United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Buffalo, NY, Employer
__________________________________________

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

Docket No. 10-1786
Issued: May 4, 2011

Case Submitted on the Record

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

JURISDICTION
On June 24, 2010 appellant filed a timely appeal from a January 25, 2010 merit decision
of the Office of Workers’ Compensation Programs. The record also contains a June 3, 2010
decision denying merit review of the claim. Pursuant to the Federal Employees’ Compensation
Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established an injury in the performance of duty on
December 7, 2009; and (2) whether the Office properly denied appellant’s application for
reconsideration without merit review of the claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In a Form CA-1 dated December 15, 2009, appellant, an entry specialist, alleged an
injury on December 7, 2009 at 9:00 a.m. The first page of the claim form is generally illegible,
but she noted that she was injured when she got up out of her chair. The employer advised that
notice was received on December 16, 2009 and a supervisor stated, “I do not believe that getting
up from the chair and getting up is a result of a work injury [sic].” The record contains an
employing establishment safety investigation data form describing an incident on December 7,
2009 as follows: “I was working at my desk, when I turned in my chair and got up, my left hip
popped and now I am experiencing severe back & neck pain.” With respect to the medical
evidence, appellant submitted a December 21, 2009 note from Dr. John Syracuse, a chiropractor,
who found that she was unable to work due to a work injury.
In a letter dated December 23, 2009, the Office requested additional evidence from
appellant. It requested a detailed description of how the injury occurred, any witness statements
and that she address her medical treatment. The Office noted that there was no diagnosis or
physician’s opinion on causal relationship with appellant’s employment.
On December 29, 2009 appellant submitted a December 23, 2009 attending physician’s
report (Form CA-20) from Dr. Syracuse, who diagnosed lumbar segmental dysfunction (the
International Classification of Diseases (ICD) code was 739.3). Dr. Syracuse provided a history
that she was getting out of her chair when her back went out. He checked a box “yes” that the
condition was caused or aggravated by employment, indicating that appellant stated that she was
injured at work. Of record are December 28, 2009 x-rays that diagnosed L4-5 anterior
spondylolisthesis and degenerative disc disease. In a January 4, 2010 note, Dr. Syracuse stated
that she was unable to work for the next two weeks due to a work injury and noted that she had
an emergency appendectomy that day. In a January 18, 2010 note, he again stated that appellant
was unable to work the next two weeks due to the work injury.
By decision dated January 25, 2010, the Office denied the claim for compensation. It
found that the evidence did not establish that an incident occurred as alleged and also found the
medical evidence was insufficient to establish causal relation.
On April 21, 2010 appellant requested reconsideration of her claim. She submitted
additional medical evidence, including a February 15, 2010 report from Dr. Syracuse, who
provided a history of a December 7, 2009 incident as stated on the employing establishment data
form. Dr. Syracuse diagnosed subluxations at L3-S1, stating that the x-rays and computerized
tomography displayed a classic subluxation. He opined that appellant’s injury was causally
related to her work duties and also stated that not all trauma are caused by a dramatic incident.
Appellant submitted the treatment notes of Dr. Syracuse commencing December 14, 2009. She
did not submit any additional factual evidence.
By decision dated June 3, 2010, the Office denied appellant’s request for reconsideration
without merit review of the claim.

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LEGAL PRECEDENT -- ISSUE 1
The Act provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”2 The
phrase “sustained while in the performance of duty” in the Act is regarded as the equivalent of
the commonly found requisite in workers’ compensation law of “arising out of an in the course
of employment.”3 An employee seeking benefits under the Act has the burden of establishing
that he or she sustained an injury while in the performance of duty.4 In order to determine
whether an employee actually sustained an injury in the performance of duty, the Office begins
with an analysis of whether “fact of injury” has been established. Generally, “fact of injury”
consists of two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury and generally this can be established only by medical evidence.5
With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place and in the manner alleged, by a
preponderance of the reliable, probative and substantial evidence.6 An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and her subsequent course of action.7 An employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong and persuasive evidence.8
As to medical evidence, the Office’s procedures recognize that a claim may be accepted
without a medical report when the condition is a minor one which can be identified on visual
inspection, the injury is witnessed or reported promptly and no time was lost from work.9 In
clear-cut traumatic injury claims, such as a fall resulting in a broken arm, a physician’s
affirmative statement is sufficient and no rationalized opinion on causal relationship is needed
whose fact of injury is established. In all other traumatic injury claims, a rationalized medical
opinion supporting causal relationship is required.10 Rationalized medical opinion evidence is

2

5 U.S.C. § 8102(a).

3

Valerie C. Boward, 50 ECAB 126 (1998).

4

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

5

See John J. Carlone, 41 ECAB 354, 357 (1989).

6

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

7

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

8

Allen C. Hundley, 53 ECAB 551, 552 (2002).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

10

Id.

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medical evidence that includes a physician’s rationalized opinion on the issue of whether there is
a causal relationship between a diagnosed condition and the identified employment factor.11
ANALYSIS -- ISSUE 1
In this case, the Office found that appellant did not establish the first component of fact
of injury. Appellant described a December 7, 2009 incident occurring at 9:00 a.m., in which she
injured herself while rising up from a chair. The evidence establishes that a supervisor was
notified of the incident on December 16, 2009 and the December 23, 2009 CA-20 form report
gave a history of injury consistent with her statement.
As noted, an employee’s factual statement as to an incident is of great probative value
and will stand absent strong and persuasive evidence refuting the statement. There were no
inconsistent statements from appellant or other evidence refuting the occurrence of the alleged
incident. The record does not contain persuasive evidence refuting her allegation of a
December 7, 2009 employment incident. The Board finds that appellant has established the
factual component in that the incident occurred, as alleged.
To meet her burden of proof to establish the claim, appellant must submit medical
evidence on causal relationship between a diagnosed condition and the December 7, 2009
employment incident. The medical evidence submitted prior to the January 25, 2010 merit
decision consisted of reports from a chiropractor, Dr. Syracuse. Section 8101(2) of the Act
provides that the term ‘“physician’ … includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to
correct a subluxation as demonstrated by x-ray to exist.”12 Dr. Syracuse did not diagnose a
subluxation as demonstrated by x-ray. The December 28, 2009 x-ray report diagnosed L4-5
anterior spondylolisthesis and degenerative disc disease. Dr. Syracuse did not refer to these
x-rays or state the basis on which he diagnosed subluxation. He referred to ICD-9 code 739.3
(nonallopathic lesions of the lumbar spine) and diagnosed lumbar segmental dysfunction in a
December 23, 2009 report.
The Board finds that Dr. Syracuse is not a physician as defined under the Act.
Dr. Syracuse reports are of no probative medical value.13 It is appellant’s burden of proof to
establish that her claim and the medical evidence is not sufficient to meet her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,14 the Office’s regulations provide that a claimant may obtain review of the merits of the
11

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

12

5 U.S.C. § 8101(2).

13

See Jack B. Wood, 40 ECAB 95, 109 (1988).

14

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application).”

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claim by submitting a written application for reconsideration that sets forth arguments and
contains evidence that either: “(1) shows that the Office erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by the
Office; or (3) constitutes relevant and pertinent evidence not previously considered by the
Office.”15 Section 10.608(b) states that any application for review that does not meet at least one
of the requirements listed in section 10.606(b)(2) will be denied by the Office without review of
the merits of the claim.16
ANALYSIS -- ISSUE 2
In her application for reconsideration appellant did not show that the Office erroneously
applied or interpreted a specific point of law or advance a relevant legal argument not previously
considered by the Office. She did submit new medical evidence regarding her claim. In a
February 15, 2010 report, Dr. Syracuse diagnosed subluxations based on his review of x-rays
dated December 28, 2009. He is therefore a physician under 5 U.S.C. § 8101(2) and the Office’s
implementing regulations at 20 C.F.R. § 10.311(c). In addition, Dr. Syracuse provided a history
of injury and an opinion on causal relationship with employment. This constitutes new and
relevant medical evidence with respect to the medical issue presented. The previous medical
evidence of record was of no probative medical value. Appellant therefore has met the
requirement of 20 C.F.R. § 10.606(b)(2)(3), as she submitted evidence that constitutes relevant
and pertinent evidence not previously considered by the Office.
Since appellant has met one of the requirements of 20 C.F.R. § 10.606(b)(2), the case
must be remanded to the Office. After such further development as the Office deems necessary,
it should issue an appropriate merit decision.
On appeal, appellant argued that the medical evidence was sufficient to establish the
claim. As to the January 25, 2010 Office decision on the merits of the claim, the Board
considers only the evidence that was before the Office at the time of the January 25, 2010 final
decision.17 For the reasons noted, the medical evidence of record at that time was not sufficient
to establish the claim. The medical evidence submitted after January 25, 2010 Office decision is
reviewed to determine if it is sufficient to require the Office to review the merits of the claim.
Appellant did submit new and relevant medical evidence and the case will be remanded for a
decision on the merits of the claim.
CONCLUSION
The Board finds that appellant did not establish an injury in the performance of duty on
December 7, 2009. The Board further finds that the Office improperly denied the application for
reconsideration without merit review of the claim and the case is remanded for a merit decision.

15

20 C.F.R. § 10.606(b)(2).

16

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

17

Id. at § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 25, 2010 is modified to reflect an employment incident
on December 7, 2009 and affirmed as modified. The June 3, 2010 Office decision is set aside
and the case remanded for further action consistent with this decision of the Board.
Issued: May 4, 2011
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.N., Appellant
and
U.S. POSTAL SERVICE, MILWAUKEE
PRIORITY ANNEX POST OFFICE,
Oak Creek, WI, Employer
__________________________________________

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

Docket No. 21-1174
Issued: January 28, 2022

Case Submitted on the Record

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

JURISDICTION
On July 28, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
have elapsed from OWCP’s last merit decision, dated February 13, 2020, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 11, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 22, 2016 appellant, then a 35-year-old parcel post distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed “Other Disorders Due to
Repeated Trauma” due to factors of her federal employment, including daily walking and standing
on concrete floors and lifting heavy bags with parcels and bundles. She reported that she first
became aware of her claimed condition and realized its relation to her federal employment on
December 26, 2015.
In support of her claim, appellant submitted a February 5, 2016 work excuse note from
Dr. William Raasch, a Board-certified orthopedist specializing in sports medicine, who reported
that appellant was able to return to full-time sedentary-duty work on February 9, 2016.
In a development letter dated March 4, 2016, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit the necessary evidence.
In a March 23, 2016 letter, Dr. Raasch noted that he examined appellant on February 5,
2016 for right knee pain she had for the last several months. He referenced a January 26, 2016
magnetic resonance imaging (MRI) scan that showed a significant condylar injury involving the
medial femoral condyle. Dr. Raasch related appellant’s work history and opined that her
patellofemoral symptoms were consistent with her work activities. He recommended physical
therapy and sedentary-duty work pending re-evaluation.
On April 1, 2016 appellant responded to OWCP’s development questionnaire, noting that
she lifted heavy bags, pulled boxes, pulled all-purpose carts, and went up and down stairs for three
hours each day, five days a week. She believed these employment activities contributed to her
claimed condition. Appellant reported that she did not engage in any activities outside of her
federal employment that could have caused her condition.
By decision dated May 2, 2016, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish a medical diagnosis causally related to the accepted
factors of her federal employment. It concluded, therefore, that the requirements had not been met
to establish an injury as defined by FECA.
Appellant subsequently submitted a January 17, 2016 work excuse note from Annie
Billstrom, a physician assistant, advising that appellant could return to work with restrictions. She
also submitted a January 26, 2016 work excuse note from Dr. Stephen Malcom, a Board-certified
internist, advising that appellant should be excused from work until January 29, 2016.
On May 31, 2016 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. She submitted a May 25, 2016 letter from Dr. Raasch
2

who diagnosed progressive wear of the patellofemoral articulation and a delamination at the
femoral condyle. Dr. Raasch opined that the progression of the articular wear was outside the
norm and was consistent with the accepted factors of appellant’s federal employment.
A January 17, 2016 emergency department note signed by Ms. Billstrom related that
appellant was walking at work on December 26, 2015 and felt a pop in her right knee. Appellant
reported that since the initial injury, the pain recurred intermittently most days with walking. A
January 17, 2016 x-ray of appellant’s right knee revealed mild patellofemoral degenerative joint
disease, but no fracture or dislocation. 3
A February 5, 2016 emergency department note co-signed by Dr. Brady McIntosh, a
Board-certified physician, reported that appellant was in a car accident on that date. An
examination revealed tenderness in the right ribs, decreased range of motion, swelling, and
tenderness in the right elbow, cervical back, and thoracic back, and tenderness and bony tenderness
in the lower right leg. X-ray scans of appellant’s chest, cervical spine, thoracic spine, right elbow,
and right tibia and fibula revealed no abnormalities.
Appellant submitted progress notes from Dr. Raasch, dated February 5, April 6, May 18,
and July 20, 2016, in which he recommended physical therapy and work restrictions, with the
possibility of future chondrocyte implantation or autologous chondrocyte harvest to treat
appellant’s ongoing symptoms. In a July 20, 2016 work restriction note, Dr. Raasch indicated that
appellant was able to return to full-time sedentary-duty work.
In a September 14, 2016 progress note, Dr. Malcom noted that appellant continued to
experience right knee pain from a known meniscal tear and chondral defect after completing
physical therapy.
By decision dated November 22, 2016, OWCP’s hearing representative affirmed the
May 2, 2016 decision, as modified, finding that the evidence of record contained a medical
diagnosis establishing the medical component of fact of injury. The claim remained denied,
however, as the evidence of record was insufficient to establish causal relationship between
appellant’s diagnosed conditions and the accepted factors of her federal employment.
Appellant subsequently submitted a January 25, 2017 progress note from Dr. Raasch,
indicating that appellant’s patellofemoral symptoms had improved with physical therapy, but she
continued to experience right knee pain from her significant chondral delamination.
In a January 18, 2017 letter, Dr. Raasch explained that he had not previously discussed
appellant’s February 5, 2016 car accident or her diagnosed obesity because he did not consider
either to be a significant contributing factor to her diagnosed conditions. He further opined that
appellant’s patellofemoral symptoms were caused by prolonged employment factors, such as

3

Appellant underwent an MRI scan of her right knee on January 26, 2016, which revealed minimal meniscal free
edge blunting of the medial meniscal body and posterior horn, sprain of the proximal lateral collateral ligament, fullthickness cartilaginous defects of the weight-bearing surface of the medial femoral condyle, and full-thickness
cartilaginous loss of the lateral patellar facet.

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lifting and carrying bins and standing and walking on cement floors, resulting in progressive wear
of the patellofemoral articulation and a delamination of the femoral condyle.
On February 8, 2017 appellant requested reconsideration.
In a September 14, 2016 letter, Dr. Raasch repeated appellant’s history of injury and
advised that appellant would be able to perform her employment duties without restrictions by
March 15, 2017.
In a December 5, 2016 work restriction note, Dr. Raasch advised that appellant could return
to work full time with sedentary-duty work restrictions. On January 17, 2017 he advised that
appellant could return to work on March 8, 2017 full time with no restrictions for a trial of activity.
On February 20, 2017 Dr. Raasch indicated that appellant would undergo right knee
arthroscopy chondroplasty with drilling on April 20, 2017. In a March 1, 2017 work restriction
note, he noted that appellant could return to work full time with sedentary-duty work restrictions.
By decision dated June 16, 2017, OWCP denied modification of its November 22, 2016
decision.
Appellant subsequently submitted a June 29, 2017 work restriction note from Dr. Raasch
who advised that she could return to full-time work with sedentary-duty work restrictions on
July 7, 2017.
On September 19, 2017 appellant requested reconsideration. She submitted an August 30,
2017 letter from Dr. Raasch in which he explained that the MRI scan performed at the time of
injury revealed a clear edge to the articular surface consistent with an acute injury and appellant’s
history of injury. Dr. Raasch ruled out appellant’s obesity as a major contributing factor reporting
that, there would be a gradual thinning of the articular cartilage over years, rather than the acute
delamination with a squared articular edge revealed by the MRI scan. Finally, he ruled out the
February 5, 2016 car crash as a contributing factor because both the MRI scan and appellant’s
initial evaluation were performed prior to that date.
By decision dated December 18, 2017, OWCP denied modification of its June 16, 2017
decision.
On April 11, 2018 appellant requested reconsideration. She submitted a March 7, 2018
letter from Dr. Raasch in which he opined that her injury clearly occurred at work because the
January 26, 2016 MRI scan revealed acute injury to the chondral surface consistent with the
accepted factors of her federal employment.
By decision dated November 21, 2018, OWCP denied modification of its May 2, 2016
decision because the evidence of record contained inconsistent accounts of appellant’s injury.

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On May 28, 2019 appellant, through then-counsel, requested reconsideration. In a May 15,
2019 letter, Dr. Raasch related that appellant’s injury occurred while walking at work, when she
felt a pop in her knee followed by sharp pain and discomfort. 4
Appellant also submitted work restriction notes from Dr. Raasch dated December 12,
2018, February 27, May 1, May 21, and July 31, 2019 advising that appellant could return to work
full time with sedentary-duty work restrictions.
By decision dated August 21, 2019, OWCP denied modification of its November 21, 2018
decision, noting that Dr. Raasch’s May 15, 2018 report suggested a traumatic injury rather than an
occupational disease.
On October 7, 2019 appellant requested reconsideration. In an October 2, 2019 report,
Dr. F. Michael Saigh, a Board-certified physician specializing in family medicine, related
appellant’s history of injury and treatment and diagnosed right knee tear of the articular cartilage,
chondromalacia patellae, and tear of medial meniscus.5
OWCP also received a September 26, 2019 work restriction note from Dr. Raasch advising
that appellant could return to work full time with sedentary-duty work restrictions.
By decision dated November 1, 2019, OWCP denied modification of its August 21, 2019
decision, finding that Dr. Saigh’s report was of limited probative value because it contained factual
inaccuracies.
On November 15, 2019 appellant requested reconsideration. She submitted an undated
letter from Dr. Saigh addressing the factual discrepancies in his October 2, 2019 report. 6
In a January 6, 2020 work restriction note, Dr. Raasch advised that appellant could return
to work full time with sedentary-duty work restrictions.

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Dr. Raasch noted that the MRI scan of appellant’s right knee showed loose bodies, which, along with the clear
onset of symptoms, “clearly defines the time of injury.” He reiterated that while appellant’s weight predisposed her
to such an injury, “the mechanism of injury was the compression of the articular surface under shear load while
ambulating at work.” Dr. Raasch attributed appellant’s condition not “to a progressive problem over time but rather
a single step in which the damage occurred.”
Dr. Saigh explained that “[d]egenerative tears in the articular surfaces of the meniscus and cartilage most
commonly occur in middle aged adults that are subject [to] repetitive stress which causes weakening of the [meniscal]
and articular cartilage tissue. In [appellant]’s case, the repetitive maneuvering of large equipment, lifting, standing on
concrete floors and going up and down stairs while working for the [employing establishment] caused the [diagnosed
conditions] of the right knee. All of these diagnos[e]s are documented and afﬁrmed with advanced medical imaging
and supplemental orthopedic evaluations -- again in my medica l opinion with medical certainty, the patient[’]s
conditions listed above correlate directly with the history, evaluations and medical imaging performed in a timely
manner.... [T]his injury is an occupational disease due to extensive microtrauma over the course of time.”
5

6

Dr. Saigh reported that the employment incident on December 26, 2015 resulted from extensive microtrauma over
time, causing degeneration of the chondral surface and meniscus. He noted that the “pop” added significant damage
to appellant’s conditions, but cautioned that “just because the patient sustained a pop does not deem this traumatic.”

5

By decision dated February 13, 2020, OWCP denied modification of its November 1, 2019
decision.
On February 10, 2021 appellant requested reconsideration and asserted that her diagnosed
right knee conditions were causally related to the accepted factors of her federal employment. She
submitted a February 3, 2021 work restriction note from Dr. Raasch advising that she could return
to work with permanent restrictions, including no kneeling, squatting, climbing, or heavy lifting,
as well as no repetitive ascending and descending stairs and no prolonged walking. Appellant also
submitted a letter accepting a modified job offer on February 16, 2020.
Appellant also submitted a February 26, 2020 work restriction note from Dr. Raasch,
which advised that appellant could return to work full time on March 7, 2020 with restrictions.
By decision dated February 11, 2021, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation, at any time, on his or her own motion or on application. 7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 9 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 10 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 11
7

5 U.S.C. § 8128(a); see J.T., Docket No. 19-1829 (issued August 21, 2020); W.C., 59 ECAB 372 (2008).

8

20 C.F.R. § 10.606(b)(3); see J.V., Docket No. 19-0990 (issued August 26, 2020); C.N., Docket No. 08-1569
(issued December 9, 2008).
9

Id. at § 10.607(a); see M.M., Docket No. 20-0523 (issued August 25, 2020). The one-year period begins on the
next day after the date of the original contested decision. For merit decisions issued on or after August 29, 2011, a
request for reconsideration must be received by OWCP within one year of OWCP’s decision for which review is
sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
10

Id. at § 10.608(a); see M.M., Docket No. 20-0574 (issued August 19, 2020); M.S., 59 ECAB 231 (2007).

11

Id. at § 10.608(b); see J.V., supra note 8; E.R., Docket No. 09-1655 (issued March 18, 2010).

6

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In support of her reconsideration request, she argued that her diagnosed right knee
conditions were causally related to the accepted factors of her federal employment. The Board
finds that this argument does not show that OWCP erroneously applied or interpreted a specific
point of law, nor does it advance a relevant legal argument not previously considered by OWCP.
Consequently, appellant is not entitled to further review of the merits of her claim based on either
the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 12
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of her reconsideration request under 20 C.F.R. § 10.606(b)(3). The underlying issue on
reconsideration is whether appellant’s diagnosed right knee conditions are causally related to the
accepted factors of her federal employment. This is a medical issue which is addressed by relevant
medical evidence not previously considered. 13
With her request for reconsideration, appellant submitted February 3 and 26, 2021 work
restriction notes from Dr. Raasch. However, Dr. Raasch’s notes do not address causal relationship
and are, therefore, irrelevant to the underlying issue in this case. 14 The Board has held that the
submission of evidence that does not address the particular issue involved does not constitute a
basis for reopening a case. 15 As such, appellant is not entitled to further review of the merits of
her claim based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).16
The Board, therefore, finds that OWCP properly determined that appellant was not entitled
to further review of the merits of her claim pursuant to any of the three requirements under 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 17

12

Supra note 11.

13

Y.L., Docket No. 20-1025 (issued November 25, 2020).

14

See id.

15

See T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECB 140 (2000).
16

Supra note 11.

17

See C.M., Docket No. 19-1610 (issued October 27, 2020); A.K., Docket No. 09-2032 (issued August 3, 2010);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the request for
reconsideration without reopening the case for a review on the merits).

7

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).18
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 28, 2022
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

18

In so far as Dr. Saigh supports an occupational disease caused by appellant’s employment duties over her years
of employment, appellant may file an occupational disease claim.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G, Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Youngstown, OH, Employer
__________________________________________

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

Docket No. 08-449
Issued: November 21, 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 December 5, 2006 appellant, through counsel, filed a timely appeal from a
November 13, 2007 decision of an Office of Workers’ Compensation Programs’ hearing
representative who affirmed an April 12, 2007 decision denying her claim for intermittent wage
loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant has established entitlement to intermittent wage-loss
compensation for more than two hours a day from December 5, 2003 through July 27, 2006 due
to her accepted carpal tunnel syndrome.
FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In a December 8, 2005
decision, the Board found that the Office did not meet its burden of proof to terminate
1

Docket No. 05-1335 (issued December 8, 2005).

appellant’s compensation benefits effective November 12, 2003.2 The Board reversed the Office
hearing representative’s decision dated May 9, 2005. The facts and the history contained in the
prior appeal are incorporated by reference.
Following the Board’s decision, the Office requested appellant to file claims for
compensation (Form CA-7) for wage loss on and after November 12, 2003. On March 4, 2006
she submitted the requested Form CA-7 claims for compensation for the period November 1,
2003 through January 20, 2006;3 time analysis forms for the relevant period; a breakdown of the
hours she did not work due to her carpal tunnel syndrome and medical evidence. A February 8,
2006 duty status report limited appellant to six hours per day with restrictions. The undated
reports of Dr. John G. Wassil, III, a treating Board-certified physiatrist, found that appellant was
unable to work a full eight-hour day. 4
Dr. Wassil stated that appellant left work on specified dates, took medication and applied
hot compresses for her condition. He listed the dates she left early as December 5, 2003 to
January 20, 2006.
Appellant stated that she was unable to work a full 8-hour day during the period
November 13, 2003 through January 20, 2006 and that she was claiming 1,238.75 hours of
compensation. She claimed 2.50 hours for April 22, 2004; 2.75 hours for March 26, July 9,
September 10, 2004; 3.00 hours for April 8, 2004; 3.00 hours for May 22, 28 and 29, June 8, 23
and 24, July 2, August 11 to 13, 20, 26 and 31, September 24 and 29, 2004; 3.50 hours of
compensation for January 31, March 16 and 31, April 10 and 14, May 20, June 10, 21 and 30,
July 30, 2004; 3.75 hours for March 23 and 30, 2004; 4.00 hours for July 14, 2004; 4.50 hours
for April 1 and June 16, August 23, 2004; 8.00 hours for December 5 and 6, 2003, February 2,
July 31, August 27, September 4, November 13 and December 4, 2004, January 25, 2005,
February 3 and 19, April 9 and 30, July 29 and October 31, 2005.5
On March 16, 2006 the Office approved two hours of wage-loss for December 5, 6 and
13, 2005, February 2 and 28, March 2, April 9, July 12, 14 and 31, August 27, September 4,
November 13 and December 4, 2004, February 3 and 19,6 April 30, July 14, 15 and 29,
October 31 and December 3, 2005. It disallowed eight hours of compensation for January 25,
2

On March 21, 1990 appellant, a 37-year-old letter sorting machine clerk, filed an occupational disease claim
alleging that on March 6, 1990 she first realized her carpal tunnel syndrome was employment related. The Office
accepted her claim for bilateral carpal tunnel syndrome and paid compensation for intermittent periods of disability.
On November 22, 2002 appellant accepted limited-duty position working six hours per day and the Office paid
compensation for two hours a day of disability.
3

The employing establishment certified 1,305.72 hours of leave without pay for this period.

4

On February 14, 2006 appellant accepted the employing establishment’s limited-duty job offer. The duties of
the position included 2.5 hours of casing letters, 0.5 hours of casing flats, 20 minutes of collecting mail and as
needed for camera security room. The physical requirements of the job were listed as 3.00 hours of repetitive
motion, 0.5 hours of pulling/pushing, 6.00 hours of bending/twisting/stooping and simple grasping, 6.00 hour of
walking/standing/sitting and reaching above shoulders.
5

For all other dates noted appellant claimed two hours of compensation.

6

The Office noted the year as “2004.” This appears to be a typographical error as the year should be “2005.”

2

2005 as it was not authorized to attend hearings as requested by appellant. The Office found the
medical evidence insufficient to support disability for more than two hours on the dates claimed
between September 12 and October 18, 2005.7
In an April 3, 2006 report, Dr. Wassil noted that appellant could only work six hours a
day due to her accepted carpal tunnel syndrome. As to the dates she claimed more than two
hours, Dr. Wassil stated:
“[Appellant] has provided me a list of dates over the past two years that she has
had to leave work earlier than six hours. It seems to me that the number of times
that she has had to leave work early is completely and appropriately compatible
with her diagnosis of carpal tunnel syndrome and is based objectively on the
results of the EMG/NCV (electromyogram/nerve conduction velocity) test
performed most recently, approximately one to one and one-half years ago which
shows severe nerve damage both wrists. It is completely compatible with this
condition that on these occasions, it is very reasonable to assume that the patient
could develop more significant problems related to carpal tunnel, which includes
pain, numbness and tingling. These are subjective findings. The more objective
findings I [a]m concerned with is the fact the patient develops weakness and lack
of endurance and inability to feel or control the mail that she has to pitch and the
fact the patient develops swelling in the hands and wrists, which further impairs
function.”
Dr. Wassil stated that he had reviewed the dates claimed noting that if appellant awoke
with problems in her hand it was reasonable for her to take an entire day off if she did not obtain
relief by medication. Appellant claimed eight hours for fourteen times over the prior two years,
which Dr. Wassil advised was “completely, normal, reasonable and compatible” with her
condition and the objective evidence.
On April 6, 2006 appellant filed an additional claim for compensation for lost wages for
the period January 21 to March 31, 2006 for 120.5 hours, together with appropriate time analysis
forms.
On April 28, 2006 the Office received appellant’s letter addressing the days she was
unable to work a six-hour day due to numbing pain from her accepted carpal tunnel syndrome.
She claimed 10.5 hours of additional compensation for the period January 21 to March 31, 2006.
In a letter dated May 2, 2006, the Office noted receipt of appellant’s claim for wage-loss
compensation. It authorized payment for 98 hours of intermittent wage loss based upon
Dr. Wassil’s report that she could only work six hours per day. The Office found that the
medical evidence was insufficient to support payment for more than two hours of wage-loss a
day on the remaining days.

7

On Mach 17, 2006 the Office paid appellant $15,434.03 for wage-loss compensation for the period
November 13, 2003 through January 20, 2006.

3

In a report dated May 8, 2006, Dr. Wassil diagnosed bilateral carpal tunnel syndrome.
He discussed appellant’s condition and situation with her and concluded:
“[T]he objective clinical findings, which I find justify her on occasional taking off
before her six[-]hour shift is up, her call offs for the full shift and the fact that her
routine schedule involves six hours of work with two hours off with pay. It was
basically based upon results of the EMG/NCV test, which shows substantial and
significant nerve damage at her wrists and the fact that this situation flares upon a
regular basis, causing her to be less physically functional and most importantly,
causing weakness and loss of endurance, which are objective clinical findings, as
well as swelling in the hands and inability to feel mail to do her job.”
On June 17, 2006 Dr. Wassil noted that appellant “needs to be seen on any day that she
stays home or has to leave work early for her work-related condition of carpal tunnel.” He stated
that he reviewed appellant’s “forms and paperwork that show the dates from 2003 to 2006 that
she had to miss work or leave work early.” Dr. Wassil “verified that she takes a fairly consistent
number of days off, or leaves work early on a consistent number of days per month and these
have not been increasing to any significant degree.”
On September 26, 2006, Dr. Alan H. Wilde, a second opinion Board-certified orthopedic
surgeon, diagnosed bilateral carpal tunnel syndrome. He advised that appellant had residuals of
her accepted condition. Dr. Wilde opined that appellant was capable of working a modified job
with restrictions including no wrist repetitive movement and no pushing or lifting more than 10
pounds. He recommended carpal tunnel surgery.
On January 31, 20078 Dr. Wassil again listed specific dates that appellant was unable to
complete a full days work between December 27, 2003 to January 20, 2006. He stated that she
had severe pain, swelling, numbness and stiffening of her hands and fingers, which required her
to take medication and place hot compresses on her hands. Dr. Wassil stated that appellant was
totally disabled due to residuals of her carpal tunnel condition.
By decision dated April 12, 2007, the Office denied appellant’s claim for intermittent
wage loss for more than two hours a day from December 5, 2003 through July 27, 2006.9 It
found the medical evidence was insufficient to establish disability for intermittent wage loss for
more than two hours.
In a letter dated April 14, 2007, appellant’s counsel requested an oral hearing, which was
held on September 18, 2007.
On May 2, 2007 the Office determined a conflict in the medical opinion arose between
Dr. Wassil, appellant’s treating physician, who advised that appellant was capable of working six
8

Dr. Wassil noted the year as “2006,” but this appears to be a typographical error as the year should be “2007.”

9

The Office noted the dates on which appellant claimed more than two hours of wage-loss compensation were
December 5, 6 and 13, 2003; February 28, March 2, April 9, July 12, 14 and 31, August 27, September 4,
November 13 and December 4, 2004; February 2 and 19, April 30, July 14, 15 and 29, October 31 and December 3,
2005; January 21 and 25, February 15, March 2, 3, 4, 11 and 14, July 26 and 27, 2007.

4

hours with restrictions, and Dr. Wilde, a second opinion physician, who opined that she was
capable of working eight hours a day with restrictions. It referred appellant to Dr. James A.
Shaer, a Board-certified orthopedic surgeon, to resolve this conflict. In a May 14, 2007 report,
Dr. Shaer opined that appellant was capable of working eight hours per day with restrictions. He
also recommended carpal tunnel surgery.
By decision dated November 13, 2007, the Office hearing representative affirmed the
denial of appellant’s claim for two hours of intermittent disability a day from December 5, 2003
through July 27, 2006. He found that appellant actually only worked three hours per day casing
mail as she alternated between casing mail and resting for a half hour. The hearing
representative found that the medical evidence was insufficient to establish that she was unable
to perform her duties of casing mail for three hours per day or that her condition had worsened
such that she was unable to perform her duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act10 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence.11
For each period of disability claimed, the employee has the burden of establishing that she was
disabled for work as a result of the accepted employment injury.12 Whether a particular injury
causes an employee to become disabled for work and the duration of that disability, are medical
issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.13
Under the Act the term “disability” means incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.14 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.15 An employee who has a physical impairment causally related to her federal
employment, but who nonetheless has the capacity to earn the wages she was receiving at the
time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.16 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.
10

5 U.S.C. §§ 8101-8193

11

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
12

See Amelia S. Jefferson, supra note 11; see also David H. Goss, 32 ECAB 24 (1980).

13

See Edward H. Horton, 41 ECAB 301 (1989).

14

S.M., 58 ECAB ___ (Docket No. 06-536, issued November 24, 2006); Bobbie F. Cowart, 55 ECAB 746
(2004); Conard Hightower, 54 ECAB 796 ( 2003); 20 C.F.R. § 10.5(f).
15

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

16

Merle J. Marceau, 53 ECAB 197 (2001).

5

To meet this burden, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factor(s).17 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.18
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.19
ANALYSIS
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome on
June 26, 1990. On March 16, 2006 the Office authorized wage-loss compensation for two hours
per day commencing November 12, 2003. The issue is whether appellant established that she
was disable on the days she worked less than six hours during December 5, 2003 through
July 27, 2006.
Appellant’s attending physician, Dr. Wassil a Board-certified physiatrist, concluded that
appellant was disable for more than six hours during the period 2003 to 2006. He stated that
appellant was unable to work her six-hour limited-duty job on specified dates and issued the
dates she worked less than six hours. Dr. Wassil noted that appellant was unable to work a sixhour day due to her carpal tunnel syndrome. He stated that her inability to work was due to
numbness, control or feel the mail, swelling, lack of endurance, weakness and swelling in her
hands. However, Dr. Wassil did not state whether he treated appellant on these dates for her
accepted condition.20 He relied upon appellant’s statements that she was unable to work a sixhour shift on the specified dates as no examination had been performed. Dr. Wassil provided no
objective findings on examination for the dates claimed. The Board will not require the Office to
pay compensation for disability in the absence of medical evidence directly addressing the
specific dates of disability, for which compensation is claimed.21 To do so would essentially
17

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).

18

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

19

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

20

See Amelia S. Jefferson, supra note 11 (a claimant who has returned to work following an accepted injury or
illness may need to undergo examination or treatment and such employee may be paid compensation for wage loss
while obtaining medical services and for a reasonable time spent traveling to and from the medical provider’s
location).
21

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008). (When a physician’s statements regarding
an employee’s ability to work consist only of repetition of the employee’s complaints that she hurt too much to
work, without objective findings of disability being shown, the physician has not presented a medical opinion on the
issue of disability or a basis for payment of compensation).

6

allow employees to self-certify their disability.22 Accordingly, the Board finds that the medical
evidence of record is not sufficient to establish that appellant was disabled for more than six
hours during December 5, 2003 to July 27, 2006.
Appellant presented insufficient medical evidence to establish her disability on the dates
claimed. She did not provide treatment notes from Dr. Wassil or any other physician verifying
that she was examined and treated for her accepted condition on the dates claimed. Appellant
did not submit medical reports explaining, with rationale, why her absence from work for more
than two hours on the dates claimed was related to her accepted bilateral carpal tunnel syndrome.
She has not provided medical evidence sufficient to meet her burden of proof.23
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing
entitlement to intermittent disability for the period December 5, 2003 to July 27, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 13 and April 12, 2007 are affirmed.
Issued: November 21, 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

22

Fereidoon Kharabi, supra note 19.

23

See id; see also Alfredo Rodriguez, 47 ECAB 437 (1996).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
EUROPE, Kaiserslautern, Germany, Employer
_________________________________________

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

Docket No. 15-1420
Issued: November 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 16, 2015 appellant filed a timely appeal from a February 24, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from November 22, 2013, the date of the most recent merit decision, and the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to present clear evidence of error.
FACTUAL HISTORY
On February 17, 2010 appellant, then a 56-year-old finance technician filed an
occupational disease claim (Form CA-2), asserting that from August 17, 2009 to February 4,
1

5 U.S.C. § 8101 et seq.

2010 he was assigned to work in Building 3245 in the Kleber Kaserne military compound in
Kaiserslautern, Germany, which was contaminated with mold and he experienced chronic
symptoms of nose and throat irritation, watery eyes, and scalp and skin irritation. He became
aware of his condition on January 19, 2010. Appellant did not stop work.
By letter dated July 27, 2011, OWCP advised appellant of the type of evidence needed to
establish his claim, particularly requesting that he submit a physician’s reasoned opinion
addressing the relationship of his claimed condition and specific employment factors.
In a letter dated July 26, 2010, appellant asserted that he had sick building syndrome
from working in Building 3245. He noted his exposure was from August 2007 to July 2008 and
from August 2009 to January 2010. Appellant indicated that there was mold growing on stair
wells and there was a sewage leak in 2009. He submitted a February 10, 2010 report from
Dr. Karin Claren, a German physician, who treated appellant on January 12, 2010 for itching on
his head. Dr. Claren diagnosed tinea capitis and prescribed a topical solution, shampoo and
tablets. She noted the laboratory test results revealed a culture plate of mold fungus. Appellant
submitted a November 15, 2010 report from Dr. Van Thong Nguyen, a German physician, who
treated appellant from May 4 to July 29 2010, for severe itching, a rash on his head, tinnitus, and
loss of concentration. Dr. Nguyen noted that diagnostic testing revealed mold exposure. He
determined that appellant had mold poisoning on the scalp with inflammation which spread over
his whole body, arteries, liver, and lymph nodes causing reduced vision, weakness, poor
concentration and tinnitus. Dr. Nguyen noted that the clinical course was detoxification,
cleansing through herbs, acupuncture, and strengthening of the immune system.
Also submitted was an executive summary for the industrial hygiene survey for Building
3245 Leber Kaserne military compound, Kaiserslautern, Germany dated March 11 and
April 8, 2010. The survey recommended the basement of Building 3245 be inspected for
moisture incursion near room 012; a determination be made of the cause of musty odors in a
basement storage area; removal of the carpet in room 007; and cleaning of the surfaces
contaminated with microbial growth.
In a decision dated October 21, 2011, OWCP denied appellant’s claim for compensation
because the evidence did not support that the injury or events occurred as alleged.
On September 24, 2012 appellant requested reconsideration and submitted additional
evidence. He submitted a report from Dr. Jahannes Thum, a German physician, dated
December 7, 2012, who treated him for a severe skin disease with ulceration, folliculitis, and
severe itching. Dr. Thum diagnosed mold fungus infection of the skin. He noted that appellant
was disabled from work for several weeks undergoing treatment. Dr. Thum opined that based on
appellant’s description of events he suspected the infection was caused by the presence of mold
in the workplace as appellant described huge patches of dark fungus growing on the walls and
stairways.
In a decision dated November 9, 2012, OWCP modified the decision dated October 21,
2011 to reflect that appellant established that he had workplace exposure to dampness, musty
odors, and air passing over debris-filled window wells. It denied appellant’s claim finding that

2

the medical evidence failed to establish that the diagnosed condition was causally related to the
accepted work-related events.
On October 8, 2013 appellant requested reconsideration. He submitted a statement dated
October 30, 2013 and noted reporting to his supervisors his exposure to mold while working in
Building 3245 and informing them of his illness. Appellant noted that management did not act
on his report until February 17, 2010. He disagreed with OWCP’s denial of his claim and
asserted that he has submitted sufficient medical evidence to support that his diagnosed condition
was causally related to his work exposure to mold. Appellant also referenced reports from
Dr. Nyugen and Dr. Thum. He submitted employing establishment medical records dated
July 25, 2008 where he was treated for systemic hypertension. In a report dated August 3, 2009,
appellant was treated for multiple skin lesions on the upper back, abdomen, upper arms, and
head. He was diagnosed with cellulitis of the scalp and essential hypertension. Appellant
submitted a March 15, 2010 report from Dr. Claren who treated him for inflammation and
itching with lesions on his head, rump, and forearms. He noted that the spore’s revealed
bacterial infection. Dr. Claren noted that a mycological specimen growth could be a fungus and
diagnosed suspected tinea capitis or folliculitis.
In a decision dated November 22, 2013, OWCP denied modification of the decision dated
November 9, 2012.
By appeal request form dated November 3, 2014 and received on December 3, 2014,
appellant requested reconsideration. In a November 3, 2014 letter, he disagreed with OWCP’s
denial of his claim and asserted that he submitted sufficient evidence to support that his
diagnosed condition was causally related to the accepted work-related events. Appellant noted
that Dr. Nguyen provided a rationalized opinion describing the causal relationship of his
condition and his workplace. He noted that Dr. Nguyen and Dr. Claren provided laboratory
results which supported that he was infected with mold poisoning. Appellant indicated that he
began to have problems with his skin and eyes while working in Building 3245 and was moved
to another building and his skin healed. He indicated that in August 2009 he was transferred
back to Building 3245 and his skin condition returned.
Appellant submitted employing establishment medical records dated July 25, 2008 and
August 3, 2009, reports from Dr. Claren dated January 12 and March 15, 2010, an executive
summary for the industrial hygiene survey for Building 3245 Leber Kaserne military compound,
Kaiserslautern, Germany dated March 11 and April 8, 2010, a report from Dr. Nguyen dated
November 15, 2010, a request for reconsideration dated October 30, 2013, a report from
Dr. Thum dated October 30, 2013, a November 13, 2013 copy of his appeal of the prior OWCP
decision, a copy of OWCP’s decision dated November 22, 2013, all previously of record.
By decision dated February 24, 2015, OWCP denied appellant’s request for
reconsideration as it was untimely filed and did not establish clear evidence of error.

3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”2
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.3 However, OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the
claimant’s application for review shows clear evidence of error on the part of OWCP in its most
recent merit decision. To establish clear evidence of error, a claimant must submit evidence
relevant to the issue that was decided by OWCP. The evidence must be positive, precise, and
explicit and must be manifest on its face that OWCP committed an error.4
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting 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.5
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.6 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.7 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.8 The Board makes an independent determination
as to whether a claimant has submitted clear evidence of error on the part of OWCP.9
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607(a).

4

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

5

Annie L. Billingsley, 50 ECAB 210 (1998).

6

Jimmy L. Day, 48 ECAB 652 (1997).

7

Id.

8

Id.

9

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

4

ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. As noted, an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.10 As appellant’s request
for reconsideration was not received by OWCP until December 3, 2014, more than one year after
issuance of the November 22, 2013 merit decision, it was untimely. Consequently, he must
demonstrate clear evidence of error by OWCP in its November 22, 2013 decision.
The Board finds that appellant has not established clear evidence of error on the part of
OWCP. In his November 3, 2014 reconsideration request, appellant disagreed with OWCP’s
decision denying his claim for an occupational disease. He indicated that he began to have
problems with his skin and eyes while working in Building 3245. Appellant asserted that
Drs. Nguyen and Claren provided rationalized opinions describing the causal relationship of his
skin condition and his workplace exposure to mold and they provided laboratory results which
supported that he was infected with mold poisoning. While he addressed his disagreement with
OWCP’s decision denying his claim for an occupational disease, this does raise a substantial
question as to the correctness of OWCP’s decision. As noted, to establish clear evidence of
error, it is not enough merely to show that the evidence could be construed so as to produce a
contrary conclusion.
In support of his reconsideration request, appellant also submitted evidence. He
submitted employing establishment medical records dated July 25, 2008 and August 3, 2009,
reports from Dr. Claren dated January 12 and March 15, 2010, an executive summary for the
industrial hygiene survey for Building 3245 Leber Kaserne military compound, Kaiserslautern,
Germany dated March 11 and April 8, 2010, a request for reconsideration dated October 30,
2013, a report from Dr. Thum dated October 30, 2013, a report from Dr. Nguyen dated
November 15, 2010, a November 13, 2013 copy of his appeal of the prior OWCP decision, and a
copy of OWCP’s decision dated November 22, 2013. However, this evidence was previously of
record. OWCP had previously considered this evidence and appellant, in submitting these
documents, did not explain how this evidence was positive, precise, and explicit in manifesting
on its face that OWCP committed an error in denying his claim for compensation. It is not
apparent how resubmission of this evidence is sufficient to raise a substantial question as to the
correctness of OWCP’s decision. Thus, this resubmitted evidence is insufficient to show clear
evidence of error.
Consequently, appellant has not established clear evidence of error by OWCP in its
November 22, 2013 decision.
On appeal, appellant reiterated assertions that he previously made before OWCP
indicating that he disagreed with OWCP’s decision denying his claim for an occupational
disease. He asserted that he submitted sufficient evidence to support that his diagnosed
condition was causally related to the accepted work-related events. However, as noted, the

10

20 C.F.R. § 10.607(a).

5

Board does not have jurisdiction over the merits of the claim. Appellant has not established clear
evidence of error by OWCP.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, SACRAMENTO
PERFORMANCE CLUSTER,
West Sacramento, CA, Employer
__________________________________________

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

Docket No. 21-1259
Issued: March 15, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 16, 2021 appellant filed a timely appeal from April 9 and July 21, 2021 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a right foot condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On February 4, 2021 appellant, then a 55-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she began experiencing occasional burning and pain on
1

5 U.S.C. § 8101 et seq.

the side and bottom of her right heel due to factors of her federal employment, including excessive
walking. She explained that approximately two months prior to filing her claim she began
experiencing burning pain in her heel at the end of her workday, which worsened with increased
walking pace. Appellant alleged that she first became aware of her claimed condition and realized
its relation to her federal employment on January 18, 2021. She stopped work on
February 1, 2021.
In a statement dated January 27, 2021, appellant reiterated the details of the pain symptoms
she experienced due to her employment activities, which culminated in November 2020. She
related that, thereafter, she experienced worsened pain in the last two weeks. Appellant asserted
that she did not injure her foot and that the ongoing pain caused her to seek medical treatment.
On January 29, 2021 Dr. Wanda Blaylark, a Board-certified occupational medicine
specialist, diagnosed right plantar fasciitis and indicated that appellant should only perform
stationary work duties through February 5, 2021.
In a February 4, 2021 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion. OWCP also requested a narrative medical
report from appellant’s treating physician containing a detailed description of findings and a
diagnosis, explaining how her work activities caused, contributed to, or aggravated her medical
condition. In a separate development letter of even date, it requested that the employing
establishment provide comments from a knowledgeable supervisor regarding the accuracy of her
allegations. OWCP afforded both parties 30 days to respond.
A January 29, 2021 note from Dr. Blaylark recounted appellant’s complaints of pain that
she alleged began two months prior and had worsened in the last two weeks. Dr. Blaylark noted
that appellant’s official work duties required her to constantly walk during her delivery route and
that she indicated brisk walking worsened the pain. She also related that appellant denied any
previous right foot condition and that her condition was a work-related injury. In a medical report
of even date, Dr. Blaylark noted appellant’s diagnosed condition and modified work schedule.
On February 5, 2021 appellant followed up with Dr. Blaylark and advised that she had not
experienced improvement in her symptoms following her medical treatment, but that she can
return to work with modified duties. In a work duty status report of even date, Dr. Blaylark
indicated that appellant was in a temporary alternate work status from February 5 to 22, 2021 and
provided modified duties requiring no more than 20 minutes per hour of standing or walking during
that period.
On February 18, 2021 appellant responded to OWCP’s development questionnaire
explaining that her official duties require her to continuously walk an average of five to six hours
while carrying up to 30 pounds of mail on her delivery route. She further asserted that she did not
experience any foot pain previously and that she began experiencing increased pain by the end of
her delivery route. Appellant also indicated that she did not engage in any sports or physical
activities outside of her federal employment.

2

In a February 22, 2021 note, Dr. Blaylark reported that appellant’s condition had slightly
improved with the prescribed medical treatment; however, she continued to experience significant
discomfort when she walked. In a work duty status report of even date, she indicated that appellant
should continue her current work restrictions until March 15, 2021.
A March 15, 2021 note from Dr. Blaylark noted that appellant had seen improvement from
her medical treatment; however, she indicated that appellant was unable to perform the duties of
her date-of-injury position. In a work duty status report of even date, Dr. Blaylark modified her
work restrictions to a maximum of 30 minutes of prolonged standing or walking until
April 26, 2021.
By decision dated April 9, 2021, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish a right heel condition
causally related to the accepted factors of her federal employment. Consequently, it found that
she had not met the requirements to establish an injury or medical condition causally related to the
accepted employment factors.
OWCP received a March 25, 2021 note from Dr. Timothy Bernard, a podiatrist, who
opined that appellant’s right plantar fasciitis was aggravated by her prolonged walking and
standing. Dr. Bernard further noted that she did not experience any prior injury or condition of
her right foot before the onset of her current pain.
On April 24, 2021 appellant requested reconsideration of OWCP’s April 9, 2021 decision
and attached additional medical evidence. In a letter of even date, Dr. Blaylark reiterated that her
official duties require her to walk up to 30,000 steps per day on her route and that she did not
experience any prior injuries with her right foot. She opined that appellant’s right heel condition
was causally related to her work activities of prolonged walking and standing.
By decision dated July 21, 2021, OWCP denied modification of its April 9, 2021 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

2

Supra note 1.

3

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

3

employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant 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
casually related to the identified employment factors by the claimant.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 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 specific employment factors. 8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right foot
condition causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted a letter from Dr. Blaylark dated April 24, 2021
wherein she opined that prolonged standing and walking of up to 30,000 steps a day as part of
appellant’s official duties as a mail carrier aggravated her right plantar fasciitis. The Board finds
that, while she provides an opinion on causal relationship, her reports are insufficient to meet
appellant’s burden of proof, as she did not provide adequate medical reasoning to explain how
prolonged standing and walking caused or contributed to appellant’s diagnosed medical condition.
The Board has held that medical evidence that does not offer a rationalized medical explanation
regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.9 Thus, Dr. Blaylark’s April 24, 2021 report is insufficient to meet appellant’s burden
of proof.

4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.W., Docket No. 20-0767 (issued January 13, 2021); L.D., Docket No. 19-1301 (issued January 29, 2020); S.C.,
Docket No. 18-1242 (issued March 13, 2019).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
9

M.E., Docket No. 18-0940 (issued June 11, 2019).

4

Likewise, in a March 25, 2021 medical report from Dr. Bernard, he opined that appellant’s
right plantar fasciitis was aggravated by prolonged walking and standing at work. He noted that,
prior to November 2020, she had no pain or symptoms in her right foot. As noted above, the Board
has held that a medical opinion without adequate rationale is insufficient to establish appellant’s
burden of proof. Moreover, an opinion that a condition is causally related to an employment
incident because the employee was asymptomatic before the injury is insufficient, without
adequate rationale, to establish causal relationship. 10 Therefore, Dr. Bernard’s report is
insufficient to establish appellant’s burden of proof.
The remaining evidence of record includes notes dated January 29 to March 15, 2021 from
Dr. Blaylark where she recounted appellant’s history of injury and medical treatment. Dr. Blaklark
diagnosed right plantar fasciitis and provided work restriction. However, she did not offer an
opinion on causal relationship. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 11 As such, Dr. Blaylark’s remaining reports are of no probative value and are
insufficient to establish appellant’s claim.
As there is no rationalized medical evidence explaining how appellant’s employment duties
caused or aggravated her diagnosed condition, the Board finds that she has not met her burden of
proof.
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 has not met her burden of proof to establish a right foot
condition causally related to the factors of her federal employment.

10

See S.D., Docket No. 20-1255 (issued February 3, 2021); F.H., Docket No. 18-1238 (issued January 18, 2019);
J.R., Docket No. 18-0206 (issued October 15, 2018).
11

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the April 9 and July 21, 2021 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF STATE, AMERICAN
EMBASSY, Budapest, Hungary, Employer
__________________________________________

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

Docket No. 10-115
Issued: September 3, 2010

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 October 9, 2009 appellant filed a timely appeal from an October 1, 2009 merit
decision of the Office of Workers’ Compensation Programs regarding waiver of an overpayment.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether the Office properly denied waiver of a $15,372.70 overpayment of
compensation.
FACTUAL HISTORY
The case has been before the Board on prior appeals. In a May 13, 2004 decision, the
Board found appellant’s pay rate should include the value of living quarters provided, as set forth
in 5 U.S.C. § 8114(e).1 The case was remanded for the Office to determine the appropriate date
1

55 ECAB 546 (2004).

for the pay rate determination, the value of the living quarters and a determination as to whether
post allowance was appropriate in this case. In a June 5, 2006 decision, the Board found that the
appropriate date to establish pay rate was the date of injury, July 4, 1998.2 As to fact and amount
of an overpayment, the Board noted there remained a question as to the value of the living
quarters provided, and the case was remanded for further development. By order dated
November 30, 2007, the Board remanded the case again for further development as to the value
of the living quarters provided.3 In a decision dated July 14, 2009, the Board affirmed the
finding of a $15,372.70 overpayment of compensation.4 The Board remanded the case on the
issue of waiver, noting that the financial evidence of record was nearly three years old at the time
of a July 2, 2008 Office decision. The history of the case is provided in the prior Board
decisions and orders and is incorporated herein by reference.
On August 17, 2009 the Office received an August 9, 2009 overpayment recovery
questionnaire (Form OWCP-20). Appellant also submitted a narrative statement regarding his
income and expenses. A memorandum of telephone call (Form CA-110) dated August 27, 2009
indicated that the Office spoke with appellant regarding his income and expenses.
By letter dated August 27, 2009, the Office advised appellant that a July 2, 2008
overpayment decision had been issued, and no payment had been received. The Office stated
that if they did not receive payment or some indication that appellant intended to cooperate
within 30 days, interest or administrative charges may be added.
In a decision dated October 1, 2009, the Office noted that it had received the OWCP-20,
and “after careful review we find that we cannot grant you a waiver of recovery.” No additional
explanation was provided.
LEGAL PRECEDENT
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.5 These statutory
guidelines are found in section 8129(b) of the Federal Employees’ Compensation Act which
states: “Adjustment or recovery [of an overpayment] 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 [the Act] or would be against equity and
good conscience.”6 Since the Office found appellant to be without fault in the creation of the
overpayment, then, in accordance with section 8129(b), the Office may only recover the
overpayment if it determined that recovery of the overpayment would neither defeat the purpose
of the Act nor be against equity and good conscience.
2

Docket No. 06-282 (issued June 5, 2006).

3

Docket No. 07-1093 (issued November 30, 2007).

4

Docket No. 08-2406 (issued July 14, 2009).

5

Robert Atchison, 41 ECAB 83 (1989).

6

See 5 U.S.C. § 8129(b); Carroll R. Davis, 46 ECAB 361 (1994).

2

Section 10.436 of the implementing regulations7 provide that recovery of an overpayment
will defeat the purpose of the Act if recovery would cause hardship to a currently or formerly
entitled beneficiary because: (a) the beneficiary from whom the Office seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current
ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified
amount as determined [by the Office] from data furnished by the Bureau of Labor Statistics.8 An
individual is deemed to need substantially all of his or her income to meet current ordinary and
necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00.9
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 in 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.10
ANALYSIS
In the present case, the Board had remanded the case for further development on the
waiver issue. Although appellant filed an appeal of what he described as an August 27, 2009
decision, the letter dated August 27, 2009 was an informational letter regarding the overpayment
of compensation, not a final decision. The October 1, 2009 letter, however, clearly made a final
determination on waiver: “after careful review we find that we cannot grant you a waiver of
recovery.”11
While the Office stated that it performed a “careful review,” the decision provided no
findings to support the decision. There was no discussion as to the evidence regarding waiver,
such as documented income, expenses and assets. Moreover, there was no discussion of the
legal precedent regarding waiver and an explanation as to why the evidence in this case did not
warrant waiver of the overpayment. It is a well-established principle that the Office must make
proper findings of fact and a statement of reasons in its final decisions.12

7

20 C.F.R. § 10.436 (1999).

8

An individual’s assets must exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual
with a spouse or one dependent plus $960.00 for each additional dependent. This base includes all of the
individual’s assets not exempt from recoupment; see Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.6 (June 2009).
9

Sherry A. Hunt, 49 ECAB 467 (1998).

10

20 C.F.R. § 10.437 (1999).

11

The Board has jurisdiction to consider appeals from final decisions of the Office in any case arising under the
Act. 20 C.F.R. § 501.2(c).
12

See Arietta K. Cooper, 5 ECAB 11 (1952); 20 C.F.R. § 10.126.

3

The case will accordingly be remanded to the Office for a proper decision on waiver of
the overpayment. After such development as the Office deems necessary, it should issue an
appropriate decision.13
CONCLUSION
The Board finds that the Office did not make proper findings on the waiver issue and the
case will be remanded for an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 1, 2009 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: September 3, 2010
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

13

The Office issued a decision dated October 27, 2009 with respect to the overpayment. It is well established that
the Board and the Office may not have concurrent jurisdiction over the same case, and those Office decisions that
change the status of the decision on appeal are null and void. Douglas E. Billings, 41 ECAB 880, 895 (1990).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Virginia Beach, VA,
Employer
__________________________________________

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

Docket No. 09-1728
Issued: March 23, 2010

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 June 17, 2009 appellant filed a timely appeal from an April 24, 2009 merit decision of
the Office of Workers’ Compensation Programs denying his request for an increased pay rate.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether the Office properly determined appellant’s pay rate for
compensation purposes.
FACTUAL HISTORY
This case is before the Board for the second time. In a decision dated January 12, 2009,
the Board set aside July 30 and December 11, 2007 decisions denying appellant’s request for an

increased pay rate.1 The Board remanded the case for the Office to further develop the factual
evidence to determine whether he was entitled to premium pay for working weekends and
holidays. The Board noted that appellant had submitted an August 14, 2000 memorandum of
understanding from the employing establishment which provided that employees covered under
the agreement could receive premium pay for work performed after the first eight hours of
regularly scheduled work Monday through Friday and for work performed weekends and
holidays. The Board instructed the Office to request that the employing establishment explain
whether appellant was entitled to premium pay for work performed weekends and holidays based
on the August 14, 2000 memorandum of understanding.
By letter dated April 8, 2009, the employing establishment reviewed the August 2000
memorandum of understanding, entitled “Memorandum of Understanding on Elimination of
ROS(A) Personnel Work Rules.” It asserted that the memorandum applied only to personnel
working on vessels in reduced operational status and not to all civilian mariners. The employing
establishment explained that appellant was not assigned to a ship in reduced operational status
and thus was not covered under the August 14, 2000 memorandum of understanding. It
concluded that he was not entitled to premium pay.
By decision dated April 24, 2009, the Office denied appellant’s request that additional
premium pay for work performed weekends, holidays and at night be included in his pay rate. It
determined that the information from the employing establishment showed that he was not
assigned to a vessel operating at reduced capacity and thus the memorandum of understanding
providing premium pay for civilian mariners under limited circumstances was not applicable in
his case.
On appeal, appellant contends that he was entitled to premium pay, citing his pay stubs
and the August 2000 memorandum of understanding. He related that he understood that the
memorandum of understanding did not apply to all civilian mariners but indicated that “it applies
to personnel who are scheduled and assigned to work Saturdays, Sundays and Holidays.
Therefore it can be utilized to establish my entitlement to premium pay.”
LEGAL PRECEDENT
Section 8105(a) of the Federal Employees’ Compensation Act2 provides: “If the
disability is total, the United States shall pay the employee during the disability monthly
monetary compensation equal to 66 2/3 percent of his monthly pay, which is known as his basic
compensation for total disability.”3 Section 8110(b) of the Act provides that total disability
compensation will equal three fourths of an employee’s monthly pay when the employee has one
or more dependents.4 Pay rate for compensation purposes is defined in section 8101(4) as the
1

Docket No. 08-838 (issued January 12, 2009). The Office accepted that on November 5, 2002 appellant, then a
60-year-old able seaman, sustained an aggravation of lumbar degenerative disc disease in the performance of duty.
It paid him compensation for disability beginning March 10, 2004.
2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8105(a).

4

Id. at § 8110(b).

2

monthly pay at the time of injury, the time disability begins or the time disability recurs, if the
recurrence is more than six months after returning to full-time work, whichever is greater.5
Section 8114(e) of the Act provides that, in addition to annual base pay, certain items will
be included in the computation of pay, such as the value of subsistence and quarters, premium
pay and any form of remuneration in kind for services.6 Section 8114(e) specifically provides
that overtime pay is excluded in computing an employee’s monthly pay for compensation
purposes.7
When the job held at the time of injury includes elements of pay such as night or shift
differential, extra compensation for work on Sundays and holidays or pay for administratively
uncontrollable overtime, the Office must include the additional pay in the base pay.8
ANALYSIS
Appellant alleged that he was entitled to premium pay for work performed weekends and
holidays. As discussed, when the job held at the time of injury includes elements of pay such as
night or shift differential, extra compensation for work on Sundays and holidays or pay for
administratively uncontrollable overtime, the Office must include the additional pay in the base
pay.9
In support of his request for premium pay, appellant submitted an August 14, 2000
memorandum of understanding which provided that in certain circumstances employees covered
under the agreement received premium pay for work performed in excess of eight hours of
regularly scheduled work Monday through Friday and for work performed on weekends and
holidays. On prior appeal the Board determined that the Office had not sufficiently developed
whether he was entitled to premium pay for work performed on weekends and holidays based on
the provisions of the August 14, 2000 memorandum of understanding. The Board remanded the
case for the Office to obtain an explanation from the employing establishment regarding whether
the memorandum of understanding applied to appellant and established that he was entitled to
premium pay.
By letter dated April 8, 2009, the employing establishment explained that the
memorandum of understanding applied only to personnel working on vessels in reduced
operational status. It noted that appellant was not working on a ship in reduced operational
status and thus he was not covered under the provisions of the August 2000 memorandum of
understanding. The employing establishment asserted that he was not entitled to premium pay.
5

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

6

Id. at § 8114(e).

7

Id.

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.8(b)
(December 1995).
9

Id.

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Appellant has not submitted any evidence showing that he worked on a vessel in reduced
operational status. Consequently, the Board finds that the Office properly denied appellant’s
claim that premium pay should be included in his pay rate as he has not submitted evidence
showing that he was entitled to premium pay under the terms of the August 2000 memorandum
of understanding.
On appeal, appellant contends that his pay stubs show that he was receiving premium pay
for weekends and holidays at the time of his injury. In the prior appeal, the Board noted that, by
letter dated October 31, 2007, the employing establishment explained that the codes on the pay
stubs represented his retention allowance and overtime pay rather than pay for work performed
on weekends and holidays.10 The employing establishment further provided that civilian
mariners did not receive Sunday premium pay, holiday pay or night differential. Appellant has
not established that the codes on his pay stubs represented pay for weekend and holiday work.
Appellant also asserts that the August 14, 2000 memorandum of understanding
establishes that he was entitled to premium pay. As discussed, however, the employing
establishment explained that it applied only to employees working on vessels in reduced
operational service. Appellant has not submitted any evidence showing that he was assigned to a
vessel in reduced operational service of that the employing establishment’s explanation was
incorrect and thus has not established the applicability of the August 14, 2000 memorandum of
understanding in determining his pay rate.
CONCLUSION
The Board finds that the Office properly determined appellant’s pay rate for
compensation purposes.

10

The Office included retention pay in calculating appellant’s pay rate. 5 U.S.C. § 8114(e) provides that overtime
pay is not included in determining monthly pay.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 24, 2009 is affirmed.
Issued: March 23, 2010
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

5