United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1354
Issued: March 13, 2020

Case Submitted on the Record

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

JURISDICTION
On May 28, 2019 appellant filed a timely appeal from a December 3, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The most recent merit
decision was a Board decision dated March 13, 2018, which became final 30 days after issuance,
and is not subject to further review.2 As there was no merit decision by OWCP within 180 days
of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from December 3, 2018, the date of OWCP’s last decision, was
June 1, 2019. As this fell on a Saturday, appellant had until the following business day, Monday, June 3, 2019, to file
the appeal. Since using June 4, 2019, the date the appeal was received by the Clerk of the Appellate Boards would
result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal
Service postmark is May 28, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

20 C.F.R. § 501.6(d). See G.G., Docket No. 18-1074 (issued January 7, 2019).

3

5 U.S.C. § 8101 et seq.

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
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On February 11, 2008 appellant, then a 51-year-old administrative assistant, filed an
occupational disease claim (Form CA-2) alleging that she developed constant pain in both elbows,
hands, arms, and her neck and back as a result of her employment duties. She indicated that she
first became aware of her condition and first realized that it resulted from her employment on
January 15, 2008. On the reverse side of the claim form, the employing establishment reported
that appellant was last exposed to the conditions alleged to have caused her conditions on
“February 12, 2008.” OWCP accepted her claim for bilateral lateral epicondylitis, bilateral medial
epicondylitis, sciatica, and neck sprain. It subsequently expanded acceptance of appellant’s claim
to include bilateral carpal tunnel syndrome.5 OWCP paid wage-loss compensation for total
disability on the periodic rolls, effective June 7, 2009.
On December 5, 2014 OWCP mailed appellant an EN1032 form for her completion. The
form instructed her to report all employment for which she received a salary, wages, income, sales
commissions, piecework, or payment of any kind. Appellant was also directed to report all selfemployment activities or involvement in business enterprises, including (but not limited to)
farming, sales work, operating a business, and providing services in exchange for money, goods,
or other services. The kinds of services that she was required to report included such activities as
carpentry, mechanical work, painting, contracting, child care, keeping books and records, and
managing and overseeing a business of any kind, including a family business. The form also
instructed appellant to report any work or ownership interest in any business enterprise, even if the
business lost money or if profits or income were reinvested or paid to another.
The cover letter for the EN1032 form included the following warning: “A false or evasive
answer to any question, or the omission of an answer, may be grounds for forfeiting your
compensation benefits and subject you to civil liability.” The forms contained certification clauses
which informed appellant of the consequences of not accurately reporting her employment

4

Docket No. 17-1362 (issued March 13, 2018).

5

Under OWCP File No. xxxxxx455, OWCP accepted appellant’s September 15, 2008 occupational disease claim
for cervical spondylosis without myelopathy or radiculopathy, cervical disc degeneration, lumbar spondylosis without
myelopathy or radiculopathy, lumbar spondylolisthesis, bilateral pes planus, neck sprain, bilateral medial and lateral
epicondylitis, and bilateral carpal tunnel syndrome as causally related to her employment duties. On September 1,
2010 OWCP combined the current case under OWCP File No. xxxxxxx045 with OWCP File No. xxxxxx455 with the
latter file as the master file.

2

activities, such as being subjected to criminal penalties and losing the right to receive workers’
compensation benefits.
On December 27, 2014 appellant completed and signed the EN1032 form. In response to
the question of whether she worked for an employer for the past 15 months, she reported “No.”
Appellant also responded “No” to the question of whether she was self-employed or involved in
any business enterprise in the past 15 months.
On June 12, 2015 OWCP received a narrative statement from appellant. Appellant
indicated that she needed to correct an answer on the yearly paperwork form. She explained that
her husband had purchased a snow cone trailer and had added her name to the permits, trailer, and
limited liability company (LLC) just in case anything happened to him. Appellant reported that
she answered “No” on the EN1032 form and that she did not think about the snow cone trailer
until her husband opened it for business over the summer.
In a July 23, 2015 letter, the employing establishment’s Office of Inspector General (OIG)
informed OWCP that an investigation into appellant revealed that she had been operating her own
business and had failed to report the employment activities to OWCP. It requested that OWCP
issue a forfeiture decision due to her failure to disclose her employment.
On July 27, 2015 OWCP received an OIG summary report of investigation, which
indicated that during surveillance OIG agents had observed appellant working at a snow cone
business, carrying merchandise and buckets, unloading supplies from a trailer, writing on the
outside menu of the business, setting up tables and umbrellas, staking signs in the ground, and
serving snow cones to customers.
In a completed Form EN1032 dated February 7, 2016, appellant answered “yes” that she
was self-employed or involved in a business enterprise from the period April 1 to
September 1, 2015. She explained that she and her husband bought a snow cone stand and that
she bought and delivered cups, checked on the employees, and visited with customers a couple of
times. Appellant noted a pay rate of $8.00/hour.
In a February 7, 2016 narrative statement, appellant explained that her husband had added
her name to the title of the snow cone stand that he had bought because he had lung cancer. She
indicated that, while grocery shopping with her husband, they occasionally bought cups, straws,
or napkins and dropped them off at the snow cone stand. Appellant also related that the snow cone
stand was two blocks from her house and that she occasionally stopped by to see how the business
was operating and visit with customers. She reported that neither she nor her husband were paid
or received any wages while operating the snow cone stand.
By decision dated August 18, 2016, OWCP found that appellant had forfeited her wageloss compensation for the period September 27, 2013 through December 27, 2014 for failure to
report her business and employment activities or earnings on a Form EN1032. The forfeiture
period covered the 15 months preceding the December 27, 2014 EN1032 form. OWCP found that
appellant had knowingly provided false information about earnings and self-employment on that

3

EN1032 form. It also determined that all compensation paid during the period would be considered
an overpayment subject to recovery in accordance with 5 U.S.C. § 8129.6
OWCP received a September 21, 2016 letter by Dr. John Ellis, Board-certified in family
medicine, who related that appellant had severe anxiety and depression due to the multiple
work-related injuries to her neck, upper extremities, lumbar spine, and feet. Dr. Ellis noted that
she was under the influence of narcotic pain medicine when she filled out the Form EN1032 in
2014 and opined that she was not fully aware of what she was signing.
In an October 18, 2016 report, Dr. Gary A. Rouse, a clinical psychologist, related that,
since his original evaluation in September 2008, appellant had continued to decline emotionally
and physically. He opined that she was not competent or knowledgeable enough to understand
what she was signing or attesting to or to understand the complexity or legal implications of
partnerships and LLCs.
In a January 31, 2017 statement, appellant explained that she had not received money from
her husband’s snow cone business nor did she perform any job activities. She reported that her
husband had recently dissolved the LLC.
On August 18, 2017 appellant requested reconsideration of the August 18, 2016 forfeiture
decision. In a statement dated August 9, 2017, she asserted that she believed that she was not
required to report her investment income as work activities since there was no evidence that the
three to five hours total spent at the business could be construed as integral to the operation of the
business. Appellant cited to FECA Procedure Manual 2.402.5 and S.G.,7 and contended that the
Board has distinguished between the reporting requirements for income received from passive
investment and earnings and income received by performing work and earning wages. She also
alleged that she was not fully aware when she signed the LLC documents due to her deteriorating
mental health, severe anxiety, and depression. Appellant also cited to B.Y.,8 alleging that the Board
had previously found that, in finding that a claimant forfeited compensation, OWCP could not rely
solely on video tape and summary submitted by the employing establishment’s OIG. She also
noted her disagreement with the OIG investigation and her interview with the OIG agents.

6

By separate decision dated August 18, 2016, OWCP also issued a preliminary determination that appellant
received an overpayment of compensation in the amount of $43,832.60 for the period September 27, 2013 through
December 27, 2014 as a result of the forfeiture. It found that she was at fault in the creation of the overpayment
because she failed to report her business and employment activities or earnings from the snow cone business that she
owned with her husband. By decision dated December 12, 2016, OWCP finalized the preliminary overpayment
determination, finding an overpayment of compensation in the amount of $43,832.60 for the period September 27,
2013 to December 27, 2014. It also found that appellant was at fault in the creation of the overpayment, and therefore
was not eligible for waiver for recovery of the overpayment. On June 2, 2017 appellant filed an appeal to the Board
regarding the December 12, 2016 overpayment decision. By decision dated March 13, 2018, the Board affirmed the
December 12, 2016 OWCP decision, which finalized the overpayment of compensation in the amount of $43,832.60
for the period September 27, 2013 to December 27, 2014 and found that she was at fault in the creation of the
overpayment.
7

Docket No. 11-0942 (issued April 4, 2012).

8

Docket No. 11-1798 (issued July 24, 2012).

4

By decision dated November 17, 2017, OWCP denied modification of the August 18, 2016
forfeiture decision.
On November 20, 2018 OWCP received appellant’s appeal request form, which requested
reconsideration of the November 17, 2017 decision. In a narrative statement, appellant alleged
that OWCP ignored many issues, including her arguments concerning why any of the OIG
interviews or photographs were applicable. She also contended that OWCP erred by ignoring
evidence and arguments concerning whether her comprehension was impaired. Appellant cited to
the Board’s holding in C.G.,9 and alleged that she had provided probative supporting evidence that
she would have difficulty understanding the obligations required on a Form EN1032.
Appellant also resubmitted Dr. Ellis’ September 21, 2016 report and Dr. Rouse’s
October 28, 2016 report.
OWCP received a statement from appellant dated June 1, 2017. Appellant alleged that
OWCP had not supported its forfeiture determination because there was no evidence establishing
that she knowingly failed to report self-employment or earnings on the Form EN1032 signed on
December 27, 2014. She explained that the three to five hours spent at the business were not
considered valuable on the open labor market and that her activities could not be construed as
integral to the operation of the business. Appellant also asserted that, although the business was
licensed in May 2014, it had not opened for business in April 2015. She further indicated that the
file contained statements from her psychologist who noted that she was not fully aware of what
she was signing when she signed the LLC.
By decision dated December 3, 2018, OWCP denied appellant’s request for
reconsideration of the merits of the 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.10 This discretionary authority, however, is subject
to certain restrictions.11 One such limitation is that the request for reconsideration must be received
by OWCP within one year of the date of the decision for which review is sought.12 Timeliness is
determined by the document receipt date of the request for reconsideration as is indicated by the
“received date” in the Integrated Federal Employees’ Compensation System (iFECS).13
9

Docket No. 11-0454 (issued May 22, 2012).

10

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
11

20 C.F.R. § 10.607; S.C., Docket No. 18-0126 (issued May 14, 2019).

12
Id. at § 10.607(a); L.W., Docket No. 18-1475 (issued February 7, 2019). 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).
13

Id. at Chapter 2.1602.4(b).

5

Imposition of this one-year filing limitation does not constitute an abuse of discretion.14 OWCP
may not deny a reconsideration request solely because it was untimely filed. When a claimant’s
request for reconsideration is untimely filed, it must nevertheless undertake a limited review to
determine whether it demonstrates clear evidence of error.15 If an application demonstrates clear
evidence of error, OWCP will reopen the case for merit review.16
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error.17 It is not enough merely to demonstrate that the
evidence could be construed so as to produce a contrary conclusion.18 The evidence submitted
must not only be of sufficient probative value to create a conflict in medical opinion or demonstrate
a clear procedural error, but must be of sufficient probative value to shift the weight of the evidence
in favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.19
OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard.20
The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.21
ANALYSIS
The Board finds that this case is not in posture for decision.
The most recent merit decision of OWCP was the November 17, 2017 decision. One year
from November 17, 2017 elapsed on November 17, 2018. As November 17, 2018 fell on a
Saturday, appellant had until the next business day on Monday, November 19, 2018 to file her
reconsideration request.22 OWCP received her reconsideration request on November 20, 2018
which was more than one year after the November 17, 2017 decision. Appellant’s request
14

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
15

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
16
L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 12 at Chapter 2.1602.5 (February 2016).
17

20 C.F.R. § 10.607(b); P.L., Docket No. 18-0813 (issued November 20, 2018); Fidel E. Perez, 48 ECAB 663,
665 (1997).
18

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

19

V.L., Docket No. 17-1493 (issued September 12, 2018); Annie L. Billingsley, 50 ECAB 210 (1998).

20

Supra note 12 at Chapter 2.1602.5a (October 2011).

21

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

22

Supra note 12 at Chapter 2.1602.4 (February 2016).

6

therefore was untimely filed.23 The proper standard of review for an untimely reconsideration
request is the clear evidence of error standard.24 In denying her request, OWCP applied the
standard of review for timely requests for reconsideration.25 As it applied the incorrect standard
of review to the untimely request for reconsideration, the Board will set aside OWCP’s
December 3, 2018 decision and remand the case for proper review under the clear evidence of
error standard as required by regulations.26
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further action
consistent with this decision of the Board.
Issued: March 13, 2020
Washington, DC

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

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

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

23

See E.H., Docket No. 19-0859 (issued December 10, 2019).

24

Supra note 15.

25

See L.W., Docket No. 16-1202 (issued January 25, 2018); H.L., Docket No. 13-2077 (issued March 20, 2014).

26

See 20 C.F.R. § 10.607(b); see also M.C., Order Remanding Case, Docket No. 18-0866 (issued March 26, 2019).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.V., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
FACILITY, Denver, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-146
Issued: May 12, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 22, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 21, 2007, affirming the denial of her
claim for compensation. 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 an injury in the performance of duty on
December 13, 2006.
FACTUAL HISTORY
On December 22, 2006 appellant, then a 44-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that she sustained injuries in the performance of duty on
December 13, 2006. She stated she was trying to release mail that had become stuck in a chute
and she fell backwards, hitting her head and losing consciousness. Appellant described the
injuries as a concussion, headache, left arm bruise, neck and back pain, along with runny eyes.

In a statement dated January 17, 2007, an employing establishment supervisor,
Mr. Rainwater, reported that on December 13, 2006 appellant told him “she had fallen backward
on the keying station and landed on her buttocks/side.” He stated that appellant explained that
she was trying to free a parcel with a bar, and as the parcel broke free she stumbled and fell.
Mr. Rainwater reported that appellant was a little shaken up from the fall, but declined medical
attention. According to him, appellant did not mention that she hit her head or lost
consciousness. Mr. Rainwater stated that appellant joked that it was a good thing she landed on
her buttocks.
With respect to the medical evidence, the record indicates that appellant initially sought
treatment on December 20, 2006 at a hospital emergency room. The history indicated that an
accident occurred four days earlier and appellant reported that she fell and landed on a hard
surface. The diagnosis from Dr. Paul Price, an emergency medicine specialist, was concussion
with loss of consciousness, and neck sprain/strain. On December 22, 2006 appellant was treated
at a hospital emergency room by Dr. Catherine Erickson, an internist. There was a history that
appellant fell backward and hit a wall at work a week earlier after pulling boxes down. The
diagnosis was neck strain and postconcussion syndrome.
Appellant received additional treatment at an emergency room on January 7, 2007, with a
date of injury reported as December 19, 2006. The physician diagnosed status post closed-head
injury with intermittent memory loss. In a form report (CA-20), an internist, whose signature is
illegible, diagnosed transient amnesia. The physician checked a box “yes” the condition was
caused or aggravated by employment activity.
By decision dated February 28, 2007, the Office denied the claim for compensation. The
Office determined that the evidence was insufficient to establish an incident as alleged as there
were inconsistencies in the evidence.
Appellant requested an oral hearing before an Office hearing representative, which was
held on June 22, 2007. At the hearing, she stated that she believed she hit her head on the wall as
she fell, and there was a bump on the back of her head. Appellant denied saying she did not
want medical attention or joking about falling on her buttocks.
In a report dated January 8, 2007, Dr. Lorena Letkomiller, an internist, provided a history
of a head injury on December 19, 2006 when appellant lost consciousness for an unknown
period. The history also reported “[status post] occipital injury from box hitting her in the front
of the head and resultant hit to the occipital region after fall onto machine.” Dr. Letkomiller
provided results on examination and diagnosed concussion and transient amnesia.
By decision dated September 21, 2007, the Office hearing representative affirmed the
February 28, 2007 decision. The hearing representative found that appellant did fall at work, but
appeared to find that she did not hit her head. The hearing representative also found the medical
evidence was insufficient to establish an injury causally related to a December 13, 2006
employment incident.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that he or she sustained an injury while in the performance of duty.2 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.3
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.4 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. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.5
Rationalized medical opinion evidence is 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. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.6
ANALYSIS
With regard to the first element of fact of injury, the record does establish that on
December 13, 2006 appellant was attempting to dislodge a parcel and she lost her balance and
fell. Appellant reported the incident promptly to a supervisor on that date. The exact manner of
the fall is not entirely clear from the record. Appellant believed she hit her head on a wall as she
fell and lost consciousness for an unspecified period. There were no eyewitnesses and a
1

5 U.S.C. §§ 8101-8193.

2

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

3

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

4

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

5

Id.

6

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

3

supervisor stated that appellant’s initial description of the incident did not include hitting her
head. Appellant’s statement is entitled to great weight on this factual issue7 and she did report
hitting her head on a wall when she sought treatment on December 20, 2006. According to the
supervisor, appellant was attempting to minimize the severity of the fall and the need for
immediate treatment, and therefore the lack of a complete description of the incident to the
supervisor is not persuasive evidence that she did not hit her head. The record is sufficient to
establish an employment incident as alleged on December 13, 2006, and therefore the medical
evidence will be reviewed to determine if an injury causally related to the employment incident.
As noted above, probative medical evidence must be based on a complete factual and
medical background. In this case a proper history of the incident would include a clear
description of the incident, the date it occurred, as well as an understanding that appellant did not
initially report a head injury or seek treatment until December 20, 2006. None of the medical
evidence of record contains a complete and accurate history of the December 13, 2006
employment incident. The emergency room reports provide a brief reference to a fall at work,
without providing a complete and accurate background. Dr. Letkomiller appeared to have an
incorrect history as she referred to a box hitting appellant’s head and a fall into a machine.
In addition to the lack of a complete factual and medical background, the medical
evidence lacks a rationalized medical opinion on causal relationship between a diagnosed
condition and the December 13, 2006 employment incident. The diagnoses in this case include a
neck sprain, as well as closed-head injury, postconcussion syndrome and transient amnesia. To
establish any of these conditions as employment related there must be a medical opinion on
causal relationship with supporting medical rationale. The physicians of record do not provide a
medical opinion on causal relationship between a specific diagnosed condition and the
employment incident, with an explanation supporting the opinion. The checking of a box “yes”
in a form report with respect to a transient amnesia, without additional explanation or rationale, is
not sufficient to establish causal relationship.8
The Board accordingly finds that appellant did not meet her burden of proof in this case.
The record does not contain probative medical evidence on causal relationship between any
diagnosed condition and the December 13, 2006 employment incident.
CONCLUSION
The evidence of record does not establish an injury causally related to a December 13,
2006 employment incident.

7

An employee’s statement regarding an employment incident is of great probative value and will stand unless
refuted by strong or persuasive evidence. Thelma Rogers, 42 ECAB 866 (1991).
8

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 21 and February 28, 2007 are modified to reflect that
an employment incident occurred as alleged, and affirmed as modified.
Issued: May 12, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1465
Issued: June 4, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On June 1, 2013 appellant, through her representative, filed a timely appeal of a May 2,
2013 nonmerit decision of the Office of Workers’ Compensation Programs. Because over 180
days elapsed between the most recent merit decision, November 28, 2012, to the filing of this
appeal, the Board lacks jurisdiction to review the merits of appellant’s case, pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).
On appeal counsel argues that the employing establishment would not allow appellant to
return to work without medical clearance and that therefore she sustained a recurrence of
disability as the employing establishment effectively withdrew her light-duty position.
FACTUAL HISTORY
On June 6, 2000 appellant, then a 45-year-old window clerk, filed a traumatic injury
claim alleging that she was robbed while performing her work duties on June 3, 2000. OWCP

accepted her claim under No. xxxxxx297 for acute stress reaction on August 2, 2000. It
authorized compensation benefits through September 1, 2000. On August 29, 2000 appellant’s
physician released her to return to light-duty work with no contact with the public. Appellant
returned to work on June 15, 2001.
On September 17, 2001 appellant filed a second emotional condition claim, assigned
OWCP File No. xxxxxx497, alleging that she developed an occupational disease as a result of
employment factors. OWCP accepted her claim for dysthymic disorder with atypical features.
On May 20, 2002 appellant’s attending physician released her to return to work at the Clayton
Station. OWCP combined all claims under Master File No. xxxxxx425.1
Appellant’s attending physician, Dr. Charles Ferris, a psychiatrist, noted that by April 29,
2007 appellant had returned to work. Appellant accepted a light-duty position on November 28,
2006 working at the employing establishment in the Sacramento facility as a modified mail
processing clerk.
On March 31, 2008 the employing establishment stated that appellant had been off work
for almost a year due to her father’s death and that she must submit a note from her physician
that she was not a threat to return to work.
On April 11, 2008 appellant filed a notice of recurrence of disability alleging that on
February 8, 2008 she sustained a recurrence of disability in regard to her 2001 emotional
condition claim and also filed a claim for wage-loss compensation from February 8 through
April 11, 2008. On April 21, 2008 OWCP requested additional factual and medical evidence in
support of her claimed recurrence.
On May 16, 2008 the employing establishment instructed appellant to return to work
without further medical clearance at the Royal Oaks Facility rather than Sacramento. On
May 20, 2008 it stated that she had not reported to work since May 2007 due to a death in her
1

A portion of this case, under OWCP File No. xxxxxx497, has previously been before the Board on appeal. On
January 10, 2002 appellant filed an occupational disease claim alleging that she developed an emotional condition
due to stress in her federal employment. OWCP denied her claim on June 30, 2003. By decision dated August 26,
2003, the Board affirmed OWCP’s denial of appellant’s claim as she had not established discrimination, harassment
or retaliation by her supervisor, Nancy Atkinson.
In a letter dated March 5, 2009, appellant’s representative requested reconsideration of appellant’s claim
based on a September 16, 2005 decision of the Equal Employment Opportunity Commission (EEOC). The EEOC
judge found based on a hearing conducted on December 14, 2004 that appellant was a qualified individual with a
disability as she had developed post-traumatic stress disorder in 2000 when robbed at gunpoint at her employing
establishment. The judge further found that Ms. Atkinson was not a credible witness and that she belittled appellant,
yelled at her and retaliated against appellant. The EEOC judge ordered appellant reinstated with back pay in a
location separate from Ms. Atkinson as well as monetary damages.
By decision dated March 8, 2011, the Board found that appellant had established clear evidence of error as
the September 16, 2005 EEOC decision raised a substantial question as to the correctness of OWCP’s decision. The
facts and the circumstances of the case as set out in the Board’s prior decision are adopted herein by reference.
Following the Board’s March 8, 2011 decision, OWCP accepted appellant’s January 10, 2002 emotional
condition claim for dysthymic disorder on May 17, 2011.

2

family. The employing establishment noted that, since appellant had removed herself from
work, she would be allowed to return without medical documentation. It further stated that
Dr. Ferris was restricting appellant from returning to work at the Royal Oaks facility and that the
employing establishment was attempting to return appellant to work at the Sacramento Plant.
By decision dated May 22, 2008, OWCP denied appellant’s April 11, 2008 claim for
recurrence and wage-loss compensation from February 8, 2008 and continuing.
Dr. Ferris completed a note on June 2, 2008 and stated that appellant could return to work
with a single limitation that she not be assigned to the facility where she last worked. On June 6,
2008 the employing establishment offered appellant a modified mail processing clerk position at
the Sacramento Processing and Distribution Center which complied with her restrictions of no
monetary transactions with the public. On June 18, 2008 the employing establishment denied
her request for light duty as it related to restrictions on standing. In a letter dated August 5,
2008, the employing establishment stated that there was no light-duty work available within
appellant’s restrictions at the Sacramento Processing and Distribution Center.
Dr. Janak Mehtani, a Board-certified psychiatrist, completed a note dated September 8,
2008 and stated that appellant could return to her usual work effective immediately in the
Stockton area due to her medical condition and multiple medications. In a note dated
September 15, 2008, he stated that she had an employment-related knee condition which
interfered with her ability to perform the offered position. On November 6, 2008 Dr. Mehtani
stated that he had restricted appellant from driving from Stockton to Sacramento. He stated that
she was on a new medication regimen which made it difficult for appellant to drive more than
100 miles round trip every day from her home in Stockton to her work in Sacramento.
On March 14, 2009 appellant filed a claim for compensation requesting wage-loss
compensation from September 21, 2007 through March 10, 2008 and a claim for recurrence of
disability beginning on July 31, 2007 due to her 2001 employment injury. She stated that the
employing establishment provided a position that failed to meet her work restrictions.
The Branch of Hearings and Review reversed the February 9, 2009 termination decision
on September 25, 2009 remanding for development of the medical evidence and combining of
the case records.
In a letter dated March 27, 2009, OWCP stated that appellant’s March 15, 2009
recurrence claim had been addressed in the May 22, 2008 decision denying her prior recurrence
claim. It stated that she left work in May 2007 due to a death in her family and that, when she
requested to return to her job, the employing establishment could not accommodate her
nonindustrial depression. OWCP stated that a nonindustrial depression was not an appropriate
basis for a recurrence of disability claim.2

2

OWCP proposed to terminate appellant’s compensation and medical benefits by letter dated January 7, 2010.
By decision dated February 18, 2010, it terminated appellant’s compensation and medical benefits effective that
date. Appellant’s representative requested an oral hearing. In a decision dated September 27, 2010, the hearing
representative reversed the February 18, 2010 decision and remanded for reinstatement of medical benefits.

3

In a letter dated October 7, 2010, appellant’s representative discussed OWCP’s recent
reinstatement of medical benefits and requested wage-loss compensation for the same period.
He stated that appellant stopped work in May 2007 due to depression related to the death in her
family. Appellant’s representative argued that appellant should not have been required to submit
medical evidence when returning from personal or annual leave usage. He stated that the
employing establishment admitted in its May 28, 2008 letter that it refused to provide appellant
with work due to a perceived medical condition. Appellant’s representative stated, “Technically,
the agency withdrew the claimant’s limited duty and continued to establish it had no limited duty
to meet her medical restrictions.” On April 22, 2011 he requested that OWCP reply to his
October 7, 2010 letter noting that it was intended to be a request for reconsideration of
appellant’s claimed recurrence of disability. In a letter dated May 24, 2011, OWCP requested
additional factual and medical evidence in support of appellant’s claimed recurrence of
disability. Appellant submitted a report dated June 9, 2011 from Dr. Mehtani noting that
appellant was currently distressed due to her workers’ compensation claim. Dr. Mehtani stated
that this was an entirely separate incident involving a death in the family that appellant felt she
needed private time to grieve. He noted that she attempted to return to work in September 2007
and was told that she needed to provide a work release note.
Appellant completed a statement on June 29, 2011 and noted that her grandfather died in
May 2007 and that she utilized bereavement leave. The employing establishment requested that
she provide a physician’s release to return to work. Appellant stated that she became ill in
October 2007 related to her 2003 claim. She stated that she felt that the employing establishment
retaliated and discriminated against her. Appellant noted that the employing establishment
allowed her to return to work in May 2008 and that she became ill again in September 2008. She
stated that she was forced to retire in October 2009.
In a decision dated March 28, 2012, OWCP denied appellant’s claim for recurrence of
disability. It found that the employing establishment did not err or act abusively in requesting
medical documentation for appellant’s return to work in July 2007. OWCP found that the
employing establishment provided appellant with a reasonable job offer on June 6, 2008 and
appellant refused this offer based on nonindustrial bases.
Appellant requested an oral hearing before an OWCP hearing representative. On
June 24, 2012 Dr. Mehtani stated that appellant was totally disabled and required medications.
Appellant testified at the oral hearing on August 30, 2012 and submitted reports from
Dr. Mehtani dated September 14 and October 25, 2012 which recommended therapy and
medications.
By decision dated November 28, 2012, OWCP’s hearing representative found that
appellant had not established a recurrence of disability in 2007 due to her accepted emotional
condition. She found that appellant left her employment for extended periods without any
evidence of recurrent disability due to her accepted work factors. The hearing representative
found that the contemporaneous medical evidence was quite clear that appellant had been staying
away from work for multiple reasons of her own accord and that there was not a medical
disability associated with her absences. She further found that there was no evidence that the
employing establishment improperly requested medical evidence supporting appellant’s ability

4

to return to work. The hearing representative concluded that appellant had not established a
claimed recurrence or new work factors.
Appellant’s representative requested reconsideration on February 27, 2013. He argued
that the employing establishment committed error or abuse in requesting medical documentation
from appellant and that the employing establishment technically withdrew appellant’s limited
duty. Appellant’s representative argued that this withdrawal was a compensable factor of
employment. He further argued that the employing establishment indicated that light duty was
not available within appellant’s physical limitations due to her nonemployment-related standing
restriction. Appellant submitted a July 23, 2008 settlement agreement.
Dr. Mehtani completed notes on December 7, 2012, February 19 and April 9, 2013
stating that appellant was improving on new medication, but remained totally disabled.
In a decision dated May 2, 2013, OWCP declined to reopen appellant’s claim for
consideration of the merits. It stated that the underlying issue of appellant’s representative’s
arguments was that appellant’s light-duty job offer was withdrawn when she wanted to return
from bereavement leave and that this issue had been discussed in prior decisions. OWCP denied
a review of the merits.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.3
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.4 Section
10.608 of OWCP’s regulations provide that when a request for reconsideration is timely, but
does meet at least one of these three requirements, OWCP will deny the application for review
without reopening the case for a review on the merits.5
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case. The Board has also
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case. While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention lacks validity.6
3

5 U.S.C. §§ 8101-8193, 8128(a).

4

20 C.F.R. § 10.606.

5

Id. at § 10.608.

6

M.E., 58 ECAB 694 (2007).

5

ANALYSIS
By decision dated November 28, 2012, OWCP reviewed the merits of appellant’s claim
and found that she had not established a recurrence of disability on or after September 21, 2007
causally related to her employment injuries.
As OWCP issued the November 28, 2012 decision more than 180 days before the filing
of this appeal with the Board on June 1, 2013, the Board is precluded from considering the
merits of the claim on appeal.7 The issue presented on appeal is whether appellant met any of
the requirements of 20 C.F.R. § 10.606(b)(3) requiring OWCP to reopen the case for review of
the merits of her claim. In her February 27, 2013 request for reconsideration, appellant did not
identify or show that OWCP erroneously applied or interpreted a specific point of law. Her
representative attempted to advance a new and relevant legal argument. He, however, continued
to argue that the employing establishment improperly required medical evidence to return
appellant to work thereby effectively changing her light-duty job requirements so that appellant
experienced a recurrence of disability. The Board finds that these arguments are repetitive.
Appellant’s representative has made these allegations and arguments continuously since
October 7, 2010. OWCP has reviewed and addressed these arguments in prior decisions and
these repetitive arguments do not provide a new basis for considering the merits of appellant’s
claim.8
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence, but appellant did not meet this requirement of 20 C.F.R. § 10.606(b)(3) as she
submitted reports from Dr. Mehtani which were not relevant to her medical condition at the
alleged time of recurrence.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered or submit
relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
The Board finds that, as appellant has not satisfied any of the criteria for warranting a
merit review, OWCP properly declined to reopen her claim for consideration of the merits on
May 2, 2013.

7

20 C.F.R. § 501.3(e).

8

The Board has repeatedly held that the submission of evidence which repeats or duplicates evidence already in
the case record does not constitute a basis for reopening a case. D.K., 59 ECAB 141 (2007); E.M., Docket No. 0939 (issued March 3, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the May 2, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.9
Issued: June 4, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

Richard J. Daschbach, Chief Judge, who participated in the preparation of the decision, was no longer a member
of the Board after May 16, 2014.

7


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

)
)
)
)
)
)
)
)

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

Docket No. 16-0986
Issued: September 1, 2016

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 April 8, 2016 appellant filed a timely appeal of a March 10, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $662.71 for the period September 26 through October 2, 2015; and (2) whether
appellant was at fault in the creation of the overpayment such that repayment is not subject to
waiver of recovery.
FACTUAL HISTORY
On July 20, 2015 appellant, then a 46-year-old letter carrier filed an occupational disease
claim (Form CA-2) alleging that he developed stiffness and pain in his right knee with swelling.
1

5 U.S.C. § 8101 et seq.

On September 4, 2015 OWCP accepted his claim for sprain of the right knee and leg as well as
tear of the right medial meniscus. In the September 4, 2015 letter, it notified appellant that he
was to immediately inform it upon his return to work to avoid an overpayment of compensation.
OWCP also noted that, if he worked during any period covered by a compensation payment that
he had to return the payment to OWCP.
Appellant filed a claim for compensation (Form CA-7) requesting compensation for leave
without pay from August 29 through September 18, 2015. His attending physician released him
to return to full work on September 24, 2015.
Appellant returned to full duty on
September 26, 2015. He filed a second CA-7 form on September 29, 2015 requesting leave
without pay from September 19 through 25, 2015. The September 29, 2015 Form CA-7
indicated that appellant returned to full duty on September 26, 2015.
On October 1, 2015 OWCP issued appellant compensation benefits from August 29,
through October 2, 2015 in the amount of $4,276.01. It determined on October 23, 2015 that he
was not entitled to compensation from September 26 through October 23, 2015 in the amount of
$797.40. On October 28, 2015 OWCP determined that appellant was entitled to compensation
from September 26 through October 2, 2015 for 6.30 hours of leave without pay in the amount of
$134.69 for this period.
In a preliminary determination dated February 8, 2016, OWCP determined that appellant
received a $662.71 overpayment because he returned to full-time work on September 26, 2015,
but received compensation for total disability through October 2, 2015. It reported that the
amount of the overpayment did not include a total of 6.3 hours of leave without pay that he
utilized for physical therapy visits on September 26 and October 1, 2015. OWCP provided
appellant with an overpayment recovery questionnaire, (OWCP-20) as well as his appeal rights.
By decision dated March 10, 2016, OWCP found that appellant had received an
overpayment of compensation in the amount of $662.71 as he returned to work on a full-time
basis on September 26, 2015, but continued to receive compensation for total disability through
October 2, 2015. It found that he was at fault in the creation of the overpayment as he accepted a
payment that he knew or reasonably should have known was incorrect.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA2 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3 When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.4

2

5 U.S.C. § 8102.

3

Id.

4

5 U.S.C. § 8129(a).

2

A claimant is not entitled to receive temporary total disability and actual earnings for the
same period.5 OWCP regulations provide that compensation for wage loss due to disability is
available only for any periods during which an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related injury.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $662.71 because he had been paid in error for the period September 26 through
October 2, 2015. Appellant had returned to full duty on September 26, 2015, but received
compensation for disability from OWCP through October 2, 2015 except for 6.3 hours of leave
without pay that he utilized for physical therapy visits on September 26 and October 1, 2015. As
he received full-time wages for an eight-hour position job for the period September 26 through
October 2, 2015, he was not entitled to disability compensation from OWCP for this same
period. Therefore, appellant received an overpayment of compensation as calculated by OWCP.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA7 provides that, where an overpayment of compensation has
been made “because of an error or fact of law,” adjustment shall be made by decreasing later
payments to which an individual is entitled. The only exception to this requirement is a situation
which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of [FECA] or would be
against equity and good conscience.”8 Accordingly, no waiver of an overpayment is possible if
the claimant is with fault in helping to create the overpayment.
In determining whether an individual is with fault, section 10.433(a) of OWCP’s
regulations9 provides in relevant part:
“An individual is with fault in the creation of an overpayment who:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to furnish information which he or she knew or should have
known to be material; or

5

See M.S., Docket No. 16-0289 (issued April 21, 2016); D.B., Docket No. 15-0258 (issued February 1, 2016).

6

See Danny E. Haley, 56 ECAB 393 (2005); 20 C.F.R. § 10.500.

7

5 U.S.C. § 8129(a).

8

Id. at § 8129(b).

9

20 C.F.R. § 10.433(a).

3

(3) Accepted a payment which he or she knew or should have known
was incorrect.”10
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.11
Even if an overpayment resulted from negligence by OWCP, this does not excuse the
employee from accepting payment, which the employee knew or should have been expected to
know she was not entitled.12
ANALYSIS -- ISSUE 2
In this case, OWCP applied the third standard in determining that appellant was at fault in
creating the overpayment. In order for it to establish that appellant was at fault in creating the
overpayment of compensation, OWCP must establish that, at the time appellant received the
compensation check in question, he knew or should have known that the payment was
incorrect.13
Each recipient of compensation benefits is responsible for taking all reasonable measures
to ensure that payments he or she receives are proper14 and the recipient must show good faith
and exercise a high degree of care in reporting events that may affect entitlement to or the
amount of benefits.15 In the September 4, 2015 acceptance letter, OWCP clearly advised
appellant that he was to immediately inform it upon his return to work to avoid an overpayment
of compensation and that, if he worked during any period covered by a compensation payment,
he had to return the payment to OWCP.
Thus, appellant should have known that he could not receive wage-loss compensation
after his return to work.16 Although the employing establishment notified OWCP of appellant’s
return to full duty on September 25, 2015, he did not return the compensation he received.
The Board therefore finds that appellant should have known that, at the time he returned
to work, he was not entitled to continue to receive compensation and had an obligation to return
payments he knew or should have known were incorrect.17 Under section 10.433(a) of OWCP’s
10

Id.

11

Id. at § 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006); Y.Z., Docket No. 15-1704 (issued February 4, 2016).

12

Diana L. Booth, 52 ECAB 370 (2001).

13

Linda E. Padilla, 45 ECAB 768, 772 (1994).

14

Y.Z., supra note 11.

15

Id.

16

Id.

17

Id.

4

regulations, appellant is at fault. As he was at fault in creating the overpayment, appellant is not
eligible for waiver of recovery of the overpayment of compensation.18
With respect to recovery of the overpayment in compensation, the Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation
benefits under FECA. As appellant is no longer receiving wage-loss compensation, the Board
does not have jurisdiction with respect to the recovery of the overpayment under the Debt
Collection Act.19
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $662.71 for the period September 26 through October 2, 2015 because he continued to receive
compensation after his return to work. The Board further finds that OWCP properly found him
at fault, and thus, he was not entitled to waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the March 10, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 1, 2016
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

18

Id.

19

Cheryl Thomas, 55 ECAB 610 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Beaumont, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Toby Rubenstein, for the appellant
Office of Solicitor, for the Director

Docket No. 12-320
Issued: November 26, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 28, 2011 appellant, through his representative, timely appealed the
November 14, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
which found an overpayment of compensation. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an
overpayment of $45,430.49 and (2) whether OWCP properly denied waiver of recovery.

1
2

5 U.S.C. §§ 8101-8193.

The record includes evidence received after the November 14, 2011 decision. As this evidence was not part of
the record when the Branch of Hearings & Review issued its November 14, 2011 final overpayment decision, the
Board is precluded from considering it for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On March 11, 1999 appellant, then a 40-year-old part-time casual/flexible carrier, was
involved in an employment-related motor vehicle accident. OWCP accepted his claim for
cervical strain, postconcussion syndrome, depressive disorder, bilateral sensorineural hearing
loss, left knee medial meniscus tear and left ulnar nerve lesion. Appellant has not worked for the
employing establishment since March 11, 1999.3 After receiving continuation of pay, OWCP
paid him wage-loss compensation beginning April 24, 1999. It placed appellant on the periodic
compensation rolls effective January 2, 2000.
In a December 5, 2000 Form EN1032, appellant advised OWCP that he received an
$85,000.00 third-party settlement. In a January 4, 2002 Form EN1032, he advised OWCP that in
2001 he became a member of the board of the Beaumont -- Cherry Valley Water District
(BCVWD). Appellant reportedly attended one to two board meetings a month and received a
$150.00 stipend for each meeting attended. He also reminded OWCP of the previously reported
third-party settlement. OWCP took no immediate action with respect to either the third-party
settlement or appellant’s reported earnings.
On June 21, 2002 the employing establishment advised OWCP that appellant settled his
third-party bodily injury claim on July 10, 2000 for $85,000.00. As of July 14, 2002, OWCP
suspended payment of wage-loss compensation. With respect to the third-party recovery, it
prepared an August 15, 2002 statement of recovery (SOR) and determined that based on
previous disbursements totaling $28,062.62 appellant should refund $15,434.44.4 OWCP also
calculated a third-party recovery surplus of $8,137.38, and advised him that no additional
benefits, either medical or wage-loss compensation, would be paid until the third-party surplus
was exhausted. As of December 3, 2002, appellant had reimbursed OWCP a total of
$15,700.00.5 After having exhausted the surplus, OWCP reinstated his wage-loss compensation
effective March 23, 2003.6
Appellant regularly submitted Form EN1032 apprising OWCP of his continued
involvement with the BCVWD board. In an October 8, 2006 Form EN1032, he advised OWCP
that his BCVWD stipend increased to $200.00 a meeting. Appellant last participated on the
BCVWD board in November 2008. His October 30, 2009 Form EN1032 indicated that his term
as a BCVWD board expired November 4, 2008 and he had been voted out of office. OWCP

3

The employing establishment relieved appellant of his duties effective April 23, 1999.

4

The disbursements were ostensibly calculated through August 15, 2002. However, the SOR did not distinguish
between amounts disbursed for medical benefits and/or wage-loss compensation.
5

Appellant paid OWCP an additional $265.56 in interest.

6

Benefits were suspended for the period July 14, 2002 to March 22, 2003. Because the third-party surplus
($8,137.38) was exhausted just prior to March 22, 2003, OWCP paid appellant $213.80 and reinstated benefits
effective March 23, 2003.

2

received itemized earnings statements from the Social Security Administration (SSA) covering
calendar years 2001 to 2008.7
On June 14, 2010 OWCP issued a preliminary determination finding that appellant
received an overpayment of compensation in the amount of $32,425.00 for the period January 1,
2001 to December 31, 2008. It calculated the overpayment based on the total annual earnings
reported by SSA for calendar years 2001 to 2008. Additionally, OWCP found appellant at fault
in creating the overpayment because he knowingly accepted compensation he was not entitled to
receive.
Appellant requested a prerecoupment hearing before the Branch of Hearings & Review.
He argued that the stipend he received from BCVWD was not a salary or income, but was
intended to defray various expenses associated with his attendance at meetings, which was akin
to per diem payments provided various state and federal legislators. Appellant also challenged
OWCP’s method of calculating the amount of overpayment and its finding of fault. He also
submitted an overpayment recovery questionnaire (Form OWCP-20).
By decision dated December 13, 2010, OWCP’s hearing representative determined that
the case was not in posture for decision. She found that OWCP improperly calculated the
amount of the overpayment. The hearing representative explained that OWCP should have
applied the Shadrick8 formula in determining the appropriate offset for appellant’s part-time
employment during calendar years 2001 to 2008.
On April 4, 2011 OWCP issued a preliminary determination that appellant received an
overpayment of $48,986.42 for the period January 1, 2001 to December 31, 2008.9 This time it
did not find him at fault in creating the overpayment.
Appellant requested another prerecoupment hearing and he submitted a current
OWCP-20. However, he did not provide information regarding his family’s total monthly
income.10 A hearing was held on September 9, 2011. OWCP’s hearing representative allowed
appellant 30 days post hearing to submit additional information regarding total family income,
expenses and assets.
In a November 14, 2011 decision, OWCP’s hearing representative found that appellant
received an overpayment of $45,430.49 for the periods January 1, 2001 to July 13, 2002 and
March 16, 2003 to December 31, 2008. She excluded the approximate eight-month period from
2002 to 2003 when OWCP suspended wage-loss compensation pending the exhaustion of his
7

The SSA earnings statements do not itemize earnings either monthly or quarterly, but instead identified
appellant’s total annual earnings from self-employment.
8

Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403(c), (d); Federal (FECA) Procedure Manual, Part 2
-- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7(d)(1), (4) (October 2009).
9

OWCP’s hearing representative envisioned that applying Shadrick would be more advantageous to appellant,
but in fact OWCP’s application of the formula resulted in an even larger overpayment than previously calculated.
10

OWCP paid appellant $1,158.00 (net/gross) every 28 days. In a previous OWCP-20 dated July 2, 2010,
appellant reported total monthly income of $3,607.86. The latest OWCP-20 did not include his wife’s income.

3

third-party recovery surplus. Although appellant was without fault in creating the overpayment,
OWCP’s hearing representative denied waiver of recovery because appellant did not adequately
document his monthly income, expenses and assets. Under the Debt Collection Act, she found
the overpayment due in full.11
LEGAL PRECEDENT
Appellant is not entitled to receive wage-loss compensation for temporary total disability
while gainfully employed. When an employee has earnings from employment, he is not entitled
to receive temporary total disability benefits and actual earnings for the same time period.12
Under the circumstances, wage-loss compensation is reduced or offset by the employee’s actual
earnings pursuant to the Shadrick formula.13
ANALYSIS
The Board finds that the case is not in posture for decision regarding the amount of the
overpayment appellant received. In its April 4, 2011 preliminary determination, OWCP found
an overpayment of benefits in the amount of $48,986.42 for the period January 1, 2001 to
December 31, 2008.
OWCP’s hearing representative subsequently found a $45,430.49
overpayment for the periods January 1, 2001 to July 13, 2002 and March 16, 2003 to
December 31, 2008. The decrease in the overpayment was because she properly excluded the
approximate eight-month period beginning July 14, 2002 when OWCP suspended wage-loss
compensation because appellant had yet to exhaust his third-party surplus. However, both
OWCP and its hearing representative failed to take into account the $15,700.00 appellant
previously refunded to OWCP.14 The August 15, 2002 SOR indicated that OWCP had already
disbursed $28,062.62 and that appellant should refund $15,434.44. As of December 3, 2002,
appellant repaid the full amount OWCP requested, plus interest. Because of the failure to
account for the third-party recovery refund, the hearing representative’s finding that appellant
received a $45,430.49 overpayment shall be set aside.
The Board further notes that the record does not document compensation payments
disbursed for the period January 30, 2000 to June 15, 2002. The record documents payments
through January 29, 2000 and iFECS provides a payment history dating back to June 16, 2002.
There is no proof of payment for the approximate 29-month interim period. Worksheet
calculations provided by OWCP represented that appellant received wage-loss compensation
totaling $11,866.90 in 2001, $12,058.82 in 2002 and $12,324.43 in 2003. The 2001 figure is not
otherwise supported by the record and the 2002 to 2003 figures appears incorrect as OWCP
included compensation it clearly did not pay during the eight-month suspension period beginning
11

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.300
(May 2004).
12

L.S., 59 ECAB 350, 352-53 (2008).

13

Id.; see supra note 9.

14

As previously noted, OWCP requested a refund of $15,434.44. Appellant repaid the requested amount plus an
additional $265.56 in interest.

4

July 14, 2002. In view of the above, OWCP’s overpayment worksheets are insufficient to
establish the amount of wage-loss compensation paid for the period January 30, 2000 to
June 15, 2002.
Appellant noted that he last served on the BCVWD board in November 2008 yet OWCP
declared an overpayment of benefits through December 31, 2008. The SSA records OWCP
relied upon provided end of year total earnings. In 2008, appellant had self-employment
earnings totaling $5,435.00. The SSA itemized statement of earnings did not provide a monthly
or quarterly breakdown of earnings, therefore, there is insufficient evidence to support OWCP’s
finding of an overpayment for the month of December 2008.
CONCLUSION
The case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 14, 2011 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: November 26, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, IRVING PARK ROAD
PROCESSING & DELIVERY CENTER,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1675
Issued: March 20, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On August 7, 2012 appellant filed a timely appeal from an August 2, 2012 overpayment
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $1,171.72; and (2) whether appellant was at fault
in creating the overpayment of compensation, thereby precluding waiver of the recovery.
On appeal, appellant contends that she was not aware that she was overpaid, that the
money was deposited directly into her checking account and that she was not at fault in the
creation of the overpayment.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 2, 2010 appellant, then a 39-year-old mail handler, filed a claim for
compensation alleging that, as a result of twisting closures on bags, her hands became numb,
tingling and painful. She alleged that, as a result of this and other job duties, she developed
carpal tunnel syndrome. On November 10, 2010 OWCP accepted appellant’s claim for bilateral
carpal tunnel syndrome. Appellant underwent a right carpal tunnel release on November 17,
2011 and a left carpal tunnel release on January 26, 2012. Effective December 31, 2011 she was
placed on the periodic rolls. Appellant was totally disabled from work for the period
November 17, 2011 through March 25, 2012. She returned to full-time limited-duty work on
March 26, 2012.
On May 24, 2012 OWCP made a preliminary determination that appellant was overpaid
compensation for the period March 26 through April 7, 2012 in the amount of $1,171.72. It
determined that this overpayment occurred because she returned to full-time work on March 26,
2012, but continued to receive compensation for total disability. OWCP noted that appellant was
paid compensation benefits for the period March 11 to April 7, 2012 in the amount of $2,523.71;
that she was entitled to compensation for $1,351.99, and that this resulted in an overpayment of
compensation in the amount of $1,171.72.2 It informed appellant that she had 30 days to request
a conference, a final decision based on the written evidence, or a prerecoupment hearing on the
issues of fault and possible waiver. OWCP also sent her financial forms to complete. Appellant
did not file a timely response.
On August 2, 2012 OWCP finalized the overpayment of $1,171.72. It also determined
that appellant was at fault in the creation of the overpayment as she received compensation to
which she knew she was not entitled.
LEGAL PRECEDENT – ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 Monetary compensation for total or partial
disability due to an employment injury is paid as a percentage of pay,4 meaning pay at the time
of injury or pay at the time disability begins or pay at the time compensable disability recurs if
the recurrence begins more than six months after the injured employee resumes regular full-time
employment with the United States whichever is greater.5

2

OWCP noted that for the period March 11 through April 7, 2012, for which there were 28-calendar days, OWCP
determined that appellant received $90.1325 per day. However, as she returned to work on March 26, 2012, OWCP
noted that appellant should have been paid for only 15 days. OWCP multiplied 15 by $90.1325 and determined that
appellant should have been paid $1,351.99 for this period. Accordingly, it determined that appellant received an
overpayment in the amount of $1,171.72 ($2,523.71 minus $1,351.99 equals $1,171.72).
3

5 U.S.C. § 8102(a).

4

Id. at §§ 8105, 8106.

5

Id. at § 8101(4); John D. Williamson, 40 ECAB 1179 (1989).

2

Section 8116 of FECA provides that, while an employee is receiving compensation, he or
she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.6 A claimant is not entitled to receive total disability compensation and
actual earnings for the same period. OWCP’s regulations provide that compensation for wage
loss due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.7
ANALYSIS
The Board finds that this case is not in posture for decision regarding the amount of the
overpayment appellant received. OWCP determined that appellant received an overpayment in
the amount of $1,171.72 because she received compensation after she returned to full-time work.
It calculated how it made its determination as to the amount of the overpayment. However, the
record does not contain any official indication that appellant was paid compensation after she
returned to work. There is no Supplemental Roll Payment sheet in the record detailing a
payment made to appellant that covered the time period after she returned to work on
March 26, 2012. Accordingly, there is no proof of payment in the record supporting the finding
of an overpayment. In view of this fact, OWCP’s overpayment worksheets are insufficient to
establish the amount of wage-loss compensation paid for the period March 26 through
April 7, 2012. Accordingly, the Board does not have the information that it needs to properly
evaluate the amount of the overpayment.8 On remand, OWCP must set forth the appropriate
supporting documentation to support the overpayment finding.
CONCLUSION
The Board finds that this case is not in posture for decision.

6

Id. at § 8116(a).

7

20 C.F.R. § 10.500(a).

8

See W.L., Docket No. 12-320 (issued November 26, 2012).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 2, 2012 is set aside, and the case is remanded for further
action consistent with this action of the Board.
Issued: March 20, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hayes, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1643
Issued: December 28, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 30, 2012 appellant, through her attorney, filed a timely appeal from a decision of
the Office of Workers’ Compensation Programs (OWCP) dated May 30, 2012. 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 sustained right-sided carpal tunnel and right shoulder
conditions in the performance of duty.
FACTUAL HISTORY
On May 22, 2011 appellant, a 60-year-old rural mail carrier, filed a Form CA-2 claim for
benefits, alleging that she developed right carpal tunnel and right shoulder conditions causally
related to employment factors.
1

5 U.S.C. § 8101 et seq.

In a May 31, 2012 report, Dr. Barbaro J. Perez, a Board-certified orthopedic surgeon, stated
that appellant had complaints related to right-sided carpal tunnel syndrome. He advised that she
wanted to have her carpal tunnel condition addressed during her right shoulder arthroscopy
procedure, which she was scheduled to undergo on June 1, 2011. Dr. Perez stated that appellant
had pain in her right wrist and hand in addition to numbness and tingling in her median nerve
distribution and pinky. He advised that she had a positive carpal tunnel compression test, as well
as positive Tinel’s test at the carpal tunnel.
Dr. Perez stated that appellant’s shoulder examination was very similar to her previous
examination, in which she related chronic right shoulder pain. He diagnosed right rotator cuff tear,
right-sided acromioclavicular (AC) arthritis and right shoulder impingement syndrome.
By decision dated September 16, 2011, OWCP denied the claim, finding that appellant
failed to submit medical evidence sufficient to establish that her claimed conditions were related
to factors of employment.
On October 4, 2010 appellant requested a review of the written record.
By decision dated December 2, 2011, an OWCP hearing representative set aside and
remanded the September 16, 2011 decision, finding that Dr. Perez’s May 31, 2011 report was
sufficient to warrant further development of the medical evidence. The hearing representative
directed OWCP to prepare a statement of accepted facts and refer appellant, along with
appropriate questions addressing the issues of causal relationship and medical necessity of
related surgeries, to Dr. Perez for response within 30 days. Dr. Perez did not submit a response
to an OWCP request letter dated December 14, 2011.
By decision dated February 24, 2012, OWCP denied modification of the September 16,
2011 decision.
In a February 13, 2012 report, received by OWCP on March 2, 2012, Dr. Perez
responded to OWCP’s questionnaire. He stated that he had been treating appellant since
February 11, 2011 for right shoulder rotator cuff tear, impingement syndrome and AC joint
arthritis as well as a history of right carpal tunnel syndrome. Appellant had experienced pain in
the shoulder for a significant period of time; the pain had worsened since August 2010.
Dr. Perez noted that she was a postal worker who performed a lot of repetitive tasks, including
using her arm for overhead activities and pulling, pushing and lifting on a regular basis. He
indicated that appellant had undergone magnetic resonance imaging (MRI) scans of the cervical
spine and right shoulder, in addition to a positive electromyelogram (EMG) for right-sided carpal
tunnel. Dr. Perez stated that she initially attempted conservative management, which was not
successful. Appellant eventually underwent right shoulder rotator cuff repair, acromioplasty
distal clavicle resection, in addition to right carpal tunnel release on June 6, 2011. Dr. Perez
stated that he most recently treated her on December 5, 2011, at which time she was still
experiencing some pain in her right shoulder and hand with some decreased motion.
In response to OWCP’s December 14, 2011 questionnaire, Dr. Perez reviewed her history
of injury and reiterated his previously stated diagnoses. With regard to causal relationship, he
opined that, although appellant did not recall having a specific injury at work, it was probable

2

that her partial right rotator cuff tendon tear, right shoulder impingement syndrome and right
carpal tunnel syndrome could be related back to her repetitive work duties including overhead
activities, pushing, pulling and lifting. Regarding her arthritic condition in the AC joint,
Dr. Perez advised that her work environment accelerated the problem but this condition was
probably preexisting. He asserted that the aggravation of her AC joint arthritis was currently a
nonissue since the distal clavicle was resected and the arthritic changes in the AC joint had been
removed.
On March 6, 2012 appellant requested a review of the written record.
By decision dated May 30, 2012, an OWCP hearing representative affirmed the
February 24, 2012 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.5
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed bilateral carpal tunnel and hand
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

Id.

3

tendinitis conditions and her federal employment. This burden includes providing medical
evidence from a physician who concludes that the disabling condition is causally related to
employment factors and supports that conclusion with sound medical reasoning.6
ANALYSIS
In the instant case, appellant has failed to submit any medical opinion containing a
rationalized, probative report which relates her claimed right-sided carpal tunnel and right
shoulder conditions to factors of her employment. For this reason, she has not discharged her
burden of proof to establish her claim that these conditions were sustained in the performance of
duty.
Appellant submitted reports from Dr. Perez, who related findings of pain on examination
and diagnosed right-sided carpal tunnel, right rotator cuff tear, right-sided acromioclavicular
arthritis and right shoulder impingement conditions. Dr. Perez did not, however, provide a
probative, rationalized medical opinion that the claimed conditions or disability were causally
related to employment factors. He opined that appellant had bilateral carpal tunnel syndrome
and bilateral tendinitis in his May 31, 2011 and February 13, 2012 reports and indicated that it
was probable that these conditions were caused or aggravated by her employment duties such as
repetitive motions, handling, sorting and lifting mail. The reports from Dr. Perez are of limited
probative value as they do not contain any medical rationale of how or why appellant’s claimed
right-sided carpal tunnel, right rotator cuff tear, right-sided acromioclavicular arthritis and right
shoulder impingement conditions were currently affected by or related to factors of employment.7
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.8 Dr. Perez’s opinion is of limited probative value for the further
reason that it is generalized in nature and equivocal in that he only noted summarily that
appellant’s conditions were causally related to her employment duties. He did not sufficiently
describe these job duties or explain how such duties physiologically caused the diagnosed
conditions of right-sided carpal tunnel syndrome, right rotator cuff tear, right-sided
acromioclavicular arthritis and right shoulder impingement syndrome. Dr. Perez’s reports thus did
not constitute adequate medical evidence to establish that appellant’s claimed conditions were
causally related to her employment.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her conditions were caused, precipitated or aggravated by her employment is

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

7

William C. Thomas, 45 ECAB 591 (1994).

8

See Anna C. Leanza, 48 ECAB 115 (1996).

4

sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. Consequently, appellant has not met her burden of proof in
establishing that her claimed right-sided carpal tunnel syndrome, right rotator cuff tear, rightsided acromioclavicular arthritis and right shoulder impingement syndrome conditions were
causally related to her employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establish that her
claimed right-sided carpal tunnel and right shoulder conditions were sustained in the performance
of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 28, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9

Id.

5