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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-830
Issued: October 9, 2009

Case Submitted on the Record

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

JURISDICTION
On February 5, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated September 26, 2008 which denied appellant’s
reconsideration request on the grounds that it was untimely filed and failed to establish clear
evidence of error. Because more than one year has elapsed between the last merit decision dated
April 20, 2007 and the filing of this appeal on February 5 2009, 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 untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
Appellant, a 37-year-old letter carrier, filed a claim for benefits received by the Office on
October 3, 2006, alleging that he experienced pain in his back, neck and right shoulder while
getting up from his work stool in the performance of duty on July 15, 2005.

By decision dated November 21, 2006, the Office denied the claim, finding that appellant
failed to show sufficient medical evidence in support of his claim that he sustained back, neck
and right shoulder injuries in the performance of duty on July 15, 2005.
By letter dated November 27, 2006, appellant’s attorney requested an oral hearing, which
was held on February 6, 2007. Appellant testified that he had sustained prior injuries to his back,
neck and shoulder and submitted a report from Dr. Douglas G. Kimmel, a Board-certified family
practitioner.1
By decision dated April 20, 2007, an Office hearing representative affirmed the
November 21, 2006 decision.
In a January 15, 2008 report, Dr. Shailen Jalali, Board-certified in orthopedic surgery,
noted that appellant had complaints of pain, primarily in the neck, with radiation into the
occipital area. He stated that appellant was experiencing brachial plexopathy with associated
neuropathic pain, in addition to cervical radiculitis, spinal stenosis and facet disease. Dr. Jalali
recommended that appellant undergo a course of treatment which included bilateral C3-C4, C4C5, and C5-C6 intraarticular facet injections.
In an April 18, 2008 report, Dr. Jalali stated:
“On June 29, 2005, while casing mail, [appellant] stated that he felt pain in his
neck and shoulder area. He was then asked to handle [a] different type of mail in
which he [was] required to reach up over his head. When [appellant] did this, he
felt sharp pain in his right arm, back and neck. After this incident, it is my
understanding that the patient’s workday was reduced to four hours a day.
[Appellant] continued to do this until July 15, 2005, when he got off of a stool and
felt excruciating pain in his entire thoracic back area extending up into the back of
his head. He apparently went home that day but returned to work the next
workday and continued working light duty in this fashion until July 27, 2005.
Subsequent to that visit, [appellant] was unable to continue working…. Since that
time, he states that [he] has been unable to return to work and has had
progressively increased complaints of pain both the upper back as well as in the
neck. [Appellant] has had a number of different types of injections including
trigger point injections, cervical facet injections, as well as continued
management with medications. He also has had epidural steroid injections for
pain that [is] slightly lower in the thoracic back area.
“I feel it is these incidences, the two occasions; June 29, 2005, when [appellant]
was reaching up as well as on July 15, 2005, when he had worsened his pain
condition as a result of the activities he was doing specifically at work. The
1

Appellant sustained a prior injury while in the performance of duty on September 18, 2001 when he was
attacked by a dog while delivering mail. The Office accepted the claim for aggravation of cervical and thoracic
sprain and strain under claim number xxxxxx089. On April 10, 2002 the claimant underwent anterior cervical
discectomy and fusion at C6-7. On February 17, 2004 two spinal cord stimulators were inserted in the cervical
spine. The Office paid appellant compensation for total wage loss until June 2, 2005 when it terminated his
compensation on the grounds that the claimant refused an offer of suitable employment without justification.

2

positions that he was asked to place his body in were causing these exacerbations.
I do not feel that this was simply a worsening of [appellant’s] pain symptoms on
its own; I feel that it is these activities at work that led to his worsening pain
symptoms. I feel that he continues to suffer from brachial plexopathy with
associated neuropathic and myofascial pain symptoms. I also feel [appellant]
suffers from cervical facet disease and disc degeneration as well. He also has had
problems with spinal stenosis in the cervical region as well. I feel that the need
for [appellant] to go out on disability was directly related to these two incidences
that occurred while he was at work in June 2005 and then again in July 2005. At
this point, I feel that he is completely disabled and will not be able to return to any
type of gainful employment. [Appellant] continues to have ongoing pain
complaints. He will require ongoing medical attention including continued
medication management as well as potential injection procedures to address facet
pathology. [Appellant] also has a spinal cord stimulator that is less than optimal
and may require further monitoring and adjustment in the future.”
By letter dated August 18, 2008, appellant’s attorney requested reconsideration.
By decision dated September 26, 2008, the Office denied appellant’s request for
reconsideration without a merit review, finding that he had not timely requested reconsideration
and had failed to submit factual or medical evidence sufficient to establish clear evidence of
error. It stated that he was required to present evidence which showed that the Office made an
error and that there was no evidence submitted that showed that its final merit decision was in
error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle an
employee to a review of an Office decision as a matter of right.3 This section, vesting the Office
with discretionary authority to determine whether it will review an award for or against
compensation, provides:
“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, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”

2

5 U.S.C. § 8128(a).

3

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989); Gregory Griffin, 41 ECAB
186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

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The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).4 As one such limitation, the Office has stated
that it will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.5 The Board has found that the
imposition of this one-year time limitation does not constitute an abuse of the discretionary
authority granted by the Office under 5 U.S.C. § 8128(a).6
In those cases where a request for reconsideration is not timely filed, the Board had held
however that the Office must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.7 Office procedures
state that the Office will reopen a claimant’s case for merit review, notwithstanding the one-year
filing limitation set forth in 20 C.F.R. § 10.607(b), if the claimant application for review shows
“clear evidence of error” on the part of the Office.8
To establish clear evidence of error, appellant must submit evidence relevant to the issue
which was decided by the Office.9 The evidence must be positive, precise and explicit and must
be manifested on its face that the Office committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.14 The Board makes an
4

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a point of law, or (2) advancing a relevant legal
argument not previously considered by the Office, or (3) constituting relevant and pertinent new evidence not
previously considered by the Office. See 20 C.F.R. § 10.606(b).
5

20 C.F.R. § 10.607(b).

6

See cases cited supra note 2.

7

Rex L. Weaver, 44 ECAB 535 (1993).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

9

See Dean D. Beets, 43 ECAB 1153 (1992).

10

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

11

See Jesus D. Sanchez, supra note 3.

12

See Leona N. Travis, supra note 10.

13

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

14

Leon D. Faidley, Jr., supra note 2.

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independent determination of whether an appellant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.15
ANALYSIS
The Office properly determined in this case that appellant failed to file a timely
application for review. It issued its last merit decision in this case on April 20, 2007. Appellant
requested reconsideration on August 18, 2008; thus, his reconsideration request is untimely as it
was outside the one-year time limit.
Appellant’s attorney submitted a brief with his appeal in which he argues that Dr. Jalali’s
report was sufficiently probative to constitute error. The Board, however, finds that appellant’s
request for reconsideration failed to show clear evidence of error. The reports from Dr. Jalali
dated January 15 and April 15, 2008 are of limited probative value as they did not provide a
reasoned medical opinion on the relevant issue; i.e., whether appellant sustained an injury on
July 15, 2005 in the performance of duty, causally related to factors of his federal employment.
Dr. Jalali’s reports reviewed the history of appellant’s neck, back and shoulder injuries and his
account of the incident which, he alleged, had resulted in a work-related injury on July 15, 2005.
However, these reports are cumulative and repetitive of reports and arguments previously
considered and rejected by the Office. None of the medical evidence submitted by appellant
contains a rationalized medical opinion which explains how his work activities on July 15, 2005
physiologically caused his currently diagnosed medical conditions. Neither of the reports he
submitted with his request are of sufficient probative value to prima facie shift the weight of the
evidence in his favor and raise a substantial question as to the correctness of the Office’s
decision. Therefore, appellant has failed to demonstrate clear evidence of error on the part of the
Office.
The Office reviewed the evidence appellant submitted and properly found it to be
insufficient to prima facie shift the weight of the evidence in his favor. Consequently, the
evidence submitted by him on reconsideration is insufficient to establish clear evidence of error
on the part of the Office such that the Office abused its discretion in denying merit review. The
Board finds that the Office did not abuse its discretion in denying further merit review.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of the Office in his reconsideration request dated August 18, 2008. Inasmuch as his
reconsideration requests were untimely filed and failed to establish clear evidence of error, the
Office properly denied further review on September 26, 2008.

15

Gregory Griffin, supra note 3.

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ORDER
IT IS HEREBY ORDERED THAT the September 26, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rosenberg, TX, Employer
__________________________________________

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

Docket No. 15-324
Issued: May 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 30, 2014 appellant filed a timely appeal from the July 8, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $14,437.93 overpayment of
compensation; (2) whether he was entitled to waiver of recovery of the overpayment; and
(3) whether OWCP properly set the rate of recovery from continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 12, 2000 appellant, a 51-year-old letter carrier, sustained a traumatic
injury in the performance of duty when he was involved in a motor vehicle accident. OWCP
accepted his claim for multiple cervical and lumbar conditions.
Appellant received compensation for temporary total disability on the daily rolls
beginning April 22, 2002. He received compensation on the periodic rolls beginning
June 16, 2002. No deductions were made for basic life insurance or postretirement basic life
insurance.
On August 30, 2007 appellant completed an SF-2818 Continuation of Life Insurance
Coverage as an Annuitant or Compensationer.
He elected basic life insurance in
retirement/compensation if eligible with “no reduction.”
On March 27, 2014 the Office of Personnel Management (OPM) advised OWCP that
appellant, as a compensationer, was eligible for postretirement basic life insurance coverage with
no reduction. OPM noted that the commencement date for postretirement deductions was
April 5, 2003, but it appeared that OWCP was not withholding premiums for the “no reduction”
election.
OWCP began deducting postretirement basic life insurance premiums from appellant’s
compensation beginning April 6, 2014.
On June 5, 2014 OWCP issued a preliminary determination that appellant had received a
$14,437.93 overpayment of compensation because life insurance premiums were not collected
from April 21, 2002 through April 5, 2014. It showed how it calculated the amount of the
overpayment, first by determining the premiums for basic life insurance beginning April 21,
2002, and then by determining the premiums for postretirement basic life insurance with “no
reduction” beginning April 5, 2003.
OWCP found that appellant was not at fault in creating the overpayment. It instructed
him to complete and submit an overpayment recovery questionnaire detailing his monthly
income, expenses, and assets:
“In order for OWCP to consider the question of waiver or to determine a
reasonable method for collection, you must complete and submit the enclosed
Form OWCP-20. Attach supporting documents to Form OWCP-20, including
copies of income tax returns, bank account statements, bills and canceled checks,
pay slips, and any other records which support the income and expenses listed.
Under 20 C.F.R. § 10.438, failure to submit the requested information within 30
days will result in the denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”
Appellant submitted an overpayment action request form indicating, with a mark, that he
believed the overpayment occurred through no fault of his own. He requested waiver.

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In a decision dated July 8, 2014, OWCP finalized its preliminary determination. It found
that the circumstances of appellant’s case did not warrant waiver of recovery of the
overpayment. As appellant did not submit a completed overpayment recovery questionnaire,
OWCP found that the record was insufficient to justify waiver of recovery of the overpayment.
It determined that recovery of the overpayment should be made by deducting $282.00 from
appellant’s continuing compensation payments.
On appeal, appellant notes that the overpayment occurred because of an administrative
error that occurred over a 12-year period without his knowledge. He adds that he never received
any monetary compensation in regard to the “overpayment.” Appellant appeals under 20 C.F.R.
§ 10.434 relating to waiver. He states that he was given incorrect information in his monthly
compensation statements, which stated that his basic and optional life insurance premiums were
costing him $12.00 a month, which was a premium he could afford. Appellant states that he was
denied a valuable right to make a sound financial decision to cancel his optional life insurance
premium. He explains that he separated under disability retirement on September 18, 2007, yet
he was being charged for postretirement premiums beginning April 5, 2003 and basic life
insurance from April 21, 2002. Appellant asks for waiver and to be made whole.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees Group Life Insurance (FEGLI) program, most civilian
employees of the Federal Government are eligible to participate in basic life insurance and one
or more of the options.2 The coverage for basic life insurance is effective unless waived,3 and
the premiums for basic and optional life coverage are withheld from the employee’s pay.4 At
separation from the employing establishment, the FEGLI insurance will either terminate or be
continued under “compensationer” status. If the compensationer chooses to continue basic and
optional life insurance coverage, the schedule of deductions made while the compensationer was
an employee will be used to withhold premiums from his compensation payments.5 When an
underwithholding of life insurance premiums occurs, the entire amount is deemed an
overpayment of compensation because OWCP must pay the full premium to OPM upon
discovery of the error.6
ANALYSIS -- ISSUE 1
It is clear that an overpayment arose in this case. No deductions were made for basic life
insurance when appellant began receiving compensation on April 22, 2002. The record shows
no election form opting out of coverage. Moreover, on August 30, 2007 appellant elected to
continue his basic life insurance coverage into retirement or as a compensationer with “no
2

5 U.S.C. § 8702(a).

3

Id. § 8702(b).

4

Id. § 8707.

5

Id. § 8706(b).

6

Id. § 8707(d); see James Lloyd Otte, 48 ECAB 334 (1997).

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reduction,” which carried an extra premium. Again, no premiums were withheld until
April 6, 2014. Because OWCP failed to withhold premiums for his basic life insurance
coverage, appellant received an overpayment of compensation. Appellant argues that he never
received any monetary compensation in regard to the overpayment, but his compensation
payments were slightly higher than they should have been because no premiums were withheld
for the life insurance coverage that he received. The Board will therefore affirm OWCP’s July 8,
2014 decision on the issue of fact of overpayment.
The amount of the overpayment is not clear. Although the record confirms that appellant
began receiving wage-loss compensation on April 22, 2002, OWCP calculated the overpayment
beginning April 21, 2002.
Further, OPM advised that the commencement date for
postretirement/compensation deductions with no reduction was April 5, 2003, but it did not
explain how this date was selected. Instructions for SF-2818 state that the terms of coverage as
applicable at retirement also apply to coverage in effect at the end of 12 months in a nonpay
status, whichever comes first. That is the reason appellant is charged for continuation of life
insurance coverage in 2003 when he separated under disability retirement in 2007. The election
he made was not limited to retirement. It was also effective 12 months after he began receiving
compensation.
During his first 12 months in a nonpay status while in receipt of compensation,
appellant’s life insurance coverage was still treated as if he were an employee. At the end of
12 months, he would be eligible for life insurance coverage as a compensationer if he met the
5-year/all opportunities requirement (per the election instructions) as of the date he became
eligible for compensation. It appears therefore that the extra premium payable for “no
reduction” should have begun 12 months after April 22, 2002. The Board is unable to confirm
that the date should be April 5, 2003.
Thus, although an overpayment arose when OWCP failed to collect basic life insurance
premiums from appellant’s compensation from April 22, 2002 through April 5, 2014, the record
does not allow the Board to confirm the amount of the overpayment. The Board will therefore
set aside OWCP’s July 8, 2014 decision on the issue of amount of overpayment. The Board will
remand the case for further development. OWCP shall issue a preliminary determination clearly
explaining how the overpayment was calculated and why certain dates were used. It shall
provide appellant another opportunity to complete and submit an overpayment recovery
questionnaire. If appellant fails to provide the information requested within 30 days of the
request, waiver must be denied pursuant to 20 C.F.R. § 10.438(b). OWCP shall then issue an
appropriate final decision on the overpayment.
Appellant notes on appeal that the overpayment occurred because of an administrative
error. This does not mean he may keep money that does not belong to him. Even if appellant is
not at fault in creating the overpayment, recovery of the debt will still be required unless he
meets the criteria for waiver. If he does not provide the information requested in connection
with an overpayment recovery questionnaire, waiver must be denied.

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CONCLUSION
The Board finds that appellant received an overpayment of compensation. The case is
not in posture, however, on the issue of amount of overpayment. Further development is
required.
ORDER
IT IS HEREBY ORDERED THAT the July 8, 2014 decision of the Office of Workers’
Compensation Programs is affirmed on the issue of fact of overpayment and is otherwise set
aside. The case is remanded for further action.
Issued: May 21, 2015
Washington, DC

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

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

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

5


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

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Appearances:
Ron Krumie, for the appellant
Office of Solicitor, for the Director

Docket No. 06-1257
Issued: March 8, 2007

Case Submitted on the Record

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

JURISDICTION
On May 8, 2006 appellant, through her representative, filed a timely appeal of a
February 1, 2006 merit decision of the Office of Workers’ Compensation Programs terminating
her compensation and authorization for medical benefits. Pursuant to 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 the Office properly terminated appellant’s compensation
effective February 1, 2006 on the grounds that she had no further employment-related disability;
and (2) whether the Office properly terminated authorization for medical benefits.
FACTUAL HISTORY
On July 22, 1999 appellant, then a 44-year-old mail processor, filed a claim for a
traumatic injury to her right hand occurring on July 20, 1999 when she pulled a muscle while
grasping a large handful of mail. She did not stop work. The Office accepted appellant’s claim

for right extensor tendinitis, bilateral de Quervain’s tendinitis and medial and lateral
epicondylitis of the right elbow.
On March 28, 2000 Dr. Jerry A. Taylor, an osteopath, performed a tenosynovectomy and
tendolysis of the abductor pollicis longus and extensor pollicis brevio tendon in the first dorsal
compartment of the right wrist. Following the surgery appellant returned to limited-duty
employment on June 16, 2000.
On July 10, 2000 appellant filed an occupational disease claim alleging that she sustained
tendinitis due to factors of her federal employment. The Office assigned the case
File No. 090455698 and accepted the claim for left arm tendinitis. The Office combined this
case into File No. 090455698.
The Office accepted that appellant sustained a recurrence of disability on August 5, 2000.
Based on the opinion of Dr. Saul Z. Forman, a Board-certified psychiatrist, the Office also
accepted that appellant sustained chronic pain syndrome due to her July 20, 1999 employment
injury.1
In a report dated February 15, 2002, Dr. Taylor diagnosed status post surgery for
de Quervain’s tenosynovitis of the right wrist, bilateral lateral humeral epicondylitis and
capsulitis of the trapezoid first metacarpal joint on the right side. He found that appellant could
work light duty and listed work restrictions.
By letter dated September 10, 2002, the Office referred appellant to Dr. Norman L.
Pollak, a Board-certified orthopedic surgeon, for a second opinion evaluation. In a report dated
September 25, 2002, Dr. Pollak related:
“I did review the rather extensive notes issued by Dr. Forman, dated October 27,
2000 which indicate rather severe psychiatric problems which preclude
[appellant] from working, at least at that time. I was not able to confirm the
remainder of the diagnoses other than [c]hronic [p]ain [s]yndrome which, by
definition, implies a nonorganic etiology. Therefore, on a musculoskeletal basis,
based on today’s examination, I see no indication for work restrictions.”
On November 5, 2002 the Office referred appellant for a second opinion evaluation with
Dr. Elliott Wolf, a Board-certified psychiatrist. In a report dated November 20, 2002, Dr. Wolf
diagnosed a personality disorder with borderline features unrelated to her employment. He
found that appellant had no employment-related psychiatric condition. In a work capacity
evaluation dated December 22, 2002, Dr. Wolf opined that she could work eight hours per day at
her usual employment. In a supplemental report dated February 13, 2003, he indicated that he
was unaware that appellant was diagnosed with chronic pain syndrome which he noted “implies
a psychogenic rather than medical basis for one’s pain.”
1

In a report dated October 27, 2000, Dr. Forman diagnosed recurrent major depression with psychotic features,
panic disorder with agoraphobia and a mood disorder due to numerous musculoskeletal problems with depressive
features. He stated, “In my opinion [appellant] has a chronic pain disorder associated with depression” and noted
that she attributed her problems to her employment injury.

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By letter dated March 11, 2003, the Office requested that Dr. Pollak address whether
appellant had residuals of her employment injuries and the extent of any disability. In a response
dated March 20, 2003, he stated that she had no residuals of her accepted conditions of “right
extensor tendinitis, right medial and lateral humeral epicondylitis, left arm tendinitis, right arm
surgery and bilateral de Quervain’s tendinitis.” Dr. Pollak opined that appellant could perform
her usual employment.
On April 17, 2003 the Office requested that Dr. Wolf clarify whether appellant had
residuals of her accepted condition of chronic pain syndrome. On August 20, 2003 he opined
that Dr. Forman could respond more accurately to the Office’s questions.
By letter dated September 25, 2003, the Office requested that Dr. Taylor review and
discuss Dr. Pollak’s reports. On October 1, 2003 he reported that he based his diagnosis of
lateral humeral epicondylitis on appellant’s complaints of pain rather than objective findings.
Dr. Taylor found that she could perform light duty.
The Office notified appellant that a conflict existed between Dr. Taylor and Dr. Pollak on
the issue of the nature and extent of her work-related disability. It referred her to Dr. Ronald
Rusko, a Board-certified plastic surgeon, for an impartial medical examination. In a report dated
April 6, 2004, Dr. Rusko discussed her history of injury and listed findings on physical
examination. He stated:
“On clinical examination I find that there is a gross overreaction on [appellant’s]
part. I cannot find any specific evidence of any tendinitis in the upper extremities
including epicondylitis and de Quervain syndrome. [Appellant] has diffuse
tenderness but provocative measures do not reproduce pain to make any diagnosis
of any tendinitis.”
Dr. Rusko opined that appellant’s tendinitis had resolved but recommended an
electromyogram (EMG) to evaluate other sensory disturbances.
An EMG performed on April 22, 2004 revealed bilateral carpal tunnel syndrome (CTS).
In a report dated April 30, 2004, Dr. Rusko diagnosed bilateral CTS of uncertain etiology,
possibly due to obesity. He found that appellant required work restrictions due to CTS. In a
work restriction evaluation dated May 10, 2004 and supplemental report dated May 11, 2004 he
found that she required no work limitations due to her accepted conditions, but required
limitations due to carpal tunnel syndrome. On May 21, 2004 Dr. Rusko stated that “since
[appellant] was a poor historian, I cannot state whether this is a work-related condition or not
because I have no idea when this had started, whether she was working or not working.”
The Office referred appellant to Dr. Charles F. Xeller, a Board-certified orthopedic
surgeon, for a second opinion evaluation. In a report dated July 6, 2004, Dr. Xeller diagnosed
status post de Quervain’s release, mild bilateral CTS and resolved bilateral epicondylitis. He
found that appellant had “recovered from her de Quervain’s tendinitis with a negative
Finkelstein’s test” and that she had no residuals of her epicondylitis. Dr. Xeller attributed the
CTS to “her age, gender and exogenous obesity, rather than any work[-]related condition, given

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she has not worked in nearly four years and her symptoms continue.” Dr. Xeller listed work
restrictions for her nonemployment-related CTS.
The Office requested that Dr. Taylor comment on Dr. Xeller’s report; however, in a
response dated August 30, 2004, Dr. Taylor indicated that he would “not be drawn into a
possible confrontation” with another physician.
On November 30, 2004 the Office referred appellant to Dr. Forman for another second
opinion evaluation. In a report dated December 7, 2004, he diagnosed paranoid schizophrenia,
possible chronic schizophrenia, a mood disorder due to somatic problems, possible major
depressive disorder with psychosis, panic disorder with agoraphobia and a personality disorder.
Dr. Forman noted that there was conflicting evidence regarding whether appellant had residuals
of her employment injury. He stated:
“My visual examination noted that [appellant] walked with a limp, would not use
her right hand, complained of severe pain in her right shoulder and entire right
arm and pain in her left hand; this is the only evidence I can provide to explain
how it supports a diagnosis of mood disorder secondary to medical conditions. I
believe that her condition has not returned to its baseline.”
Dr. Forman opined that appellant was unable to work because of “residuals of her chronic
pain which she perceives as her primary problem. Appellant is further disabled by her
underlying disorders of thought and mood, which are of permanent nature.”
In a progress report dated December 21, 2004, Dr. Taylor diagnosed bilateral lateral
humeral epicondylitis, tenosynovitis of the flexor pollicis longus tendon and medial humeral
epicondylitis of the right elbow. He indicated that the diagnosed conditions were employment
related and listed work restrictions.
By letter dated April 14, 2005, the Office referred appellant to Dr. Jeffrey Hall, a Boardcertified surgeon, to resolve a conflict between Dr. Taylor and Dr. Xellar on the issue of whether
she had any further work-related condition or disability on the issue of whether she had carpal
tunnel syndrome. In a report dated May 6, 2005, Dr. Hall reviewed the medical records and
discussed appellant’s complaints. On physical examination, he noted negative Spurling and
Finkelstein maneuvers and objective findings of “two incisions, one at the base of the right
thumb, the other in the metacarpal phalangeal joint crease volarly of the same thumb. There is
some mild postoperative swelling of the right thumb.” Dr. Hall diagnosed resolved right wrist
de Quervain’s tendinitis and resolved bilateral medial and lateral epicondylitis. He further
diagnosed nonemployment-related arthritis of the trapeziometacarapal joint, tenosynovitis of the
right thumb and bilateral CTS. He stated:
“I do not believe there is any residual regarding [appellant’s] medial or lateral
bilateral epicondylitis or her right de Quervain’s tendinitis. She still has multiple
complaints in these areas but there are no objective findings. All provocation
maneuvers for all of these tend[ons] are negative.
“With regard to [appellant] carpal tunnel syndrome, from my review of the
records it seems that her EMG became positive after she was off work. With the
4

EMG also positive four years after being off work, it is my opinion that other
factors are the cause of her CTS. This would include [appellant’s] significant
obesity.”
Dr. Hall listed prophylactic work restrictions.
On May 24, 2005 the Office requested that Dr. Forman address whether appellant had
any diagnoses due to her employment injury. In a report dated June 22, 2005, he reviewed the
recent medical evidence, including Dr. Hall’s May 6, 2005 report. Dr. Forman noted that
Dr. Hall found no objective findings of the accepted conditions. He asserted, “ Ido not find that
any of the emotional diagnoses are related to work prior to the injury or accelerated, aggravated
or precipitated them.”
On December 20, 2005 the Office notified appellant that it proposed to terminate her
compensation and authorization for medical benefits on the grounds that the weight of the
medical evidence established that she had no further employment-related disability or condition.
In a progress report dated January 10, 2006, Dr. Taylor listed findings of a positive
Tinel’s test and Phalen’s sign. He diagnosed bilateral CTS, lateral humeral epicondylitis and
early degenerative osteoarthritis of the first metacarpal joint. Dr. Taylor opined that appellant
required work restrictions.
Appellant requested a schedule award on January 11, 2006.
By decision dated February 1, 2006, the Office terminated appellant’s entitlement to
compensation, including a schedule award and authorization for medical benefits effective that
date.2
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.3 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.4

2

Appellant requested an oral hearing on February 26, 2006. She appealed her case to the Board on May 8, 2006.
A hearing representative issued a decision on November 13, 2006 affirming the February 1, 2006 Office decision.
Under the principles discussed in Douglas E. Billings, 41 ECAB 880 (1990), the Office’s November 13, 2006
decision, issued while the Board had jurisdiction over the matter in dispute, is null and void. Lawrence Sherman,
55 ECAB 359 (2004).
3

Gloria J. Godfrey, 52 ECAB 486 (2001).

4

Gewin C. Hawkins, 52 ECAB 242 (2001).

5

Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.5 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.6 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained bilateral de Quervain’s tendinitis, right
extensor tendinitis, right medial and lateral humeral epicondylitis, left arm tendinitis and chronic
pain syndrome due to factors of her federal employment. Appellant underwent right wrist
surgery on March 28, 2000 and returned to limited-duty employment on June 16, 2000. She
stopped work on August 5, 2000 and received compensation from the Office for total disability.
The Office determined that a conflict in medical opinion existed between Dr. Taylor,
appellant’s attending physician, and Dr. Pollak, an Office referral physician, regarding whether
appellant had any residuals of her accepted physical conditions. The Office referred appellant to
Dr. Rusko for an impartial medical examination. In a report dated April 6, 2004, Dr. Rusko
opined that she had no further residuals or disability due to her epicondylitis and de Quervain’s
syndrome. He found, however, that appellant had bilateral CTS. On May 21, 2004 Dr. Rusko
indicated that he was unable to determine whether her CTS was related to her employment.
The Office referred appellant to Dr. Xeller for a second opinion examination to further
develop whether her carpal tunnel syndrome was due to her federal employment. In a report
dated July 6, 2004, Dr. Xeller found that appellant had no residuals or disability from her
de Quervain’s tendinitis or bilateral epicondylitis. He related her CTS to her age and obesity and
not her employment.
The Office again found that a conflict remained regarding appellant’s work limitations
between Dr. Taylor and Dr. Xeller and referred her to Dr. Hall for an impartial medical
examination. The Board finds that the opinion of Dr. Hall, a Board-certified surgeon, selected to
resolve the conflict in opinion is based on a proper factual and medical background, is well
rationalized and supports that appellant’s disability due to her accepted employment injuries of
right epicondylitis and right de Quervain’s tendinitis ceased by February 1, 2006. Dr. Hall
provided a thorough discussion of the factual and medical history and accurately summarized the
5

5 U.S.C. § 8123(a).

6

20 C.F.R. § 10.321.

7

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

6

relevant medical evidence. Additionally, he provided a proper analysis of his findings on
examination and reached conclusions about appellant’s condition which comported with his
findings.8 In his May 6, 2005 report, Dr. Hall discussed her complaints and reviewed the
medical evidence of record. He listed objective findings of thumb incisions and mild joint
swelling of the right thumb. Dr. Hall found that appellant had no further residuals due to her
lateral bilateral epicondylitis or right de Quervain’s tendinitis. He provided rationale for his
opinion by explaining that appellant had no objective findings on physical examination
supporting these conditions. Dr. Hall found that she could work with prophylactic restrictions.
As his report is detailed, well rationalized and based on a proper factual background, his opinion
is entitled to the special weight accorded an impartial medical examiner and is sufficient to meet
the Office’s burden of proof to establish that appellant had no further disability due to her
accepted physical conditions of right epicondylitis and right de Quervain’s tendinitis.9
The Board notes that the record contained no conflict in opinion regarding whether
appellant sustained bilateral CTS due to employment factors at the time of her referral to
Dr. Hall. Dr. Taylor, appellant’s attending physician, did not diagnose employment-related CTS
prior to Dr. Hall’s report. Dr. Hall diagnosed CTS which he attributed to nonemploymentrelated factors. He provided rationale for his opinion by explaining that appellant’s EMG was
positive four years after she stopped work and thus, attributed the cause to obesity or a systemic
disorder. Dr. Hall’s opinion, as an Office referral physician, is well rationalized and based on a
through physical examination; thus, his opinion represents the weight of the evidence and
establishes that appellant did not have employment-related CTS.
The remaining evidence of record submitted subsequent to Dr. Hall’s report and prior to
the Office’s termination of compensation is insufficient to overcome the weight accorded him as
the impartial medical examiner on the issue of whether appellant has any further residuals of her
right epicondylitis or right de Quervain’s tendinitis. Appellant submitted a report from
Dr. Taylor dated January 10, 2006. Dr. Taylor diagnosed bilateral CTS, lateral humeral
epicondylitis and early degenerative osteoarthritis of the first metacarpal joint. He asserted that
appellant required work restrictions. Dr. Taylor’s report, however, is insufficient to overcome
the weight according the opinion of the impartial medical examiner or create a new conflict as he
was on one side of the conflict resolved by the impartial medical examiner.10 Additionally, he
did not attribute appellant’s bilateral CTS to her employment injury and thus, his opinion is of
little probative value on that issue.11
The Board finds, however, that the Office improperly terminated appellant’s
compensation as Dr. Hall did not address whether she had any disability from her accepted
conditions of right extensor tendinitis, left arm tendinitis and left epicondylitis. The Office
accepted these conditions and has the burden to establish that disability from these conditions
8

Manuel Gill, 52 ECAB 282 (2001).

9

Jaja K. Asaramo, 55 ECAB 200 (2004).

10

William Morris, 52 ECAB 400 (2001).

11

Conrad Hightower, 54 ECAB 796 (2003).

7

ceased prior to terminating benefits.12 It is unclear from the record whether the Office provided
Dr. Hall with a statement of accepted facts.13 As he did not address appellant’s accepted
conditions of right arm extensor tendinitis, left arm tendinitis and left epicondylitis, his report is
insufficient to show that she had no further disability resulting from these conditions.
The Board further finds that the Office failed to establish that appellant had no further
disability from her accepted condition of chronic pain syndrome. On December 7, 2004
Dr. Forman found that appellant was unable to work because of “residuals of her chronic pain,
which she perceives as her primary problem.” On June 22, 2005 Dr. Forman reviewed Dr. Hall’s
report and noted that Dr. Hall found no objective evidence of the accepted conditions. He
concluded, “I do not find that any of the emotional diagnoses are related to work prior to the
injury or accelerated, aggravated or precipitated them.” Dr. Forman relied upon Dr. Hall’s
finding that appellant had no evidence of any accepted condition in finding that she had no
residuals of her chronic pain syndrome. As discussed, however, Dr. Hall’s opinion is insufficient
to establish that appellant had no employment-related disability or residual condition due to her
accepted conditions of right extensor tendinitis, left arm tendinitis and left de Quervain’s
tendinitis. Consequently, Dr. Forman’s opinion is based on an inaccurate factual background.14
The Office’s burden of proof to terminate benefits includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.15 As
Dr. Forman’s opinion is not based on an accurate factual background, his report is insufficient to
establish that appellant had no further disability due to her chronic pain syndrome.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.16 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.17
ANALYSIS -- ISSUE 2
The Office met its burden of proof to terminate authorization for medical treatment of
appellant’s right epicondylitis and right de Quervain’s tendinitis based on the opinion of
12

David W. Pickett, 54 ECAB 272 (2002).

13

The Office provides a physician with a statement of accepted facts to assure that the medical specialist’s report
is based upon a proper factual background. Helen Casillas, 46 ECAB 1044 (1995). The statement of accepted facts
must include the claimed or accepted conditions. Federal (FECA) Procedure Manual, Part 3 -- Medical,
Requirements for Medical Reports, Chapter 3.600.3 (October 1990).
14

See John W. Montoya, 54 ECAB 306 (2003) (medical conclusions based on inaccurate or incomplete histories
are of little probative value).
15

Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

16

Pamela K. Guesford, 53 ECAB 727 (2002).

17

Id.

8

Dr. Hall, the impartial medical specialist, who found that appellant had no residuals of these
conditions. He provided rationale for his findings by explaining that the findings on physical
examination showed no evidence of any continuing right epicondylitis and right de Quervain’s
tendinitis.
The Board finds, however, that the Office failed to meet its burden of proof to terminate
medical benefits for the accepted conditions of right arm extensor tendinitis, left epicondylitis
and left arm tendinitis as Dr. Hall did not address whether appellant had any residuals of these
conditions. The Office further failed to meet its burden of proof to terminate authorization for
treatment of chronic pain syndrome as Dr. Forman based his opinion on an inaccurate history,
that of appellant having no further residuals of her accepted physical employment injuries. His
opinion, consequently, is insufficient to meet the Office’s burden to show that appellant had no
residuals of her employment-related condition requiring further medical treatment.18
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation and
authorization for medical benefits effective February 1, 2006 on the grounds that she had no
further employment-related disability or condition due to her accepted conditions of right
epicondylitis and right de Quervain’s tendinitis. The Board finds that the Office improperly
terminated appellant’s compensation and authorization for medical benefits for the accepted
conditions of right arm extensor tendinitis, left arm tendinitis and left de Quervain’s tendinitis.

18

See Jaja K. Asaramo, supra note 9.

9

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 1, 2006 is affirmed in part and reversed in part.
Issued: March 8, 2007
Washington, DC

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

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

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

10


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

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

Docket No. 10-1820
Issued: March 18, 2011

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 July 1, 2010 appellant filed a timely appeal from May 12 and June 14, 2010 merit
decisions of the Office of Workers’ Compensation Programs denying her claims for wage-loss
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 established that she was entitled to leave buy back for
intermittent time lost from work in 2008 and 2009.
FACTUAL HISTORY
On May 27, 2008 appellant, then a 55-year-old program specialist, filed an occupational
disease claim alleging that she sustained headaches, sinus drainage, dizziness, a dry throat and
coughing on May 5, 2008 when rain soaked the ceiling and the carpet in her work area. She

related that the area smelled for a week. Appellant did not stop work. The Office accepted her
claim for dysphagia, allergic rhinitis and chronic sinusitis.
On August 13, 2008 Dr. Charles H. Dennis, a Board-certified otolaryngologist, advised
that appellant was under his care on that date and could return to work on August 14, 2008. The
record indicates that she underwent allergy skin testing on August 13, 2008. On September 23,
2008 appellant received an allergy shot.
On October 15, 2008 appellant filed a claim requesting leave buy back for intermittent
time lost from work from May 7 to September 30, 2008. The employing establishment attached
a leave analysis. Appellant provided as her reason for missing work on August 13, 2008 that she
was undergoing day-long testing. She also lost time from work from September 8 to 30, 2008
due to allergy injections.
On January 12, 2009 the Office approved 54 hours of leave buy back from May 15 to
September 30, 2008. It noted that she had not established entitlement to compensation on
May 7, 13, 16 or 19, July 30 or September 23, 2008 and had only established entitlement to four
hours on August 13, 2008.
On March 18, 2009 the employing establishment requested clarification regarding which
dates were approved by the Office for leave buy back. On November 6, 2009 the Office advised
appellant that she needed to submit medical evidence supporting her request for leave buy back
for May 7, 13, 16 or 19, July 30, August 13 and September 23, 2008.1
On May 11, 2010 appellant filed a claim for leave buy back for intermittent dates from
February 18 to June 26, 2009.
By decision dated May 12, 2010, the Office denied appellant’s request for leave buy back
for May 7, 13, 16 and 19, July 30, August 13 and September 23, 2008. It noted that she had not
submitted medical evidence addressing disability during the time claimed.
On May 13, 2010 the Office requested that appellant submit medical evidence supporting
disability for June 12 and 26, 2009 and four hours on April 10, 1009. It noted that it paid at most
four hours for physician’s appointments.
By decision dated June 14, 2010, the Office denied appellant’s claim for compensation
for June 12 and 26, 2009 and her claim for four hours of compensation on April 10, 2009. It
noted that there was no medical evidence supporting disability for these dates.
LEGAL PRECEDENT
In situations where compensation is claimed for periods when leave was used, the Office
has the authority and the responsibility to determine whether the employee was disabled during

1

On December 30, 2009 the Office approved 34.5 hours of leave buy back from October 10, 2008 to
January 12, 2009.

2

the period for which compensation is claimed.2 It determines whether the medical evidence
establishes that an employee is disabled by an employment-related condition during the period
claimed for leave buy back, after which the employing establishment will determine whether it
will allow the employee to buy back the leave used.3
The term disability as used in the Federal Employees’ Compensation Act4 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.5 Whether a particular injury caused an employee disability for employment
is a medical issue which must be resolved by competent medical evidence.6 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.7 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.8
The Office’s procedure manual provides that no more than four hours of compensation or
continuation of pay should be allowed for routine medical appointments. Longer periods of time
may be allowed when required by the nature or the medical procedure and/or the need to travel a
substantial distance to obtain the medical care.9
ANALYSIS
The Office accepted that appellant sustained dysphagia, allergic rhinitis and chronic
sinusitis due to factors of her federal employment. Appellant filed claims requesting leave buy
back for intermittent time lost from work from May 7 to September 30, 2008 and February 18 to
June 26, 2009. The Office found that she was not entitled to compensation on May 7, 13, 16
or 19, July 30, August 13 or September 23, 2008. It also found that appellant was not entitled to
compensation on June 12 and 26, 2009 and four hours on April 10, 2009.
For the claimed dates of May 7, 13, 16 and 19, July 30, 2008 and June 12 and 26, 2009
and four hours on April 10, 2009, appellant has submitted insufficient medical evidence to
establish that she was incapable of work on those dates due to her accepted work injury or that
2

See Glen M. Lusco, 55 ECAB 148 (2003); see also 20 C.F.R. § 10.425.

3

Glen M. Lusco, supra note 2.

4

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

5

Paul E. Thams, 56 ECAB 503 (2005).

6

Id.

7

Id.

8

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

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (June 1999).

3

she missed work due to medical treatment for an employment-related condition. As noted the
Board will not require the Office to pay compensation for disability in the absence of medical
evidence addressing the period of disability for which compensation is claimed. To do so would
essentially allow employees to self-certify disability and entitlement to compensation.10
Appellant has failed to meet her burden of proof to establish that she was disabled for those dates
or that she missed work due to medical treatment resulting from her employment injury.
The Board finds, however, that the case is not in posture for decision regarding whether
appellant is entitled to compensation in the form of leave buy back for August 13 and
September 23, 2008. On August 13, 2008 Dr. Dennis related that he was treating her on that date
and that she could resume work on August 14, 2008. The record indicates that appellant
underwent skin testing for allergies on August 13, 2008. In a letter dated January 12, 2009, the
Office found that she had established entitlement to four hours of compensation on August 13,
2008; however, in its May 12, 2010 decision, it denied compensation for August 13, 2008. On
remand it should clarify whether appellant was entitled to compensation on August 13, 2008.
Appellant also received immunotherapy treatment on September 23, 2008. It appears that the
Office may have approved leave buy back for other dates that she obtained allergy shots. On
remand it should determine whether appellant is entitled to leave buy back because she missed
work on September 23, 2009 for medical treatment related to her accepted work injury.
CONCLUSION
The Board finds that appellant has not established entitlement to leave buy back on
May 7, 13, 16 and 19, July 30 and June 12 and 26, 2009. The case is not in posture for decision
for the dates of August 13 and 23, 2009.

10

See Fereidoon Kharabi, supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the June 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed and the May 12, 2010 decision is affirmed in part
and set aside in part and the case is remanded for further proceedings consistent with this opinion
of the Board.
Issued: March 18, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
U.S. POSTAL SERVICE, OHARE AIR MAIL
CENTER, Chicago, IL, Employer
__________________________________________

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

Docket No. 07-2421
Issued: March 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 24, 2007 appellant filed a timely appeal from an August 2, 2007 merit
decision of the Office of Workers’ Compensation Programs granting her a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award
decision.
ISSUE
The issue is whether appellant has more than a three percent permanent impairment of the
left upper extremity.

FACTUAL HISTORY
This case is before the Board for the second time. In the first appeal, the Board affirmed
the Office’s finding that appellant had no impairment of the right upper extremity.1 The Board
found, however, that the Office improperly determined that she had a 10 percent impairment of
the left upper extremity. The Board noted that the Office medical adviser based his finding on
grip strength measurements; however, in evaluating carpal tunnel syndrome, ratings are
generally not to be based on loss of grip strength. The Board remanded the case for the Office to
obtain an opinion regarding the extent of appellant’s left upper extremity impairment in
accordance with the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001) (A.M.A., Guides).
On December 19, 2006 an occupational therapist evaluated appellant for her attending
physician, Dr. Mark S. Cohen, a Board-certified orthopedic surgeon.2 He listed range of motion
findings and measured grip strength as 49 pounds on the right and 44 pounds on the left. The
occupational therapist also measured pinch strength and found no sensory deficits.3
On June 7, 2007 the Office requested that the Office medical adviser again review the file
and provide an opinion on the extent of appellant’s left upper extremity impairment. On June 11,
2007 the Office medical adviser reviewed the December 19, 2006 occupational therapist’s report
and applied the A.M.A., Guides to the clinical findings. He classified appellant’s impairment
due to loss of strength as a Grade 4 deficit based on the measurement of left grip strength. The
Office medical adviser multiplied the Grade 4, or 25 percent impairment, by the maximum
impairment in the distribution of the median nerve, 10 percent, to find a 2.5 percent left upper
extremity impairment.4 He noted that the 2.5 percent award should replace the prior award of 10
percent. The Office medical adviser found the date of maximum medical improvement remained
September 2, 2005.
By decision dated August 2, 2007, the Office granted appellant a schedule award for a
three percent permanent impairment of the left upper extremity. The period of the award ran for
9.36 weeks from September 2 to November 6, 2005.

1

E.L., Docket No. 07-347 (issued April 24, 2007). The Office accepted that appellant sustained bilateral carpal
tunnel syndrome due to factors of her federal employment. She underwent a right carpal tunnel release on
September 7, 2004. Dr. Cohen provided an impairment evaluation dated September 2, 2005. An Office medical
adviser reviewed Dr. Cohen’s report and found that appellant had a 10 percent impairment of the left upper
extremity due to loss of grip strength and no impairment of the right upper extremity.
2

In a report dated November 10, 2006, Dr. Cohen discussed appellant’s continued complaints of right wrist pain.
He diagnosed possible arthritis. On December 22, 2006 Dr. Cohen noted that her right wrist had improved
following an injection and therapy.
3

The occupational therapist performed an initial evaluation on December 5, 2006.

4

A.M.A., Guides 492, 484, Tables 16-5, 16-11.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,5 and its
implementing federal regulations,6 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.7 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.8
ANALYSIS
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome. On prior
appeal, the Board found that she did not have a permanent impairment of the right upper
extremity. The Board remanded the case for further development on the issue of the extent of
appellant’s left upper extremity impairment after finding that the Office medical adviser
improperly relied upon grip strength measurements in determining the extent of permanent
impairment.9
The A.M.A., Guides on page 495 provides three scenarios for determining the permanent
impairment due to carpal tunnel syndrome after an optimal recovery time following surgical
decompression. However, as appellant did not undergo surgical decompression on the left side,
the specific method for determining impairment due to carpal tunnel syndrome provided on page
495 of the A.M.A., Guides does not apply. Under the fifth edition of the A.M.A., Guides,
schedule awards for carpal tunnel syndrome are predicated only on motor and sensory
impairments.10
The Office medical adviser applied the A.M.A., Guides to the December 19, 2006
clinical findings of an occupational therapist. He determined that appellant had a Grade 4 deficit
due to loss of power and motor weakness according to Table 16-11 on page 484. The Office
medical adviser multiplied the maximum impairment for Grade 4 muscle weakness, 25 percent,
by the maximum impairment of the median nerve, 10 percent, to find a 2.5 percent impairment
of the left upper extremity.11 The Office properly rounded the impairment percentages to the
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

20 C.F.R. § 10.404(a).

8

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

9

In evaluating an impairment due to carpal tunnel syndrome, there generally will be no ratings based on loss of
grip strength. A.M.A., Guides 494-95; David D. Cumings, 55 ECAB 285 (2004).
10

Robert V. Disalvatore, 54 ECAB 351 (2003).

11

A.M.A., Guides 492, Table 16-15.

3

nearest whole point and found that appellant had a three percent impairment of the left upper
extremity.12 There is no medical evidence of record which provides an accurate impairment
rating of her left upper extremity under the A.M.A., Guides showing that she is entitled to a
greater award.
On appeal, appellant contends that she is entitled to a greater award for the left upper
extremity.13 She described her pain and discomfort and her difficulties driving an automobile.
Factors such as limitations on daily activities, however, do not go into the calculation of a
schedule award.14
CONCLUSION
The Board finds that appellant has no more than a three percent permanent impairment of
the left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 2, 2007 is affirmed.
Issued: March 10, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3b (June 2003).

13

Appellant also described difficulties with her right upper extremity. The Board’s jurisdiction, however, extends
only to the review of final decisions by the Office. 20 C.F.R. § 501.2(c).
14

James A. Castagno, 53 ECAB 782 (2002).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 15-0976
Issued: August 17, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 31, 2015 appellant filed a timely appeal of a March 6, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty.
FACTUAL HISTORY
On June 12, 2014 appellant then a 60-year-old mail processing clerk, filed a Form CA-1,
traumatic injury claim, alleging that on June 6, 2014 she injured her low back while lifting trays
of mail off the top rack to load into trucks. She did not stop work.
1

5 U.S.C. §§ 8101-8193.

Appellant submitted a duty status report from a nurse practitioner, dated June 12, 2014,
who diagnosed lumbar strain and advised appellant that she could return to work on June 12,
2014 with restrictions.
By letter dated June 25, 2014, OWCP advised appellant of the type of evidence needed to
establish her claim, particularly requesting that she submit a physician’s reasoned opinion
addressing the relationship of her claimed condition and specific employment factors.
Appellant submitted a work excuse note dated June 6, 2014 from a nurse practitioner who
diagnosed lumbago and reported that appellant was disabled until June 8, 2014. She was treated
by a nurse practitioner from June 12 and 24, 2014 for low back pain. Appellant reported lifting
trays of mail and experiencing lower back pain. She was prescribed analgesics. Examination of
the lumbar spine revealed no abnormalities, no abrasions or scoliosis, tenderness with palpation
to bilateral paravertebral musculature, tenderness of lumbar spine, and limited range of motion.
The nurse practitioner diagnosed lumbar sprain. She opined that the work accident was the
prevailing factor in causing appellant’s medical condition and need for treatment. The nurse
practitioner recommended physical therapy and noted that appellant could return to restricted
duty. She continued to note appellant’s status in reports through July 17, 2014. Appellant also
submitted physical therapy notes dated June 27 to July 17, 2014.
In a July 28, 2014 decision, OWCP denied the claim because the evidence was
insufficient to establish a medical diagnosis in connection with the claimed event or work factors
as described.
On August 18, 2014 appellant requested reconsideration and reported continuing low
back symptoms. She submitted physical therapy reports and a July 17, 2014 report from a nurse
practitioner.
Appellant was treated by Dr. Thomas B. Kibby, a Board-certified physiatrist, on
August 15, 2014 for lower back pain. Dr. Kibby reported that appellant injured her back after
“lifting trays off the tray racks.” Appellant reported returning to work and having low back pain
when lifting. Dr. Kibby noted that examination of the lumbar spine revealed no abnormalities,
no kyphosis or scoliosis. Appellant was obese. She had no tenderness to palpation of the
paravertebral musculature, full active range of motion in all planes except flexion, deep tendon
reflexes were intact and equal at the patella and Achilles, and straight leg raises were negative
bilaterally. Dr. Kibby noted preliminary x-ray of the lumbar spine revealed normal findings,
possible degenerative changes and mild scoliosis. He diagnosed sprain lumbar region and noted
that appellant had reached maximum medical improvement. Dr. Kibby noted that no future
medical treatment was expected, including prescription medications or services associated with
the claimed injuries. He noted that appellant could work without restrictions and there was no
permanent disability expected from this incident. In a work status summary dated August 15,
2014, Dr. Kibby diagnosed sprain of the lumbar region improved, noted that appellant had
reached maximum medical improvement, and discharged appellant from his care.
In a March 6, 2015 merit decision, OWCP denied the claim finding that appellant failed
to establish that the diagnosed condition was causally related to her employment.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish 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 filed within the applicable time
limitation 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 is causally related to
the employment injury. 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.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.3
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.4
ANALYSIS
On June 6, 2014 appellant was lifting mail trays off a rack. She was later diagnosed with
a lumbar sprain/strain. However, appellant has not submitted sufficient medical evidence to
establish that her diagnosed medical conditions were caused or aggravated by this incident.
On June 25, 2014 OWCP advised appellant of the type of medical evidence needed to
establish her claim. Appellant did not submit a rationalized medical report from an attending
physician addressing how specific employment factors may have caused or aggravated her
claimed condition.
Appellant was treated by Dr. Kibby on August 15, 2014 for lower back pain. She
reported injuring her back after “lifting trays off the tray racks.” Appellant reported increased
low back pain when she returned to work. Dr. Kibby found no abnormalities of the lumbar
spine. He noted preliminary x-ray of the lumbar spine revealed normal findings, possible
degenerative changes and mild scoliosis. Dr. Kibby diagnosed sprain lumbar region and noted
that appellant had reached maximum medical improvement. He noted that no future medical
treatment was expected, including prescription medications or services associated with her
2

Gary J. Watling, 52 ECAB 357 (2001).

3

T.H., 59 ECAB 388 (2008).

4

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

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claimed injuries. Dr. Kibby noted that appellant could work without restrictions or permanent
disability. He merely repeats the history of injury as reported by appellant without providing his
own opinion regarding whether appellant’s condition is work related.5 Dr. Kibby failed to
provide a rationalized opinion regarding the causal relationship between appellant’s low back
sprain and the factors of employment believed to have caused or contributed to such condition.6
Therefore, his reports are insufficient to meet appellant’s burden of proof.
There is no other medical evidence which provides an opinion on the causal relationship
between appellant’s job and her diagnosed lumbar condition.
Appellant submitted reports from a nurse practitioner. She was also treated by a physical
therapist. However, the Board has held that treatment notes signed by a nurse or a physical
therapists are not probative medical evidence as these providers are not considered physicians
under FECA.7
Consequently, the medical evidence is not sufficient to meet appellant’s burden of proof.
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 condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.8 Appellant failed to submit such evidence, and OWCP,
therefore, properly denied her claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment.

5

See Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
7

L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA). See David P.
Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical therapists are not
competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a “physician” as
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners
within the scope of their practice as defined by State law).
8

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the March 6, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 17, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, DALLAS
PERFORMANCE CLUSTER, Coppell, TX,
Employer
__________________________________________

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

Docket No. 11-256
Issued: July 26, 2011

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 November 9, 2010 appellant filed a timely appeal from the September 28, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) concerning an
overpayment of compensation. Pursuant to the Federal Employees’ Compensation Act1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are:
(1) whether appellant received a $1,838.99 overpayment of
compensation; and (2) whether OWCP abused its discretion by refusing to waive recovery of the
overpayment.

1
2

5 U.S.C. §§ 8101-8193.

The record also contains an October 20, 2010 decision denying appellant a prerecoupment hearing, but he did
not appeal this decision to the Board.

FACTUAL HISTORY
On November 16, 2009 appellant, then a 37-year-old mail processor, sustained injury to
his left foot when a chair suddenly moved backwards as he was attempting to sit in it. OWCP
accepted that he sustained a left foot contusion and paid compensation for periods of total
disability.
Appellant returned to full-time work for the employing establishment on
July 14, 2010.
In an August 25, 2010 notice, OWCP advised appellant of its preliminary determination
that he received a $1,838.99 overpayment of compensation for the period because he returned to
work for eight hours a day on July 14, 2010 but received total temporary disability compensation
through July 31, 2010.3 It also made a preliminary determination that he was not at fault in the
creation of the overpayment because he was not aware or could not have reasonably been
expected to know that OWCP had paid compensation incorrectly. Appellant was advised that he
could submit evidence challenging the fact or amount, or request waiver of the overpayment. It
informed appellant that he could submit additional evidence in writing or at a prerecoupment
hearing, but that a prerecoupment hearing must be requested within 30 days of the date of the
written notice of overpayment. OWCP requested that appellant complete and return an enclosed
financial information questionnaire (Form OWCP-20) within 30 days even if he was not
requesting waiver of the overpayment.
On September 14, 2010 OWCP received a financial information questionnaire that
appellant completed on September 1, 2010. Appellant indicated that he had no monthly income,
$3,142.00 in monthly expenses and $70.00 in assets.4 He requested waiver of the claimed
overpayment based on his financial hardship.
In a September 28, 2010 decision, OWCP determined that appellant received a $1,838.99
overpayment of compensation. The Board found that appellant was not at fault in the creation of
the overpayment but determined that the overpayment was not subject to waiver. In denying
waiver, OWCP stated:
“The claimant responded to the preliminary decision by completing the [Form]
OWCP-20. The information provided was insufficient to justify waiving recovery
of the overpayment. The claimant did not send any supporting documentation to
support the [Form] OWCP-20 such as bills, bank statements, receipts, or any
other type of financial information.”

3

OWCP indicated that appellant did not return the improper payment. Evidence of record shows that, on July 31,
2010, he received a $2,860.65 check (via electronic bank transfer) covering the 28-day period from July 4
to 31, 2010. OWCP calculated that the proportionate amount of this total for the 18 days appellant received
improper monies was $1,838.99.
4

Appellant indicated that he was supporting his son who was a minor.

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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 duty.5 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
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 an
individual is entitled.”6
Section 8116(a) of FECA provides that while an employee is receiving compensation or
if he has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.7
ANALYSIS -- ISSUE 1
The Board finds that appellant received a $1,838.99 overpayment of compensation. On
July 14, 2010 he returned to work for the employing establishment on a full-time basis, but he
continued to receive compensation for total temporary disability through July 31, 2010. He was
not entitled to receive total disability compensation while working on a full-time basis. The
record contains evidence establishing that appellant received $1,838.99 in wage-loss
compensation for the period July 14 to 31, 2010 despite the fact that he was not entitled to
compensation for this period. The Board finds that OWCP properly determined that appellant
received a $1,838.99 overpayment and will affirm the fact and amount thereof.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.8 These statutory guidelines
are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”9 If OWCP finds a claimant to
be without fault in the matter of an overpayment, then, in accordance with section 8129(b),

5

5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8116(a).

8

See Robert Atchison, 41 ECAB 83, 87 (1989).

9

5 U.S.C. § 8129(b).

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OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
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.10 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his position for the
worse.11 To establish that a valuable right has been relinquished, it must be shown that the right
was in fact valuable, that it cannot be regained and that the action was based chiefly or solely in
reliance on the payments or on the notice of payment.12
According to OWCP procedure, the Form OWCP-20 supplied to a claimant by OWCP is
designed to obtain financial information about monthly income, monthly expenses and assets. If
adequate documentation is not supplied with a submitted Form OWCP-20, the OWCP claims
examiner should conference the case and request that additional documentation be submitted.13
ANALYSIS -- ISSUE 2
In denying waiver of appellant’s overpayment of compensation, OWCP noted that he
submitted a completed Form OWCP-20 within the allotted time period, but did not provide
adequate documentation regarding the financial information listed therein (including monthly
income, monthly expenses and assets). However, OWCP procedures provide that in such a
situation the claims examiner should conference the case and request that additional
documentation be submitted.
The Board will set aside the September 28, 2010 decision with respect to the issue of
waiver of the $1,838.99 overpayment. The case is remanded to OWCP for further development
of this matter under the above-noted standards. After such development it deems necessary,
OWCP shall issue an appropriate decision regarding appellant’s request for waiver of the
overpayment.
10

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio
Martinez, 55 ECAB 245 (2004). OWCP procedure provides that assets must not exceed a resource base of
$4,800.00 for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6a(1) (October 2004).
11

20 C.F.R. § 10.437(a), (b).

12

Id. at § 10.437(b)(1).

13

See Federal (OWCP) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(4) (October 2004).

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CONCLUSION
The Board finds that appellant received a $1,838.99 overpayment of compensation. The
case is remanded to OWCP for further development of the issue of waiver.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed with respect to the fact and amount of the
overpayment and set aside with respect to the issue of waiver of recovery of the overpayment.
The case is remanded to OWCP for further proceedings consistent with this decision of the
Board.
Issued: July 26, 2011
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

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