United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________________________________________ )
W.W., Appellant

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

Docket No. 08-296
Issued: May 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 7, 2007 appellant filed a timely appeal from an October 5, 2007 merit
decision of the Office of Workers’ Compensation Programs denying her claim for an increased
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
schedule award decision.
ISSUE
The issue is whether appellant has more than a five percent permanent impairment of
each upper extremity for which she previously received a schedule award.
FACTUAL HISTORY
This case is before the Board for the second time. In the first appeal, the Board set aside
February 11, April 7 and August 4, 2005 decisions denying appellant’s claim for a schedule

award.1 The Board remanded the case for the Office to develop the issue of whether appellant
sustained a permanent impairment of the upper extremities due to her accepted bilateral carpal
tunnel syndrome and bilateral enthesopathy of the wrists and carpus. The findings of fact and
conclusions of law from the prior decision are incorporated by reference.
On November 29, 2005 Dr. Mehdi N. Adham, a Board-certified surgeon, diagnosed
bilateral recurrent carpal tunnel syndrome, worse on the right, and cubital tunnel syndrome. On
examination he found a positive Tinel’s sign and Phalen’s test. Dr. Adham recommended a
recurrent right carpal tunnel release and a cubital tunnel release.
On February 16, 2006 the Office referred appellant to Dr. John Hughes, an osteopath, for
an impairment evaluation. Based on his findings, in a decision dated April 25, 2006, the Office
granted appellant a schedule award for a five percent permanent impairment of each upper
extremity.
On June 29, 2006 Dr. Adham performed a right cubital canal release and a right recurrent
carpal tunnel release with neurolysis of the median nerve. On March 7, 2007 he performed a left
cubital canal release and a recurrent left carpal tunnel release.
In a progress report dated May 17, 2007, Dr. Adham discussed appellant’s complaints of
burning in the right long finger. He found that she had good sensation and range of motion of
the left hand. Dr. Adham recommended that appellant continue with her current work
restrictions. He noted that she had received a schedule award for a five percent permanent
impairment of the right and left hands pursuant to the American Medical Association, Guides to
the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides).
On September 17, 2007 an Office medical adviser reviewed Dr. Adham’s May 17, 2007
report. He opined that it did not support that appellant sustained an increased impairment of the
upper extremities. The Office medical adviser concluded that the record contained no medical
evidence showing that she was entitled to a greater schedule award.
By decision dated October 5, 2007, the Office denied appellant’s claim for an increased
schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,2 and its
implementing federal regulations,3 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
1

Docket No. 05-1753 (issued January 3, 2006). On August 15, 2002 appellant, then a 47-year-old education
technician, filed an occupational disease claim alleging that she sustained bilateral carpal tunnel syndrome due to her
work duties. The Office accepted the claim for bilateral enthesopathy of the wrists and carpus and bilateral carpal
tunnel syndrome. Appellant underwent right and left carpal tunnel releases on January 23 and July 24, 2003.
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

2

functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides (5th ed. 2001) as the uniform standard
applicable to all claimants.4 Office procedures direct the use of the fifth edition of the A.M.A.,
Guides, issued in 2001, for all decisions made after February 1, 2001.5
A claim for an increased schedule award may be based on new employment exposure;
however, additional occupational exposure is not a prerequisite. Absent additional employment
exposure, an increased schedule award may also be based on medical evidence demonstrating
that the progression of an employment-related condition has resulted in a greater permanent
impairment than previously calculated.6
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome and
bilateral enthesopathy of the wrists and carpus due to factors of her federal employment. She
underwent a right carpal tunnel release on January 23, 2003 and a left carpal tunnel release on
July 24, 2003. By decision dated April 25, 2006, the Office granted appellant a schedule award
for a five percent permanent impairment of each upper extremity.
On June 29, 2006 Dr. Adham performed a right cubital canal release and a right recurrent
carpal tunnel release with neurolysis of the median nerve. On March 7, 2007 he performed a
recurrent left carpal tunnel release and cubital canal release. In a progress report dated May 17,
2007, Dr. Adham determined that appellant had good sensation and range of motion of the left
hand and a burning sensation in the right long finger. He noted that she had received a schedule
award for a five percent permanent impairment of each hand. Dr. Adham did not find that
appellant had any impairment greater than that previously awarded. An Office medical adviser
reviewed Dr. Adham’s report and determined that it did not establish that appellant had an
additional impairment to the upper extremities.
Where a claimant has previously received a schedule award and subsequently claims an
additional schedule award due to a worsening of his or her condition, the claimant bears the
burden of proof to establish a greater impairment causally related to the employment injury.7
The medical evidence must also support that she has reached maximum medical improvement.8
Appellant has not provided any medical evidence to establish either that she has more than a five
percent permanent impairment of each upper extremity or that she reached maximum medical
4

20 C.F.R. § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

6

Linda T. Brown, 51 ECAB 115 (1999).

7

Edward W. Spohr, 54 ECAB 806 (2003).

8

A schedule award is not payable until a claimant has reached maximum medical improvement. The
determination of maximum medical improvement is factual in nature and depends primarily on the medical
evidence. See Peter C. Belkind, 56 ECAB 580 (1994).

3

improvement following her surgeries for recurrent carpal tunnel syndrome. The Office therefore
properly denied her claim for an increased schedule award.
On appeal, appellant disagreed with Dr. Adham’s assessment of her permanent
impairment as she was not yet one year post surgery. She requested a second opinion
examination on the extent of her permanent impairment. Appellant also described her
difficulties performing the activities of daily living. As discussed, however, she has the burden
of proof to provide an opinion consistent with the A.M.A., Guides supporting a greater degree of
permanent impairment than that previously awarded.9 The record contains no medical evidence
showing that appellant has more than a five percent permanent impairment of each upper
extremity and thus she has not met her burden of proof.
CONCLUSION
The Board finds that appellant has no more than a five percent permanent impairment of
each upper extremity for which she previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 5, 2007 is affirmed.
Issued: May 20, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

See Edward W. Spohr, supra note 7.

4


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

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)

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

Docket No. 10-1095
Issued: February 18, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 15, 2010 appellant filed a timely appeal from an October 16, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether the Office properly terminated appellant’s entitlement to monetary
compensation effective October 25, 2009 on the grounds she refused an offer of suitable work.
FACTUAL HISTORY
On May 7, 1999 appellant, then a 38-year-old part time flexible mail processing clerk,
filed an occupational disease claim alleging that repetitive work activities caused a bilateral
wrist/hand condition. The Office accepted the claim for bilateral carpal tunnel syndrome and

authorized multiple carpal tunnel release surgeries.1 After each surgery, appellant eventually
returned to full-time limited-duty work. On May 24, 2007 she was released to full-time limited
duty with restrictions. On September 4, 2008 appellant underwent a functional capacity
evaluation (FCE) which indicated she could perform simple grasping/fine manipulation for no
more than 30 minutes continuously, could overhead lift and reach up to 15 pounds occasionally,
could carry with two hands and lift no more than 10 pounds frequently and no more than 20
pounds occasionally, could stand and lift no more than 20 pounds frequently and 30 pounds
occasionally, could push no more than 48 pounds occasionally and could pull no more than 58
pounds occasionally. It also noted appellant could not stoop, squat, kneel or crawl due to
nonwork-related knee condition. Appellant stopped work on October 8, 2008. The Office
accepted a recurrence of disability and placed her on its periodic compensation rolls. Appellant
did not return to work.
In an October 7, 2008 form report, appellant’s attending physician, Dr. Keith A. Kattner,
an osteopath specializing in neurosurgery, advised appellant would be off work indefinitely until
she could be accommodated within the FCE results of September 4, 2008.
On October 16, 2008 the employing establishment offered appellant limited-duty work
based on the September 4, 2008 FCE. The work involved nixie mail and sales and service
positions. In an October 16, 2008 letter, the Office requested that Dr. Kattner review the
proposed activities of nixie mail and sales and service positions to see if appellant could perform
those duties.
On December 17, 2008 Dr. Kattner indicated that appellant had cervical radiculopathy.
He advised that she could return to work within the September 4, 2008 FCE recommendations
and with no repetitive reaching or pulling. Dr. Kattner also indicated that appellant could do
“supervisory work.” In a December 27, 2007 report, he stated her symptoms seemed to be
worsening due to the type of work she did. Dr. Kattner recommended that appellant be placed in
a job which did not require aggressive use of her hands.
In a January 28, 2009 letter, the Office requested that Dr. Kattner review and indicate
whether appellant could perform the physical duties of the jobs outlined in the employing
establishment’s letter of October 16, 2008. Dr. Kattner was provided a copy of the October 16,
2008 job offer and asked to provide restrictions which would allow her to return to work if he
found that the offered position was not suitable.
On February 24, 2009 the Office referred appellant to Dr. Lisa E. Snyder, a Boardcertified physiatrist and second opinion physician.
In a March 24, 2009 report, Dr. Kattner set forth appellant’s treatment history and
complaints of continued symptoms and pain. In an April 27, 2009 OWCP-5c form, he opined
that she could work full-time limited duty with restrictions. Appellant was restricted from
repetitive reaching and repetitive reaching above shoulder, could engage in repetitive movements
1

The record reflects appellant underwent left carpal tunnel releases on April 21, 1999 and January 10, 2007. She
had right carpal tunnel releases performed on January 27, 2000 and October 25, 2006. Appellant also underwent
nonwork-related ulnar nerve transposition surgery on August 16, 1999.

2

of the wrists and elbow for no more than one hour a day, could push and pull no more than 40
pounds for one hour a day, and could lift no more than 20 pounds for 30 minutes a day.
Dr. Kattner further advised that she was unable to bend/stoop, kneel and climb.
Based on Dr. Kattner’s April 27, 2009 work restrictions, the employing establishment
offered appellant an updated modified sales and service distribution associate position doing
nixie mail and sales and services duties effective May 21, 2009. The position had no restrictions
on standing, walking or twisting; total restriction on squatting, kneeling and bending/stooping;
lifting and carrying no more than 20 pounds per 30 minutes; pushing weight no more than 40
pounds for one hour and climbing and repetitive movements limited to one hour a day with no
repetitive movements for overhead and normal reaching. The position description described
appellant’s duties and noted that the duties were to be performed intermittently and tasks
performed at her own pace with breaks to avoid repetition.
In a June 19, 2009 report, Dr. Snyder noted the history of injury and that appellant had
not worked since October 2008. She reviewed the statement of accepted facts as well as the
medical record. Examination of the upper extremities demonstrated normal tone and full range
of motion (ROM) throughout the shoulders, elbows, wrists and digits, without any evidence of
muscle wasting or atrophy. The neurological examination revealed good manual muscle
strength, with normal strength in the biceps, triceps and shoulder abduction. The cervical ROM
was noted to be full in all planes of movement. Dr. Snyder noted that, since the FCE, appellant
had decreased grip strength and a positive Tinel’s sign at both wrists and elbows. In her report
as well as in an OWCP-5c form, Dr. Snyder opined that appellant could perform limited-duty
work with restrictions of no lifting or carrying beyond 35 pounds seldomly and frequent lifting,
carrying, pushing and pulling of no more than 20 pounds.
On July 7, 2009 Dr. Kattner opined that appellant was not capable of performing the
duties contained in the May 21, 2009 modified job offer. On July 17, 2009 the employing
establishment advised the Office that Dr. Kattner did not concur with its updated job offer of
May 21, 2009 and did not explain his decision or recommend any changes.
On July 20, 2009 the Office requested that Dr. Snyder review the employing
establishment’s May 21, 2009 modified job offer and indicate whether it was within appellant’s
restrictions.
On August 3, 2009 the Office received treatment notes from Dr. Kattner dated
February 12, March 19 and July 7, 2009. The February 12, 2009 note indicated that appellant
was seen for neck and shoulder pain and that a magnetic resonance imaging (MRI) scan showed
bilateral foraminal stenosis at C5-6. The March 19, 2009 note indicated that she had positive
Phalen’s sign on the left and Tinel’s sign bilaterally. There was also evidence of cubital tunnel
syndrome with flexion of appellant’s elbow and moderately decreased grip strength in both
hands. The July 7, 2009 note indicated there were no changes in her work-related restrictions.
In an August 3, 2009 report, Dr. Snyder reviewed Dr. Kattner’s April 27, 2007 work
restrictions along with the employing establishment’s May 21, 2009 modified job offer. She
advised that the restrictions in the May 21, 2009 modified job offer corresponded to those of

3

Dr. Kattner. Dr. Snyder opined that, upon review of appellant’s chart and previous FCE,
appellant was able to perform the physical duties of the May 21, 2009 modified job offer.
In an August 19, 2009 letter, the Office advised appellant that the modified sales and
service distribution associate position offered effective May 21, 2009 was suitable with her work
capabilities and that the position remained open and available to her. It informed her of the
penalty provisions of 5 U.S.C. § 8106(c)(2) regarding refusal of suitable work and allowed her
30 days to accept the position or to explain her reasons for rejecting the position.
On September 8, 2009 the employing establishment indicated that appellant refused the
proposed job offer.
In a September 23, 2009 letter, the Office informed appellant that her reasons for refusing
the position had been considered and were not found acceptable. Appellant was afforded an
additional 15 days to accept the position or provide medical evidence to support that she was not
capable of returning to modified work.
The Office subsequently received medical reports from Dr. Kattner dated August 24 and
October 7, 2009. In his August 24, 2009 report, Dr. Kattner noted that appellant was apparently
approved to return to servicing customers working at the counter and advised that it was his
impression that over-the-counter working required typing, reaching, handling packages which
would continue to aggravate her arm neuropathies. He stated his recommendation continued to
be no repetitive activities, which included a combination of typing, handling packages and
reaching over the counter. Dr. Kattner opined that appellant was best suited in a position that
would allow her to limit her lifting to 30 pounds with no combination of activity that would
result in arm symptoms. In his October 7, 2009 report, he stated that the August 19, 2009
modified assignment was not acceptable because she was not allowed to do repetitive activity at
all with her arms due to her overuse syndrome. Dr. Kattner indicated that “it would seem that
this modified assignment continues to aggravate her arm and requires a significant amount of
reaching, working on keyboards and handling mail, which are the things that have currently
disabled her.”
By decision dated October 16, 2009, the Office terminated appellant’s entitlement to
monetary compensation and schedule award benefits finding that she had refused an offer of
suitable employment. The weight of the medical evidence rested with the second opinion of
Dr. Snyder. Appellant’s entitlement to medical benefits was not terminated.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 Section 8106(c)(2) of the Federal Employees’
Compensation Act3 provide that a partially disabled employee who refuses or neglects to work
after suitable work is offered to, procured by or secured for the employee is not entitled to
2

Barry Neutach, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995).

3

5 U.S.C. §§ 8101-8193.

4

compensation.4 The Office may not terminate compensation without establishing that the
disability ceased or that it is no longer related to the employment.5 The Board has held that, as
monetary compensation payable to an employee under section 8107 are payments made from the
Employees’ Compensation Fund, they are subject to the penalty provision of section 8106(c).6
Section 10.517(a) of the Act’s implementing regulations provide that an employee who
refused to work after suitable work has been offered to or secured for the employee, has the
burden of showing that such refusal or failure to work was reasonable or justified.7 Pursuant to
section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.8
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome while in the
performance of her job duties. While appellant returned to work for short periods of time
following carpal tunnel releases, she stopped work on October 8, 2008 and received wage loss
for total disability. The Office terminated her compensation benefits effective on October 25,
2009, finding that the May 21, 2009 offered position was medically suitable.
The employing establishment offered appellant a modified sales and service distribution
associate position doing nixie mail and sales and services duties effective on May 21, 2009. This
was based on Dr. Kattner’s April 27, 2009 work restrictions. The physical requirements for the
position included: total restriction on squatting, kneeling and bending/stooping; a lifting and
carrying restriction of no more than 20 pounds per 30 minutes; a pushing restriction of no more
than 30 pounds a hour; and climbing and repetitive movements restricted to one hour a day with
no repetitive movements for overhead and normal reaching. Appellant was specifically
instructed to perform the duties of the modified position on an intermittent basis with breaks to
avoid any repetition.
The issue of whether an employee has the physical ability to perform a modified position
is a medical question that must be resolved by probative medical evidence.9 The Board finds
that the physical requirements of the offered modified sale and service distribution associate
position fall within appellant’s work restrictions.
In a June 19, 2009 report, Dr. Snyder reviewed appellant’s medical record, a statement of
accepted facts and described her physical examination. She advised that there were current
residuals of the accepted work injury, appellant could return to limited-duty work. Dr. Snyder
4

Id. at § 8106(c)(2); see also Linda D. Guerrero, 54 ECAB 556 (2003).

5

Ronald M. Jones, 52 ECAB 190 (2000); Arthur R. Reck, 47 ECAB 339 (1995).

6

Sandra A. Sutphen, 49 ECAB 174 (1997); Stephen R. Lubin, 43 ECAB 564 (1992).

7

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 5.

8

See id. at § 10.516; see Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

9

See Gayle Harris, 52 ECAB 319 (2001).

5

listed restrictions of no lifting or carrying beyond 35 pounds seldom and frequent lifting,
carrying, pushing and pulling of no more than 20 pounds. She was provided with a copy of the
May 21, 2009 offered position. In an August 3, 2009 report, Dr. Snyder advised the restrictions
noted on the May 21, 2009 job offer corresponded to Dr. Kattner’s April 27, 2007 work
restrictions. Upon review of appellant’s records and the previous FCE, she opined that appellant
was able to perform the duties of the May 21, 2009 modified job offer.
The Board finds that Dr. Snyder provided a complete and rationalized opinion based on
an accurate factual and medical background. Dr. Snyder’s opinion that appellant could return to
full-time limited-duty work with restrictions and that the May 21, 2009 modified job offer was
within appellant’s physical capabilities is accorded the weight of the medical opinion evidence.
Appellant did not submit sufficient medical evidence showing that she could not return to the
limited-duty work as set forth in the May 21, 2009 modified job offer. The position offered by
the employing establishment was based on Dr. Kattner’s April 27, 2007 work restrictions.
Dr. Kattner’s July 7, 2009 report opined that appellant could not perform the duties of the offered
position but he provided no reasoning regarding the basis of his opinion. Although he later
submitted reports recommending no repetitive activities, his reports did not contain a rationalized
opinion explaining how or why appellant was now medically unable to perform the May 21,
2009 modified job offer. Moreover, Dr. Kattner’s later reports appear to base his opinion on his
impression of the perceived duties of the modified position, not the actual duties of the modified
position. For example, he advised that appellant could not perform the job because it entailed
repetitive activities. However, the actual description of duties and physical activities of the
offered job indicated that appellant was to perform the duties in a manner to avoid repetition.
Thus, Dr. Kattner’s reports are insufficient to cause a conflict of medical opinion with
Dr. Snyder. The Board finds that Dr. Snyder’s medical opinion constitutes the weight of the
medical evidence and establishes that appellant is no longer totally disabled for work due to the
effects of the employment-related bilateral carpal tunnel syndrome.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), the Office
advised appellant on August 19, 2009 that it found the job to be suitable and gave her an
opportunity to provide reasons for refusing the position within 30 days. After reviewing the
medical evidence of record, the Office advised appellant in a September 23, 2009 letter that the
evidence submitted was insufficient to support her refusal to accept the job offer and provided
her an additional 15 days to accept the position without penalty. Dr. Kattner, as noted, opined
that she could work restricted duty, but he did not provide reasoning to explain why she now
remained disabled from performing the offered position that was created to conform with his
previous work restrictions. The weight of the medical evidence does not support inability to
perform the duties of the offered position. The Board finds that the Office followed established
procedures prior to the termination of compensation pursuant to section 8106(c) of the Act.10
The position offered was medically and vocationally suitable and the Office complied
with the procedural requirements of section 8106(c) of the Act. The Office met its burden of
proof to terminate appellant’s monetary compensation benefits.

10

See supra note 8.

6

CONCLUSION
The Board finds that the Office met its burden to terminate appellant’s monetary
compensation effective October 25, 2009 on the grounds that she refused an offer of suitable
work pursuant to 5 U.S.C. § 8106(c).
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 18, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.R., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, GA, Employer
__________________________________________

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)
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)
)
)
)

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

Docket No. 09-374
Issued: August 11, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 20, 2008 appellant filed a timely appeal of a December 17, 2007 decision
of the Office of Workers’ Compensation Programs denying his claim for compensation, and a
January 23, 2008 decision denying his request for reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits and nonmerits of this case.
ISSUES
The issues are: (1) whether appellant has established an injury in the performance of
duty causally related to factors of his federal employment; and (2) whether the Office properly
denied appellant’s request for further merit review.
On appeal, appellant described his work duties and contends that his medical condition
was related to the duties of his federal employment and that he required surgery.
FACTUAL HISTORY
On October 1, 2007 appellant, then a 59-year-old aircraft mechanic, filed an occupational
disease claim alleging that he experienced severe pain in his right knee that spread into his calf.

He noted that he worked on a concrete floor and crawled in fuel tanks in awkward and strained
positions.
By letter to appellant dated October 3, 2007, the Office informed him that the material he
submitted was not sufficient to determine whether he was eligible for benefits. It provided him
30 days to submit additional evidence, including a comprehensive medical report from a treating
physician giving a diagnosis and explaining how any condition was causally related to his
employment.
On October 24, 2007 appellant submitted a statement describing right knee pain after
squatting for periods of 15 to 30 minutes or standing for 15 to 30 minutes. When he worked on
concrete, asphalt or metal, the pain increased. He tried to control the pain by manipulating his
leg.
On September 12, 2007 Dr. Robert M. Thornsberry, a Board-certified orthopedic
surgeon, indicated that appellant had several orthopedic-related problems. He noted that
appellant had pain in his shoulder and on January 7, 2007 underwent a diagnostic arthroscopy of
the shoulder which indicated subacromial decompression, distal clavicle excision and
debridement of the glenohumeral joint. Dr. Thornsberry also noted that appellant had knee pain
and a medial meniscus tear of the right knee. He diagnosed degenerative arthritis in appellant’s
shoulder. Dr. Thornsberry indicated that appellant can work within his shoulder range of motion
and strengthening, and indicated that he will schedule him for a partial medial menisectomy of
the right knee sometime in the near future. On November 18, 2007 he released appellant to
return to work regular duty.
In a decision dated December 17, 2007, the Office denied appellant’s claim finding that
the medical evidence did not establish that his right knee was related to the accepted work
events.
By form dated January 13, 2008, appellant requested reconsideration. By decision dated
January 23, 2008, the Office denied appellant’s request as he did not identify the grounds upon
which reconsideration was being sought, raise any new legal argument, or submit relevant
evidence not previously considered.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under the Act1 has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence,2
including that he is an “employee” within the meaning of the Act3 and that he filed his claim

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

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

2

within the applicable time limitation.4 To establish that an injury was sustained in the
performance of duty in a claim for occupational disease, an employee must submit: (1) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.5 The medical evidence must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
ANALYSIS -- ISSUE 1
The Board finds that appellant failed to meet his burden of proof to establish a prima
facie claim for compensation.7 Appellant submitted a statement which identified the factors of
employment that he believed caused his condition. The Office accepted this as factual.
However, appellant failed to submit medical evidence sufficient to show that his right knee
condition is causally related to these employment factors. It informed appellant of the need to
submit a physician’s opinion which explained how his knee condition was related to the
implicated employment factors. The only medical evidence of record is the September 12, 2007
note of Dr. Thornsberry listing appellant’s shoulder and right knee condition. In a November 8,
2007 work status report, Dr. Thornsberry noted only that appellant was released to regular duty.
He did not address whether appellant’s orthopedic problems were causally related to federal
employment. Dr. Thornsberry did not provide any explanation of causal relationship. An award
of compensation may not be based on surmise, conjecture or speculation. Neither the fact that
appellant’s claimed condition became apparent during a period of employment nor his belief that
his condition was aggravated by his employment is sufficient to establish causal relationship.8
As appellant failed to provide medical evidence establishing the causal relationship between his
right knee condition and his federal employment factors, the Office properly denied his claim.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,
the Office’s regulations provide that the application for reconsideration, including all supporting
documents, must set forth arguments and contain evidence that either: (1) shows that the Office
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument

4

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

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

Solomon Polen, 51 ECAB 441 (2000); see also Michael E. Smith, 50 ECAB 313 (1999).

7

See Donald W. Wenzel, 56 ECAB 390 (2005).

8

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

3

not previously considered by the Office; or (3) constitutes relevant and pertinent new evidence
not previously considered by the Office.9
ANALYSIS -- ISSUE 2
In requesting reconsideration, appellant did not submit any new relevant legal argument
not previously considered by the Office or allege that the Office erroneously applied or
interpreted a specific point of law. Consequently, he is not entitled to a review of the merits of
the claim based on the first and second requirements of 10.606(b)(2). In addition, appellant did
not submit any new relevant and pertinent medical evidence. He did not meet the third
requirement for granting reconsideration.
Accordingly, the Office properly denied
10
reconsideration.
CONCLUSION
The Board finds that appellant has not established an injury in the performance of duty,
as alleged. The Board further finds that the Office properly denied appellant’s request for further
merit review.11

9

20 C.F.R. § 10.606(b)(2)(iii).

10

Id.

11

The Board notes that appellant submitted new evidence for the first time on appeal. The Board’s jurisdiction is
limited to reviewing the evidence that was before the Office at the time of its final decision. 20 C.F.R. § 501.2(c);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Therefore, this new
evidence cannot be considered by the Board on appeal. Appellant may submit this evidence to the Office, together
with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 23, 2008 and December 17, 2007 are affirmed.
Issued: August 11, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 11-173
Issued: August 10, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 10, 2010 appellant filed a timely appeal from a July 30, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his traumatic
injury claim. 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 his burden of proof to establish that his tibial
tendinitis was causally related to factors of his employment.
FACTUAL HISTORY
On May 21, 2010 appellant, then a 53-year-old city carrier, filed an occupational disease
claim alleging that he sustained “disorders” as a result of repeated trauma and walking to deliver
mail. He became aware of his condition on April 9, 2009 and realized it was caused or
1

5 U.S.C. § 8101 et seq.

aggravated by his employment on August 23, 2009. Appellant explained that he did not file his
notice of occupational disease claim within 30 days because of management failure. He stopped
work on April 12, 2010. In a supplemental statement, appellant reported that in April 2009 he
began to feel pain in his left ankle whenever he put pressure and weight on it. The pain was
initially minimal, but increased by June 23, 2009. Appellant opined that the continued and
repeated activities of a postal carrier, which included walking on uneven cement pavement,
going up and down stairs to deliver mail and getting off and on the two-ton postal vehicle
aggravated his left ankle.
In a June 29, 2009 report, Dr. Joyce A. Tarbet, an orthopedic surgeon, noted that
appellant was initially seen in her office for a previous back problem but now complained of pain
in his left ankle for the past two to three months, primarily in the medial aspect. Appellant
denied any recent trauma, but noted discomfort with weightbearing and walking. Upon
examination, his ankle was not swollen, nontender over the medial malleolus and throughout the
tibiotalar joint, had normal sensation throughout the left foot and ankle and had normal inversion
of the heel with a heel raise. Dr. Tarbet noted that appellant had mild pes planus bilaterally.
X-rays of the left ankle showed no fractures, dislocations and swelling. A 2009 electromyogram
(EMG) nerve conduction test revealed no lumbar radiculopathy with minimal findings of a left
tarsal tunnel syndrome. Dr. Tarbet concluded that appellant had posterior tibial tendinitis and
bilateral pes planus. She recommended medial arch support.
In a November 5, 2009 report, Dr. Tarbet noted that appellant was a mail carrier and that
his left ankle pain was aggravated by walking. Appellant had worn shoe inserts since his last
examination, but they did not help. Dr. Tarbet reviewed his history and conducted an
examination. She observed tenderness of the tibialis posterior and deltoid ligament and normal
dorsi and plantar flexion but no erythema, swelling or warmth. Dr. Tarbet diagnosed tibialis
tendinitis of the left ankle.
In a May 10, 2010 report, Dr. Thomas M. Smith, a Board-certified orthopedic surgeon,
noted appellant’s complaints of left ankle pain for the past nine months. Appellant used crutches
and had not tried to walk without the boot. Dr. Smith reviewed appellant’s history and noted that
a May 10, 2010 x-ray showed no dislocation or fracture, well-preserved joint spaces and normal
alignment. Upon examination, he observed a slight irregularity on lateral film midportion of
tibial plafond. Dr. Smith diagnosed ankle and foot pain.
In an April 6, 2010 left ankle magnetic resonance imaging (MRI) report, Dr. Wayde
Nagamine, a Board-certified diagnostic radiologist, observed an ill-defined cortical/subcortical
area of T1 hypointensity and T2 hyperintensity involving the medial aspect of the tibial plafond
extending into the adjacent portion of the medial malleolus. He also noted slight cortical
irregularity involving the tibial plafond without gross articular collapse, but no unstable
osteochondral fragment or other marrow edema. Dr. Nagamine’s impression was that appellant
sustained minimal posterior tibial tenosynovitis and cortical/subcortical edema in the medial
aspect of the tibial plafond.
On June 4, 2010 OWCP advised appellant that the evidence submitted was insufficient to
support his claim and requested additional information. It asked for a comprehensive medical
report, which included results of examinations and tests, a diagnosis, treatment provided,

2

description of symptoms and a physician’s opinion, based on medical rationale, explaining how
exposure or activities in his federal employment contributed to his condition.
In a July 2, 2010 statement, appellant informed OWCP that Dr. Tarbet was no longer
employed at his facility and that Dr. Smith would not provide a physician’s opinion because he
had been Dr. Tarbet’s patient. He resubmitted the April 6, 2010 MRI scan report.
In a June 3, 2010 MRI scan report, Dr. Kathleen Bhatt, a Board-certified diagnostic
radiologist, observed a half circle shaped lesion at the posterior medial aspect of the tibial
plafond and a physiologic amount of fluid within the ankle mortise joint. Appellant’s Achilles
tendon, lateral peroneal tendons, anterior extensor tendons and medial flexor tendons were all
intact. Dr. Bhatt identified no significant interval change in the subchondral bone marrow edema
and subtle cortical irregularity at the posterior medial aspect of the tibial plafond. She stated that
it may be secondary to developing degenerative change, possibly related to prior osteochondral
injury.
By decision dated July 30, 2010, OWCP denied appellant’s claim finding insufficient
medical evidence to establish that his left foot or ankle condition was causally related to his
employment activities.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative and substantial evidence2
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3 In an occupational disease claim, appellant’s burden requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued
November 25, 2010).
4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000); D.U., Docket No. 10-144 (issued
July 27, 2010).
5

D.I., 59 ECAB 158 (2007); I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658
(issued October 22, 2009).

3

specified employment factors or incident.6 The opinion of the physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
employee.7 The mere fact that work activities may produce symptoms revelatory of an
underlying condition does not raise an inference of an employment relation. Such a relationship
must be shown by rationalized medical evidence of a causal relation based upon a specific and
accurate history of employment conditions which are alleged to have caused or exacerbated a
disabling condition.8
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained left tendinitis causally related to his employment activities. The record supports that
his job as a city carrier required repetitive walking and climbing stairs to deliver mail; but the
Board finds insufficient medical evidence that establishes that he sustained tibial tendinitis as a
result of his employment activities.
Appellant submitted medical reports from Dr. Tarbet, who treated him for left ankle pain
that was aggravated with walking. Dr. Tarbet reviewed his history and noted that he was a mail
carrier. She conducted an examination and did not observe any swelling or tenderness over the
medial malleolus and throughout the tibiotalar joint. X-rays did not reveal any fractures,
dislocations and swelling and EMG results revealed minimal findings of left tarsal tunnel
syndrome. Dr. Tarbet diagnosed posterior tibial tendinitis and recommended medial arch
support. She did not, however, provide any opinion regarding the cause of appellant’s diagnosed
ankle condition. While Dr. Tarbet noted that he was a mail carrier, she did not explain how his
activities as a mail carrier caused or contributed to the diagnosed condition. The Board has
found that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.9 Similarly,
Dr. Nagamine’s and Dr. Bhatt’s MRI scan reports also do not contain any opinion on the cause
of appellant’s ankle condition. Thus, these reports are insufficient to establish his claim.
In a May 10, 2010 medical report, Dr. Smith examined appellant for complaints of left
knee pain and noted a slight irregularity on lateral film mid portion of tibial plafond. He
diagnosed ankle and foot pain. This report does not contain a diagnosed condition nor opinion
on causal relationship. Thus, it is also insufficient to establish appellant’s claim.
On appeal, appellant alleges that his original treating physician left the practice and his
current physician was unable to locate her or her files and would not provide an opinion on
causation. As noted, however, the employee has the burden of proof to establish the essential
6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

7

B.B., 59 ECAB 234 (2007); D.S., Docket No. 09-860 (issued November 2, 2009).

8

Patricia J. Bolleter, 40 ECAB 373 (1988).

9

R.E., Docket No. 10-679 (issued November 16, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

4

elements of his claim, which includes probative medical evidence establishing causal
relationship. The record does not contain probative medical opinion evidence discussing how
appellant’s tibial tendinitis was caused by factors of his employment. Thus, appellant has not
met his burden of proof to establish that he sustained tibial tendinitis as a result of his
employment.
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 his burden of proof to establish that he
sustained tibial tendinitis in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 30, 2010 is affirmed.
Issued: August 10, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Gallup, NM, Employer
__________________________________________

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

Docket No. 11-1687
Issued: July 23, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 15, 2011 appellant filed a timely appeal from May 16, 2011 decisions by the
Office of Workers’ Compensation Programs (OWCP) denying waiver of an overpayment,
compromising the principal and setting the rate of recovery.1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly denied waiver of recovery of the
overpayment in the compromised amount of $29,300.00; and (2) whether OWCP gave due
regard to relevant factors in setting the rate of recovery from continuing compensation.

1

Although Gordon Reiselt, Esquire filed the appeal on appellant’s behalf, he subsequently withdrew as
appellant’s counsel.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 19, 1997 appellant, then a 66-year-old respiratory therapist, filed a traumatic
injury claim alleging that, on that date, an elevator she was riding came to an abrupt stop and she
suffered an injury to her neck and low back strain. On July 15, 1997 OWCP accepted her claim
for lumbar strain and cervical strain. It paid appropriate compensation and medical benefits.
OWCP made a preliminary determination on February 24, 2011 that appellant had been
overpaid compensation benefits in the amount of $8,816.79 for the period November 1, 2008
through January 15, 2011. On March 15, 2011 it made a second preliminary determination that
she had been overpaid compensation benefits in the amount of $61,355.08 from September 28,
1997 through October 31, 2008. The total amount of the overpayment was $70,171.87. The
reasons provided by OWCP for both preliminary determinations were that appellant received
FECA payments that were not reduced by the Federal Employment Retirement System (FERS)
offset amount. It noted that the FERS offset is required due to receipt of social security benefits
that were part of her annuity for federal service under FERS. OWCP found that appellant was
without fault in creating this overpayment. Appellant was provided 30 days within which to note
her disagreement, to request a hearing and submit evidence, including financial documentation.
On March 31, 2011 appellant requested that OWCP make a decision based on the written
evidence. She noted that she was not aware of the overpayment.
By letter dated April 11, 2011, appellant, through her attorney, requested waiver of
recovery of the overpayment and submitted financial documentation. She listed her income as
$1,314.00 for social security benefits and $1,389.83 from FECA for a total monthly income of
$2,703.83. Appellant listed expenses of $359.83 for rent/mortgage; $229.60 for food; $152.38
for clothing; $399.46 for utilities; $682.30 for insurance; $549.51 for health expenses; and
$308.99 for miscellaneous. She listed her debts as $471.00 per month, which included: $230.00
to Global Client Solution, LLC; $41.00 to Chase Card Services, $25.00 to Catherine’s Clothing
Card; and $175.00 per month for attorney fees. Appellant noted a checking account balance of
$74.58 and savings of $138.11. She submitted supporting documentation.
In a May 16, 2011 decision, OWCP finalized the preliminary determinations, finding
overpayments in the total amount of $70,171.87. It found that, even though appellant was
without fault in the creation of the overpayment, it determined that circumstances did not warrant
waiver of recovery of the overpayment. OWCP determined in a separate decision, also dated
May 16, 2011 that the principal had been compromised to the amount of $29,300.00, which
would be recovered by taking $300.00 from each of appellant’s continuing compensation
payments. Compromise was made because OWCP determined that she did not have the present
or prospective ability to pay the full amount of the overpayments within a reasonable period of
time due to her advanced age of 81 years old.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8129 of FECA3 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. Thus a
finding that appellant was without fault does not automatically result in waiver of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good
conscience.
According to 20 C.F.R. § 10.436 recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
or her income (including compensation benefits) to meet current ordinary and necessary living
expenses and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.4 An individual’s liquid assets
include but are not limited to the value of stocks, bonds, savings accounts, mutual funds and
certificates of deposit.5 Nonliquid assets include but are not limited to the fair market value of an
owner’s equity in property such as a camper, boat, second home and furnishings and supplies.6
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.7 To establish that, a valuable right has been
relinquished, it must be shown that the right was in fact valuable, that it cannot be regained and
that the action was based chiefly or solely in reliance on the payments or on the notice of
payment.8
ANALYSIS -- ISSUE 1
Appellant did not contest the amount of the overpayment. OWCP determined that she
was without fault in creating the overpayment. Because appellant is without fault, it may recover
the overpayment only if recovery would not defeat the purpose of FECA or be against equity and
good conscience.
3

20 C.F.R. §§ 8101(4); 8114; see also 20 C.F.R. § 10.5(s).

4

Id. at § 8129(b).

5

See Maria A. McCarthy, Docket No. 94-219 (issued June 9, 1995).

6

20 C.F.R. § 10.436. OWCP’s procedures provide that assets must not exceed a resource base of $4,800.00 for
an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a) (October 2004).
7

Id.

8

Id.

3

Appellant requested waiver of recovery of the overpayment and provided information on
an overpayment recovery questionnaire. OWCP correctly determined that her monthly income
did exceed her monthly expenses by more than $50.00. The Board finds, therefore, that OWCP
properly determined that recovery of the compromised overpayment would not defeat the
purpose of FECA. Although appellant’s counsel made arguments that it was against equity and
good conscience to collect the debt due to appellant’s advanced age of 81 years old and the fact
that she was not at fault in the creation of the overpayment, the Board finds that OWCP properly
took these matters into consideration when it compromised the amount of the overpayment,
reducing it from $70,171.87 to $29,300.00. Further, there is no evidence in this case and she did
not allege that she relinquished a valuable right or changed her position for the worse in reliance
on the excess compensation she received. Pursuant to its regulations, OWCP properly found that
recovery of the overpayment would not be against equity or good conscience.
As the evidence in this case fails to support that the recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying a waiver of recovery of the compromised
overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 provides that when an overpayment has been made to an individual because
of an error of factor law, adjustment shall be made by decreasing later payments to which the
individual is entitled.9
Section 10.441 of OWCP’s regulations provide that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors so as to minimize any hardship.10
Under OWCP’s procedure manual, the compromise of all or part of the overpayment and
any charges may be made depending upon the individual claimant’s financial circumstances in
order to set a repayment schedule. Compromise of the principal of the overpayment can be
considered if application of the interest charges would extend the period of repayment by more
than 35 percent. Such a determination is made at the time the repayment schedule is
established.11 Compromise is a matter which rests in the discretion of OWCP.12

9

20 C.F.R. § 10.436.

10

Id. at § 10.441(a).

11

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.300.5
(May 2004). See Jorge E. Diaz, 53 ECAB 403 (2002).
12

D.C., Docket No. 10-1046 (issued January 19, 2011); Jorge E. Diaz, id.; Linda D. Lane, 46 ECAB 727 (1995).

4

ANALYSIS -- ISSUE 2
OWCP took several factors into consideration in setting there rate of recovery from
appellant’s continuing compensation, including her financial circumstances, the extent of the
overpayment and the amount of time it would take to recover the debt. It determined that the
debt would be collected by deducting $300.00 from each of appellant’s continuing compensation
payments.
The Board finds that OWCP did not act reasonably in determining the amount to be taken
out of appellant’s continuing compensation. First, the Board notes that she listed her income as
$1,314.00 for social security benefits and $1,389.83 from FECA for a total monthly income of
$2,703.83. In the May 16, 2011 decision, OWCP found that appellant had income of $1,421.83
from FECA benefits and $1,316.80 income from social security. Then, it added to her income
her assets of $1,200.00, which represented the average monthly balance at Regions Bank and
$345.87 for average monthly balance at Arrest Bank. The monthly income from FECA and
social security were added to the bank averages to arrive at total assets of $4,329.50.13 Although
it is not absolutely clear, OWCP appears to have used the figure of $4,329.50 as appellant’s
monthly income. This was not accurate as monthly bank averages should not be counted as
income. Appellant’s social security check was deposited into her account at Regions Bank and
including it as monthly income would result in counting her social security compensation twice.
With regard to appellant’s usual monthly expenses, OWCP disallowed appellant’s credit card
bills at Catherine’s and Chase, finding that the Catherine’s Credit Card charges may be
duplicates for clothing expenses and the Chase Credit Card may also be duplicates of other
expenses. OWCP already reduced her clothing allowance from the requested $150.00 to $100.00
per month. The credit card bills were for past expenses and are appellant’s responsibility to pay.
The allowances for clothing and other expenses are for continuing expenses, not for past
expenses. Other items reduced or not allowed by OWCP include expenses for gifts, second and
third telephone, cable television and Internet. These reductions and disallowances were within
the discretion of OWCP. Appellant’s attorney contended that the second and third telephones
were extensions not separate lines. In its decision, OWCP simply mentioned a second and third
telephone and found the expense not as ordinary and necessary living expenses. With regard to
the telephone bill as well as cable and Internet expenses, it was well within the discretion of
OWCP to find that these expenses were not ordinary or necessary.
Due to the questions with regard to how OWCP counted appellant’s income and
disallowance of credit card payments in determining her monthly income, the case will be
remanded for OWCP to reconsider the amount to be taken out of her continuing compensation
payments.

13

In discussing waiver of recovery when recovery would defeat the purpose of FECA, OWCP’s procedures
provide that income includes but is not limited to government benefits, wages, self-employment income, regular
payments such as rent or pension, investment income, alimony and child support. Federal (FECA) Procedure
Manual, supra note 11, Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)(2). In determining the
amount of an employee’s income, the Board has held that total income includes “any funds which may be
reasonably considered available for his or her use, regardless of source.” See generally Otto A. Fernandez,
55 ECAB 558 (2004); see also F.B., Docket No. 09-1945 (issued September 10, 2010).

5

CONCLUSION
The Board finds that OWCP properly denied waiver of recovery of the overpayment in
the compromised amount of $29,300.00. The case will be remanded for OWCP to reconsider the
amount to be recorded from appellant’s continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 16, 2011 is affirmed in part and remanded in part for further
consideration consistent with this opinion.
Issued: July 23, 2012
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE AIR FORCE,
KEESLER AIR FORCE BASE, Biloxi, MS,
Employer
__________________________________________

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

Docket No. 15-0080
Issued: August 24, 2016

Case Submitted on the Record

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

JURISDICTION
On October 15, 2014 appellant filed a timely appeal of a September 8, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP abused its discretion in denying authorization for C5-6 and
C6-7 cervical disc arthroplasty surgery.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 8, 2014 decision, OWCP received additional evidence.
Appellant also submitted new evidence with his appeal to the Board. However, the Board may only review
evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B.,
Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On July 23, 2009 appellant, then a 39-year-old electronic integrated systems mechanic,
filed a traumatic injury claim (Form CA-1) alleging that on that date he sustained a right forearm
contusion/laceration, shoulder strain, and back strain as the result of his losing his footing and
slipping down a ladder on a flight deck. OWCP accepted the claim for right shoulder and upper
arm sprain, right superior glenoid labrum lesion, right wrist sprain, and right forearm contusion,
which was subsequently expanded to include right rotator cuff tear, brachial radiculitis or
neuritis, and cervical intervertebral disc displacement without myelopathy.
In a September 4, 2013 report, Dr. Donald D. Dietze, a treating Board-certified
neurological surgeon, reported that appellant was seen for neck pain complaints. Diagnoses
included cervical radiculitis, cervicalgia, cervical herniated nucleus pulposus at C5-6, C6-7,
cervical disc disorder, and right shoulder rotator cuff injury. A review of a magnetic resonance
imaging (MRI) scan revealed significant persistent C5-6 central disc herniation, and progression
of the left C6-7 disc herniation. Dr. Dietze discussed the surgery options with appellant and
recommended anterior disc replacement surgery.
On December 2, 2013 OWCP received Dr. Dietze’s request for authorization to perform
cervical spine surgery on appellant.
In a December 12, 2013 report, an OWCP medical adviser reviewed the medical
evidence from Dr. Dietze. He advised OWCP to request Dr. Dietze to provide his rationale as to
why disc arthroplasty surgery at C5-6 and C6-7 should be performed on appellant.
In a letter dated April 10, 2014, Angela Geraci from the scheduling department of
Dr. Dietze’s practice, stated she was provided clarification as requested from Dr. Dietze as to
why the recommended surgery should be authorized. She attached copies of his prior reports
including the most recent April 10, 2014 report, physical therapy reports and diagnostic
tests/studies supporting the request for authorization of C5-6 and C6-7 anterior cervical
discectomy and stabilization with total disc arthroplasty.
Dr. Dietze, in reports dated August 2, September 18, November 21, December 2, 2013,
and April 10, 2014, provided physical examination findings. Diagnoses from the reports
included right shoulder rotator cuff injury, C5-6 cervical disc disorder, C6-7 cervical herniated
nucleus pulposus, cervicalgia, and cervical radiculitis. In all the reports, Dr. Dietze noted
discussing surgical options with appellant who agreed to surgery on December 2, 2013. In the
April 10, 2014 letter, he related that review of a recent MRI scan showed progression of the C6-7
left disc herniation and significant persistent C5-6 central disc herniation. Dr. Dietze opined that
the only option for significant benefit or resolution was artificial disc replacement surgery.
In an April 28, 2014 report, the medical adviser reviewed the relevant medical evidence
and concluded that surgery should not be authorized. He found that while C5-6 and C6-7
pathology was present cervical disc replacement arthroplasty surgery has not been approved for
use in more than one level where there is evidence or radiculopathy or myelomalacia at the level
in question “and no evidence for symptomatic cervical disc disease at more than one level.”
In a May 3, 2014 report, Dr. Dietze related that a July 26, 2013 MRI scan revealed
persistent C5-6 broad based posterior disc herniation and a new C6-7 disc herniation, which
2

“represented a progression of the prior bulge with annular tear.” These findings were discussed
with appellant on August 1, 2013 and that he believed cervical surgery was the only option
offering “potential improvement in his condition.” Appellant rejected the surgrical option on
August 1, 2013, but during the November 20, 2013 examination decided that the recommended
surgery should be done. Dr. Dietze evaluated appellant on March 18, 2014 when appellant
reported a worsening of his condition and again recommended surgery to improve function and
lessen appellant’s pain.
By decision dated May 13, 2014, OWCP denied appellant’s request for authorization of
C5-6 and C6-7 cervical disc arthroplasty surgery as it found that the requested surgery could not
be authorized as it was an off label use of the device.
On May 29, 2014 appellant requested reconsideration and submitted medical evidence in
support of his request.
In a May 28, 2014 report, Dr. Dietze stated that he had reviewed the denial of his request
to authorize two-level cervical disc artifical disc replacement as it was only approved for one
level. He stated that two level artificial cervical disc replacement has recently been approved by
the Federal Drug Agency (FDA). Thus, utilization of this surgery “is NO longer an off-label
usage.” (Emphasis in the original.)
On July 11, 2014 appellant was referred for a second opinion evaluation with
Dr. James T. Tran, a Board-certified neurological surgeon, to determine whether the requested
surgery should be approved.
In an August 18, 2014 report, Dr. Tran responded to the questions posed by OWCP. He
stated that there was evidence of left C6-7 disc degeneration and bulges and C5-6 stenosis based
on a July 26, 2013 MRI scan. He recommended cervical facet joint injections with
radiofrequency treatment for pain relief over six to eight months. Lastly, Dr. Tran disagreed
with Dr. Dietze that the FDA had approved artifical discs for use of more than one level disc
disease for C3 to C7. He indicated that artificial disc surgery was only approved by the FDA for
one-level cervical disc disease from C3 to C7.
On August 28, 2014 the medical adviser reviewed Dr. Tran’s report and concurred that
the requested surgery not be authorized.
By decision dated September 8, 2014, OWCP denied modification.
LEGAL PRECEDENT
Section 8103 of FECA3 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability or aid in lessening the amount of the monthly
compensation.4 In interpreting section 8103, the Board has recognized that OWCP has broad
3

Supra note 1.

4

Id. at § 8103; see R.L., Docket No. 08-855 (issued October 6, 2008); Sean O’Connell, 56 ECAB 195 (2004),
Thomas W. Stevens, 50 ECAB 288 (1999).

3

discretion in approving services provided under FECA.5 The only limitation on OWCP’s
authority is that of reasonableness.6 Abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment or actions taken which are contrary to
both logic and probable deductions from established facts. It is not enough to merely show that
the evidence could be construed so as to produce a contrary factual conclusion.7
Section 8123(a) of FECA8 provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.9
ANALYSIS
The Board finds that the case is not in posture for a decision as there is a conflict in the
medical evidence with regard to whether the recommended surgery should be authorized.
OWCP accepted appellant’s claim for right shoulder and upper arm sprain, right superior
glenoid labrum lesion, right wrist sprain, right forearm contusion, right rotator cuff tear, brachial
radiculitis or neuritis, and cervical intervertebral disc displacement without myelopathy.
Appellant requested authorization for C5-6 and C6-7 cervical disc arthroplasty surgery based on
the medical reports of Dr. Dietze. By decisions dated May 13 and September 8, 2014, OWCP
denied his request for C5-6 and C6-7 cervical disc arthroplasty surgery, finding that the
requested surgery could not be authorized as it was an off label use of the device.
The record reflects that Dr. Dietze discussed with appellant the recommendation for C5-6
and C6-7 cervical disc arthroplasty surgery in his various reports. In the December 2, 2013
report, Dr. Dietze stated that appellant agreed with the proposed surgery and a request for
authorization was submitted. In an April 10, 2014 report, he reviewed a recent magnetic
resonance imaging scan and opined that artificial disc replacement surgery was the only option
for significant benefit or resolution. Similarly, in his May 3, 2014 report, Dr. Dietze reiterated
that his opinion that the requested surgery was appropriate and should be authorized as it would
improve appellant’s function and lessen his pain. He, in a May 28, 2014 report, related that the
use of two level artificial disc replacement had recently been approved by the FDA so that it was
no longer considered to be an off-label use.
Dr. Tran, an OWCP referral physician, examined appellant and found that the requested
surgery was not approved by the FDA and, thus, should not be authorized. In his August 18,
2014 report, he stated that the use of artificial discs for more than one level of disc disease was
not an approved use of the device by the FDA. In a report dated April 28, 2014, the medical
adviser concluded that surgery should not be authorized as the FDA had not approved the use of
5

A.O., Docket No. 08-580 (issued January 28, 2009); Joseph P. Hofmann, 57 ECAB 456 (2006).

6

D.C., 58 ECAB 620 (2007); Mira R. Adams, 48 ECAB 504 (1997).

7

L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007); Daniel J. Perea, 42 ECAB 214 (1990).

8

5 U.S.C. § 8123(a).

9

Id.; see J.J., Docket No. 09-27 (issued February 10, 2009); Y.A., 59 ECAB 701 (2008); Darlene R. Kennedy, 57
ECAB 414 (2006); Geraldine Foster, 54 ECAB 435 (2003).

4

cervical disc replacement arthroplasty surgery for use in more than one level. He, reviewed
Dr. Tran’s August 18, 2014 report and concurred with his opinion that surgery should not be
authorized as the FDA did not approve the use of artificial discs for more than one level of
cervical disc disease.
The Board finds that there remains an unresolved conflict in the medical evidence
between Dr. Dietze, for appellant, and Dr. Tran and the medical adviser, for OWCP, regarding
whether appellant’s request for surgery should be authorized and whether the FDA has approved
the use of artificial discs for more than one level of cervical disc disease. Due to the unresolved
conflict of the medical opinion, OWCP should refer appellant to an appropriate Board-certified
specialist for an impartial medical examination, pursuant to 5 U.S.C. § 8123(a), to resolve this
issue. After this and such other development as OWCP deems necessary, it should issue a
de novo decision on the issue.
CONCLUSION
The Board finds that the case is not in posture for decision, due to a conflict in the
medical evidence, with regard to whether appellant’s proposed surgery should be authorized.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 8, 2014 is set aside and the case remanded for further
proceedings consistent with the above opinion.10
Issued: August 24, 2016
Washington, DC

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

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

10

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Long Beach, CA, Employer
)
_________________________________________ )
K.W., Appellant

Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2201
Issued: August 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 27, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) nonmerit decision dated July 20, 2010 denying her request
for reconsideration because it was not timely filed and failed to establish clear evidence of error.
The last merit decision of OWCP is dated May 5, 2005, more than one year from the filing of
this appeal. The Board lacks jurisdiction to review the merits of appellant’s claim pursuant to
the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated May 1, 2007, the
Board affirmed a May 22, 2006 nonmerit decision denying appellant’s request for
1

5 U.S.C. §§ 8101-8193.

reconsideration.2 The Board found that, while appellant advised in a May 4, 2006 letter that she
was submitting a report from Dr. McQueen, such report was not received prior to OWCP’s
May 22, 2006 decision. The Board notes that additional evidence OWCP received following its
May 22, 2006 decision included a May 30, 2006 fax transmission containing an April 30, 2006
report from Dr. McQueen, a clinical psychologist. The Board could not review this evidence as
its review of the case was limited to the evidence which was before OWCP at the time of its final
decision. The facts and circumstances surrounding the prior appeal are hereby incorporated by
reference.
The May 30, 2006 fax transmission also contained a copy of a May 4, 2006 fax in which
appellant requested reconsideration of the May 5, 2005 OWCP decision. Appellant requested
that Dr. McQueen’s report be added to her record in her appeal of the denial of her claim.
On April 15, 2010 appellant’s attorney requested reconsideration and submitted a
23-page brief. He noted that on or about May 4, 2006 appellant submitted a 10-page faxed
reconsideration request with contemporaneous medical evidence. This included a five-page
medical report from Dr. Lila McQueen, a clinical psychologist. Counsel noted that the claim file
contained only the first five pages of the faxed documents, but not Dr. McQueen’s five-page
report. He argued that the claim should be reopened as appellant’s proof of faxing on May 4,
2006, which noted 10 pages were faxed, raised an inference that Dr. McQueen’s five-page report
was faxed on May 4, 2006 but lost. Counsel also argued that the record did not contain any
contradictory facts that would discredit appellant’s statement that she faxed Dr. McQueen’s
report on May 4, 2006 and OWCP was obligated to review Dr. McQueen’s report. Counsel also
presented arguments that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits.
Appellant submitted statements pertaining to her claim, Dr. McQueen’s April 30, 2006
report; and a copy of the May 4, 2006 facsimile cover sheet, which noted appellant’s desire for
reconsideration and that a report from Dr. McQueen was included. Dr. McQueen advised that
appellant still had chronic adjustment disorder causally related to the accepted work stressors.
She also disagreed with the opinion of the impartial medical specialist, to whom special weight
was accorded in terminating appellant’s benefits.
By decision dated July 20, 2010, OWCP denied appellant’s request on the grounds it was
untimely and insufficient to show clear evidence of error in the most recent merit decision of
May 5, 2005.3

2

Docket No. 07-229 (issued May 1, 2007). OWCP accepted that appellant sustained an adjustment disorder in
the performance of her federal duties and placed appellant on the compensation rolls. By decision dated May 5,
2005, OWCP terminated appellant’s compensation for wage loss and medical benefits effective that day.
3

See id.

2

LEGAL PRECEDENT
Section 8128(a) of the Act4 does not entitle a claimant to a review of an OWCP decision
as a matter of right.5 OWCP, through its regulations, has imposed limitations on the exercise of
its discretionary authority under section 8128(a). Section 10.607(a) of OWCP’s implementing
regulations provide that an application for reconsideration must be sent within one year of the
date of OWCP’s decision for which review is sought.6
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.8 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.9 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.12
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.13
The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of OWCP such that OWCP abused its discretion in denying
merit review in the face of such evidence.14
4

5 U.S.C. § 8128(a).

5

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

20 C.F.R. § 10.607(a). See also Gladys Mercado, 52 ECAB 255 (2001).

7

Id. at § 10.607(b); see also Alberta Dukes, 56 ECAB 247 (2005).

8

Nancy Marcano, 50 ECAB 110, 114 (1998).

9

Leona N. Travis, 43 ECAB 227, 241 (1991).

10

Darletha Coleman, 55 ECAB 143 (2003).

11

Leona N. Travis, supra note 9.

12

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

13

Darletha Coleman, supra note 10.

14

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

3

ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.15 A right to reconsideration within one year
also accompanies any subsequent merit decision.16 As appellant’s April 15, 2010 request for
reconsideration was submitted more than one year after the last merit decision of record dated
May 5, 2005, it was untimely. Consequently, she must demonstrate clear evidence of error by
OWCP in its May 5, 2005 decision.17
Appellant argued before OWCP and on appeal that she was entitled to further merit
review as Dr. McQueen’s April 30, 2006 report was part of the fax sent May 4, 2006. Her
attorney contends that the fax coversheet of May 4, 2006 and appellant’s statements raised an
uncontroverted inference of submission and OWCP was required to review the report. The
record contains a copy of the May 4, 2006 fax coversheet in which appellant stated she was
including a report from Dr. McQueen, as well as a May 30, 2006 fax which verifies that a fax
was transmitted on May 4, 2006. The record, however, contains no independent verification that
Dr. McQueen’s report was actually sent to OWCP on May 4, 2006. The May 4, 2006 fax
coversheet references a report from Dr. McQueen but the case record does not contain a copy of
any report sent to OWCP on May 4, 2006. The coversheet, on its face, does not establish error
on the part of OWCP and is insufficient to raise a substantial question concerning the correctness
of OWCP’s denial of her claim or to shift the weight of the evidence in her favor. The record
reflects that Dr. McQueen’s April 30, 2006 report was first received by OWCP on May 31,
2006,18 over one year following OWCP’s merit decision of May 5, 2005. Appellant has not
established clear evidence of error by OWCP in this regard.
The Board finds that Dr. McQueen’s report is insufficient to establish clear error by
OWCP in denying her claim. In her report, Dr. McQueen indicated that appellant still suffered
from chronic adjustment disorder causally related to the accepted work stressors. She also
disagreed with the opinion of the impartial medical specialist whom OWCP accorded special
weight in terminating appellant’s benefits. OWCP procedure provides the term clear evidence of
error is intended to represent a difficult standard. The claimant must present evidence which on
its face shows that OWCP made an error (for example, proof that a schedule award was
miscalculated). Evidence such as a detailed, well-rationalized medical report which, if submitted
before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.19 Thus, Dr. McQueen’s report does not raise a
substantial question as to the correctness of OWCP’s decision and does not establish clear
evidence of error.
15

20 C.F.R. § 10.607(a).

16

Robert F. Stone, 57 ECAB 292 (2005).

17

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005). The Board’s decision dated May 1, 2007
was a nonmerit decision.
18

The facsimile date indicates Dr. McQueen’s report was sent May 30, 2006.

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3c. (January 2004).

4

On appeal, appellant reiterates the contentions made in her request for reconsideration.
The Board, however, only has jurisdiction over whether appellant’s request for reconsideration
was timely filed and whether it established clear evidence of error. For the reasons discussed
above, the evidence and argument submitted by appellant does not establish that the
reconsideration request was timely filed and it also does not raise a substantial question
concerning the correctness of OWCP’s May 5, 2005 decision. OWCP properly determined that
she did not show clear evidence of error in that decision. Appellant’s attorney also raises
arguments addressing the merits of the case. However, the Board does not have jurisdiction over
the merits of this case.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was not timely filed and did not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the July 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 8, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5