United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WILFORD HALL MEDICAL CENTER,
LACKLAND AIR FORCE BASE, TX, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-609
Issued: January 5, 2010

Case Submitted on the Record

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

JURISDICTION
On January 2, 2009 appellant filed a timely appeal from a December 12, 2008 decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly suspended appellant’s compensation benefits for
the period October 2 to 7, 2007 on the grounds that he refused to submit to a medical
examination.
On appeal, his attorney contends that appellant’s compensation was improperly
suspended because the Office should have informed him that transportation could be provided
when he missed the second scheduled second opinion evaluation due to car trouble.
FACTUAL HISTORY
On April 23, 1999 appellant, then a 52-year-old staff nurse, filed a traumatic injury claim
alleging that on April 20, 1999 he was injured while lifting and repositioning a patient. He

stopped work that day. Appellant underwent lumbar spine surgery on July 23, 1999 and was
placed on the periodic rolls. The claim was accepted for lumbar sprain, displacement of lumbar
vertebral, lumbar degeneration, postlaminectomy syndrome, lumbar spinal stenosis and other
psychogenic pain. Appellant returned to part-time light duty on November 1, 1999 and to fulltime light duty in March 2001. On April 3, 2002 he sustained a recurrence of disability and was
returned to the periodic rolls.
In July 2007 the Office referred appellant for a second opinion evaluation with
Dr. James F. Hood, a Board-certified orthopedic surgeon, scheduled for August 7, 2007.
Appellant called the Office that day to report that his car had broken down on his way to the
appointment. The appointment was rescheduled for September 11, 2007. Appellant did not keep
the second scheduled evaluation.
On September 12, 2007 the Office proposed to suspend appellant’s compensation
benefits on the grounds that he failed to appear for the examination scheduled for September 11,
2007 with Dr. Hood. It allowed him 14 days to provide in writing good cause for his failure to
appear and informed him of the penalty provision of section 8123(d) of the Federal Employees’
Compensation Act.1 Appellant called the Office on September 14, 2007, advising that his wife
had seriously cut her finger and requested that the second opinion evaluation be rescheduled. On
September 12, 2007 a notice that a third appointment was scheduled at 12:30 p.m. on October 2,
2007 was mailed to appellant at his address of record. In a September 18, 2007 letter, appellant
further explained why he missed the appointment scheduled for September 11, 2007, stating that
his wife was seriously injured on September 8, 2007 when she fell from her horse and partially
amputated her left thumb. Appellant’s wife had surgery on September 12, 2007. Appellant
requested that the Office reschedule the appointment. On October 3, 2007 the Office was
informed that he did not keep the October 2, 2007 appointment.
By decision dated October 3, 2007, the Office finalized the proposed suspension,
effective October 2, 2007. It noted that appellant had missed three scheduled appointments
before the suspension was finalized.
On October 19, 2007 appellant requested a hearing, stating that he did not receive notice
of the scheduled October 2, 2007 appointment and advising that he would submit to a
rescheduled examination. An appointment with Dr. Hood was rescheduled for November 27,
2007, which appellant attended.2 Appellant was returned to the periodic rolls, effective
November 27, 2007 and on September 29, 2008 was paid wage-loss compensation for the period
October 7 through November 26, 2007. On September 30, 2008 appellant’s attorney requested
that the Office proceed with a review of the written record.

1

5 U.S.C. §§ 8101-8193.

2

By report dated December 3, 2007, Dr. Hood advised that appellant was permanently totally disabled.

2

By decision dated December 12, 2008, an Office hearing representative affirmed the
October 3, 2007 decision suspending appellant’s wage-loss compensation for his failure to attend
an examination scheduled for October 2, 2007.3
LEGAL PRECEDENT
Section 8123 of the Act authorizes the Office to require an employee, who claims
disability as a result of federal employment, to undergo a physical examination as it deems
necessary.4 The determination of the need for an examination, the type of examination, the
choice of locale and the choice of medical examiners are matters within the province and
discretion of the Office.5 The Office’s regulations at section 10.320 provides that a claimant
must submit to examination by a qualified physician as often and at such time and places as the
Office considers reasonably necessary.6 Section 8123(d) of the Act and section 10.323 of the
Office’s regulations provide that, if an employee refuses to submit to or obstructs a directed
medical examination, his or her right to compensation is suspended until the refusal or
obstruction ceases.7 Office procedures provide that, before the Office may invoke these
provisions, the employee is to be provided a period of 14 days within which to present in writing
his or her reasons for the refusal or obstruction.8 If good cause for the refusal or obstruction is
not established, entitlement to compensation is suspended in accordance with section 8123(d) of
the Act.9
ANALYSIS
The Board finds that the Office did not properly suspend appellant’s compensation
because it did not follow established procedures. The Office scheduled second opinion
examinations on August 7 and September 11, 2007 with Dr. Hood which appellant did not
attend. On September 12, 2007 it proposed to suspend his wage-loss compensation for failure to
attend the September 11, 2007 examination. As noted, the determination of the need for an
examination lies within the discretion of the Office and the Board has interpreted section 8123(d)
to provide that compensation is not payable while a refusal or obstruction of an examination
continues.10 In this case, however, the Office rescheduled a second opinion evaluation with
Dr. Hood for October 2, 2007. After appellant failed to appear for the October 2, 2007
3

The Board notes that the hearing representative stated that appellant missed the third scheduled examination,
that of October 2, 2007, because he had car trouble. This, however, is the reason appellant gave for missing the first
scheduled examination, that of August 7, 2007.
4

5 U.S.C. § 8123.

5

J.T., 59 ECAB ____ (Docket No. 07-1898, issued January 7, 2008).

6

20 C.F.R. § 10.320.

7

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000); J.T., supra note 5.
9

Id.

10

Supra note 7.

3

examination, on October 3, 2007 the Office finalized the suspension of wage-loss compensation
based on appellant failing to appear at the October 2, 2007 examination.
While the Office provided appellant notice that he had 14 days to provide reasons for
failing to appear at the September 11, 2007 examination, it did not provide him with similar
rights following the missed examination on October 2, 2007. Rather, the Office finalized the
suspension effective October 2, 2007. Office procedures clearly state that if a claimant does not
report for a scheduled appointment, he or she should be asked to provide a written explanation
within 14 days.11 After missing the October 2, 2007 examination, appellant should have been
provided proper notice and given 14 days to submit written reasons for his failure to appear. The
Office erred in suspending his right to compensation benefits based on notice pertaining to the
September 11, 2007 examination.12
CONCLUSION
The Board finds that the Office did not properly suspended appellant’s right to
compensation benefits from October 2 to 7, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 12, 2008 be reversed.
Issued: January 5, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11

Supra note 8; see Lynn C. Huber, 54 ECAB 281 (2002).

12

Based on the Board’s finding, it need not address appellant’s arguments on appeal.

4


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

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Appearances:
Manuel B. Madrid, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1000
Issued: March 25, 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 June 21, 2021 appellant, through counsel, filed a timely appeal from an April 29, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of his oral argument request, appellant asserted that oral argument should be granted because it would provide
an opportunity to further explain his need for waiver of the overpayment. The Board, in exercising its discretion,
denies appellant’s request for oral argument because arguments on appeal can be adequately addressed in a decision
based on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision
and not serve a useful purpose. As such, the oral argument request is denied and this decision is based on the case
record as submitted to the Board.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case. 4
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an overpayment
of compensation in the amount of $10,573.82 for the period October 28, 2019 through July 18,
2020 for which he was without fault because he concurrently received FECA wage -loss
compensation benefits and Social Security Administration (SSA) age-related retirement benefits
without appropriate offset; (2) whether it properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly found that appellant abandoned his request for a prerecoupment
hearing.
FACTUAL HISTORY
On December 7, 2017 appellant, then a 64-year-old maintenance mechanic, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral shoulder conditions
due to factors of his federal employment, including heavy lifting, and repetitive reaching and
pulling. He did not stop work. On May 10, 2019 OWCP accepted the claim for bilateral complete
rotator cuff tears or ruptures of the shoulders, calcific tendinitis of the right shoulder, and
impingement syndrome of the left shoulder.
On October 24, 2019 appellant filed a claim for compensation (Form CA-7) for disability
beginning October 28, 2019. He noted that he had applied for SSA age-related retirement benefits
at age 66 and received SSA benefits beginning on January 1, 2019 in the amount of $2,388.00 a
month. Appellant indicated that he was covered by the Federal Employees Retirement Sy stem
(FERS).
On October 28, 2019 appellant underwent a right shoulder arthroscopic rotator cuff repair,
biceps tenodesis, subacromial decompression, and extensive glenohumeral debridement.
On November 5, 2019 OWCP authorized wage-loss compensation on the supplemental
rolls effective October 28, 2019. It authorized wage-loss compensation on the periodic rolls
effective January 4, 2020.
On November 5, 2019 OWCP forwarded a FERS/SSA dual benefits calculation worksheet
to SSA. On February 19, 2020 the SSA provided OWCP with a February 14, 2020 FERS/SSA
dual benefit calculation form. The form indicated that appellant became entitled to retirement
benefits, effective November 2018, and that there were no federal earnings to offset.

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the April 29, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

2

In a March 3, 2020 letter, OWCP informed SSA that it was aware that appellant was
entitled to retirement benefits effective November 2018. It further noted that he was receiving
SSA retirement benefits and that he was covered under FERS. OWCP requested additional
confirmation from SSA that there was no offset necessary.
On July 20, 2020 OWCP received a completed FERS/SSA dual benefit calculation form
from SSA, which reported that appellant had been in receipt of SSA age -related retirement benefits
since November 2018. SSA reported that: beginning November 2018, appellant’s monthly SSA
rate with FERS was $2,285.90 and without FERS was $1,129.80; beginning December 2018,
appellant’s monthly SSA rate with FERS was $2,349.80 and without FERS was $1,161.40;
beginning January 2019, appellant’s monthly SSA rate with FERS was $2,355.00 and without
FERS was $1,161.40; and beginning December 2019, appellant’s monthly SSA rate with FERS
was $2,392.70 and without FERS was $1,179.90.
OWCP completed a FERS offset calculation f orm on August 12, 2020. It calculated the
amount that it should have offset from appellant’s wage-loss compensation from October 28, 2019
through July 18, 2020. OWCP found that for the period October 28 through November 30, 2019,
the daily offset was $39.35 or $1,337.88 for 34 days, and for the period December 1, 2019 through
July 18, 2020, the daily offset was $39.98, or $9,235.94 for 231 days. It added the amounts for
each period and determined that it should have offset a total of $ 10,573.81 from his wage-loss
compensation.
In an August 12, 2020 letter, OWCP informed appellant that it would begin deducting
$1,119.51, the portion of SSA age-related retirement benefits attributable to his federal service,
from his periodic compensation benefits.
On August 13, 2020 OWCP notified appellant of its preliminary overpayment
determination that he had received an overpayment of compensation in the amount of $10,573.82
because it had failed to reduce his wage-loss compensation benefits for the period October 28,
2019 through July 18, 2020 by the portion of his SSA age-related retirement benefits that were
attributable to federal service. It further advised him of its preliminary determination that he was
without fault in the creation of the overpayment. OWCP provided appellant with an overpayment
action request form and an overpayment recovery questionnaire (Form OWCP-20). Additionally,
it notified him that, within 30 days of the date of the letter, he could request a telephone conference,
a final decision based on the written evidence, or a prerecoupment hearing. 5
On September 11, 2020 appellant requested a prerecoupment hearing and completed an
overpayment action request form requesting waiver of recovery of the overpayment. He advised
that he had used the compensation on necessary expenditures that he would otherwise not have
been able to afford and could not repay the overpayment without financial hardship. On the Form
OWCP-20 appellant listed total monthly income of $7,497.00 and total monthly expenses of
$6,444.00. He listed real estate assets of $80,000.00 and $90,000.00, with mortgage balances of
$48,700.00 and $53,700.00, respectively, as well as a vacant lot worth $3,000.00. Appellant listed

5

By decision dated September 14, 2020, OWCP affirmed the August 13, 2020 preliminary overpayment findings.
On January 25, 2021 OWCP vacated a September 14, 2020 decision finalizing the preliminary overpayment
determination.

3

other assets totaling $5,200.00 including $500.00 in cash, $1,200.00 in checking, $500.00 in
savings, and stocks and bonds worth $3,000.00.
On March 5, 2021 OWCP’s hearing representative informed appellant of the time and
location of his prerecoupment hearing scheduled for April 15, 2021 at 2:45 p.m. Eastern Standard
Time (EST) regarding OWCP’s August 13, 2020 preliminary finding of the overpayment. It
mailed the notice to appellant’s last known address of record and provided instructions on how to
participate. Appellant did not appear at the hearing or request postponement of the hearing.
By decision dated April 29, 2021, OWCP’s hearing representative, after conducting a
review of the written record, found that appellant failed to attend the scheduled hearing and failed
to request postponement of the hearing. She, therefore, determined that appellant had abandoned
his hearing request. OWCP’s hearing representative further finalized the preliminary overpayment
determination, finding that appellant had received a $10,573.82 overpayment of compensation
from October 28, 2019 through July 18, 2020 because he had concurrently received FECA wageloss compensation and SSA age-related retirement benefits without the appropriate offset. She
also found that appellant was without fault in the creation of the overpayment, but denied waiver
of recovery of the overpayment as appellant’s monthly income of $7,497.00 exceeded his monthly
expenses of $6,444.14 by more than $50.00 and as he had assets of approximately $75,000.00
exceeding the base of $10,300.00 for an individual with a spouse. OWCP’s hearing representative
explained that, because he failed to meet both prongs of a two-prong test of whether recovery of
the overpayment would defeat the purpose of FECA, it was not necessary to consider waiver of
recovery on this basis. She further found appellant had not submitted evidence that he made any
financial decision that changed his position for the worse as a result of the receipt of the overpaid
benefits and, therefore, had not established that recovery of the debt would be against equity and
good conscience.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 6 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 7
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 8 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

4

benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $10,573.82 for the period October 28, 2019 through July 18, 2020
for which he was without fault, because he concurrently received FECA wage -loss compensation
benefits and SSA age-related retirement benefits without appropriate offset.
Appellant began receiving SSA age-related retirement benefits in November 2018. OWCP
paid appellant wage-loss compensation for total disability following his accepted employment
injury beginning October 28, 2019. As noted, a claimant cannot receive FECA compensation for
wage-loss and SSA age-related retirement benefits attributable to federal service for the same
period.10 Accordingly, the Board finds that fact of overpayment has been established.11
To determine the amount of the overpayment, the portion of SSA age-related retirement
benefits attributable to federal service must be calculated. OWCP received documentation from
SSA with respect to the specific amount of SSA age-related retirement benefits that were
attributable to federal service. SSA provided the SSA rates with FERS and without FERS for
specific periods from October 28, 2019 through July 18, 2020. OWCP set forth its calculations of
the amount that should have been offset during the relevant period based on informa tion provided
by SSA for the period October 28, 2019 through July 18, 2020.
The Board has reviewed OWCP’s calculation of dual benefits received by appellant for the
period October 28, 2019 through July 18, 2020 and finds that an overpayment of compensation in
the amount of $10,573.82 was created.12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA 13 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. Thus, a
finding that appellant was without fault does not automatically result in waiver of the overpayment.
OWCP must exercise its discretion to determine whether recovery of th e overpayment would
defeat the purpose of FECA or would be against equity and good conscience. 14

9

FECA Bulletin No. 97-09 (February 3, 1997). See also N.B., Docket No. 18-0795 (issued January 4, 2019).

10

Supra note 8. See J.T., Docket No. 21-0010 (issued September 30, 2021); A.C., Docket No. 18-1550 (issued
February 21, 2019).
11

See S.H., Docket No. 20-1157 (issued December 23, 2020); K.H., Docket No. 18-0171 (issued August 2, 2018).

12

See N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019).

13

Supra note 3.

14

J.T., supra note 10; G.L., Docket No. 19-0297 (issued October 23, 2019).

5

According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs sub stantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics. 15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant not at fault in the creation of the overpayment, waiver must be
considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 16 It considered his
financial information to determine if recovery of the overpayment would defeat the purpose of
FECA.
The Board finds that OWCP properly determined that appellant did not require
substantially all of his income to meet ordinary living expenses. OWCP found that, after its review
of appellant’s financial documents of record, he had total current monthly income of $7,497.00
and total monthly expenses of $6,444.14, which left more than $1,052.00 of disposable income
with which to repay the debt. As appellant’s monthly income exceeds his ordinary and necessary
living expenses by more than $50.00, the Board finds that he did not need substantially all of his
income for ordinary and necessary living expenses.
As appellant failed to establish that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery of the overpayment. 17
LEGAL PRECEDENT -- ISSUE 3
A claimant dissatisfied with a decision on his or her claim is entitled, upon timely request,
to a hearing before an OWCP representative. 18 Unless otherwise directed in writing by the
claimant, the hearing representative will mail a notice of the time, place, and method of the oral
15

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Its procedures further provide that assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(2) and (3) (September 2018).
16

Id. at § 10.436.

17

Supra note 15. With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases
where OWCP seeks recovery from continuing compensation benefits. A.S., Docket No. 20-1314 (issued February 23,
2021); L.L., Docket No. 19-0097 (issued March 20, 2020); A.B., Docket No. 18-0915 (issued October 24, 2018). As
appellant was not in receipt of continuing wage-loss compensation at the time of OWCP’s final overpayment
determination, the Board does not have jurisdiction over the method of recovery of the overpayment in this case. See
id.; Miguel A. Muniz, 54 ECAB 217 (2002); Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.
18

Supra note 3 at § 8124(b).

6

hearing to the claimant and to any representative at least 30 days before the scheduled hearing
date.19
A hearing before OWCP’s Branch of Hearings and Review can be considered abandoned
only under very limited circumstances. 20 With respect to abandonment of hearing requests,
Chapter 2.1601(g) of OWCP’s procedures21 and section 10.622(f) of its regulations 22 provide in
relevant part that failure of the claimant to appear at the scheduled hearing, failure to request a
postponement, and failure to request in writing within 10 days after the date set for the hearing that
another hearing be scheduled shall constitute abandonment of the request for a hearing. Under
these circumstances, the Branch of Hearings and Review will issue a formal decision finding that
the claimant has abandoned his or her request for a hearing and return the case to the district
office.23
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly determined that appellant abandoned his request for
a prerecoupment hearing.
OWCP’s Branch of Hearings and Review received appellant’s September 11, 2020 request
for a telephonic prerecoupment hearing. In a March 5, 2021 letter, OWCP provided appellant 30
days written notice of the hearing, which was scheduled for April 15, 2021 at 2:45 p.m. EST. It
mailed the March 5, 2021 notice of hearing to appellant’s last known address of record, and it was
not returned as undeliverable. Absent evidence to the contrary, a notice mailed in the ordinary
course of business is presumed to have been received by the intended recipie nt.24 The presumption
is commonly referred to as the “mailbox rule.”25 It arises when the record reflects that the notice
was properly addressed and duly mailed. 26 The current record is devoid of evidence to rebut the
presumption that appellant received OWCP’s March 5, 2021 notice of hearing.
The hearing notice was properly addressed to appellant’s last known address of record.27
Appellant did not call-in as instructed for the April 15, 2021 scheduled telephonic hearing and

19

Supra note 8 at § 10.617(b).

20

R.L., Docket No. 20-0186 (issued September 14, 2020); C.Y., Docket No. 18-0263 (issued September 14, 2018);
Claudia J. Whitten, 52 ECAB 483 (2001).
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
22

Supra note 9 at § 10.622(f).

23

Id.

24

C.Y., supra note 20; Kenneth E. Harris, 54 ECAB 502 (2003).

25

Id.

26

Id.

27

Id.; K.F., Docket No. 17-1035 (issued August 24, 2017).

7

there is no indication that he requested postponement of the telephonic hearing. 28 Moreover, he
did not submit a written request within the 10 days after the date set for the telephonic hearing and
request that another telephonic hearing be scheduled. Under the circumstances, OWCP’s hearing
representative properly found that appellant abandoned his telephonic hearing request. 29
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$10,573.82 for the period October 28, 2019 through July 18, 2020 for which he was without fault,
because he concurrently received FECA wage-loss compensation benefits and SSA age-related
retirement benefits without appropriate offset. The Board further finds that OWCP properly
denied waiver of recovery of the overpayment and that OWCP properly determined that appellant
abandoned his request for a prerecoupment hearing.
ORDER
IT IS HEREBY ORDERED THAT the April 29, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 25, 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

28

20 C.F.R. § 10.622(c).

29

C.Y., supra note 20; M.V., Docket No. 17-1795 (issued March 1, 2018).

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Warren, OH, Employer
)
___________________________________________ )
R.R., Appellant

Appearances:
John P. Lutseck, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-80
Issued: May 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On October 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated September 10, 2007 which denied her reconsideration
request on the grounds that it was untimely filed and failed to present clear evidence of error.
Because more than one year has elapsed between the last merit decision dated September 7, 2005
and the filing of this appeal on October 10, 2007 the Board lacks jurisdiction to review the merits
of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.

FACTUAL HISTORY
On July 5, 2005 appellant, then a 55-year-old letter carrier, filed an occupational disease
claim alleging that she developed bunions on her right foot while in the performance of duty.
She did not stop work.1
By letter dated August 3, 2005, the Office advised appellant of the type of factual and
medical evidence needed to establish her claim and requested that she submit such evidence,
particularly requesting that she submit a physician’s reasoned opinion addressing the relationship
of her claimed condition and specific employment factors.
Appellant submitted treatment notes from Dr. E. David Podolsky, a podiatrist, dated
March 22 to June 2, 2005, who treated appellant for painful bunion deformities on both feet.
Dr. Podolsky diagnosed hallux valgus deformity, bilateral, hallus abductus interphalangeus
deformity, left worse than right, deformed fourth and fifth digit on both feet and acute bursitis of
the first metatarsophalangeal joint right foot. He noted that appellant was currently employed
with the employing establishment but her job did not require significant standing or walking. On
April 8, 2005 Dr. Podolsky performed a bunionectomy and correction of the deformed fourth and
fifth digits on the right foot. In a duty status form dated June 2, 2005, he returned appellant to
restricted duty on June 7, 2005 and regular duty on June 12, 2005.
In a decision dated September 7, 2005, the Office denied appellant’s claim on the
grounds that the medical evidence failed to establish that the claimed foot condition was causally
related to the established work-related events.
By letter dated January 4, 2006, an attorney, John P. Lutseck, submitted a November 21,
2005 report from Dr. E.F. Cosentino, a podiatrist, who noted that appellant was a postal worker
who initially had a mail route and presented with a painful stiff toe. Dr. Cosentino noted that
appellant’s history was significant for bunion surgery on the right foot in 2005. He diagnosed
residual pain of the first metatarsophalangeal joint of the right foot which was aggravated by
appellant’s occupation which required walking and constant pressure on the joint. Dr. Cosentino
recommended physical therapy, orthotic therapy and a possible fusion of the first
metatarsophalangeal joint.
In a letter to the Office dated May 17, 2006, Mr. Lutseck requested the status of
appellant’s claim and inquired as to whether the recommendations of Dr. Cosentino were
approved. In a letter to the Office dated December 1, 2006, he attached copies of
correspondence dated January 4 and May 17, 2006 and requested a status of the claim.
In a letter dated January 3, 2007, the Office advised Mr. Lutseck that the record did not
contain a signed release authorizing him to have access to appellant’s case file or to represent her
in the matter before the Office. The Office noted that due to an administrative error the
notification of representation was not sent when Mr. Lutseck’s letter of January 4, 2006 was
1

On June 29, 1982 appellant filed an occupational disease claim for a foot condition which was accepted for an
aggravation of the bone of both feet, File No. 09-0265006. She underwent surgery for this condition on
August 9, 1992. This claim is not before the Board at this time.

2

received. The Office further noted that when a formal decision was issued review rights were
attached to the decision. To have further review of the file a specific review right must be
clearly stated by the claimant or any representative. The Office noted that time requirements for
those review rights would consider any delays in notification which may have taken place due to
administrative errors documented in the file. The Office instructed Mr. Lutseck to contact
appellant regarding the issued decision with the review rights. The Office indicated that the
January 4, 2006 letter from Mr. Lutseck simply forwarded a medical report but did not invoke
any specific review right.
In correspondence dated February 9, 2007, Mr. Lutseck referenced an attached
authorization for representation signed by appellant and requested a status of the claim. In an
undated letter, received by the Office on February 12, 2007, appellant authorized Mr. Lutseck to
represent her in her claim before the Office.
In a March 13, 2007 letter, the Office acknowledged receipt of the statement designating
Mr. Lutseck as appellant’s representative before the Office. The Office attached a copy of the
CA-155, instructions relative to a representatives’ fee application, as well as a copy of the entire
case file. The Office further advised Mr. Lutseck that appellant’s claim was denied and
instructed him to refer to the appeal rights attached to that decision if he wished to appeal
appellant’s claim.
In a letter dated July 12, 2007, appellant, through her attorney, requested reconsideration.
She referenced the report from Dr. Cosentino and noted that the Office failed to forward to her
attorney a copy of the Office decision until January 3, 2007 and advised that the reconsideration
request was filed within one year of that notification.
Appellant submitted a report from Dr. Cosentino dated June 25, 2007, who noted a
history of injury and presented findings on examination. Dr. Cosentino diagnosed osteoarthritis
of the metatarsophalangeal joint right foot with limited range of motion and synovitis. He noted
that appellant’s condition initially began when she was on a walking route in her job.
Dr. Cosentino stated that, when appellant’s duties changed to a “milk stop route,” the “constant
stopping and starting” increased pressure on the joint on the right side and also that stepping in
and out of her vehicle aggravated the problem. He noted that these job duties caused “jamming
and increased pressure” on the first metatarsophalangeal joint of the right foot causing
microtrauma to the joint that gradually turned into osteoarthritis. Dr. Cosentino opined that
appellant’s current condition was directly related to appellant’s work duties.
By decision dated September 10, 2007, the Office denied appellant’s application for
reconsideration on the grounds that the request was not timely and that appellant did not present
clear evidence of error by the Office.

3

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office 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
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a)
provides that the Office will not review a decision unless the application for review is filed
within one year of the date of that decision.3
However, the Office 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 the Office 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 the Office. The
evidence must be positive, precise and explicit and must be manifested on its face that the Office
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 the Office’s decision.5
Evidence that does not raise a substantial question concerning the correctness of the
Office’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 the Office of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of the Office.8 The Board makes an independent

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998).

4

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

5

Annie L. Billingsley, supra note 3.

6

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

7

Id.

8

Id.

4

determination as to whether a claimant has submitted clear evidence of error on the part of the
Office.9
ANALYSIS
In its September 10, 2007 decision, the Office properly determined that appellant failed
to file a timely application for review. The Office rendered its most recent merit decision on
September 7, 2005 and appellant’s undated request for reconsideration was received on July 12,
2007 which was more than one year after September 7, 2005.
However, appellant’s counsel contends that he was never forwarded a copy of the
September 7, 2005 decision until January 3, 2007. However, there is no evidence that
Mr. Lutseck was authorized to represent appellant on September 7, 2005.
The first
correspondence received from Mr. Lutseck was January 4, 2006 in which he submitted a
November 21, 2005 report from Dr. Cosentino regarding the treatment of appellant; however, no
authorization from appellant accompanied this correspondence nor did she, at that time, request
reconsideration or elect any other form of review. Section 10.700(a) of the Office’s
implementing federal regulations regarding the representation of claimants clearly indicates that,
for a representative to be recognized by the Office, a written notice, signed by the claimant,
appointing a representative must be sent to the Office.10 Under the Office’s regulations and
Board case law,11 Mr. Lutseck, in his January 4, 2006 correspondence was not an authorized
representative. The record indicates that Mr. Lutseck was not authorized until February 12, 2007
and appellant did not otherwise submit any evidence indicating that Mr. Lutseck was authorized
at the time the January 4, 2006 letter was submitted.12 Appellant did not submit evidence that
Mr. Lutseck was authorized to act as her representative before February 12, 2007. In any event,
the January 4, 2006 correspondence did not purport to exercise any of the appeal rights that
accompanied the September 7, 2005 decision. The record reflects that, after the authorization,
there was no correspondence within one year of the merit decision that would qualify as a
reconsideration request.13 Thereafter, in a letter dated July 12, 2007, Mr. Lutseck, acting as
authorized representative for appellant, requested reconsideration.
The Office rendered its most recent merit decision on September 7, 2005 and appellant’s
request for reconsideration was dated July 12, 2007, more than one year after September 7, 2005.
Appellant, therefore, did not file a timely reconsideration request after the Office’s decision of
September 7, 2005.
9

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

10

20 C.F.R. § 10.700.

11

See id.; see also Nancy Marcano, 50 ECAB 110 (1998) (where the Board found that the Office’s regulations
regarding the representation of claimants clearly requires that a written notice, signed by the claimant, appointing a
representative be sent to the Office authorizing him to act as appellant’s official representative before the Office for
the purpose of filing a reconsideration request).
12

See Ira D. Gray, 45 ECAB 445, 447 (1994).

13

See 20 C.F.R. § 10.606 (regarding how reconsideration is to be requested).

5

The Board has also reviewed the evidence submitted with appellant’s untimely
reconsideration request and concludes that a merit review is also not warranted as appellant has
not established clear evidence of error on the part of the Office in its most recent merit decision.
Appellant submitted reports from Dr. Cosentino dated November 21, 2005 and June 25,
2007 who supported that appellant’s work duties were the direct cause of her diagnosed
conditions of osteoarthritis of the metatarsophalangeal joint right foot, synovitis and residual
pain of the first metatarsophalangeal joint right foot. Dr. Cosentino opined that appellant’s
condition was aggravated by her occupation which required walking and constant pressure on the
joint. However, this evidence is insufficient to raise a substantial question as to the correctness
of the Office’s decision as these reports do not sufficiently address the underlying deficiency in
the claim -- the causal relationship of appellant’s diagnosed condition to her employment.
Dr. Cosentino did not provide sufficient rationale supporting causal relationship of the diagnosed
conditions to appellant’s employment.14 For example, he concluded that job duties caused
microtrauma that gradually turned into osteoarthritis but he did not explain the
pathophysiological process by which particular job duties caused this to happen. The term “clear
evidence of error” is intended to represent a difficult standard. Evidence such as a detailed wellrationalized medical report, which if submitted before the denial was issued, would have created
a conflict in medical opinion requiring further development is not clear evidence of error and
would not require a review of the case.15 The Board finds that this evidence is insufficient to
raise a substantial question as to the correctness of the Offices decision and does not establish
clear evidence of error.
CONCLUSION
The Office properly determined that appellant’s request for reconsideration dated
February 12, 2007 was untimely filed and did not demonstrate clear evidence of error.

14

See Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c)
(January 2004); James R. Mirra, 56 ECAB 738 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the September 10, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
UNITED STATES POSTAL SERVICE,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 07-1914
Issued: January 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 11, 2007 appellant timely filed an appeal from the Office of Workers’
Compensation Programs’ June 1, 2007 merit decision which denied her recurrence of disability
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this claim.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability on
April 8, 2004 causally related to her accepted employment injury.
FACTUAL HISTORY
On April 20, 2004 appellant, then a 44-year-old clerk, filed an occupational disease claim
alleging that she sustained back pain in the performance of duty in February 2003. On
February 22, 2006 the Office accepted her February 1, 2003 claim for sprain/strain of the lumbar
region.

On April 20, 2004 appellant also filed a recurrence of disability claim alleging that she
had been experiencing constant back pain since April 8, 2004 related to her February 2003
injury.
On June 4, 2004 the Office requested additional information from appellant. Appellant
responded in a June 14, 2004 letter stating that she never recovered from a work-related incident
on February 10, 2003.
On June 20, 2004 the Office denied appellant’s occupational disease and recurrence
claims on the grounds that there was no medical evidence to demonstrate that the claimed
medical condition is related to the established work-related event. Appellant requested a hearing
on September 15, 2004 which was held on July 14, 2005.
On October 20, 2005 the Office vacated the prior decision and remanded the case in order
for the case to be combined with file number 03-2014653, appellant’s February 10, 2003
traumatic injury claim and for her recurrence of disability claim to be reviewed in connection
with it.
After the Office accepted appellant’s February 2003 injury claim, on February 22, 2006 it
denied her claim for recurrence of disability on the basis that the evidence did not establish that
her back condition on April 8, 2004 was related to the original February 1, 2003 lumbar sprain
injury. On March 6, 2006 appellant requested an oral hearing. The hearing was held on
February 22, 2007.
Appellant submitted additional medical documentation subsequent to the hearing. In a
March 10, 2004 examination Dr. Robert Sciulli, an orthopedic surgeon, diagnosed mild lumbar
degenerative change. In an April 8, 2004 progress note, Dr. Steve Williams reported that
appellant developed burning pain in the left lumbar region on March 8, 2004. Dr. Williams also
stated that appellant had evidence of a herniated lumbar disc at L5-S1 and that “this may be an
aggravation of a preexisting injury which was work related.” In a March 10, 2004 note, Dr. Dale
Block, Board-certified in family practice, stated that appellant suffered exacerbation of lower
back pain on March 8, 2004 while sitting in a car. In a July 7, 2004 note, Dr. Victoria Matasy,
Board-certified in internal medicine, restricted appellant from lifting anything heavier than five
pounds. In a separate July 7, 2004 note, she stated that appellant had a right back spasm which
was likely back strain. In a June 28, 2005 letter, Dr. Mark Butler, a chiropractor, stated that
appellant reported lower back problems beginning after an on the job lifting injury two years
prior when she was bent over lifting mail. Dr. Butler concluded that there was significant
preexisting degeneration in the lumbar spine at the time of appellant’s work injury and that the
bending, lifting and twisting was likely to have produced an injury superimposed upon tissues
already weakened by degeneration. A July 12, 2005 magnetic resonance imaging(MRI) scan
revealed desiccation of discs at L4-5, L5-S1 levels associated with mild posterior bulging, mild
spinal stenosis at L4-5 and Grade 1 degenerative disc disease at L5-S1.
In a June 1, 2007 decision, the Office denied modification of the prior decision on the
grounds that medical evidence was insufficient to establish that appellant sustained a recurrence
of disability.

2

LEGAL PRECEDENT
A claimant seeking compensation under the Federal Employees’ Compensation Act1 has
the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence.2 In this case, appellant has the burden of establishing that
she sustained a recurrence of a medical condition on April 8, 2004 causally related to her
February 1, 2003 employment injury. Recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition,
which had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. Appellant’s burden includes the
necessity of furnishing medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the condition is causally related to the
employment injury and supports that conclusion with sound medical rationale.3 Where no such
rationale is present, the medical evidence is of diminished probative value.4
ANALYSIS
The Office accepted appellant for a sprain/strain of the lumbar region related to her
February 1, 2003 employment-related incident. Appellant alleges that on April 8, 2004 she
sustained a recurrence of her accepted condition. The burden is on her to prove through medical
evidence that her condition on April 8, 2004 is causally related to her accepted condition of
sprain/strain of the lumbar region.
The medical evidence submitted in support of appellant’s April 8, 2004 recurrence claim
consists of reports from Dr. Sciulli, Dr. Williams, Dr. Block, Dr. Matasy and Dr. Butler.
Dr. Sciulli diagnosed lumbar degenerative change but did not opine as to the cause of the
diagnosis. Medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.5
Dr. Williams noted evidence of a herniated lumbar disc and opined that it “may be an
aggravation of a prior existing injury which was work related.” However, it is not enough to
opine that a condition “may be” related to a prior injury as it may also be due to a different
cause. Medical opinions that are speculative or equivocal in character are of diminished
probative value.6 Dr. Block’s report stated that appellant had exacerbated lower back pain, but
pain is not a diagnosis therefore his report has little probative value.7 Dr. Matasy merely stated
1

5 U.S.C. §§ 8101-8193

2

Mary Ceglia, 55 ECAB 626 (2004).

3

Id.

4

Mary Ceglia, supra note 3, Albert C. Brown, 52 ECAB 152 (2000).

5

Michael E. Smith, 50 ECAB 313 (1999).

6

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006), Kathy A. Kelley, 55 ECAB 206 (2004).

7

A physician’s mere diagnosis of pain does not constitute a basis for payment of compensation. Robert Broome,
55 ECAB 493 (2004), John L. Clark, 32 ECAB 1618 (1981).

3

that appellant had a back spasm. She did not opine as to the cause of appellant’s back spasm, nor
did she relate it at all to her prior condition. Medical evidence has limited probative value when
it does not offer any opinion regarding the cause of appellant’s condition.8 Dr. Butler noted that
appellant had a previous work-related back injury and concluded that her bending and twisting
was likely to have aggravated the degeneration in the lumbar spine. Dr. Butler’s opinion
provides some rationale that appellant’s bending and twisting aggravated her preexisting
degeneration in the lumbar spine; however, Dr. Butler is a chiropractor. A chiropractor is
considered a “physician” under the Act only when diagnosing and treating a subluxation of the
spine.9 Therefore, Dr. Butler’s opinion has no probative value regarding causal relationship as
he is not considered to be a physician under the Act. The medical evidence is insufficient to
establish that on April 8, 2004 appellant sustained a condition causally related to her accepted
sprain/strain of the lumbar region. The Board finds that appellant has not met her burden to
establish that she sustained a recurrence of disability.
CONCLUSION
Appellant failed to established that she sustained a recurrence of disability on
April 8, 2004.

8

Michael E. Smith, 50 ECAB 313 (1999).

9

Under 5 U.S.C. § 8101(2), “physician” includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
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,
and subject to regulation by the Secretary.

4

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 10, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Biloxi, MS, Employer
__________________________________________

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

Docket No. 14-1585
Issued: December 16, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 8, 2014 appellant filed a timely appeal from a January 9, 2014 merit decision and
a June 18, 2014 nonmerit 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 appellant met her burden of proof to establish a right groin
injury causally related to factors of her employment; and (2) whether OWPC properly denied
appellant’s May 20, 2014 reconsideration request under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 14, 2013 appellant, then a 50-year-old health technician, filed an
occupational disease claim alleging pain in the groin area and adductor muscle of the inner thigh
on the right leg as a result of her employment duties of examining veterans and taking notes on a
computer. She reported that she did not file her claim with the employing establishment within
30 days because the pain started slowly and did not become a real problem until six weeks had
passed. Appellant first became aware of her condition on October 29, 2012 and realized it
resulted from her employment on November 26, 2012.
By letter dated February 20, 2013, OWCP advised appellant that no evidence was
received in support of her claim. It requested that she provide a detailed description of the
employment-related activities she believed contributed to her condition and a medical report
establishing that she sustained a diagnosed condition as a result of her alleged employment
duties.
Appellant submitted several forms from her employing establishment, including a
February 8, 2013 incident report, noting an injury to her groin area due to desk configuration and
location and a receipt of information for work-related injuries which noted that she sustained a
“groin pull” on October 29, 2012.
In a March 6, 2013 letter, appellant stated that as a health technician in the prosthetics
department for the past four years she examined veterans for diabetic shoes, foot orthotics, and
compression hose. Her duties required her to visually examine and palpate the veteran’s foot and
record her notes in the computer system. Because appellant’s keyboard was on an adjustable
tray over her desk top, she had to raise her chair height until her heels were off the floor to use
the keyboard. She then spun her chair around in order to face the veteran behind her, which
required her to push with her toes and engage her inner thigh muscles, and lower her chair height
back to its lowest position to examine the veteran’s feet. When the examination was over
appellant pushed off her right leg, engaged her right inner thigh muscle in order to spin back
around to the computer, and raised her chair again to keyboard height. She stated that the
number of times per day that she performed this motion had varied over the last four years, but
she estimated that she performed these various motions about two to five times per visit.
Appellant speculated that, at the beginning of 2012, she saw 25 patients a day, two to three days
a week. Since July 2012, she treated 15 patients a day for five days a week or approximately 150
to 375 times per week. Appellant alleged that the repeated body mechanics required to do her
job caused increased pain to the interior portion of her right leg which lessened over the weekend
and sometimes at night. Her activities of daily living outside of work included housekeeping,
cooking, laundry, shopping on the weekends, and occasionally walking a mile on her treadmill.
In a March 7, 2013 statement, B. Christine Pelland, Chief of Prosthetic and Sensory Aids
at the employing establishment, reported that she concurred with appellant’s first paragraph that
she examined and measured veterans’ feet and legs for diabetic footwear and compression socks.
Ms. Pelland noted that they had requested an ergonomic review of appellant’s workstation.

2

In a decision dated March 26, 2013, OWCP denied appellant’s claim. It accepted that she
worked as a health technician but denied her claim finding insufficient medical evidence to
establish that she sustained a diagnosed condition as a result of her injury.
Appellant requested a review of the written record on April 10, 2013. She stated that she
was submitting partial documentation because she had to wait to see her general practitioner for
x-rays and physical therapy. Appellant noted that she was also waiting to see a physiatrist. She
submitted various physical therapy treatment notes dated March 8 to 20, 2013.
In an April 4, 2013 new patient evaluation report, Jacqueline York, a physician’s
assistant, related appellant’s complaints of right groin pain for the past three to five months.
Appellant noted no history of injury but stated that she did have repetitive motion at work where
she sat in her chair and twisted around from her desk to the patient chairs and back. Ms. York
reviewed appellant’s history and noted that x-rays of the hip and pelvis demonstrated sacroiliac
joint and mild bilateral hip space narrowing. She reported that any attempt at rotation of the
right hip, especially adduction, exacerbated appellant’s symptoms. Ms. York diagnosed right hip
pain, possibly multifactorial, and lumbar spondylosis.
In an April 5, 2013 magnetic resonance imaging (MRI) scan of the lumbar spine,
Dr. Eric F. Mutz, a Board-certified diagnostic radiologist, noted appellant’s history of right leg
pain since January 2013 from pushing back from tables. He reported mild disc degeneration at
the L4-5 level, but no focal disc oxtrusion or central canal or foraminal stenosis. Dr. Mutz also
suspected some nerve sheath ectasia at L5-S1.
In an April 24, 2013 progress note, Dr. Michael T. Harris, Board-certified in physical
medicine and rehabilitation, examined appellant for complaints of right groin pain in her
adductor magnus. He noted that he ruled out lumbar radiculopathy as evidenced by an MRI
scan.
In May 8 and 15, 2013 progress notes, Dr. Joshua G. Hackel, a Board-certified family
practitioner who specializes in sports medicine, examined appellant for complaints of right hip
and inner thigh pain that developed around October or November 2012. He related that the
symptoms were currently mild to moderate and increased with walking, prolonged sitting,
driving, hiking, and climbing stairs. Dr. Hackel reviewed appellant’s history and conducted an
examination. He observed pain on external rotation with flexion of the hip but no pain with
resistance. Dr. Hackel reported no tenderness, swelling, or deformity. Straight leg raise and
Heel tap tests were negative. Faber test was positive. Dr. Hackel stated that right hip and femur
radiographs demonstrated no soft tissue abnormalities or fractures. He diagnosed right
groin/adductor strain and labral tear of the hip.
In a May 28, 2013 MRI scan of the hip, Dr. Kimberly Garcia, a Board-certified
diagnostic radiologist, noted appellant’s complaints of right hip pain. She observed right greater
than left bilateral hip joint space narrowing and marrow edema and subchondral cyst formation
present anteriorly on the right. Dr. Garcia also reported abnormality and morphologic
irregularity of the anterior and superior labrum of the right hip, which was consistent with labral
tear and labral detachment. She also noted right greater than left gluteus minimus and medium
tendinosis. Dr. Garcia opined that appellant had a technically successful hip arthrogram with

3

anterior-superior labral detachment, bilateral hip osteoarthritis, and right greater than left gluteus
minimus and medius tendinosis. She diagnosed sprain of the hip.
In a July 1, 2013 report, Dr. Adam W. Anz, a Board-certified orthopedic surgeon,
evaluated appellant for right hip and groin pain for approximately the past eight months.
Appellant related that she began to notice the pain when she arose from her stool at work,
specifically with hip adduction and flexion. Dr. Anz reviewed her history and conducted an
examination. He observed normal anatomic alignment and no edema, effusion, obvious
deformities, or discoloration of the right hip. Dr. Anz provided range of motion findings and
noted sharp pain at about 90 to 100 degrees. Anterior impingement was positive and
Trendelenburg’s sign was also present on the right hip. Dr. Anz reported that resisted straight
leg raise was painful. He noted that radiographs of the pelvis demonstrated no obvious osseous
lesions or lucenices. Dr. Anz also observed normal joint space through the lateral sorcil, anterior
sorcil, and in line with fovea. He reported that an MRI scan of the hip demonstrated signal
change at the anterior superior labrum and questionable anterior acetabular subchondral cyst.
Dr. Anz diagnosed labral tear and femoroacetabular impingement (FAI). He stated that appellant
appeared to have subtle hip instability related to combined FAI and labral pathology. Dr. Anz
noted that her symptoms began following an incident where she arose from her stool and
explained that this type of injury was commonly seen when the hip was put into a deep, flexed
position with internal, and external rotation of the hip.
By decision dated August 1, 2013, an OWCP hearing representative denied appellant’s
claim with modification. The hearing representative accepted that appellant’s physician
provided a diagnosis of right hip labrum detachment and bilateral hip osteoarthritis but denied
her claim finding insufficient medical evidence to establish that her accepted condition was
causally related to her employment.
In a letter dated August 29, 2013 and received by OWCP on September 11, 2013,
appellant noted that she was including the results from her orthopedic physician that were not
previously submitted. OWCP treated her letter as a request for reconsideration.
In an October 2, 2013 addendum to his April 24, 2013 report, Dr. Harris related
appellant’s complaints of right groin pain. He noted that it appeared to be her adductor magnus.
Dr. Harris stated that he felt this type of injury to the groin was consistent with twisting under
load bearing. He could not say whether a specific incident caused this type of injury but opined
that there was some type of injury consistent with overall presentation.
In a decision dated January 9, 2014, OWCP denied modification of the August 1, 2013
denial decision.
In an appeal request form received by OWCP on May 20, 2014, appellant requested
reconsideration. In an attached statement, she related that she injured the cartilage in her right
hip socket with the repetitive movement of raising her office chair while swiveling back to her
computer. Appellant explained that from October 2013 to February 2014 her patient load was
greatly reduced due to staffing and her hip felt better during that time. When her patient load
went back to normal she stated that her hip began to hurt again. Appellant reported that she was
unable to get down to people’s feet without creating the hip motion that Dr. Anz referred to.

4

By decision dated June 18, 2014, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant further merit review under 5
U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence2 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.3 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.6
ANALYSIS -- ISSUE 1
Appellant alleges that she sustained a right groin and inner thigh injury as a result of
repetitively turning around and adjusting the height of her chair in the performance of duty as a
health technician. OWCP accepted that she was diagnosed with a right hip condition and
performed the duties of a health technician. It denied appellant’s claim finding insufficient
medical evidence to establish that her medical condition was causally related to her employment.
The Board finds that she did not meet her burden of proof to establish a right hip injury as a
result of factors of her employment.
Appellant submitted reports by Dr. Harris. In his April 24, 2013 note, Dr. Harris related
her complaints of right groin pain in her adductor magnus and ruled out lumbar radiculopathy
based on diagnostic results. In the October 2, 2013 addendum, he stated that appellant’s injury
2

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

3

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

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

5

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

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

5

appeared to be her adductor magnus. Dr. Harris explained that this type of injury to the groin
was consistent with twisting under load bearing. He could not opine on whether a specific
incident caused this type of injury but reported that there was some type of injury consistent with
overall presentation. The Board notes that Dr. Harris did not provide a firm medical diagnosis or
explanation as to the cause of appellant’s right groin pain but opined that her injury “appeared”
to be her adductor magnus. Although Dr. Harris reported that this type of groin injury was
consistent with twisting under load bearing he could not relate her complaints to any
employment incident or her employment’s duties. His reports lack probative value in that they
did not provide a firm diagnosis, are vague and equivocal, and failed to explain the causal
relationship between appellant’s condition and any specific work-related activities.7
Appellant was also examined by Dr. Hackel. In progress notes dated May 8 and 15,
2013, Dr. Hackel noted complaints of right hip and thigh pain since October or November 2012
and reviewed her history. Upon examination, he observed pain on external rotation with flexion
of the hip but no pain with resistance. Dr. Hackel reported no tenderness, swelling, or deformity.
Straight leg raise and Heel tap tests were negative, but Faber test was positive. He diagnosed
right groin/adductor strain and labral tear of the hip. Dr. Hackel did not, however, provide any
opinion on the cause of appellant’s right hip condition. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.8 Similarly, the diagnostic reports of
Dr. Mutz is also insufficient to establish causal relationship. Although he noted appellant’s
history of right hip and leg pain and provided diagnoses based on their examination, none of the
physicians provided any opinion on the cause of her diagnosed conditions. Dr. Garcia, a
radiologist, interpreted the MRI scan images. She indicated that the intrapelvic evaluation
showed no obvious abnormity.
Appellant also submitted a July 1, 2013 report by Dr. Anz, who examined her for right
hip and groin pain that began when she arose from her stool at work. Dr. Anz reviewed her
history and noted that an MRI scan of the hip demonstrated signal change at the anterior superior
labrum. Upon examination of the right hip, he observed normal anatomic alignment and no
edema, effusion, obvious deformities, or discoloration of the right hip. He provided range of
motion findings and reported sharp pain at about 90 to 100 degrees. Anterior impingement was
positive and Trendelenburg’s sign was also present on the right hip. Dr. Anz diagnosed labral
tear and FAI. He stated that appellant appeared to have subtle hip instability related to combined
FAI and labral pathology. Dr. Anz noted that her symptoms began following an incident where
she arose from her stool and explained that this type of injury was commonly seen when the hip
was put into a deep, flexed position with internal, and external rotation of the hip.
The Board notes that Dr. Anz attributes appellant’s right hip condition to an incident
when she arose from her stool and not to the repetitive turning and raising of her chair, with her
feet, as alleged by appellant. The Board has held that medical reports must be based on a
complete and accurate factual and medical background. Medical opinions based on an
7

Roy L. Humphrey, 57 ECAB 238, 242 (2005); Michael E. Smith, 50 ECAB 313 (1999).

8

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); .A.D.,
58 ECAB 149 (2006).

6

incomplete or inaccurate history are of limited probative value.9 Dr. Anz did not provide any
explanation, as to how appellant’s repetitive turning in her chair as a health technician caused or
contributed to her right hip condition. A physician must relate specific employment factors
identified by the claimant to the claimant’s condition to establish causal relationship.10 Because
Dr. Anz fails to attribute appellant’s right hip condition to her specific duties as a health
technician, his opinion is also insufficient to establish her claim.
Appellant also submitted an April 4, 2013 evaluation by Ms. York, a physician’s
assistant. Section 8102(2) of FECA, however, provides that the term “physician” includes
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law. Because physician’s
assistants are not “physicians” as defined by FECA, their medical opinions regarding diagnosis
and causal relationship are of no probative medical value.11
On appeal, appellant alleged that the medical evidence established that the type of injury
she sustained was consistent with repetitive twisting and pushing as seen in sports injury. She
noted that she did not play any sports and the place where she did this type of motion was in the
office. As noted above, however, the medical evidence submitted was of limited probative value
and was insufficient to establish that appellant’s right hip condition resulted from factors of her
employment. The issue of causal relationship is a medical question that must be established by
probative medical opinion from a physician.12 Because appellant failed to provide such
probative medical opinion, the Board finds that OWCP properly denied her claim.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.13 OWCP’s regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his or her right through a request to the district office.14

9

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

10

L.F., Docket No. 10-2287 (issued July 6, 2011); Solomon Polen, 51 ECAB 341 (2000).

11

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).

12

W.W., Docket No. 09-1619 (June 2, 2010); David Apgar, 57 ECAB 137 (2005).

13

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB
372 (2008).
14

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).

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.15
A request for reconsideration must also be submitted within one year of the date of
OWCP’s decision for which review is sought.16 A timely, request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.17 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.18
ANALYSIS -- ISSUE 2
In a decision dated January 9, 2014, OWCP denied modification of the August 1, 2013
decision, which denied appellant’s occupational disease claim finding that the medical evidence
did not establish that her right hip condition was causally related to factors of her employment.
Appellant requested reconsideration on May 20, 2014. In an attached statement, she related that
she injured the cartilage in her right hip socket with the repetitive movement of raising her office
chair while swiveling back to her computer. Appellant explained that from October 2013 to
February 2014 her patient load was greatly reduced due to staffing and her hip felt better during
that time. When her patient load went back to normal she stated that her hip began to hurt again.
Appellant reported that she was unable to get down to people’s feet without creating the same
hip pain.
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review as the submission of this statement did not require reopening her
case for merit review. OWCP denied her claim finding that the medical evidence failed to
establish a right hip and groin injury as a result of her employment. As the underlying issue in
this case was a medical issue, it must be addressed by relevant new medical evidence.19
Appellant’s statement and further explanation of her employment duties and injury is not
relevant and pertinent to the underlying causal relationship in this case. Therefore, it is not
sufficient to require OWCP to reopen her claim for consideration of the merits.

15

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
16

Id. at § 10.607(a).

17

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

18

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

19

See Bobbie F. Cowart, 55 ECAB 746 (2004).

8

The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her right
hip condition was causally related to factors of her employment. The Board also finds that
OWCP properly denied her request for reconsideration pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 18, and January 9, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 16, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9