when he or she may reasonably be expected to be in connection with his
employment, and while he or she was reasonably fulfilling the duties of the employment or
engaged in doing something incidental thereto.23 The Board has accepted the general rule of
workers’ compensation law that, as to employees having fixed hours and places of work, injuries
occurring on the premises of the employing establishment, while the employee is going to or

17

Supra note 12.

18

Supra note 13.

19

N.P., Docket No. 10-0952 (issued July 26, 2011).

20

In Ruth Bubier (Sylvester C. Bubier), the Board considered whether intoxication was the proximate cause of the
employee’s injury and death. It noted that, under FECA, intoxication comes into picture as destroying the right to
compensation in situations, otherwise within the performance of duty, only if intoxication is the proximate cause of
the injury. Ruth Bubier (Sylvester Bubier), 2 ECAB 60 (1948).
21

Id.

22

Id.; see N.P., supra note 19.

23

P.S., Docket No. 08-2216 (issued September 25, 2009).

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from work, before or after working hours, or at lunch time, are compensable.24 Thus, appellant
was in the course of employment when the January 6, 2016 incident occurred.
Appellant arrived at the emergency department at 4:32 p.m. in January 6, 2016 and was
discharged home at 7:43 p.m. Dr. Grisham noted his complaint of dizziness and fall at work.
She related a history that he slid down approximately 15 stairs, and that he recently had left
shoulder rotator cuff surgery and was wearing a left shoulder immobilizer. Dr. Grisham reported
that appellant told her he took 20 mg of Hydrocodone when he got to work, took 20 mg more
four hours later, took one more dose after that, and then fell at work because he felt lightheaded.
She indicated that appellant reported he had no injury from his fall, but took two more 10 mg
Hydrocodone pills while he was waiting to be seen in the emergency room because of shoulder
pain. On examination appellant had slightly slurred speech and was somewhat sleepy. Judgment
and thought content were normal. Dr. Grisham diagnosed lightheadedness and acute narcotic
intoxication. The record, however, does not include a toxicology report that could provide
evidence of intoxication. As noted, it is not enough to show that an employee was intoxicated.
Therefore, even if the record in this case contained positive toxicology reports in the record,
these would not necessarily establish that appellant was intoxicated at the time of the fall such
that intoxication was the proximate cause of the fall.
The Board finds that the evidence of record establishes only the possibility that appellant
was intoxicated by ingestion of medication at the time of injury.25 The record is insufficient to
establish that intoxication was the proximate cause of his fall. The Board, therefore, finds that
OWCP has not met its burden of proof to establish the affirmative defense of intoxication.
Therefore, the claim is not precluded under 5 U.S.C. § 8102(a)(3).
The record indicates that no coworkers witnessed the fall. Appellant testified at the
hearing that he was accompanied on the stairs by coworker, E.K. The hearing representative
asked that he obtain a statement from her, but appellant did not do so. As the incident was
witnessed, it is incumbent on appellant to furnish this statement to OWCP so that a proper
description of his fall can be determined for assessing whether the fall was idiopathic in nature
and, if not, the nature and degree of any injuries sustained.26
The case will be remanded to OWCP to first obtain a witness statement from E.K. to
determine an exact description of the incident, to be followed by evaluation of the medical
evidence and a determination of the extent of any injury and periods of disability. Following this
and any other development deemed necessary, OWCP shall issue a de novo decision.

24

R.M., Docket No. 07-1066 (issued February 6, 2009).

25

N.P., supra note 19.

26

As to the hearing representative’s reliance on the idiopathic fall doctrine, to properly apply the idiopathic
exception to the premises rule, there must be two elements present: a fall resulting from a personal, nonoccupational
pathology, and no contribution from the employment. N.P., Docket No. 08-1201 (issued May 8, 2009). As the
exact circumstances of the fall have yet to be determined, the Board is unable to properly adjudicate this issue.

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CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2017 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: March 12, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF AGRICULTURE,
INSPECTION OPERATIONS PROGRAM,
Minneapolis, MN, Employer
__________________________________________

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

Docket No. 07-1674
Issued: April 22, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 5, 2007 appellant filed an appeal of an April 19, 2007 nonmerit decision of the
Office of Workers’ Compensation Programs denying his request for reconsideration. The record
also contains a March 16, 2007 merit decision denying continuation of pay for the period May 1
through 14, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merit and nonmerit issues in this case.
ISSUES
The issues are: (1) whether appellant is entitled to continuation of pay for his March 30,
2006 employment injury for the period May 1 through 14, 2006; and (2) whether the Office
properly denied appellant’s request for a review of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On May 1, 2006 the employing establishment received a traumatic injury claim, in which
appellant, then a 40-year-old food inspector (slaughter), stated that, on March 30, 2006, he

injured his right wrist and two fingers when a turkey fell off the line. He signed the form but did
not date the form or otherwise indicate the date that he completed the form. Paul Dougherty,
appellant’s supervisor, stated that the employing establishment received notice of the injury on
May 1, 2006. Appellant stopped work on April 27, 2006.
The record indicates appellant first sought medical attention on May 1, 2006 from
Dr. Sharon E. Martin, a Board-certified internist, who, in a May 3, 2006 report, noted that
appellant was working the processing line when a 30-pound turkey fell off hook and appellant
grabbed it with his right hand. She opined that appellant was totally disabled from May 1, 2006
until his next appointment of May 12, 2006. In a May 12, 2006 prescription note, Dr. Martin
indicated that appellant could return to work on May 14, May 15.
In a May 30, 2006 statement, appellant advised that he completed the accident report on
April 3, 2006 and gave it to Mr. Dougherty to sign. Appellant indicated that he had signed the
form on the wrong line and when he returned to work on May 15, 2006, Mr. Dougherty asked
him to sign the form in the appropriate area. He related that he was working the “turkey line”
and a 35- to 40-pound turkey fell out of the shackle and caught his right hand, pulling on his ring
finger and wrist. Appellant noted that he worked the month of April with soreness and stiffness
in the third finger and right wrist, for which he took pain medication and used a wrist strap. He
stated that he was unable to work with the brace Dr. Martin prescribed to stabilize his wrist and
no light duty was available.
On October 26, 2006 the Office accepted appellant’s claim for tendinitis of the right
wrist. It advised of the type of medical evidence needed if he claimed compensation for wage
loss.
By decision dated March 16, 2007, the Office denied appellant’s claim for continuation
of pay for the period May 1 to 14, 2006 on the grounds that his injury was not reported on a form
approved by the Office within 30 days of the injury.
On April 3, 2007 appellant requested reconsideration. He submitted the first page of the
March 30, 2006 traumatic injury claim form and noted in an April 3, 2007 letter that the date of
injury was completed. The portion of the form reserved for the employing establishment to
complete was not submitted. Appellant signed the form but did not date it. On the “date of this
notice” portion of the claim form, the date March 30, 2006 was written. No other evidence was
submitted.
By decision dated April 19, 2007, the Office denied appellant’s request for
reconsideration without further review on the merits.
LEGAL PRECEDENT -- ISSUE 1
Section 81181 of the Act2 provides for payment of continuation of pay, not to exceed 45
days, to an employee who has filed a claim for a period of wage loss due to traumatic injury with
1

5 U.S.C. § 8118.

2

Id. at §§ 8101-8193.

2

her immediate supervisor on a form approved by the Secretary of Labor within the time specified
in section 8122(a)(2) of this title. Section 8122(a)(2)3 provides that written notice of injury must
be given as specified in section 8119. The latter section provides in part that notice of injury
shall be given in writing within 30 days after the injury.4
The Act’s implementing regulations provide, in pertinent part, that to be eligible for
continuation of pay, a claimant must:
“(1) Have a ‘traumatic injury’ as defined at [section] 10.5(ee) which is job related
and the cause of the disability, and/or the cause of lost time due to the need for
medical examination and treatment;
“(2) File Form CA-1 within 30 days of the date of the injury (but if that form is
not available, using another form would not alone preclude receipt); and
“(3) Begin losing time from work due to the traumatic injury within 45 days of
the injury.”5
ANALYSIS -- ISSUE 1
The employing establishment received appellant’s traumatic injury claim form for his
March 30, 2006 injury on May 1, 2006. While appellant signed the claim form, there is no
indication when the form was signed. The employing establishment indicated that it received
notice of the injury and the claim form on May 1, 2006, more than 30 days after the March 30,
2006 injury. The Board notes that there are no exceptions to the requirement that a claim for
continuation of pay be filed within 30 days of the date of injury.6 The Board has held that the
responsibility for filing a claim rests with the injured employee.7 While appellant alleged he
completed the accident report on April 3, 2006, there is no evidence of record supporting such
assertion. Because appellant did not file his CA-1 claim form within 30 days of the March 30,
2006 injury, the Board finds that he is not entitled to continuation of pay.8
The Board notes that, although appellant is barred from receiving continuation of pay, he
may be entitled to other compensation benefits under the Act. As appellant’s claim was
accepted, a decision denying continuation of pay does not affect appellant’s entitlement to
3

Id. at § 8122(a)(2).

4

Id. at § 8119(a), (c). See also Gwen Cohen-Wise, 54 ECAB 732 (2003).

5

20 C.F.R. § 10.205(a)(1)-(3). See also Carol A. Lyles, 57 ECAB 265 (2005).

6

See Dodge Osbourne, 44 ECAB 849 (1993); Theresa Samilton, 40 ECAB 955 (1989) and William E. Ostertag,
33 ECAB 1925 (1982).
7

See Catherine Budd, 33 ECAB 1011 (1982) (continuation of pay denied where employee did not timely file her
claim because the employing establishment erroneously told her that her medical records and accident report were
sufficient).
8

Loretta R. Celi, 51 ECAB 560 (2000).

3

compensation benefits as he may still claim wage-loss compensation for disability or claim
compensation for medical treatment rendered due to the effects of the accepted employment
injury.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,9 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulations, which provide that a
claimant may obtain review of the merits of the claim by either: (1) showing that the Office
erroneously applied or interpreted a specific point of law; (2) advancing a relevant legal
argument not previously considered by the Office; or (3) constituting relevant and pertinent new
evidence not previously considered by the Office.10 Section 10.608(b) provides that, when an
application for reconsideration does not meet at least one of the three requirements enumerated
under section 10.606(b)(2), the Office will deny the application for reconsideration without
reopening the case for a review on the merits.11
ANALYSIS -- ISSUE 2
In an April 3, 2007 letter, appellant requested reconsideration of the Office’s March 16,
2007 decision which found he was not entitled to continuation of pay. The relevant issue in the
case, whether appellant timely filed a written claim for continuation of pay due to his accepted
employment injury for the period May 1 through 14, 2006, is factual in nature.
In his reconsideration request, appellant noted that he had completed the date-of-injury
portion of the claim form. In support of his assertion, he submitted the first page of the notice of
traumatic injury which claimed the March 30, 2006 injury. The employing establishment’s side
of the form was not submitted. This form is generally the same as the version of the form that
the employing establishment received on May 1, 2006 except that this version of the form lists
March 30, 2006 in the “date of notice” portion of the form. Appellant did not address the
discrepancy except for asserting that the “dates were completed on the original.” Submission of
this partial version of the form, without further evidence to substantiate or explain the newly
added date, fails to sufficiently address whether appellant filed a claim for continuation of pay
within 30 days of his accepted March 30, 2006 employment injury and is thus not relevant. The
Board, therefore, finds that this evidence does not require reopening appellant’s claim for further
review on the merits.
The evidence submitted by appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or constitute relevant and pertinent new evidence not previously considered by the

9

5 U.S.C. § 8128(a).

10

Id. at § 10.606(b)(2).

11

Id. at § 10.608(b).

4

Office. As he did not meet any of the necessary regulatory requirements, the Board finds that he
is not entitled to further merit review.12
CONCLUSION
The Board finds that the Office properly denied continuation of pay for appellant as he
did not file his traumatic injury claim within 30 days following the injury. The Board further
finds that the Office properly refused to reopen appellant’s case for further review of the merits
of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated April 19 and March 16, 2007 are affirmed.
Issued: April 22, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

See id. at § 10.608(b); Richard Yadron, 57 ECAB 207 (2005).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Redondo Beach, CA, Employer
__________________________________________

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

Docket No. 12-585
Issued: August 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 8, 2011 appellant filed a timely appeal of an August 4, 2011 nonmerit decision
of the Office of Workers’ Compensation Programs, finding that his request for reconsideration
was untimely and failed to show clear evidence of error. 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 nonmerit decision. Because more than 180 days has elapsed between the last merit decision
of OWCP, dated March 23, 2007, and the filing of this appeal, the Board lacks jurisdiction to
review the merits of this claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely and failed to establish clear
evidence of error.

1

5 U.S.C. § 8101 et seq. For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file
an appeal. An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of
the decision. 20 C.F.R. § 501.3 (2008).

On appeal, appellant contends that his claim was improperly denied because the Board
used an incorrect file number when it issued its March 23, 2007 decision. He also alleges that he
did not request a review by the Board in his prior appeal and was improperly denied review by
the Branch of Hearings and Review.
FACTUAL HISTORY
This case has previously been before the Board. On March 7, 2005 appellant filed an
occupational disease claim alleging that he developed a bilateral shoulder condition due to
factors of his federal employment. In a March 23, 2007 decision, the Board affirmed OWCP’s
June 19, 2006 decision denying his claim, on the grounds that the medical evidence was
insufficient to establish a causal relationship between his claimed shoulder condition and his
federal work activities.2 The facts of the case as set forth in the prior decision are incorporated
herein by reference.3
Subsequent to the Board’s March 23, 2007 decision, appellant submitted an April 2, 2007
report from his treating physician, Dr. I. Grant Orlin, a general practitioner, who diagnosed
medial lateral and right epicondylitis and right carpal tunnel syndrome. Dr. Orlin provided
examination findings, which included tenderness over the volar surface of the right wrist and
positive Phalen’s and Tinel’s signs. In an accompanying duty status report, he provided work
restrictions that precluded lifting or carrying more than 15 pounds and reaching above the
shoulder.
Appellant submitted April 24, 2007 reports of magnetic resonance imaging (MRI) scans
of the upper extremities and elbow. He also submitted copies of previously submitted
documents, including a June 6, 2006 second opinion report from Dr. H. Harlan Bleecker, a
Board-certified orthopedic surgeon, an August 21, 2006 report from Dr. Orlin and August 21,
2006 electromyogram/nerve conduction study (EMG/NCS) reports. Appellant submitted a
November 20, 2006 statement contending that his condition was causally related to his federal
employment duties.
On June 29, 2011 appellant requested reconsideration on the grounds that OWCP erred
by referencing an incorrect file number for a different case.4
In an August 4, 2011 decision, OWCP denied appellant’s request for reconsideration on
the grounds that it was untimely and failed to establish clear evidence of error.

2

Docket No. 06-1910 (issued March 23, 2007).

3

Other claims include a May 30, 2002 occupational disease claim (File No. xxxxxx229) for a left upper extremity
injury that was denied; a March 19, 2004 occupational disease claim (File No. xxxxxx379) that was accepted for
right wrist strain, bilateral carpal tunnel syndrome and left elbow strain; and a January 24, 2008 occupational disease
claim (File No. xxxxxx758) that was accepted for right major lateral medial epicondylitis.
4

The Board notes that appellant requested review by the Branch of Hearings and Review on April 5, 2011. By
decision dated June 3, 2011, a hearing representative denied his request for review on the grounds that the Branch of
Hearings and Review did not have jurisdiction to review decisions of the Board. As appellant’s appeal was filed
more than 180 days after the date of the June 3, 2011 decision, the Board does not have jurisdiction over the issue
addressed in that decision. 20 C.F.R. § 501.3 (2008).

2

LEGAL PRECEDENT
FECA provides that the Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.5 OWCP, through its
regulations, has imposed limitations on the exercise of its discretionary authority under section
8128(a). To be entitled to a merit review of OWCP’s decision denying or terminating a benefit,
a claimant must file his application for review within one year of the date of that decision.6 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.7
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.8 OWCP regulations and procedure provide that it will reopen a claimant’s
case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R.
§ 10.607(a), if the claimant’s application for review shows clear evidence of error on the part of
OWCP.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.10 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.14 The Board
makes an independent determination of whether a claimant has submitted clear evidence of error
5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.607(a).

7

Supra note 6; Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

8

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

9

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004). The term clear evidence of error is intended to represent a difficult standard. The claimant must
present evidence which on its face shows that OWCP made an error (for example, proof that a schedule award was
miscalculated). Evidence such as 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. Id. at Chapter 2.1602.3c.
10

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

11

See Leona N. Travis, 43 ECAB 227, 240 (1991).

12

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

13

See M.L., Docket No. 09-956 (issued April 15, 2010). See Leona N. Travis, supra note 11.

14

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

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on the part of OWCP such that it abused its discretion in denying merit review in the face of such
evidence.15
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
The one-year time limitation period for requesting reconsideration begins on the date of the
original OWCP decision and upon any subsequent merit decision.16 As appellant’s June 29,
2011 request for reconsideration was submitted more than one year after the Board’s March 23,
2007 merit decision, it was untimely filed. Consequently, he must demonstrate clear evidence of
error by OWCP in the denial of his claim.17
Appellant contended that OWCP erred by referencing an incorrect file number in another
case. He did not, however, specify the error or explain how the error adversely affected the
outcome of his case. Therefore, appellant’s contention does not establish clear evidence of error
on the part of OWCP. His November 20, 2006 statement contending that his condition was
causally related to his federal employment duties merely repeats claims previously made and
considered by OWCP. Moreover, his lay opinion is irrelevant to OWCP’s decision, which was
based on the insufficiency of the medical evidence of record.
Appellant submitted copies of previously submitted documents, including a June 6, 2006
second opinion report from Dr. Bleecker, an August 21, 2006 report from Dr. Orlin and
August 21, 2006 EMG/NCS reports. These duplicative reports have no evidentiary value and do
not establish error on the part of OWCP.18
April 2, 2007 reports from Dr. Orlin contained a diagnosis, minimal examination findings
and work restrictions. Neither report, however, addressed the underlying issue of causal
relationship. The reports, therefore, are irrelevant to the issue at hand and do not raise a
substantial question as to the correctness of OWCP’s decision. 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 prior to when the denial was issued, would have created a
conflict in medical opinion requiring further development, is not clear evidence of error.19
The Board finds that appellant’s arguments and evidence submitted on reconsideration
are insufficient to raise a substantial question concerning the correctness of OWCP’s denial of
his claim or to shift the weight of the evidence in his favor.
On appeal, appellant raises several issues regarding the Board’s March 23, 2007 decision.
He contends that his claim was improperly denied because the Board used an incorrect file
15

Pete F. Dorso, 52 ECAB 424 (2001).

16

20 C.F.R. § 10.607(a); see Robert F. Stone, 57 ECAB 292 (2005).

17

Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

18

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
19

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

4

number when it issued its March 23, 2007 decision. Appellant also alleges that he did not
request a review by the Board in his prior appeal and was improperly denied review by the
Branch of Hearings and Review. In addressing the finality of the Board’s decisions, the
applicable regulations provide: “The decision of the Board shall be final upon the expiration of
30 days from the date of the filing of the order, unless the Board shall in its order fix a different
period of time or reconsideration by the Board is granted.”20 The Board’s decision becomes final
unless the Board grants a petition for reconsideration and reopens the case. As appellant did not
file a petition for reconsideration with the Board following the issuance of the March 23, 2007
decision, it became final 30 days after issuance and is not further reviewable.
CONCLUSION
The Board finds that OWCP 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 4, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 3, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

20

20 C.F.R. § 501.6.

The Board notes that the March 23, 2007 decision properly addressed the issues raised in OWCP’s June 19, 2006
decision and the evidence contained in the instant file.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Long Beach, CA,
Employer
__________________________________________

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Appearances:
Steven Millard, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1966
Issued: February 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 26, 2013 appellant filed a timely appeal from a July 19, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that his August 19, 2008 wage-earning
capacity determination should be modified.
FACTUAL HISTORY
On October 6, 2003 appellant, then a 44-year-old tractor-trailer operator, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a hip injury while in the performance of
1

5 U.S.C. § 8101 et seq.

duty on September 24, 2003. On the claim form he stated that he was pushing an over-the-road
container into a trailer and felt a sharp pain in his left leg. Appellant described the injury as a hip
strain.
OWCP initially accepted the claim for a left hip strain/sprain and appellant began
receiving compensation for wage loss. The claim was later expanded to accept an aggravation of
preexisting osteoarthritis of the left hip, consequential right posterior horn medial meniscal tear
and a left knee strain. Appellant underwent a left total hip replacement on May 5, 2004 and a
right knee arthroscopic surgery with partial medial and lateral meniscectomies on May 5, 2005.
In a report dated January 19, 2006, the attending orthopedic surgeon, Dr. Benjamin Tam,
provided a history and results on examination. He diagnosed exacerbation of left hip
degenerative joint disease secondary to Perthes disease,2 status post left total hip replacement,
status post right knee arthroscopy and partial medial and lateral meniscectomies. As to work
restrictions, Dr. Tam recommended “work consisting primarily of sedentary work. [Appellant]
is restricted [from] performing any work requiring excessive standing, walking, squatting, stair
or ladder climbing or lifting greater than 25 pounds.”
Appellant was referred for vocational rehabilitation services. In a job classification form
dated January 23, 2008, (Form OWCP-66), a rehabilitation counselor (RC) identified the
position of Information Clerk (Department of Labor’s Dictionary of Occupational Titles No.
237.367-022. The position was described as a sedentary position with occasional lifting of 10
pounds. The RC indicated that appellant had the appropriate vocational background, and the
position was reasonably available in appellant’s commuting area. The weekly wages were
reported as $500.00 to $650.00 based on available wage information.
In a report dated May 29, 2008, Dr. Tam stated that appellant was in a permanent and
stationary status since January 19, 2006. He indicated that appellant could work with the
restrictions previously noted.
On June 7, 2008 appellant submitted an April 24, 2008 report from Dr. Marjorie Cohn, a
psychologist, who provided a history and results on examination. Dr. Cohn diagnosed manic
depressive disorder, single episode, moderate; insomnia related to depression and anxiety
disorder. She opined that appellant was experiencing significant emotional distress, that he was
“temporarily totally psychologically disabled” and the condition was employment related.
On July 10, 2008 OWCP advised appellant that it proposed to reduce his compensation
pursuant to 5 U.S.C. § 8106 and 5 U.S.C. § 8115. It stated that the evidence established that he
could work as an information clerk with wages of $575.00 per week. According to OWCP, the
depressive condition noted by Dr. Cohn was based on a fear of returning to the workforce and
not the employment injury.
By decision dated August 19, 2008, OWCP reduced appellant’s compensation effective
August 31, 2008. It found that the selected position of information clerk, with wages of $575.00
2

According to the American Academy of Orthopedic Surgeons, Perthes disease is a childhood condition
characterized by a temporary loss of blood to the hips.

2

per week, represented appellant’s wage-earning capacity. The record indicates that appellant
received compensation pursuant to a schedule award from August 31, 2008 to February 1, 2012,
at which time his compensation for wage loss based on loss of wage-earning capacity resumed.
In a report dated February 17, 2012, Dr. Tam provided results on examination, noting that
appellant reported an onset of right knee pain several weeks earlier. He indicated that the
etiology of the right knee pain was unclear, noting that radiographs demonstrated no evidence of
osteoarthritis.
By letter dated July 9, 2012, appellant’s congressional representative indicated that
appellant wished to expand his claim to include a consequential emotional condition. On
July 19, 2012 OWCP referred appellant for a second opinion examination with Dr. Stephen
Simonian, a psychiatrist. It noted in the questions posed to the second opinion physician that
information was requested as to whether an existing emotional condition would preclude gainful
employment as an information clerk. The statement of accepted facts (SOAF) referred to
appellant; date-of-injury job, without discussing the information clerk job or its duties.
In a report dated August 13, 2012, Dr. Simonian provided a history and results on
examination. He diagnosed adjustment disorder with depression. Dr. Simonian stated that the
diagnosis was due to the employment factors noted in the SOAF. He stated that appellant was
capable of functioning in daily activities, to give or take supervision, cooperate with others and
work under deadlines. Dr. Simonian completed a work capacity evaluation (OWCP-5c) and
indicated by checkmark that appellant was capable of working eight hours per day in his “usual
job.”
By decision dated September 17, 2012, OWCP accepted a depressive disorder as
employment related. It determined that the evidence was not sufficient to warrant modification
of the wage-earning capacity, as the evidence from Dr. Simonian did not establish a change in
appellant’s condition that would disable him from employment as established in the August 19,
2008 decision.
In a report dated November 2, 2012, Dr. James Skalicky, a psychologist, stated that
appellant remained distressed and unable to work. He provided results on examination and
stated that appellant was “distressed with depression and anxiety because of his mental and
physical condition. Dr. Skalicky stated that appellant’s present condition was directly related to
his work injury, “both mental and physical.”
By report dated December 11, 2012, Dr. Tam stated that an MRI scan had indicated a
right knee torn medial meniscus. In a report dated December 13, 2012, Dr. Perry Maloff, a
Board-certified psychiatrist, provided a history and diagnosed mood disorder secondary to
medical condition. He indicated that a return to work date was unknown.
In a report dated February 1, 2013, Dr. Tam stated that appellant had increasing low back
pain over the last month. He provided results on examination and recommended physical
therapy. Dr. Tam concluded, “[Appellant] had previously received vocational retraining to
perform computer work, but this has been unsuccessful, this does not allow a return to any type

3

of meaningful work. He has therefore remained on a permanent disability and will be unable to
work with his current medical and mental condition.”
In a report dated March 5, 2013, Dr. Skalicky referred to the “precipitating event” of
appellant’s condition as being subject to “demands of management and unreasonable
expectations, he was overworked, harassed and was working in a hostile environment.”3 He
diagnosed adjustment disorder, mixed, major depression, mood disorder. Dr. Skalicky indicated
that appellant continued to need treatment and was disabled.
By decision dated July 19, 2013, OWCP denied modification of the wage-earning
capacity determination. It found the evidence was insufficient to warrant modification.
LEGAL PRECEDENT
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.4 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.5
ANALYSIS
In the present case, OWCP issued a wage-earning capacity decision on August 19, 2008,
based on the selected position of information clerk at $575.00 per week. Appellant seeks
modification of the wage-earning capacity determination. With respect to medical evidence on
this issue, the Board has indicated that the physician should address the duties of the selected
position in support of the opinion.6 The physicians of record do not discuss the duties of the
selected information clerk position. The attending orthopedic surgeon Dr. Tam, for example,
stated in his February 1, 2013 report that appellant was unable to work, but does not discuss the
selected position or explain whether there was a material change in appellant’s employmentrelated condition.
As noted above, it is appellant’s burden of proof to establish modification. However, in
this case the Board notes that OWCP undertook development of the issue and referred appellant
for a second opinion evaluation by Dr. Simonian. One of the stated reasons for the referral,
which was noted by Dr. Simonian in his August 13, 2012 report, was whether appellant had an
emotional condition that disabled him for the information clerk position. OWCP did not,
however, properly resolve the issues presented.

3

It is not clear whether appellant has filed a claim for an emotional condition causally related to alleged
harassment or overwork, but that issue is not before the Board on this appeal.
4

Sue A. Sedgwick, 45 ECAB 211 (1993).

5

Id.

6

See E.W., Docket No. 12-1961 (issued May 9, 2013); Phillip S. Deering, 47 ECAB 692 (1996).

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The SOAF provided to Dr. Simonian did not discuss the position of information clerk or
the duties required of the position. Dr. Simonian thus did not discuss the selected position or
provide a rationalized medical opinion as to disability. His narrative report refers generally to
the ability to give or take supervision or work under deadlines, and the form report contains a
checkmark regarding the “usual” job.
OWCP should request clarification and additional explanation from Dr. Simonian. Since
it has now accepted an emotional condition, this raises an issue with respect to the original wageearning capacity determination on August 19, 2008. Dr. Cohn had indicated in an April 24, 2008
report that appellant was disabled due to a depressive disorder. At the time of the original wageearning capacity determination OWCP had not accepted a consequential emotional condition,
and it appeared the condition was subsequently acquired.7 Dr. Simonian should be asked to
address whether appellant was disabled for an information clerk position as of August 19, 2008
due to the accepted psychiatric condition.8 If appellant was not disabled, then Dr. Simonian
should address the issue of whether there was a subsequent material change in appellant’s
conditions that would have disabled him for the selected position.
The case will be remanded to OWCP for preparation of a proper SOAF and referral for a
supplemental report that provides a rationalized opinion on the modification of wage-earning
capacity issues presented. After such further development as OWCP deems necessary, it should
issue an appropriate decision.
CONCLUSION
The Board finds the case must be remanded to OWCP for further development of the
medical evidence.

7

OWCP considers employment-related and preexisting conditions with respect to the ability to perform the duties
of the selected, not subsequently acquired conditions. See R.F., Docket No. 13-1345 (issued September 19, 2013).
8

As noted above, a modification of a wage-earning capacity determination may be established if the original
determination was erroneous.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 19, 2013 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: February 20, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jerome, ID, Employer
__________________________________________

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

Docket No. 22-0003
Issued: March 3, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 1, 2021 appellant filed a timely appeal from a September 28, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $3,223.12 for the period July 19 through
August 14, 2021, for which she was without fault, because she continued to receive wage-loss
compensation after she returned to work; and (2) whether OWCP properly denied waiver of
recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 12, 2021 appellant, then a 44-year-old rural carrier associate, filed an
occupational disease claim (Form CA-2) alleging that she sustained bilateral carpal tunnel
syndrome causally related to factors of her federal employment, including the repetitive nature of
her duties. OWCP accepted the claim for carpal tunnel syndrome of the right and left upper limb.
On May 18, 2021 appellant underwent an OWCP-authorized right carpal tunnel release and on
June 1, 2021 she underwent an OWCP-authorized left carpal tunnel release. OWCP paid her
wage-loss compensation by electronic funds transfer on the supplemental rolls beginning March 2,
2021 and on the supplemental rolls from March 2 through May 7, 2021, and on the periodic rolls
from March 8 through August 14, 2021.
Appellant returned to her full-time usual employment on July 19, 2021. In a telephone
memorandum (Form CA-110) dated August 13, 2021, she advised OWCP that she had submitted
paperwork showing that she had returned to work but had continued to receive compensation.
In an August 23, 2021 preliminary overpayment determination, OWCP notified appellant
of is preliminary finding that she had received an overpayment of compensation in the amount of
$3,223.12 because she returned to full-time work on July 19, 2021 but continued to receive wageloss compensation for total disability on the periodic rolls through August 14, 2021. It further
advised her of its preliminary determination that she was without fault in the creation of the
overpayment. OWCP requested that appellant submit a completed overpayment recovery
questionnaire (Form OWCP-20) to determine a reasonable payment method, and advised her that
she could request waiver of recovery of the overpayment. It further requested that she provide
supporting financial documentation, including copies of income tax returns, bank account
statements, bills and canceled checks, pay slips, and any other records supporting income and
expenses. Additionally, OWCP provided an overpayment action request form and notified
appellant that, within 30 days of the date of the letter, she could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
In an overpayment action request form dated August 29, 2021, appellant requested a
decision based on the written evidence. She contended that the recovery of the overpayment
should be waived, contending that she called and had sent forms to OWCP advising that she had
been released to return to work. On an accompanying OWCP-20 form, appellant listed monthly
income of $4,500.00 and monthly expenses of $1,565.00 for housing, $706.81 for utilities,
$2,854.92 for other expenses, and $500.00 for credit card payments, a total of $5,626.73. She
advised that she used any extra for food and clothing. Appellant indicated that she had funds on
hand of $157.39. She submitted financial documentation showing various bills and account
statements. Appellant further submitted a U.S. Individual Income Tax Return (Form 1040) filed
with her spouse showing income of $124,605.00 and taxable income of $99,595.00. She also
provided a statement showing that she had received a distribution of $14,169.00 in 2020 from her
Thrift Savings Plan (TSP).
By decision dated September 28, 2021, OWCP finalized its finding that appellant received
an overpayment of $3,223.12 for the period July 19 through August 14, 2021 because it had paid
her wage-loss compensation for total disability after she returned to work. It calculated the
overpayment by finding that she received net compensation in the amount of $3,342.49 for the

2

period July 18 to August 14, 2021. OWCP divided $3,342.49 by 28 days and multiplied by 27,
the number of days of the overpayment, to find a total overpayment of $3,223.12. It further
finalized its finding that appellant was without fault in the creation of the overpayment. OWCP
denied waiver of recovery of the overpayment. It found that based on a joint 2020 tax return,
appellant and her husband had an estimated income of approximately $6,389.00 per month after
taxes. OWCP further noted that appellant had not provided a breakdown of her assets, described
her other expenses of $2,854.92, or documented her utility expenses other than to submit a gas bill
of $72.00. It indicated that individual was responsible for providing information about income,
expenses, and assets. OWCP found that appellant should submit the full amount as recovery of
the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty. 2 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed b y the Secretary of Labor by
decreasing later payments to which an individual is entitled. 3
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments u ntil the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.4 OWCP’s procedures provide that an overpayment of compensation is created when a
claimant returns to work, but continues to receive wage-loss compensation. 5
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,233.12 for the period July 19 through August 14, 2021, for
which she was without fault because she continued to receive wage-loss compensation for total
disability after she returned to full-time work.
Appellant resumed to full-time regular employment on July 19, 2021. OWCP, however,
continued to pay her wage-loss compensation for total disability following her return to work

2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

4

Id. at § 8116(a).

5

L.T., Docket No. 19-1389 (issued March 27, 2020); K.P., Docket No. 19-1151 (issued March 18, 2020); Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment, Chapter
6.300.4(g) (September 2020).

3

through August 14, 2021, which resulted in an overpayment of compensation. Appellant was not
entitled to receive temporary total disability benefits and actual earnings for the same time period. 6
In determining the amount of overpayment, OWCP calculated the net amount of disability
compensation that appellant had received for the period July 18 through August 14, 2021,
$3,342.49, divided this amount by 28, and multiplied the remainder by the 27 days that she worked
during this period to find an overpayment of $3,223.12. Thus, the Board finds that appellant
received an overpayment of $3,223.12 during the above-noted period.7
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment must be recovered unless 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. 8
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or f ormerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 9 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.10 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent. 11 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits. 12
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financ ial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
6

J.R., Docket No. 20-0025 (issued December 13, 2021); L.T., Docket No. 19-1389 (issued March 27, 2020); S.N.,
Docket No. 19-1018 (issued November 12, 2019).
7

J.R., id.

8

5 U.S.C. § 8129.

9

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Pa rt 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400(2)(3) (September 2020).
10

Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
11

Id. at Chapter 6.400.4(a)(2).

12

Id. at Chapter 6.400.4(b)(3).

4

worse.13 OWCP’s procedures provide that, to establish that a valuable right has been relinquished,
an individual must demonstrate that the right was in fact valuable, that he or she was unable to get
the right back, and that his or her action was based primarily or solely on reliance on the payment(s)
or on the notice of payment. 14
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 16
The Board finds that appellant has not established that recovery of the overpayment would
defeat the purpose of FECA because she did not fully complete the Form OWCP-20 or submit
adequate documentation of her income or expenses. In an OWCP-20 form dated August 29, 2021,
appellant listed monthly income of $4,500.00 and monthly expenses totaling $5,626.73. She
advised that she had assets of $157.39 and no money in stocks and bonds. Supporting
documentation, however, indicated that appellant had withdrawn $14,169.00 from her TSP in
2020. She thus had assets in a TSP but did not provide information regarding this account. Savings
in a TSP account are included in the asset base. 17 A tax return from 2020 further indicated that
appellant had more monthly income than disclosed on the OWCP-20 form. Although OWCP
advised her to submit a Form OWCP-20 and documentation fully substantiating her income and
expenses, she failed to do so, as required by section 10.438 of OWCP’s regulations. 18
As appellant did not submit sufficient financial inf ormation and documentation, the
evidence of record is, therefore, insufficient to establish that recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience.19

13

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

14

Supra note 9 at Chapter 6.400.4c(3).

15

Supra note 9 at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

16

See J.R., Docket No. 17-0181 (issued August 12, 2020); L.S., 59 ECAB 350 (2008).

17

See S.C., Docket No. 17-0762 (issued March 19, 2018); C.P., Docket No. 14-0975 (issued September 11, 2014).

18

20 C.F.R. § 10.438; see R.M., Docket No. 19-1570 (issued June 1, 2020).

19

See supra note 15; S.L., Docket No. 21-0902 (issued December 22, 2021).

5

Consequently, as appellant did not submit the information required under 20 C.F.R.
§ 10.438 of OWCP’s regulations, which was necessary to determine her eligibility for waiver, the
Board finds that OWCP properly denied waiver of recovery of the overpayment. 20
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,223.12 for the period July 19 through August 14, 2021, for
which she was without fault, because she continued to receive wage-loss compensation after she
returned to work. The Board further finds that OWCP properly denied waiver of recovery of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing
those cases where OWCP seeks recovery from continuing compensation benefits under FECA. As appellant is no
longer receiving wage-loss compensation, the Board does not have jurisdiction with respect to the recovery of the
overpayment under the Debt Collection Act. R.W., Docket No. 18-1059 (issued February 6, 2019); Cheryl Thomas, 55
ECAB 610 (2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND,
Jacksonville, FL, Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-720
Issued: June 19, 2007

Case Submitted on the Record

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

JURISDICTION
On January 22, 2007 appellant filed a timely appeal from the January 4, 2007 merit
decision of the Office of Workers’ Compensation Programs, denying authorization for hearing
aids. 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 abused its discretion by refusing to authorize hearing
aids.
FACTUAL HISTORY
On December 4, 2005 appellant, then a 59-year-old motor vehicle operator, filed an
occupational disease claim alleging that he had developed hearing loss as a result of work-related
noise exposure. His claim was accepted for bilateral sensorineural hearing loss.

Appellant filed a claim for a schedule award and requested authorization to purchase “in
ear” binaural hearing aids. The Office referred him to Dr. Robert Marwick, a Board-certified
otolaryngologist, for a second opinion examination and an opinion as to the degree of his
permanent hearing loss. In a report dated May 4, 2006, Dr. Marwick found that appellant had
bilateral sensorineural loss, and a bilateral “mild-severe” degree of loss which does impose a
communication handicap. A report of a May 4, 2006 audiogram performed by Stuart L. Cohen,
an audiologist, accompanied Dr. Marwick’s report. Testing of the right ear at frequency levels of
500, 1,000, 2,000 and 3,000 hertz revealed decibel losses of 10, 10, 40 and 55, respectively and
in the left ear decibel losses of 5, 5, 25 and 65, respectively. Dr. Marwick recommended
binaural amplification and a binaural hearing aid evaluation.
The Office forwarded Dr. Marwick’s report to a district medical adviser for review and a
determination as to the degree of appellant’s permanent hearing loss. In a May 17, 2006
memorandum, the district medical adviser agreed that appellant had a binaural hearing loss. For
schedule award purposes, he concluded that appellant had a six percent permanent impairment of
the right ear, and a zero percent impairment of the left ear. The district medical adviser
recommended against authorizing hearing aids by placing a checkmark in the “no” box provided
on the CA-51 form. By letter dated June 6, 2006, the Office informed appellant that the purchase
of hearing aids was not authorized, because his hearing loss had been determined to be minimal.
On July 12, 2006 the Office granted appellant a schedule award for a six percent permanent
impairment of the right ear and a zero percent impairment of the left ear.1
In a letter dated July 20, 2006, Joseph E. Gillespie, an audiologist, concurred with
Dr. Marwick’s recommendation for amplification devices. He noted that appellant was
benefiting at that time from loaner hearing aids bilaterally.
By decision dated January 4, 2007, the Office denied authorization for the purchase of
hearing aids, finding that the district medical adviser had opined that, because his hearing loss
was minimal, hearing aids were not necessary.
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the
Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of any
disability or aid in lessening the amount of any monthly compensation.2 The Office must
therefore exercise discretion in determining whether the particular service, appliance or supply is
likely to affect the purposes specified in the Act.3
1

Appellant’s representative did not request review of the July 12, 2006 schedule award decision. Therefore, the
merits of that decision will not be addressed herein.
2

5 U.S.C. § 8103(a).

3

Marjorie S. Geer, 39 ECAB 1099 (1988) (the Office has broad discretionary authority in the administration of
the Act and must exercise that discretion to achieve the objectives of section 8103).

2

ANALYSIS
Dr. Marwick recommended binaural hearing aid amplification for appellant’s hearing
loss. After reviewing Dr. Marwick’s findings and accompanying audiogram, the Office medical
adviser checked the block marked “no” in response to the question as to whether hearing aids
were authorized. The Board finds that the case is not in posture for decision as to whether
hearing aids should be authorized for appellant’s employment-related hearing loss.
The Office’s procedure manual provides that hearing aids will be authorized when
hearing loss has resulted from an accepted injury or disease if the attending physician so
recommends.4 In this case, the Office’s second opinion physician recommended the use of
hearing aids. In its denial of authorization of hearing aids, the Office stated that the medical
adviser had opined that, because his hearing loss was minimal, hearing aids were not necessary.
However, the record does not reflect that the medical adviser gave any reason for his
recommendation against the authorization of hearing aids.
It is well established that proceedings under the Act5 are not adversarial in nature6 and
while the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.7 The Office has an obligation to see that
justice is done.8 While Dr. Marwick’s medical report lacks sufficient medical rationale, it is
sufficient to require further development of the medical evidence.9 Accordingly, the Board will
remand the case to the Office for further development of the evidence. The Office shall then
properly exercise its discretion and issue an appropriate decision on the issue of whether hearing
aids should be authorized.

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400(d)(2)
(October 1995).
5

5 U.S.C. §§ 8101-8193.

6

John J. Carlone, 41 ECAB 354 (1989).

7

Dorothy L. Sidwell, 36 ECAB 699 (1985).

8

William J. Cantrell, 34 ECAB 1233 (1983).

9

Horace Langhorne, 29 ECAB 820 (1978).

3

CONCLUSION
The Board finds that the case is not in posture for decision as to whether hearing aids
should be authorized for appellant’s employment-related hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to the Office for
proceedings consistent with this decision.
Issued: June 19, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
GENERAL SERVICES ADMINISTRATION,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 19-0405
Issued: June 26, 2019

Case Submitted on the Record

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

JURISDICTION
On December 14, 2018 appellant filed a timely appeal from a November 20, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly suspended appellant’s wage-loss compensation
benefits, effective December 9, 2018, for failure to complete an EN1032 form as requested.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On October 22, 1984 appellant, then a 39-year-old contracts specialist, filed a traumatic
injury claim (Form CA-1) alleging that, on August 20, 1984, she was involved in a motor vehicle
accident and sustained a right knee injury while in the performance of duty. OWCP accepted
appellant’s claim for right knee strain. It subsequently expanded acceptance of the claim to include
partial tear of the right lateral meniscus, dislocation of the knee, and loose body in the knee.
Appellant underwent surgery for the removal of the loose body and a lateral meniscectomy on
November 5, 1984. She returned to part-time duty on January 30, 1985, and returned to full-time
duty on March 18, 1985. Appellant stopped work again on March 25, 1987. She returned to work
intermittently until October 1, 1998, but did not return after that date. OWCP initially paid
appellant wage-loss compensation on the supplemental rolls and then on the periodic rolls after
October 1, 1998.
By Form CA-1032 dated October 1, 2018, OWCP informed appellant that federal
regulations required her to report any improvement in her medical condition, any employment,
any change in the status of claimed dependents, any third-party settlement, and any income or
change in income from federally-assisted disability or benefit programs. It notified her that she
was required to fully answer all questions on the enclosed EN1032 form and return it within 30
days or her benefits would be suspended. The letter was mailed to appellant’s last known address.
However, no response was received by OWCP.
By decision dated November 20, 2018, OWCP suspended appellant’s compensation
benefits, effective December 9, 2018, for failing to complete the EN1032 form as requested. It
noted that, if she completed and returned an enclosed copy of the form, her compensation benefits
would be restored retroactively to the date they were suspended.
LEGAL PRECEDENT
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies.3
Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt
of compensation benefits must complete an affidavit as to any work or activity indicating an ability
to work, which the employee has performed for the prior 15 months.4 If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her right
to compensation for wage loss is suspended until OWCP receives the requested report. At that
time, OWCP will reinstate compensation retroactive to the date of suspension if the employee
remains entitled to compensation.5
3

5 U.S.C. § 8106(b).

4

20 C.F.R. § 10.528. See also M.S., Docket No. 18-1107 (issued December 28, 2018); C.C., Docket No. 17-0043
(issued June 15, 2018); A.H., Docket No. 15-0241 (issued April 3, 2015).
5

Id.; see also 20 C.F.R. § 10.525.

2

ANALYSIS
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective December 9, 2018, for failure to complete an EN1032 form as requested.
On October 1, 2018 OWCP provided appellant with an EN1032 form. It properly advised
her that, if she did not completely answer all of the questions and return the statement within 30
days, her benefits would be suspended. The record reflects that OWCP’s letter was properly sent
to appellant’s last known address and there is no indication that it was returned as undeliverable.6
Under the mailbox rule, a document mailed in the ordinary course of the sender’s business
practices to the addressee’s last known address is presumed to be received by the addressee.
The record indicates that appellant failed to timely submit the EN1032 form within 30 days
of OWCP’s request. Appellant was receiving wage-loss compensation and she was therefore
required to complete the EN1032 form. Her failure to file an EN1032 form within 30 days resulted
in the suspension of compensation. Thus, the Board finds that OWCP properly suspended
appellant’s compensation benefits, effective December 9, 2018, pursuant to 20 C.F.R. § 10.528.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective December 9, 2018, for failure to complete an EN1032 form as requested.

6
See C.C., supra note 4; Kenneth E. Harris, 54 ECAB 502, 505 (2003); J.J., Docket No. 13-1067 (issued
September 20, 2013).

3

ORDER
IT IS HEREBY ORDERED THAT the November 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 26, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

4