United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF COMMERCE, BUREAU
OF THE CENSUS, Honolulu, HI, Employer
__________________________________________

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

Docket No. 12-298
Issued: November 19, 2012

Case Submitted on the Record

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

JURISDICTION
On November 28, 2011 appellant, through her attorney, filed a timely appeal from the
June 22, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her claim for a September 8, 2010 work injury. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on September 8, 2010.
FACTUAL HISTORY
On October 4, 2010 appellant, then a 60-year-old senior field representative, filed a
traumatic injury claim alleging that she sustained multiple injuries, including bone fractures, in a
1

5 U.S.C. §§ 8101-8193.

motor vehicle accident on September 8, 2010 at 10:20 p.m. while on temporary travel-duty status
in Santa Barbara, CA. She stopped work on September 8, 2010.2
Appellant submitted medical evidence showing that, due to the September 8, 2010
accident, she sustained a fractured transverse process at C6, left first rib fracture and multiple
fractures of her feet and ankles. On September 10, 2010 she underwent surgery for these
conditions.
In an October 12, 2010 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of her claim, including information about the purpose of her
vehicular trip on September 8, 2010.
Appellant provided handwritten answers to OWCP’s request for additional information
on the October 12, 2010 letter. She noted that the September 9, 2010 vehicular accident
occurred after she attended a work conference and group dinner and while she was “traveling
from a group dinner to a social outing” at the Chumash Casino.3 Appellant also submitted
medical reports further describing the injuries she sustained in the crash.
In an October 26, 2010 record of a telephone call, an OWCP employee advised that
appellant stated during the call that the motor vehicle accident occurred after a group of census
workers got together to go to the casino to “get to know each other better.”
In an October 27, 2010 letter, Robert Heitman, a senior workers’ compensation specialist,
noted that the employing establishment controverted appellant’s claim. At the time of the
September 8, 2010 accident, appellant was going to the Chumash Casino with a group of census
takers. While on travel-duty status on September 8, 2010, she had attended a training session at
the Fess Parker Doubletree Inn and a group dinner with the training participants, but instead of
returning to the hotel after dinner, she chose to go on a social outing to the casino.
In a November 17, 2010 decision, OWCP denied appellant’s claim finding the evidence
did not establish that her injuries arose in the performance of duty. The September 8, 2010
accident happened when she deviated from the normal incidents of her work to go to a casino. It
found that appellant was on a personal trip at the time of the accident and that she “had departed
from any activity considered reasonably incidental to your work assignment.”
Appellant disagreed with this decision and requested a telephonic hearing with an OWCP
hearing representative. During the April 5, 2011 hearing, she testified that she was never given
2

The Board notes that the record contains an Authorization for Examination and/or Treatment document (Form
CA-16), signed by an agency official, which authorized appellant to receive medical care for up to 60 days related to
the claimed September 8, 2010 injury. The record also contains documents showing that appellant was on
temporary travel-duty status during the period of the claimed September 8, 2010 injury.
3

The record reflects that the Chumash Casino is about 32 miles northwest from the Santa Barbara hotel in which
appellant stayed while on travel duty status. A police accident report confirms that the accident occurred on
California State Route 154 at 10:20 p.m. on September 8, 2010 near the Rancho San Marcos Golf Course, a site
about 17 miles northwest of Santa Barbara. It was reported that a vehicle crossed over the center line and struck the
vehicle driven by appellant head on. Appellant had four passengers in her vehicle.

2

any prohibition about what she could do while on travel status. Appellant was never advised that
she had to stay in her hotel room when on off-duty status. She stated that she usually traveled by
herself when on travel duty and ate dinner outside the hotel in which she stayed. Appellant
stayed in the same hotel in Santa Barbara, the Fess Parker Doubletree Inn, as the other
employees who were present for the meeting which included support staff and the regional
director. She had previously attended work conferences in various locations and asserted that
they were seen as a reward for the senior field representatives who generally had no interaction
with coworkers. The conference was held once a year and was meant to enhance team-building
skills and to allow attendance at presentations that were of particular interest to the field
representatives. These conferences also provided an opportunity to meet face-to-face with staff
and administration. Appellant noted that she always had a list of topics and issues to discuss
with people she did not normally get to see.
On the date of injury, September 8, 2010, a group of coworkers had dinner at a nearby
hotel and a boat outing had been planned. Appellant went to the group dinner and signed up for
the boat outing. She stated that the staff member who had arranged the conference became ill
and she and the regional director spent time at the dinner taking care of this staff member.
Appellant noted that the boat outing fell through. As she had not eaten much or been able to
spend time speaking to certain individuals, including the head administrator and a recruiter,
appellant felt that it was important to speak to these people as she had a job vacancy to fill.
Appellant had the option of going back to her room but another field representative told her a
group was going out and the head administrator and recruiter would be in the group. She
testified that she did not know where they were going, but offered to drive her government
vehicle since it held more people than the other vehicles.
Appellant testified that it was determined they would go to Chumash Casino. She
asserted that she had not been drinking alcohol and there was no alcohol served at the earlier
function. As they were driving to the casino, another driver crossed the center line. Appellant
swerved her vehicle, but had a head-on crash in which the other driver was killed. She
contended that the trip to the casino was an extension of her work activities at the conference.
All the individuals in the car were coworkers and appellant was never told she could not go to a
casino while at the conference. She also asserted that the trip to the casino was meant to
continue team building. Counsel presented argument concerning coverage of employees during
travel duty status, noting that appellant’s activities at the time she was injured were related to her
work duties that did not constitute a substantial deviation.
A copy of the hearing transcript was sent to the employing establishment for review and
comment on April 13, 2011. Mr. Heitman responded on April 27, 2011. He stated that, while
appellant did not receive a written statement saying she could not eat dinner outside her hotel, it
did not follow that going for dinner anywhere outside her hotel would satisfy the requirement for
remaining within the performance of duty. Mr. Heitman noted that there were 384 restaurants in
the city of Santa Barbara and that appellant could have chosen any one of them. He stated that
the casino trip did not represent the only opportunity for appellant to have some “face-time” with
her coworkers or those with whom she wanted to speak. There were many other times during,
breaks, lunch, dinner and after dinner at the hotel, when this could be accomplished.
Mr. Heitman stated that the hearing testimony established that a group of employees went on a

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“social outing” and invited appellant to join them. The intention of the outing was nothing other
than a social recreational event and not organized or sponsored by the employing establishment.
In a May 27, 2011 statement, appellant reiterated that the yearly conferences provided an
opportunity for the senior field staff to build rapport with the regional office employees and to
improve the support system for carrying out the mission of the employing establishment. She
stated that, if the chief administrator and recruiter had not been in the group, she would not have
gone to the casino.
In a June 22, 2011 decision, OWCP’s hearing representative affirmed OWCP’s
November 17, 2010 decision denying appellant’s claim for a September 8, 2010 injury. She
found that appellant did not sustain an injury in performance of duty on September 8, 2010
because at the time of her vehicular accident she had deviated from her travel duty work.
LEGAL PRECEDENT
The general rule regarding coverage of employees on travel duty status or on temporary
duty assignments is set forth in Larson, The Law of Workers’ Compensation Law:
“An employee whose work entails travel away from the employer’s premises is
generally considered to be within the course of his or her employment
continuously during the trip, except when there is a distinct departure on a
personal errand. Thus, injuries flowing from sleeping in hotels or eating in
restaurants away from home are usually compensable.”4
The Board has similarly recognized that FECA covers an employee 24 hours a day when
the employee is on travel duty status and engaged in activities essential or incidental to such
duties.5 When the employee, however, deviates from the normal incidents of her trip and engages
in activities, personal or otherwise, which are not reasonably incidental to the duties of the
temporary assignment contemplated by the employer, the employee ceases to be under the
protection of FECA and any injury occurring during these deviations is not compensable.6
The Board has addressed when an employee deviated from the normal incidents of travel
duty such that the claimed injury was not covered under FECA. In Conchita A. Elfano
(Domingo P. Elfano),7 the deceased employee was on a temporary-duty assignment at a navy base.
He left the base at 11:30 p.m. and went to a nearby night club, where he remained until 4:00 a.m.
The employee was fatally injured by a bullet when returning to the base in a taxi cab. The Board
found that the injury was not sustained in the performance of duty as he had deviated from the
4

A. Larson, The Law of Workers’ Compensation Law § 25.01 (2012).

5

See Ann P. Drennan, 47 ECAB 750 (1996). As an example of activities incidental to duties performed on
travel-duty status, the Board has held that an employee’s seeking of dinner away from a hotel where she is staying
on travel-duty status may be compensable in some cases. See A.W., 59 ECAB 593 (2008).
6

See Ann P. Drennan, supra note 5.

7

15 ECAB 373 (1964).

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normal activities incidental to his employment for purposes that were personal and diversionary in
nature. In Kathleen M. Fava (John R. Malley),8 the Board found that OWCP properly rescinded
acceptance of the claim where the evidence reflected that the employee, who was in travel status,
was injured walking to a van after leaving a sports bar. In Richard Michael Landry,9 the Board
found that the employee on travel-duty status was not in the performance of duty when he was
thrown from the bed of a truck while traveling between nightclubs after 1:30 a.m.
ANALYSIS
Appellant sustained multiple injuries, including bone fractures, in a motor vehicle
accident on September 8, 2010 at about 10:20 p.m. when she and some coworkers were on
temporary travel-duty status in Santa Barbara, CA. She had dinner with her coworkers and then
a group decided to go to Chumash Casino later in the evening.10 On the way to the casino, the
motor vehicle appellant was driving was struck by another car that veered into her lane.
The Board finds that appellant has not established that she sustained an injury in the
performance of duty on September 8, 2010.
When appellant traveled to the casino on September 8, 2010 she deviated from the
normal incidents of her work trip and engaged in a personal activity which was not reasonably
incidental to the duties of the temporary assignment contemplated by her employing
establishment. At the time of the motor vehicle accident on September 8, 2010, she was
involved in a personal deviation from her travel-duty work which was similar to the deviations
described in the above-noted cases regarding employees who chose to engage in evening
entertainment activities for personal reasons.11 Appellant’s trip to the casino was personal in
nature in that it involved pursuing an activity for personal social and entertainment reasons and
her deviation placed her outside the general rule that employees are covered by FECA while on
travel-duty status.12 The Board notes that it agrees with counsel that there was nothing nefarious
or expressly prohibited by the employer about appellant’s trip to casino while on travel-duty
status, but there is no requirement that an employee’s activities on travel duty status be nefarious
or expressly prohibited before a deviation is found. Appellant has not shown that her trip to the
casino after 10:00 p.m. would have been contemplated by her employer as incidental to the
duties of her travel-duty trip or that it otherwise could be viewed as reasonably incidental to her
work duties.
Appellant asserted that she took the trip to the casino with the intent to network with
employing establishment officials, including the head administrator and recruiter. However, she
8

49 ECAB 519 (1998). The Board further determined, however, that injuries sustained when the employee
returned to the hotel were compensable as his deviation had ended at that point.
9

Docket No. 87-207 (issued November 30, 1987).

10

The Chumash Casino is about 32 miles from the hotel in which appellant stayed while on travel-duty status.

11

See supra notes 7 through 9.

12

In her initial description of the September 8, 2010 trip to the casino, appellant explicitly described it as a “social
outing.”

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has not clearly established that this was the intent of her trip to the casino or that her actions were
reasonably incidental to her travel status duties. The employing establishment has stated that
appellant had numerous opportunities to speak to these employees during the conference breaks
and other occasions while she was at the conference. Appellant also claimed that one of her
purposes to travel to the casino was to obtain something to eat. As noted above, the Board has
held that an employee’s seeking of dinner away from a hotel where she is staying on travel-duty
status may compensable in some case.13 However, appellant has acknowledged that she had
something to eat at an earlier group dinner and she has not otherwise shown that her intent in
traveling to the casino after 10:00 p.m. was to obtain dinner as opposed to engaging in a social
and entertainment activity.
Appellant’s trip to the casino was not part of any activity organized by the employing
establishment and she voluntarily decided to go to the casino during her free time. The evidence
of record establishes that a group of employees was going on a social outing to the casino and
that appellant was invited to join them. The trip to the casino was a substantial deviation after
hours and involved activities which were not reasonably incidental to her temporary work
assignment. As the claimed injury occurred while appellant deviated from her travel-duty status,
the injuries caused by the September 8, 2010 vehicular accident are not covered under FECA.
For these reasons, appellant has not shown that she sustained an injury in the
performance of duty on September 8, 2010.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on September 8, 2010.

13

See supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the June 22, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Augusta, GA, Employer
__________________________________________

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

Docket No. 12-1870
Issued: February 6, 2013

Case Submitted on the Record

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

JURISDICTION
On September 4, 2012 appellant filed a timely appeal from an August 9, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days elapsed from the last merit decision of December 6, 2011 to the filing of this appeal, the
Board lacks jurisdiction to review the merits of her claim pursuant to 20 C.F.R. §§ 501.2(c) and
501.3.1
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration under 5 U.S.C. § 8128.

1

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(e).

FACTUAL HISTORY
Appellant, then a 61-year-old nurse, injured her left arm and left shoulder on January 24,
2010 when she was grabbed by a patient. She filed a claim for benefits, which OWCP accepted
for left shoulder and neck strains. OWCP paid compensation for wage loss for intermittent
periods of work-related disability.
On May 14, 2010 appellant filed a Form CA-7, claiming compensation for wage loss
from May 2 to 13, 2010.
In a report dated June 15, 2010, Dr. J. Allan Goodrich, Board-certified in orthopedic
surgery, stated that appellant had not returned to work since the January 24, 2010 work injury.
He advised that she underwent a magnetic resonance imaging (MRI) scan which showed
spondylitic changes but no acute disc herniation.2 Dr. Goodrich stated that appellant was not
able to specify the disc level causing her pain. He would schedule her for a computerized axial
tomography (CAT) scan/myelogram of her cervical spine but did not think she would require any
kind of surgical intervention. A May 14, 2010 work capacity evaluation by Dr. Goodrich
advised that appellant was capable of performing her usual job.
By decision dated July 9, 2010, OWCP denied compensation for wage loss for the period
May 2 to 13, 2010.
In a report dated July 12, 2010, Dr. Goodrich stated that the results of the cervical CAT
scan/myelogram showed multilevel spondylosis of the neck at C3-6. He opined that the C5-6
spondylosis was associated with the cutoff of the nerve root and was probably the origin of her
pain. Dr. Goodrich was unable to definitively state this, however, based on her clinical
examination. He discussed the risks and benefits of cervical disc fusion. Dr. Goodrich opined
that the spondylosis was not a new condition stemming from her January 2010 work injury,
although it could have been exacerbated by it. He stated that the results of her electromyelogram
and nerve conduction studies were not conclusive since there was nonspecific radiculopathy,
incomplete findings of carpal tunnel syndrome, no Tinel’s sign at the wrist and no positive
Phalen’s test.
On December 3, 2010 appellant filed a Form CA-7, claiming compensation for wage loss
from May 13 to September 10, 2010.
By decision dated January 31, 2011, OWCP denied compensation for wage loss from
May 13 to September 10, 2010.
By letter dated February 7, 2011, appellant’s attorney requested an oral hearing, which
was held on May 6, 2011.
On March 21, 2011 appellant filed a Form CA-7, claiming compensation for wage loss
from May 4, 2010 to March 24, 2011.

2

Appellant underwent a cervical MRI scan on March 5, 2010 that reported early minimal degenerative disc
changes with disc desiccation at C5-6, left lateral spondylosis at C3-4 and a small disc protrusion at C4-5 and C5-6

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By decision dated May 10, 2011, OWCP denied compensation for wage loss from May 4,
2010 to March 24, 2011.
By letter dated May 17, 2011, counsel requested an oral hearing, contesting OWCP’s
decision of May 10, 2011. A hearing was held on September 14, 2011.
By decision dated July 25, 2011, OWCP’s hearing representative affirmed the
January 31, 2011 decision, denying compensation from May 13 to September 10, 2010.
In a September 28, 2010 report, received by OWCP on November 7, 2011, Dr. Goodrich
advised that appellant intended to undergo surgery to ameliorate her cervical condition. He
reiterated that she had multilevel spondylosis, primarily at the C5-6 level, which was consistent
with her recurrent symptomatology, in addition to left C5 radiculopathy. Dr. Goodrich stated
that appellant continued to have neck, left shoulder and left arm pain which had not resolved
with conservative care.
In treatment notes dated October 12 and December 23, 2010, received by OWCP on
November 7, 2011, Dr. Goodrich noted that appellant underwent surgery to ameliorate her
cervical condition. In a December 23, 2011 report, he stated that she was doing well after
undergoing an anterior cervical discectomy and interbody fusion at C5-6, with good strength,
intact sensation and good cervical range of motion.
By decision dated December 6, 2011, OWCP’s hearing representative affirmed the
March 21, 2011 decision, denying compensation from May 4, 2010 to March 24, 2011.
By letter dated December 22, 2011, received by OWCP on July 28, 2012, counsel
requested reconsideration of the December 6, 2011 decision.
Appellant resubmitted
Dr. Goodrich’s reports dated June 15 to December 23, 2010. She did not submit any new
medical evidence with her request.
By decision dated August 9, 2012, OWCP denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require OWCP to review its prior decision.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by OWCP; or by submitting
relevant and pertinent evidence not previously considered by OWCP.3 Evidence that repeats or
duplicates evidence already in the case record has no evidentiary value and does not constitute a
basis for reopening a case.4

3

20 C.F.R. § 10.606(b). See generally 5 U.S.C. § 8128(a).

4

Howard A. Williams, 45 ECAB 853 (1994).

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ANALYSIS
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; nor has she advanced a relevant legal argument not previously
considered by OWCP. The evidence that she submitted is not pertinent to the issue on appeal.
The Board has held that the submission of evidence which does not address the particular issue
involved in the case does not constitute a basis for reopening the claim.5 Appellant submitted
several 2010 reports from Dr. Goodrich which OWCP previously reviewed. This evidence is
therefore cumulative and duplicative.6 Appellant’s reconsideration request failed to show that
OWCP erroneously applied or interpreted a point of law nor did it advance a point of law or fact
not previously considered by OWCP. OWCP did not abuse its discretion in refusing to reopen
her claim for a review on the merits.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for
reconsideration on the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 9, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 6, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5

See David J. McDonald, 50 ECAB 185 (1998).

6

See Patricia G. Aiken, 57 ECAB 441 (2006).

4


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

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

Docket No. 07-300
Issued: August 21, 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 November 9, 2006 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated April 27 and October 27, 2006 reducing his
compensation to zero, for the reason that he failed to cooperate with vocational rehabilitation
efforts. Pursuant to C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merit
issue of the case.
ISSUE
The issue is whether the Office properly reduced appellant’s monetary compensation to
zero for failure to cooperate with vocational rehabilitation efforts.
FACTUAL HISTORY
On August 4, 1983 appellant, then a 29-year-old letter carrier, filed a traumatic injury
claim alleging that on August 1, 1983 he twisted his right foot when he stepped in a ditch
crossing the lawn. The Office accepted appellant’s claim for right foot sprain and congenital pes
planus.

By letter dated November 21, 2005, the Office referred appellant to a vocational
rehabilitation counselor. In a report dated March 6, 2006, the counselor noted that she had tried
to contact appellant at his address in Connecticut on several occasions. On December 2, 2005
she sent a letter of introduction and requested a meeting. On December 16, 2005 appellant called
her telephone number and the name on the answering machine was Sharon Montero. The
counselor left a message for appellant to call as quickly as possible. On January 9, 2006 the
counselor attempted again to reach appellant, but she spoke to a relative who stated that appellant
was not in at the time but would return shortly. The counselor verified the contact information
and left a message for appellant to call. On February 16, 2006 the counselor sent appellant
another letter requesting that he contact her before February 28, 2006. No response was
received.
By letter sent to appellant’s Connecticut address dated March 22, 2006, the Office
informed him that it had been advised that he had impeded the rehabilitation efforts of his
vocational rehabilitation counselor. The Office noted that appellant’s counselor had sent him
letters on December 2, 2005 and February 16, 2006 and attempted to contact him by telephone
on December 16, 2005 and January 7, 2006.1 However, appellant had not responded to the
attempts at contact. The Office informed him that, pursuant to section 10.519 of Title 20 of the
Code of Federal Regulations,2 if an individual fails to participate in the essential preparatory
efforts for vocational rehabilitation, in the absence of evidence to the contrary, it is presumed
that the vocational rehabilitation effort would have resulted in no loss of wage-earning capacity
and compensation will be reduced to zero. The Office noted that, if appellant subsequently
complies with vocational rehabilitation efforts compensation will be reinstated, but that he would
not be paid for his period of noncompliance. The Office allowed appellant 30 days from the date
of the letter to respond, at which point it indicated that his benefits would be terminated.
Appellant did not respond.
By decision dated April 27, 2006, the Office reduced appellant’s compensation benefits
to zero for refusal to cooperate with vocational rehabilitation. The Office sent a copy of this
decision to appellant’s Connecticut address.
On May 28, 2006 appellant requested an oral hearing. By separate letter dated May 28,
2006, he indicated that the notification with regard to the proposed termination was sent to the
wrong address as he resided in Columbia, South Carolina and the letter was sent to Bridgeport,
Connecticut where he temporarily resided from September to November 2005. By letter dated
August 10, 2006, appellant withdrew his request for an oral hearing and instead requested
reconsideration.
By letter dated August 31, 2006, the employing establishment contested appellant’s
argument that he had moved and did not receive the letter informing him of the consequences of
failing to cooperate with vocational rehabilitation. The employing establishment noted that
appellant had not cooperated with prior vocational rehabilitation efforts. The employing
1

The Board notes that the date January 7, 2006 appears to be a typographical error as the vocational rehabilitation
counselor indicated in her report that she attempted to contact appellant by telephone on January 9, 2006.
2

20 C.F.R. § 10.519.

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establishment also noted that appellant received the decision which was addressed to the same
address as the notice of proposed reduction letter. The employing establishment noted that the
vocational counselor spoke with a family member on the telephone, who indicated that appellant
would return shortly. Finally, the Office noted that none of the correspondence sent to the
Connecticut address was returned as undeliverable.
By decision dated October 27, 2006, the Office reviewed the case on the merits but
determined that it properly reduced appellant’s compensation for failure to cooperate with
vocational rehabilitation efforts.
LEGAL PRECEDENT
Section 8104(a) of the Federal Employees’ Compensation Act3 pertains to vocational
rehabilitation and provides: The Secretary of Labor may direct a permanently disabled
individual whose disability is compensable under this subchapter to undergo vocational
rehabilitation. The Secretary shall provide for furnishing the vocational rehabilitation services.
Under this section of the Act, the Office has developed procedures which emphasize returning
partially disabled employees to suitable employment and determining their wage-earning
capacity.4 If it is determined that the injured employee is prevented from returning to the dateof-injury job, vocational rehabilitation services may be provided to assist in returning the
employee to suitable employment.5
Section 8113(b) of the Act further provides, “If an individual without good cause fails to
apply for and undergo vocational rehabilitation when so directed under section 8104 the Office,
after finding that in the absence of such failure the wage-earning capacity of the individual
would likely have increased substantially, may reduce prospectively the monetary compensation
of the individual in accordance with what would probably have been [her] wage-earning capacity
in the absence of the failure, until the individual in good faith complies with the directions of the
Office.6 Office procedures require that prior to reduction of compensation a claimant be notified
of the provisions of section 8113(b) and provided an opportunity to either resume participation in
vocational rehabilitation or provide reasons for not continuing participation.7 Under section
8104 of the Act, the employee’s failure to willingly cooperate with vocational rehabilitation may

3

5 U.S.C. § 8104(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.11(b) (November 1996).
5

Id. The Office’s regulations provide: In determining what constitutes “suitable work for a particular disabled
employee, [the Office] considers the employee’s current physical limitation, whether the work is available within the
employee’s demonstrated commuting area, the employee’s qualifications to perform such work and other relevant
factors. 20 C.F.R. § 10.500(b).
6

5 U.S.C. § 8113(b).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.11(b) November 1996).

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form the basis for terminating the rehabilitation program and the reduction of monetary
compensation.8 The Office’s implementing regulations state:
“If an employee without good cause fails or refuses to apply for, undergo,
participate in or continue to participate in a vocational rehabilitation effort when
so directed, [the Office] will act as follows:
***
“(b) Where a suitable job has not been identified, because the failure or refusal
occurred in the early, but necessary stages of a vocational rehabilitation effort
(that is, meetings with the [Office] nurse, interviews, testing, counseling,
functional capacity evaluations, and work evaluations), [the Office] cannot
determine what would have been the employee s wage-earning capacity.
“(c) Under the circumstance identified in paragraph (b) of this section, in the
absence of evidence to the contrary, [the Office] will assume that the vocational
rehabilitation effort would have resulted in a return to work with no loss of wageearning capacity and [the Office] will reduce the employees monetary
compensation accordingly (that is, to zero). The reduction will remain in effect
until such time as the employee acts in good faith to comply with the directions of
[the Office].”9
ANALYSIS
The Board finds that the Office properly reduced appellant’s monetary compensation
benefits to zero based on his failure to cooperate with vocational rehabilitation efforts. The
vocational counselor attempted to contact appellant by writing him letters on December 2, 2005
and February 16, 2006. She also called him and left messages on December 16, 2005 and
January 9, 2006. Appellant never contacted the counselor. By letter dated March 22, 2006, the
Office informed him of the consequences of his failure to cooperate with the vocational efforts
but appellant did not respond or cooperate with the counselor. As the Office properly followed
the procedures and appellant did not cooperate with vocational rehabilitation efforts, the Office
properly reduced his compensation.
Although appellant alleged that he no longer lived in Connecticut, but had relocated to
South Carolina, the last known address prior to the issuance of the Office’s decision was his
address in Connecticut. Furthermore, the counselor indicated that she spoke with a family
member on January 9, 2006 who indicated that appellant would be back shortly. None of the
documents sent to appellant in Connecticut were returned by the U.S. Postal Service as
undeliverable. Moreover, appellant did not advise the Office of any change in address to South
8

See Wayne E. Boyd 49 ECAB 202 (1997) (the Board found that the Office properly reduced the claimant’s
wage-loss compensation benefits as he failed to cooperate with the early and necessary stages of developing an
appropriate training program).
9

20 C.F.R. § 10.519.

4

Carolina. Under the mailbox rule, evidence of a properly addressed letter together with evidence
of proper mailing may be used to establish receipt.10 There is no evidence to rebut the
presumption of receipt by appellant of the Office’s correspondence.11 Consequently, his
argument that he never received the letters from the vocational counselor or notice from the
Office is without merit.
CONCLUSION
The Office properly reduced appellant’s monetary compensation to zero for failure to
cooperate with vocational rehabilitation efforts.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 27 and April 27, 2006 are affirmed.
Issued: August 21, 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

10

See e.g., Joseph R. Giallanza, 55 ECAB 186, 191 (2003); Larry L. Hill, 42 ECAB 596, 600 (1991).

11

Joseph R. Giallanza, supra note 10.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

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

Docket No. 10-993
Issued: December 6, 2010

Case Submitted on the Record

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

JURISDICTION
On February 26, 2010 appellant filed a timely appeal from an October 15, 2009 decision
of the Officer of Workers’ Compensation Programs denying his request for reconsideration
without a merit review. Because more than 180 days elapsed between the most recent merit
decision of the Office dated July 30, 2009, and the filing of this appeal, the Board lacks
jurisdiction to review the merits of the case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without a merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 18, 2009 appellant, then a 50-year-old letter carrier, filed an occupational disease
claim alleging that he sustained “constant pain in the left part of my neck running down the back
part of my left arm” and “in my left shoulder.” He first became aware of his condition on
April 27, 2004. Appellant attributed it to “28 years of carrying magazines on my arm.” He did
not stop working.

In a June 29, 2009 letter, the Office informed appellant that the evidence submitted was
insufficient to establish his claim and advised him of the type of evidence needed to establish his
claim.
Appellant submitted various medical records. In a May 13, 2009 report, Dr. Ronald O.
Watson, a Board-certified internist, noted that appellant complained of work-related left shoulder
pain for the past five or six years, reporting that it began when he carried magazines and letters
in his left arm and worsened as he continued to carry mail with that arm. He examined
appellant’s left shoulder and found full range of motion (ROM), no tenderness, normal stability
and strength, and negative signs of impingement. An x-ray of appellant’s left shoulder on
May 13, 2009 revealed early degenerative changes of the acromioclavicular (AC) joint with tiny
marginal spurring.
In a June 17, 2009 follow-up report, Dr. Watson commented that appellant’s left shoulder
pain persisted and only improved when appellant was not working. Appellant stated that he was
off work for four days. He denied any prior shoulder injuries, AC joint separations or falls.
Dr. Watson examined appellant’s left shoulder and found full ROM, no tenderness, joint stability
to anterior and posterior stress and negative signs of impingement.
In a July 7, 2009 letter, Dr. Dennis J. Kvidera, a Board-certified orthopedic surgeon,
noted that appellant had pain whenever he washed his hair or was aggressive with his weight
training. He evaluated appellant’s left shoulder and upper extremity and observed no atrophy,
asymmetry, crepitus or tenderness. Dr. Kvidera observed that appellant exhibited good strength
with external rotation and abduction against resistance, but the maneuvers caused some mild
pain. He diagnosed appellant as having chronic pain in the left shoulder and suggested a
gadolinium-enhanced magnetic resonance imaging (MRI) scan to look at the soft tissue above
the shoulder.
Appellant also provided medical treatment records from 1995 and 2001, as well as
physical therapy notes in 2009.
By decision dated July 30, 2009, the Office denied appellant’s occupational disease claim
on the grounds that the medical evidence failed to demonstrate that his claimed medical
condition was related to work-related events.
In a letter dated August 12, 2009, appellant requested reconsideration. He notified the
Office that he was scheduled for an MRI scan in three weeks and intended to both the MRI scan
results and a written statement from his physician.
Appellant submitted a September 11, 2009 report from Dr. Tuyen Hoang, a Boardcertified radiologist, who reviewed appellant’s left shoulder magnetic resonance (MR)
arthrogram and observed mild to moderate AC joint arthropathy, a Type II superior labral tear
from anterior to posterior (SLAP) lesion, and anterior inferior labral detachment.
By decision dated October 15, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was not sufficient to warrant review
of the prior decision.

2

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,1 the Office’s regulations provide that the evidence or
argument submitted by a claimant must either: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.2 Where a request for reconsideration fails to meet at least one of these
standards, the Office will deny the application for reconsideration without reopening the case for
a review on the merits.3
ANALYSIS
The Office’s July 30, 2009 merit decision denied appellant’s claim on the grounds that
the medical evidence did not establish that his claimed shoulder condition was causally related to
his federal employment. Appellant requested reconsideration on August 12, 2009 advising that
he disagreed with the Office’s findings. He did not identify a specific point of law that was
erroneously applied or interpreted, nor did he advance a relevant legal argument not previously
considered by the Office.
Appellant submitted additional evidence on reconsideration. He provided Dr. Hoang’s
September 11, 2009 report, which interpreted appellant’s MR arthrogram as exhibiting mild to
moderate AC joint arthropathy, a Type II SLAP lesion, and anterior inferior labral detachment.
Dr. Hoang, however, did not give an opinion as to whether appellant’s work duties caused a
diagnosed condition. The Board has held that the submission of evidence which does not
address the particular issue involved does not constitute a basis for reopening a case.4 Although
Dr. Hoang’s report is new evidence not previously considered by the Office, it is not relevant
because it did not address the causal relationship between the diagnosed condition and work
factors, the issue upon which the Office based its denial of the claim.
Because appellant did not show that the Office erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered, or constitute
relevant and pertinent new evidence, he is not entitled to a review of the merits of his claim.
Appellant argues on appeal that he informed the Office in his August 12, 2009 letter
requesting reconsideration that additional medical evidence accompanying Dr. Hoang’s report
was forthcoming, but was not subsequently informed that the evidence did not arrive. The Board
only has jurisdiction over whether the Office properly denied a merit review of the claim based

1

5 U.S.C. §§ 8101-8193.

2

E.K., 61 ECAB ___ (Docket No. 09-1827, issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

3

L.D., 59 ECAB 648 (2008).

4

D.K., 59 ECAB 141 (2007).

3

on the evidence that was before the Office at the time it issued its October 15, 2009 decision.5
As explained, appellant did not submit any evidence or argument in support of his
reconsideration request that warrants reopening of his claim for a merit review under 20 C.F.R.
§ 10.606(b)(2).
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the October 15, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5

The Board notes that the record on appeal contains evidence which the Office received after its October 15,
2009 decision. The Board lacks jurisdiction to review this evidence for the first time on appeal. 5 U.S.C.
§ 501.2(c). This, however, does not preclude appellant from having such evidence considered by the Office as part
of a formal written request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF THE AGRICULTURE,
FOOD SAFETY AND INSPECTION SERVICE,
Holcomb, KS, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0479
Issued: November 29, 2021

Case Submitted on the Record

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

On February 9, 2021 appellant filed a timely appeal from a February 3, 2021 nonmerit
decision of the Office of Workers’ Compensation Program (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 21-0479.
On July 18, 2016 appellant, then a 52-year-old food inspector, filed an occupational disease
claim (Form CA-2) alleging that her plantar fasciitis condition was due to long hours of standing
and walking on cement floors while in the performance of duty. Appellant stopped work on
March 24, 2017 and has not returned. OWCP accepted the claim for bilateral plantar fasciitis, and
paid appellant wage-loss compensation on its periodic rolls effective April 30, 2017.
On October 11, 2018 OWCP issued a formal loss of wage-earning capacity (LWEC)
determination based upon appellant’s ability to earn $400.00 per week as a customer service
representative, Department of Labor’s Dictionary of Occupational Titles (DOT) No. 239.362014.It adjusted appellant’s wage-loss compensation, effective October 14, 2018, based on this
determination.
On November 9, 2018 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review. By decision dated March 15, 2019, a
hearing representative affirmed OWCP’s October 11, 2018 LWEC determination. The hearing

representative found that while there was documented medical conditions of degenerative joint
disease of the left knee, lumbosacral radiculopathy and sacroililitis, severe osteoarthritis in the
bones of the neck, and a cervical disc disorder and radiculopathy, the medical evidence did not
indicate that those conditions preexisted appellant’s work-related injury; thus, she found that those
conditions did not need to be taken into consideration as to whether the customer service position
was medically suitable.
On October 15, 2019 appellant requested reconsideration of OWCP’s October 11, 2018
LWEC determination. She submitted an August 27, 2019 medical report from Dr. Cody
Matthews, a family practitioner, who related that appellant was totally disabled due to her cervical
disc disease with foraminal stenosis. By decision dated November 6, 2019, OWCP denied
appellant’s request for reconsideration of the October 11, 2018 LWEC determination.
On January 29, 2021 OWCP received a request for reconsideration of OWCP’s October 11,
2018 LWEC determination. In her request,1 appellant indicated that she could no longer work as
a part-time or full-time customer service representative. She noted that Dr. Sajidkhan Pathan, a
Board-certified occupational medicine specialist, and Dr. Shaniqua McGraw, a Board-certified
family practitioner, increased her work restrictions and limited her standing and walking to one
hour per shift.
In reports dated December 14, 2020 and January 11, 2021, Dr. Pathan opined that
appellant’s bilateral plantar fibromatosis was aggravated by excessive/prolonged walking as a food
inspector. He agreed with the work restrictions which Dr. McGraw recommended on October 24,
2018, which limited appellant’s standing and walking to one hour per shift. In an attending
physician’s report (Form CA-20) dated December 14, 2020, Dr. Pathan reiterated his opinion that
appellant could work with restrictions of sitting and walking up to one hour per shift, as per
Dr. McGraw on October 24, 2018, for her work-related bilateral plantar fasciitis. A copy of
Dr. McGraw’s October 24, 2018 work-capacity evaluation (Form OWCP-5c) was provided.
Also received of record was a July 7, 2020 letter from Dr. Thomas M. Jones, , a podiatrist,
who opined that appellant could return to work with restrictions, including standing for shorter
periods of time, as a result of her chronic bilateral plantar fasciitis.
By decision dated February 3, 2021, OWCP denied appellant’s request for reconsideration
received on January 29, 2021 finding that it was untimely filed and failed to demonstrate clear
evidence of error.
The Board, having duly considered the matter, concludes that the case is not in posture for
decision.2
Modification of an LWEC determination is unwarranted unless there is a material change
in the nature and extent of the injury-related condition, the employee has been retrained or
1

Appellant mistakenly dated her letter February 29, 2021.

2

C.H., Docket No. 19-1114 (issued April 30, 2020); B.H., Docket No. 18-1515 (issued June 20, 2019);
N.M., Docket No. 17-0262 (issued July 3, 2017).

2

otherwise vocationally rehabilitated, or the original determination was erroneous. 3 The burden of
proof is on the party seeking modification of the wage-earning capacity determination. 4 Unlike
reconsideration pursuant to 5 U.S.C. § 8128(a), there is no time limitation for requesting
modification of an LWEC determination. 5 Requests for modification should be reviewed carefully
to determine whether the claimant is seeking a reconsideration of a recen tly issued LWEC
determination, as opposed to a modification of the LWEC determination. 6
The Board finds that appellant’s January 29, 2021 request for reconsideration was, in fact,
a request for modification of OWCP’s October 11, 2018 LWEC determination. Appellant
specifically alleged and set forth evidence that her restrictions had changed due to her planter
fasciitis condition which raises the question of whether there had been a material change in the
nature and extent of her injury-related condition. It is well established that a claimant may
establish that a modification of an LWEC determination is warranted if there has been a showing
that there was, in fact, a material change in the nature and extent of her injury-related condition. 7
As OWCP improperly reviewed the case under the standard for an untimely
reconsideration request, the case must be remanded to OWCP for a de novo decision which
includes findings of fact as to whether appellant has met her burden of proof to establish
modification of her LWEC determination. 8

3

20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, Part 2
-- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
4

20 C.F.R. § 10.511.

5

W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003).

6

Supra note 4, Federal (FECA) Procedure Manual, Chapter 2.1501.4a (June 2013).

7

See L.M., Docket No. 20-1038; see also C.R., Docket No. 14-0111 (issued April 4, 2014); Sharon C. Clement, 55
ECAB 552 (2004).
8

See L.H., Docket No. 18-1787 (issued July 29, 2019); R.Z., Docket No. 17-1455 (issued February 15, 2019).

3

IT IS HEREBY ORDERED THAT the February 3, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: November 29, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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VETERANS ADMINISTRATION NEW JERSEY )
HEALTH CARE SYSTEM, Lyons, NJ, Employer
)
____________________________________________ )
L.B., Appellant

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1687
Issued: June 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 4, 2014 appellant, through her attorney, filed a timely appeal of a July 3, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective May 8, 2013; and (2) whether appellant
has established any continuing disability or medical residuals after that date due to her May 16,
2012 employment injury.
Counsel argued that OWCP failed to meet its burden of proof to terminate appellant’s
compensation and medical benefits due to an existing conflict of medical opinion evidence.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 18, 2012 appellant, then a 68-year-old nurse, filed a traumatic injury claim
alleging that on May 16, 2012 that she sustained multiple contusions when the knob came off of
a door she was closing, causing her to fall on the floor and land on her right hip, right shoulder,
and the back of her head. OWCP accepted her claim for contusion of the right hip, contusion of
the right shoulder, contusion of the scalp, and contusion of the coccyx on July 9, 2012.
Appellant’s attending physician, Dr. Jerry L. Jurado, a family practitioner, completed
form reports on June 6 and 14, 2012 and diagnosed contusions of the right shoulder, hip, scalp,
and the coccyx. On July 21, 2012 he diagnosed right hip pain, lower back pain, and severe
vertigo. Dr. Jurado completed a form report on September 11, 2012 diagnosing lower back pain
and right hip pain. He continued to support appellant’s total disability for work.
Dr. Monica Mehta, a Board-certified physiatrist, completed a form report on
September 29, 2012 and diagnosed lumbosacral pain syndrome and found that appellant was
totally disabled.
OWCP referred appellant for a second opinion examination with Dr. Jeffrey Lakin, a
Board-certified orthopedic surgeon, on September 13, 2012. In his September 27, 2012 report,
Dr. Lakin described appellant’s history of injury and her accepted employment conditions. He
noted that her right hip pain worsened with prolonged standing and walking. Dr. Lakin also
stated that appellant’s shoulder pain had improved, but that she continued to experience pain in
her lower back and coccyx pain increased with long sitting or standing, radiating to the right
buttocks. Appellant was able to get on and off of the examination table with minimal difficulty.
Upper extremity sensation was intact and that her head was atraumatic. Dr. Lakin reported that
appellant’s shoulder examination had negative impingement with negative anterior apprehension
and negative drop arm test and negative cross arm adduction test. Appellant was nontender over
the sternoclavicular and acromioclavicular joints.
Dr. Lakin reported that examination of the thoracic and lumbosacral spine revealed no
tenderness in the lower right paravertebral musculature and no tenderness in the bilateral
sacroiliac joints or bilateral sciatic notches. Appellant could bring her fingers within six inches
from her toes on forward flexion. Dr. Lakin stated that ankle and knee jerks were equal
bilaterally with normal muscle strength in the lower extremities. He reported full range of
motion in the right hip symmetric to the left with a negative Romberg’s sign and an
unremarkable gait. Dr. Lakin also reviewed a May 29, 2012 lumbar spine magnetic resonance
imaging (MRI) scan and found multilevel disc bulges and herniations as well as grade 1
anterolisthesis of L4 on L5 with spinal canal stenosis at L4-5 and a right paracentral annular tear
at L5-S1. He found that appellant’s right hip MRI scan showed mild degenerative changes in
both hips with mild insertional tendinosis involving the bilateral gluteus medius muscles.
Dr. Lakin reviewed the films and found no arthritis. He concluded that appellant had minimal
tenderness to the cervical and lumbosacral spine with an unremarkable right shoulder
examination. Dr. Lakin opined that she had no disabling residuals of the accepted conditions and
that there was no need for any further treatment due to her employment-related conditions. He
stated that appellant was not disabled and was capable of returning to her full-duty, date-ofinjury position. Dr. Lakin further opined that there were no objective findings that she

2

experienced an aggravation of a prior condition as a result of the employment injury. He
indicated that appellant had reached maximum medical improvement.
Dr. Mehta completed a form report on October 19, 2012 and opined that appellant could
not return to work. She diagnosed cervical radiculopathy and an illegible lumbosacral condition
with coccyx contusion. Dr. Mehta completed a narrative report on October 12, 2012 and listed
appellant’s reported back pain, inability to stand and walk, neck pain, dizziness, and right
shoulder pain. She described appellant’s employment injury. Dr. Mehta listed her findings on
physical examination as limited range of motion of the lumbar spine, with multiple varicosities
in the lower legs. Appellant had normal range of motion of the shoulders with pain. She had
difficulty in ambulation on toes as well as on heels, with dizziness when she lied down in a
supine position. Appellant demonstrated a broad-based antalgic gait. Dr. Mehta diagnosed
probable lumbosacral pain, dizziness, and vertigo secondary to her employment-related head
trauma.
She suggested that appellant had intracranial pathology which required
electroencephalogram (EEG) testing. Dr. Mehta also diagnosed probable cervical pain
syndrome, probable cervical radiculopathy, probable rotator cuff tendinitis, and probable
lumbosacral radiculopathy. She opined, “At the present time, it is my opinion within reasonable
medical probability that the above complaints are permanent in nature and are due to the trauma
sustained while at work on May 16, 2012. Dr. Mehta completed a form report on November 16,
2012 and diagnosed lumbosacral radiculopathy and herniated disc. She indicated with a
checkmark “yes” that this condition was caused or aggravated by an employment activity.
OWCP proposed to terminate appellant’s wage-loss compensation and medical benefits
in a letter dated December 18, 2012. It found that Dr. Lakin did not support appellant’s
continuing disability or her need for additional medical treatment due to her accepted
employment-related conditions. OWCP further noted that Dr. Mehta’s reports were speculative
and did not provide medical reasoning to support causal relationship between appellant’s
additional diagnosed conditions and her accepted employment injury.
Dr. Mehta submitted a narrative report dated December 26, 2012 and described
appellant’s employment injury and her medical treatment. She reported loss of range of motion
in the cervical and lumbar spine and in both shoulders. Dr. Mehta found that sensations were
diminished in the L5-S1 and C5-6 dermatomes. She stated that electromyogram (EMG) studies
revealed the presence of right S1 radiculopathy with a large fiber right deep peroneal neuropathy
at the fibular head as well as bilateral C6-7 radiculitis and moderate left median
mononeuropathy. Appellant’s MRI scan of the lumbar spine demonstrated multilevel disc
bulges and herniations with anterolisthesis of grade 1 at L4-5, spinal canal stenosis at L4-5 and
right paracentral annual tear, and disc bulging at L5-S1 contacting the exiting right L5 and
descending right S1 nerve roots. Dr. Mehta diagnosed cervical disc herniations, cervical spinal
stenosis, cervical radiculopathy, peripheral nerve compromise, lumbar disc herniation, and neural
foraminal stenosis with dizziness. She stated, “These complaints are due to trauma sustained
while at work.” Dr. Mehta found that appellant was totally disabled. She further opined that
OWCP had accepted incorrect diagnoses and that appellant’s correct diagnosis was lumbosacral
radiculopathy.

3

Dr. Mehta completed an additional form report on January 4, 2013 and diagnosed
cervical and lumbar disc herniations as well as vertigo. She indicated with a checkmark “yes”
that appellant’s conditions were caused or aggravated by her employment.
OWCP requested clarification from Dr. Lakin on February 26, 2013. In a report dated
March 4, 2013, Dr. Lakin stated that appellant had no objective findings in her right shoulder
with full motion, no tenderness, and normal motor strength. He stated that appellant’s
employment injury had resulted in a contusion to the right shoulder and no objective findings in
the right hip as she had full range of motion and an unremarkable gait. Dr. Lakin further noted
that appellant’s head was atraumatic. He stated that appellant’s coccyx and lower back were
essentially unremarkable with forward flexion to within six inches of her toes and that she was
intact neurologically. Dr. Lakin found that appellant’s accepted conditions had resolved. He
stated that appellant was capable of performing her date-of-injury job as a nurse with excellent
function of the spine and extremities.
OWCP issued a notice of proposed termination on April 3, 2013 and again proposed to
terminate appellant’s wage-loss compensation and her medical benefits due to her accepted
employment injuries. It found that Dr. Lakin’s reports were entitled to the weight of the medical
evidence.
By decision dated May 8, 2013, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective that date based on Dr. Lakin’s reports.
In a report dated May 17, 2013, Dr. Mehta reviewed her treatment of appellant and
described the employment injury. She discussed test results and diagnosed positional nystagmus
with aggravation secondary to the trauma sustained after the fall at work, cervical disc herniation
due to the trauma at work, lumbar disc herniation due to the trauma at work, internal
derangement of the shoulder due to the trauma at work, and gluteus medius and gluteus minimus
tendinitis due to the trauma at work and microvascular ischemic changes in the internal auditory
canals aggravated due to the trauma at work. Dr. Mehta opined that appellant was totally
disabled.
Appellant requested a review of the written record by an OWCP hearing representative
on May 17, 2013. She retired from the employing establishment on June 30, 2013. Dr. Mehta
submitted an additional report dated July 26, 2013 repeating her earlier findings and conclusions.
By decision dated September 6, 2013, an OWCP hearing representative found that
OWCP met its burden of proof to terminate appellant’s wage-loss and compensation benefits.
He found that Dr. Lakin’s reports were entitled to the weight of the medical evidence. The
hearing representative noted that Dr. Mehta did not provide any rationale in support of her
opinion that appellant’s employment incident resulted in more serious diagnoses than those
accepted by OWCP.
Counsel requested reconsideration on April 8, 2014. He reviewed Dr. Lakin’s report and
noted that the report did not discuss diagnostic test results. Counsel argued that there was a
conflict of medical opinion evidence between Dr. Mehta and Dr. Lakin.

4

By decision dated July 3, 2014, OWCP denied modification of the September 6, 2013
OWCP hearing representative’s decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.2 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.3 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.4 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition which require further medical treatment.5
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.6 Medical rationale includes a physician’s detailed opinion on
the issue of whether these is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and specific employment activity or factors identified by the
claimant.7
ANALYSIS -- ISSUE 1
Appellant fell in the performance of duty on May 16, 2012 and OWCP accepted her
claim for contusion of the right hip, contusion of the right shoulder, contusion of the scalp and
contusion of the coccyx on July 9, 2012. Her attending physician, Dr. Jurado, continued to
support appellant’s total disability for work through September 11, 2012 diagnosing lower back
pain and right hip pain. Dr. Mehta examined appellant on September 29, 2012 and diagnosed
lumbosacral pain syndrome finding she was totally disabled.
OWCP then referred appellant for a second opinion evaluation with Dr. Lakin, who
reviewed the statement of accepted facts and performed a physical examination. Dr. Lakin stated
that appellant was able to get on and off the examination table with minimal difficulty and that
she had an unremarkable gait. He reported that upper extremity sensation was intact and that her
head was atraumatic. Dr. Lakin reported that appellant had negative impingement of the right
2

Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

Id.

4

Furman G. Peake, 41 ECAB 361, 364 (1990).

5

Id.

6

T.F., 58 ECAB 128 (2006).

7

A.D., 58 ECAB 149 (2006).

5

shoulder with negative anterior apprehension and negative drop arm test and negative cross arm
adduction test. He stated that ankle and knee jerks were equal bilaterally with normal muscle
strength in the lower extremities. Dr. Lakin reported full range of motion in the right hip
symmetric to the left with a negative Romberg’s sign and an unremarkable gait. He concluded
that appellant had minimal tenderness to the cervical and lumbosacral spine with an
unremarkable right shoulder examination. Dr. Lakin opined that appellant had no disabling
residuals of the accepted conditions and that there was no need for any further treatment due to
her employment-related conditions. He stated that appellant was not disabled and was capable of
returning to her full-duty, date-of-injury position. Dr. Lakin further opined that there were no
objective findings that appellant experienced an aggravation of a prior condition as a result of the
employment injury.
In his supplemental report on March 4, 2013, Dr. Lakin responded to inquiries from
OWCP and stated that appellant had no objective findings in her right shoulder with full motion,
no tenderness and normal motor strength as a result of her employment-related right shoulder
contusion. He reported no objective findings in the right hip noting appellant had full range of
motion and an unremarkable gait. Dr. Lakin also stated appellant’s head was atraumatic on his
examination. He reported that appellant’s coccyx and lower back were essentially unremarkable
with forward flexion to within six inches of her toes. Dr. Lakin opined that appellant was intact
neurologically. He concluded that appellant’s accepted conditions had resolved. Dr. Lakin
stated that appellant was capable of performing her date-of-injury job as a nurse with excellent
function of the spine and extremities.
The Board finds that Dr. Lakin’s reports are sufficiently detailed and well-reasoned to
constitute the weight of the medical opinion evidence and to meet OWCP’s burden of proof to
terminate appellant’s wage-loss compensation and medical benefits. Dr. Lakin based his report
of the statement of accepted facts and provided detailed findings on physical examination. He
found that appellant’s accepted right shoulder contusion had resolved. Dr. Lakin found that her
head was atraumatic and that her head contusion had therefore resolved. He found no positive
neurological findings in the spine or extremities and stated that appellant’s gait was
unremarkable supporting his opinion that appellant’s hip and coccyx contusions had resolved.
Dr. Lakin further clearly opined that appellant could return to her date-of-injury position and that
she had no medical residuals. His reports are sufficient to meet OWCP’s burden to terminate
appellant’s wage-loss compensation and medical benefits for her accepted conditions of
contusions to the scalp, shoulder, hip, and coccyx.
Appellant submitted a series of reports from Dr. Mehta supporting additional diagnosis
and periods of disability. The Board finds that these reports do not support continuing disability
or medical residuals due to the accepted diagnoses of contusions to the scalp, shoulder, hip, and
coccyx. Dr. Mehta specifically stated that she disagreed with the diagnoses accepted by OWCP
and attributed appellant’s continuing disability to a variety of conditions including cervical disc
herniations, cervical spinal stenosis, cervical radiculopathy, peripheral nerve compromise,
lumbar disc herniation, and neural foraminal stenosis with dizziness. While she opined that
appellant’s conditions were due to her employment incident, Dr. Mehta failed to provide any
medical reasoning supporting her opinion. Dr. Mehta did not explain how the diagnosed
conditions would result from the accepted fall and did not explain the delay in the onset of
symptoms beyond those accepted by OWCP and initially diagnosed by Dr. Jurado. She further

6

found that appellant was totally disabled due to the additional diagnosed conditions rather than as
a result of her accepted employment injuries.
Dr. Mehta also submitted a series of form reports indicating with a checkmark “yes” that
various diagnosed conditions were due to appellant’s employment incident and opining that
appellant was totally disabled. The Board has held that an opinion on causal relationship which
consists only of a physician checking “yes” to a medical form report question on whether the
claimant’s condition and resulting disability was related to the history given is of little probative
value. Without any explanation or rationale for the conclusion reached, such report is insufficient
to establish causal relationship.8 As Dr. Mehta failed to provide any medical rationale supporting
her opinions that appellant’s sustained additional conditions and disability due to her accepted
May 16, 2012 employment injury, she failed to support appellant’s claim for additional
conditions with medical residuals and resulting disability for work.
Contrary to the arguments of counsel, the Board finds that Dr. Mehta’s reports are not
sufficiently detailed and well-reasoned to create a conflict with Dr. Lakin’s reports and that OWCP
therefore met its burden of proof to terminate appellant’s wage-loss compensation and medical
benefits effective May 8, 2013.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to appellant to establish that she had disability causally related to her accepted
employment injury.9 In order to prevail, appellant must establish by the weight of the reliable,
probative and substantial evidence that she had an employment-related disability and medical
residuals which continued after termination of compensation benefits.10 To establish a causal
relationship between the condition, as well as any disability claimed, and the employment injury,
the employee must submit rationalized medical opinion evidence, based on a complete factual
background, supporting such a causal relationship. Rationalized medical opinion evidence is
medical evidence which includes a physician’s detailed opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant. The weight of medical evidence
is determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.11

8

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

9

George Servetas, 43 ECAB 424, 430 (1992).

10

I.J., 59 ECAB 408 (2008).

11

James Mack, 43 ECAB 321 (1991).

7

ANALYSIS -- ISSUE 2
OWCP terminated appellant’s wage-loss compensation and medical benefits upon a
finding that Dr. Mehta did not provide any rationale in support of her opinion that appellant’s
employment incident resulted in more serious diagnoses than those accepted by OWCP.
Following OWCP’s termination of appellant’s wage-loss and medical benefits effective May 8,
2013, appellant continued to submit reports from Dr. Mehta. On May 17, 2013 Dr. Mehta
reviewed her treatment of appellant and described the employment injury. She discussed test
results and diagnosed positional nystagmus with aggravation secondary to the trauma sustained
after the fall at work, cervical disc herniation due to the trauma at work, lumbar disc herniation
due to the trauma at work, internal derangement of the shoulder due to the trauma at work,
gluteus medius and gluteus minimus tendinitis due to the trauma at work, and microvascular
ischemic changes in the internal auditory canals aggravated due to the trauma at work.
Dr. Mehta opined that appellant was totally disabled.
Dr. Mehta’s opinion regarding the causal relationship between appellant’s currently
diagnosed conditions and her accepted employment incident is not sufficient to meet appellant’s
burden of establishing new injuries related to her May 16, 2012 traumatic injury or to establish
continuing disability due to this incident. She has provided evidence that appellant suffers from
the conditions diagnosed. Dr. Mehta has not, however, provided the necessary medical rationale
explaining how the diagnosed conditions were caused or aggravated by the accepted employment
incident. The Board is unable to determine from Dr. Mehta’s reports how conditions such as
positional nystagmus or microvascular ischemic changes in the auditory canals would be
aggravated by appellant’s fall which immediately resulted in only the diagnosis of contusions.
Dr. Mehta also fails to explain the processes by which appellant’s employment incident caused
or aggravated her spinal injuries or internal derangement of the shoulder or her gluteus
tendonitis. Her reports are insufficient to establish disability or medical residuals continuing
after May 8, 2013 due to the accepted employment injury as her reports presently of record do
not provide any rationale in support of her opinion that appellant’s employment incident resulted
in more serious diagnoses than those accepted by OWCP.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
and medical benefits effective May 8, 2013. The Board further finds that appellant has not
submitted sufficient rationalized medical opinion evidence to establish any continuing disability
or medical residuals after that date due to her May 16, 2012 employment injury.

8

ORDER
IT IS HEREBY ORDERED THAT the July 3, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 10, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, PLAZA STATION,
Pasadena, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-209
Issued: June 16, 2008

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 October 30, 2007 appellant filed a timely appeal from a May 9, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for a
prerecoupment hearing and a May 18, 2007 merit decision finding that she received an
overpayment of compensation and that she was at fault in its creation. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the overpayment decision and over the
May 9, 2007 nonmerit decision.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for a
prerecoupment hearing; (2) whether appellant received an overpayment of $5,622.23 for the
period August 7 through November 4, 2000 because she received compensation from the Office
and sick and annual leave from the employing establishment; and (3) whether the Office properly
found that she was at fault in creating the overpayment, thereby precluding waiver of the
recovery of the overpayment.

FACTUAL HISTORY
This case is before the Board for the second time. On February 28, 2007 the Board
affirmed an August 11, 2005 decision reducing appellant’s compensation to zero effective
September 14, 2004 as her actual earnings as a video coding specialist fairly and reasonably
represented her wage-earning capacity.1 The Board also affirmed in part and set aside in part a
May 11, 2006 hearing representative’s decision affirming the loss of wage-earning capacity
determination and finding that the Office properly calculated appellant’s pay rate for
compensation purposes. The Board determined that the Office erred in calculating appellant’s
pay rate for compensation purposes from August 7, 2000 to September 14, 2004.2 The Board
found that, as appellant did not establish entitlement to compensation prior to August 7, 2000,
the Office should have paid her compensation based on the pay rate in effect on that date of
$766.71 per week. The hearing representative acknowledged that the Office owed appellant
additional compensation because it paid her at an inaccurate pay rate but found that it corrected
the error by subtracting the amount it owed her from an overpayment that was created when she
received compensation for total disability from August 7 to November 2, 2000 while also
receiving leave from the employing establishment. The Board noted that such an offset was
improper as it might permit an unrestricted recovery of the offset portion of the overpayment
without regard to the relevant factors set forth in the Office’s regulations. The Board remanded
the case for the Office to further develop the issue of the appropriate pay rate. The findings of
fact and conclusions of law from the prior decision are hereby incorporated by reference.
The record establishes that appellant received sick and annual leave from the employing
establishment from August through November 2000. She also received compensation for
disability from the Office during this period. On March 6, 2007 the Office informed appellant of
its preliminary determination that she received an overpayment of compensation in the amount
of $5,622.23 because she received compensation for total disability from August 7 through
November 4, 2000 while also receiving leave from the employing establishment. The Office
noted that the period did not include 24 hours of leave without pay used from October 10 to 13,
2000 and 6 hours of leave without pay used from November 3 to 4, 2000. The Office further
found that appellant received compensation at an inaccurate pay rate from August 7, 2000
through September 13, 2004. The Office related “[T]he claimant’s pay rate was tentatively
determined using the pay rate effective on March 10, 2000 as it was unclear at the time whether
compensation would be paid back to March. Therefore, the annual salary of $39,515.00
($759.90 per week) was used instead of the correct annual salary in effect on August 7, 2000 of
$39,869.00 ($766.71 per week).” The Office calculated that, using the correct pay rate and
excluding the dates she received leave from the employing establishment, it owed appellant
1

Docket No. 06-1620 (issued February 28, 2007). Appellant, a 43-year-old window clerk, filed an occupational
disease claim on January 25, 2001, which the Office accepted for cervical and right shoulder strain. The Office paid
her compensation beginning August 7, 2000 based on her pay rate effective March 10, 2000, the date she claimed
compensation for disability. Appellant had not established entitlement to compensation for disability before
August 7, 2000. The Office indicated, however, that it would pay appellant compensation based on her March 10,
2000 pay rate of $39,515.00 a year, or $759.90 per week, to prevent a possible overpayment of compensation. The
Office asserted that it would owe her additional compensation based on her August 7, 2000 pay rate of $39,869.00
per year if she did not establish entitlement to compensation beginning March 10, 2000.
2

See supra note 1.

2

$119,195.32 for the period August 7, 2000 through September 13, 2004. The Office paid her
$124,817.55 in compensation at the incorrect rate and during the time she received leave from
the employing establishment, which resulted in an overpayment of $5,622.23. The Office
informed appellant of its preliminary finding that she was at fault in creating the overpayment as
she should have known that she could not receive leave and compensation for disability at the
same time. It requested that she complete the enclosed overpayment recovery questionnaire and
notified her 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.
By letter dated April 4, 2007, postmarked April 6, 2007, appellant challenged the finding
that she received an overpayment of compensation. She argued that receiving leave differed
from receiving compensation. Appellant returned the overpayment recovery questionnaire with
notations that its questions were inapplicable. She also marked through the option to request a
telephone conference or a decision based on the written evidence. Appellant did not mark
through the request for a hearing.
In a decision dated May 9, 2007, the Office denied appellant’s request for a
prerecoupment hearing as a matter of right on the grounds that it was untimely. The Office
found that she could submit evidence regarding the overpayment to the Office.
By decision dated May 18, 2007, the Office finalized its preliminary determination that
appellant received a $5,622.23 overpayment of compensation for the period August 7 through
November 4, 2000, excluding 24 hours of leave without pay from October 10 to 13, 2000 and 6
hours of leave without pay from November 3 to 4, 2000. It excluded from the overpayment the
underpayment that was created when it paid her at an inaccurate pay rate from August 7, 2000
through September 13, 2004. The Office also finalized its finding that appellant was at fault in
creating the overpayment as she should have known that she could not receive compensation for
disability and leave from the employing establishment. The Office found that she should
forward a check for the full amount to repay the overpayment.
LEGAL PRECEDENT -- ISSUE 1
The Office’s procedures on the recovery of overpayments are found in the Code of
Federal Regulations at 20 C.F.R. § 10.321. The regulations provide that, before collecting an
overpayment, the Office must provide the claimant with written notice of the fact and amount of
overpayment, the finding of fault, the right to submit evidence challenging the fact, amount or
finding of fact and the right to request waiver of the overpayment.3 The regulations also provide
that a claimant is entitled to submit additional evidence in writing or at prerecoupment hearing,
that a prerecoupment hearing must be requested within 30 days of the date of the written notice
of overpayment and that failure to request the hearing within this 30-day time period shall
constitute a waiver of that right.4

3

20 C.F.R. § 10.431.

4

20 C.F.R. § 10.432.

3

ANALYSIS -- ISSUE 1
The Office notified appellant of its preliminary determination that she received an
overpayment of compensation in a letter dated March 6, 2007. The Office informed her that she
could request a telephone conference, a prerecoupment hearing or a final decision based on the
written evidence within 30 days of the date of the letter. Appellant requested a prerecoupment
hearing by letter postmarked April 6, 2007. As her request was postmarked more than 30 days
after the Office’s notification of overpayment, it was untimely. Thus, under the regulations
appellant waived her right to a prerecoupment hearing.5 Accordingly, the Office properly denied
her request for a prerecoupment hearing.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of the Federal Employees’ Compensation Act6 provides that when an
overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Office by decreasing later payments to which the
individual is entitled.7 The Office’s regulations state in pertinent part: “compensation for wage
loss due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.”8
Section 8116(a) of the Act provides that an employee who is receiving compensation for
an employment injury may not receive wages for the same time period.9 Section 8118(c) of the
Act provides that compensation for disability does not begin until termination of continuation of
pay or the use of annual or sick leave ends.10
ANALYSIS -- ISSUE 2
The Board finds that the Office properly determined that appellant received an
overpayment of compensation. From August 7 through November 4, 2000, she received wageloss compensation for total disability from the Office and sick and annual leave from the
employing establishment.11 As appellant used leave from the employing establishment, she was
not entitled to receive compensation for disability from the Office.12 She thus received an
overpayment of compensation from August 7 through November 4, 2000, excluding 30 hours of
5

Id.

6

5 U.S.C. §§ 8101-8193.

7

Id. at § 8129.

8

20 C.F.R. § 10.500.

9

5 U.S.C. § 8116(a).

10

Id. at § 8118(c).

11

The Office properly excluded from this period 30 hours of leave without pay.

12

5 U.S.C. § 8118(c).

4

leave without pay, because she received both leave from the employing establishment and
compensation for total disability from the Office.
The Board further finds that the Office properly determined that she received an
overpayment of $5,622.23. The Office calculated that it should have paid appellant $119,195.32
from August 7, 2000 to September 14, 2004 using the appropriate higher pay rate in effect on
August 7, 2000 of $766.71 and excluding the periods in which she received leave from the
employing establishment.13 The Office subtracted $119,195.32 from $124,817.55, the amount of
compensation it paid her using the incorrect pay rate and during the time she received leave from
the employing establishment from August 7 to November 4, 2000, to find a total overpayment of
$5,622.23.
Appellant has not challenged the amount of the overpayment but instead contends that
she is entitled to receive both leave and compensation. She asserts that she needed to take paid
leave rather than leave without pay in order to protect her position. The Act, however,
specifically prohibits receiving wage-loss compensation from the Office while using annual or
sick leave.14
Appellant further argues that the Office should not have withheld its underpayment of
compensation during the period August 7, 2000 to September 14, 2004 when it paid her at an
inaccurate pay rate as a partial recovery of the overpayment. Such an offset is not allowed if it
permits an unrestricted recovery of the offset portion of the overpayment without regard to the
factors set forth in the Office’s regulations for considering waiver as it denies an appellant due
process rights with respect to the amount offset.15 In this case, however, the Office found that
she was at fault in the creation of the overpayment and thus not entitled to wavier of the recovery
of any portion of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of the Act16 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.” Section 10.433 of the Office’s implementing regulations17
provides that, in determining whether a claimant is at fault, the Office will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
13

On prior appeal, the Board found that the Office should have paid appellant based on the pay rate in effect on
August 7, 2000, the date disability began. See supra note 1.
14

5 U.S.C. § 8118(c).

15

Id.

16

5 U.S.C. § 8129(b).

17

20 C.F.R. § 10.433.

5

“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be incorrect.”
The regulation further provides that each recipient of compensation benefits is
responsible for taking all reasonable measure to ensure that payments he or she receives from the
Office are proper.18 Whether the Office determines that an individual was at fault with respect to
the creation of an overpayment depends on the circumstances surrounding the overpayment.19
The degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.20
ANALYSIS -- ISSUE 3
The Office found that appellant was at fault in the creation of the overpayment because
she accepted payments which she knew or should have known to be incorrect. The Office must
show that, at the time appellant received the compensation checks in question, she knew or
should have know that the payment was incorrect.21 With respect to whether an individual is
with fault, section 10.433(b) provides that the issue of fault depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the complexity of
those circumstances and the individual’s capacity to realize that he or she is being overpaid.22
Appellant received sick or annual leave from the employing establishment while also
receiving compensation for total disability from the Office for the period August 7 through
November 4, 2000, excluding 30 hours of leave without pay. The question is whether she
accepted payments she knew or should have known to be incorrect when she accepted the
Office’s compensation payments.
The Board finds that appellant was at fault in creating the overpayment which occurred
from August 7 through November 4, 2000. She acknowledged that she took leave during the
time in question but contends that she is entitled to both compensation and leave. In applying the
tests to determine fault, the Office applies a “reasonable person” test.23 While appellant argued
that she was entitled to both disability compensation and leave, it was not reasonable for her to
expect that she could receive compensation for total disability from the Office and also sick or

18

Id.

19

Id. at § 10.433(b).

20

Id.

21

See Otha J. Brown, 56 ECAB 228 (2004); Karen K. Dixon, 56 ECAB 145 (2004).

22

Supra note 19.

23

Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

6

annual leave from the employing establishment. The Board thus finds that, under the
circumstances of the case, she is not without fault in the creation of the overpayment.24
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a prerecoupment
hearing. The Board further finds that she received an overpayment of $5,622.23 for the period
August 7 through November 4, 2000 because she received compensation from the Office and
sick and annual leave from the employing establishment and that she was not without fault in
creating the overpayment, thus precluding waiver of the recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 18 and 9, 2007 are affirmed.
Issued: June 16, 2008
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

24

The Board does not have jurisdiction to review the Office’s finding that she should repay the entire amount of
the overpayment in full. The Board’s jurisdiction is limited to reviewing those cases where the Office seeks
recovery from continuing compensation under the Act. See 20 C.F.R. § 10.441(a); Ronald E. Ogden, 56 ECAB
278 (2005).

7