United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, FIELD OFFICE,
Ironton, OH, Employer
__________________________________________

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Appearances:
Rick W. Hanna, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1506
Issued: February 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION
On June 14, 2011 appellant, through his attorney, filed a timely appeal from a
December 28, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
and a February 24, 2011 nonmerit decision denying his request for an oral hearing. 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an occupational disease in the performance of duty; and (2) whether OWCP properly
denied appellant’s request for an oral hearing as untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 1, 2010 appellant, then a 60-year-old claims representative, filed an
occupational disease claim alleging that he sustained a respiratory illness due to toxic black mold
exposure. He became aware of his condition on July 1, 2010 and realized its relationship to his
employment on August 27, 2010. Appellant did not incur any lost time from work.
A September 25, 2009 indoor air quality survey report prepared by a U.S. Department of
Health and Human Services inspector revealed mold contamination and musty odors near the
windows and on the perimeter walls of the employing establishment’s field office. Previous
testing conducted by a local consulting firm confirmed the presence of Stachybotrys and
indicated acceptable airborne levels. The inspector pointed out that the employees complained
of frequent headaches, sneezing, coughing and sinus infections.
In an undated statement, appellant’s supervisor detailed that June and September 2009
testing showed that mold at the worksite did not enter the heating, ventilation and air
conditioning system and was otherwise insufficient in quantity to pose significant health hazards.
She also noted a high percentage of employee absenteeism.
OWCP informed appellant in an October 8, 2010 letter that additional evidence was
needed to establish his claim. It gave him 30 days to submit a medical report from a physician
explaining how industrial exposure to mold led to his respiratory condition. Appellant provided
a second copy of the September 25, 2009 indoor air quality survey report.
By decision dated December 28, 2010, OWCP denied appellant’s claim, finding that he
failed to submit any medical evidence demonstrating that the accepted occupational exposure
caused or contributed to a diagnosed respiratory illness.
Appellant’s representative mailed a request for an oral hearing, which was postmarked
January 28, 2011. By decision dated February 24, 2011, OWCP denied the application on the
grounds that it was not made within 30 days after the issuance of the December 28, 2010 merit
decision. After considering whether to grant a discretionary hearing, OWCP determined that the
issue could be further addressed by requesting reconsideration and submitting additional
evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to

2

the employment injury.2 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.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.4 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. 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.6
ANALYSIS -- ISSUE 1
The case record supports that appellant was exposed to mold on the job. Nonetheless, he
failed to submit any medical reports from a qualified physician when he initially filed his
occupational disease claim on September 1, 2010. In its October 8, 2010 letter, OWCP
requested that appellant furnish medical evidence explaining how his work exposure contributed
to a diagnosed condition. Appellant did not submit responsive evidence. Because no medical
evidence was offered to show that the accepted industrial exposure was causally related to a
diagnosed condition, appellant failed to establish his prima facie claim for compensation.7
Appellant contends on appeal that he continues to experience respiratory symptoms as a
direct result of his prolonged exposure. As noted, however, he failed to provide any medical
evidence supporting causal relationship which would establish his claim.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

See S.P., 59 ECAB 184, 188 (2007).

5

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); R.R., Docket No. 08-2010 (issued April 3, 2009).

6

I.J., 59 ECAB 408 (2008); Woodhams, supra note 3.

7

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

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LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation who is not
satisfied with a decision of the Secretary is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on his claim before a representative of the
Secretary.8 A claimant is afforded the choice of either an oral hearing or a review of the written
record.9 While a claimant is no longer entitled to an oral hearing or a review of the written
record as a matter of right if his request is filed past the 30-day period, OWCP may grant the
request within its discretionary power and must exercise that discretion.10
ANALYSIS -- ISSUE 2
Appellant’s representative filed his request for an oral hearing on January 28, 2011,11
more than 30 days after OWCP issued its December 28, 2010 decision.12 Section 8124(b)(1) is
unequivocal on the time limitation for requesting a hearing.13 Because the application was not
timely filed, appellant was not entitled to an oral hearing.
OWCP has the discretionary power to grant an oral hearing when a claimant is not
entitled to one as a matter of right. It exercised this discretion in its February 24, 2011 decision,
finding that appellant’s issue could be addressed by requesting reconsideration and submitting
additional evidence. This basis for denying his request for a hearing is a proper exercise of
OWCP’s authority.14 Accordingly, the Board finds that OWCP properly denied appellant’s
request for an oral hearing.
Appellant may submit new evidence or argument as part of a formal 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.

8

5 U.S.C. § 8124(b)(1); Joseph R. Giallanza, 55 ECAB 186, 190-91 (2003).

9

20 C.F.R. § 10.615.

10

See Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

11

Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis
of the postmark of the envelope containing the request. 20 C.F.R. § 10.616(a); Federal (FECA) Procedure Manual,
Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(a) (October 2011).
12

The 30-day time period for determining the timeliness of appellant’s request for an oral hearing or review
commences on the first day following the issuance of OWCP’s decision. See John B Montoya, 43 ECAB 1148,
1151-52 (1992); Donna A. Christley, 41 ECAB 90, 91 (1989). As OWCP’s decision was issued December 28,
2010, the 30-day period for requesting an oral hearing began to run on December 29, 2010 and the last or 30th day
was Thursday, January 27, 2011.
13

William F. Osborne, 46 ECAB 198 (1994).

14

Mary B. Moss, 40 ECAB 640, 647 (1989).

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CONCLUSION
The Board finds that appellant did not establish that he sustained an occupational disease
in the performance of duty and that OWCP properly denied his request for an oral hearing as
untimely.
ORDER
IT IS HEREBY ORDERED THAT the February 24, 2011 and December 28, 2010
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: February 9, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, AMPC ALHAMBRA,
City of Industry, CA, Employer
__________________________________________

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

Docket No. 08-578
Issued: February 13, 2009

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 December 18, 2007 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated July 20 and November 15, 2007. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than a 17 percent impairment of each
lower extremity for which he received a schedule award; and (2) whether the Office properly
refused to reopen appellant’s claim for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On December 12, 1988 appellant, then a 35-year-old clerk, sustained employment-related
injuries when his postal vehicle was rear-ended. The claim was accepted for cervical strain,
post-traumatic headache and herniated lumbar disc. Appellant worked intermittently until
August 4, 1998. He came under the care of Dr. Fredric L. Edelman, a Board-certified

neurosurgeon, who diagnosed employment-related disc herniations at L3-S1 and recommended
surgery. Surgery was authorized on December 1, 1998; however, appellant declined surgery.1
On February 23, 2006 appellant filed a schedule award claim for his lower extremities.
By letter dated February 23, 2006, the Office asked that Dr. Edelman provide an impairment
rating in accordance with the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).2 In a March 15, 2006 report,
Dr. Edelman advised that, under Tables 17-5, 17-6 and 17-8 of the A.M.A., Guides, appellant
had a 12 percent whole body impairment due to gait derangement, right thigh atrophy and
weakness in extension of the big toe. By report dated June 6, 2006, an Office medical adviser
reviewed Dr. Edelman’s report and advised that, due to sensory deficit and pain, under Tables
15-18, 16-10 and 16-11 of the A.M.A., Guides, appellant had 17 percent right lower extremity
impairment and a 9 percent impairment on the left. She opined that maximum medical
improvement was reached on March 15, 2006.
On August 31, 2006 the Office referred appellant to Dr. Bunsri T. Sophon, a Boardcertified orthopedic surgeon, for a second opinion evaluation.3 By report dated September 18,
2006, Dr. Sophon reviewed the record, the history of injury and appellant’s complaint of
constant, sharp low back pain radiating into the left leg. He noted that appellant stood and
walked in a crouched position. Dr. Sophon provided physical findings, including diminished
range of motion of the lumbar spine and negative straight-leg raising bilaterally. Motor strength
was within normal limits, and sensory examination demonstrated an impairment on the dorsum
and outer edge of the left foot. Dr. Sophon advised that appellant no longer had residuals of the
accepted cervical strain or post-traumatic headaches. He diagnosed L3-4, L4-5 and L5-S1
degenerative disc disease and left lumbar nerve root radiculopathy which was due to the
December 12, 1998 motor vehicle accident. Dr. Sophon agreed with the recommendation for
surgery and opined that the prognosis was poor because appellant declined surgery. He
concluded that appellant was totally disabled and that maximum medical improvement was
reached on June 28, 2002. Regarding an impairment rating, Dr. Sophon advised that the S2 and
left L5 nerve roots were involved, and that appellant had moderate pain and no motor weakness
or atrophy.
In an October 10, 2006 report, Dr. Edelman noted his review of Dr. Sophon’s report. He
advised that the option of surgery was discussed with appellant, who was “still thinking about
it.” On November 22, 2006 Dr. Sophon advised that appellant did not have any permanent loss
of use of the right lower extremity and had no weakness of the left lower extremity.
1

In February 1997 and February 1998, the Office referred appellant for second opinion evaluations to Dr. Hose
Kim, a Board-certified orthopedic surgeon, and Dr. Robert Moore, a Board-certified neurosurgeon. In
October 1998, appellant was referred to Dr. M. Michael Mahdad, Board-certified in orthopedic surgery, for an
impartial evaluation regarding whether he was totally disabled and required surgery. By decision dated May 27,
1998, the Office determined that appellant was not entitled to total disability for the period August 17 to
September 18, 1997. By order dated April 29, 1999, Docket No. 98-2142, the Board dismissed appellant’s appeal at
his request.
2

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

3

Dr. Sophon is also known as Dr. Thanasophon.

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The Office found a conflict in medical opinion arose between Dr. Sophon and
Dr. Edelman regarding the degree of impairment to appellant’s lower extremities. On April 23,
2007 appellant was referred to Dr. Daniel S. Gobaud, a Board-certified orthopedic surgeon, for
an impartial evaluation. In a May 14, 2007 report, Dr. Gobaud noted his review of the record,
appellant’s complaint of low back pain with radiation to both lower extremities. He reported
intermittent tingling of the left thigh and intermittent numbness of both feet, left worse than
right, and that appellant had an abnormal gait, walking in a bent position. Dr. Gobaud reported
physical examination findings including painful limited range of motion of the lumbar spine and
no thigh or calf atrophy or leg length discrepancy. Motor examination was normal, and appellant
demonstrated hypesthesia in the L5-S1 root distribution bilaterally. Dr. Gobaud diagnosed posttraumatic aggravation of degenerative disc disease of the lumbar spine with radiculopathy of
both lower extremities. Although appellant had a degree of degenerative disc disease at the time
of the December 12, 1998 motor vehicle accident, the condition was aggravated as a result of
trauma to his lower back and had worsened over time. Dr. Gobaud agreed with the
recommended surgery and stated that appellant’s prognosis was guarded. He advised that, in
accordance with page 384 of the fifth edition of the A.M.A., Guides, appellant had a category III
diagnosis-related impairment of the lumbar spine which equaled 13 percent whole person
impairment. In an attached work capacity evaluation, Dr. Gobaud advised that appellant was
totally disabled.
In a June 26, 2007 report, Dr. Edelman noted his review of Dr. Gobaud’s report and
provided physical examination findings. He again recommended surgery for appellant’s
ruptured degenerated discs.
The Office referred Dr. Gobaud’s report to an Office medical adviser. In a July 11, 2007
report, the Office medical adviser advised that appellant had no impairment due to loss of range
of motion or motor impairment. The medical adviser stated that maximum medical improvement
was reached on May 14, 2007 and that, for each lower extremity, Dr. Gobaud had identified
sensory deficit of the L5 and S1 nerve roots. The medical adviser found that, under Table 16-10
of the A.M.A., Guides, appellant had a Grade 4, 25 percent impairment deficit, and that, under
Table 15-18, the maximum sensory impairment based on the L5 and S1 nerves was 67 percent.
She then multiplied the 25 percent by the 67 percent to find 17 percent impairment to each lower
extremity.
On July 20, 2007 appellant was granted schedule awards for 17 percent impairment to
each lower extremity, or 97.92 weeks of compensation, to run from July 8, 2007 to
May 23, 2009. On August 30, 2007 he elected a lump-sum payment.
On September 18, 2007 appellant requested reconsideration, stating that he had a
complaint about Dr. Gobaud’s examination. He submitted an amended stipulation and decision
of the Medical Board of California, dated October 2, 1990, effective February 10, 1991, that had
placed Dr. Gobaud on probation for five years. Appellant also provided documentation
indicating that Dr. Gobaud had been charged with excessive billing. By decision dated
November 15, 2007, the Office denied appellant’s reconsideration request.

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LEGAL PRECEDENT -- ISSUE 1
Under section 8107 of the Federal Employees’ Compensation Act4 and section 10.404 of
the implementing federal regulations,5 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides6 has been adopted by the Office, and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.7
Although the A.M.A., Guides include guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the spine.8 In
1960, amendments to the Act modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.9 An impairment should not be considered permanent until
the clinical findings indicate that the medical condition is static and well stabilized,10 and
schedule awards for permanent impairment of the whole person are not authorized under the
Act.11
Section 8123(a) of the Act 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.12 When 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 on a proper factual background, must be
given special weight.13 Office procedures indicate that referral to an Office medical adviser is
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

A.M.A., Guides, supra note 2.

7

See Joseph Lawrence, Jr., supra note 2; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
8

Pamela J. Darling, 49 ECAB 286 (1998).

9

Thomas J. Engelhart, 50 ECAB 319 (1999).

10

Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

11

D.J., 59 ECAB ____ (Docket No. 08-725, issued July 9, 2008).

12

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

13

Manuel Gill, 52 ECAB 282 (2001).

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appropriate when a detailed description of the impairment from the attending physician is
obtained. Where a medical conflict is present, to properly resolve the conflict, it is the impartial
medical specialist who should provide a reasoned opinion as to a permanent impairment to a
scheduled member of the body in accordance with the A.M.A., Guides. An Office medical
adviser may review the opinion, but the resolution of the conflict is the responsibility of the
impartial medical specialist.14
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision. The Office found that a
conflict in medical opinion arose between appellant’s attending neurosurgeon, Dr. Edelman, and
Dr. Sophon who provided a second opinion evaluation for the Office. Appellant was properly
referred to Dr. Gobaud for an impartial evaluation. In a May 14, 2007 report, Dr. Gobaud
provided examination findings and advised that in accordance with page 384 of the fifth edition
of the A.M.A., Guides, appellant had a category III diagnosis-related impairment of the lumbar
spine which equaled a 13 percent whole person impairment. The Office subsequently referred
Dr. Gobaud’s report to an Office medical adviser for an opinion regarding appellant’s permanent
impairment.
Dr. Gobaud referred to page 384 of the A.M.A., Guides to determine that appellant had a
13 percent whole person impairment due to his employment injury. However, a claimant may
not receive a schedule award for permanent impairment of the whole person.15 Moreover, a
claimant is not entitled to a schedule award for a spinal injury under the Act.16
The Office medical adviser reviewed Dr. Gobaud’s report to find that appellant had 17
percent impairment of each lower extremity. However, in so doing, the medical adviser
substituted her judgment for that of the impartial specialist.17 The role of the medical adviser is
to verify the correct application of the A.M.A., Guides. It is the impartial medical specialist,
however, who must resolve the conflict on the degree of permanent impairment in accordance
with the A.M.A., Guides.18 Although Dr. Gobaud provided an opinion under the A.M.A.,
Guides, he did not properly correlate his findings to provide an impairment estimate of
appellant’s lower extremities. The conflict in medical evidence remains unresolved and the case
will be remanded to the Office to secure a supplemental report from Dr. Gobaud regarding the
extent of appellant’s permanent impairment. If Dr. Gobaud is unable to provide an appropriate
opinion, the Office should then refer the case to another impartial medical examiner.19 After

14

Thomas J. Fragale, 55 ECAB 619 (2004).

15

D.J., supra note 11.

16

Pamela J. Darling, supra note 8.

17

See I.H., 60 ECAB ___ (Docket No. 08-1352, issued December 24, 2008).

18

See Richard R. LeMay, 56 ECAB 341 (2005). See also Federal (FECA) Procedure Manual, Part 3 -- Medical,
Medical Examinations, Chapter 3.500.5(c) (October 1995).
19

See Nancy Keenan, 56 ECAB 687 (2005).

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such further development as the Office deems necessary, it should issue a de novo decision as to
the extent of appellant’s permanent impairment due to the accepted injury.
Due to the Board’s resolution of the first issue regarding the schedule award, the second
issue regarding appellant’s reconsideration request is moot.20
CONCLUSION
The Board finds this case is not in posture for decision as the conflict in medical evidence
regarding appellant’s degree of permanent impairment was not properly resolved.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 15 and July 20, 2007 be set aside and the case
remanded to the Office for further development consistent with this opinion of the Board.
Issued: February 13, 2009
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

20

The Board notes that Dr. Gobaud’s license to practice medicine was not revoked and, based on the evidence
submitted by appellant, he was no longer on probation at the time of the May 2007 impartial evaluation.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jamaica, NY, Employer
__________________________________________

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

Docket No. 08-1653
Issued: December 19, 2008

Case Submitted on the Record

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

JURISDICTION
On May 23, 2008 appellant filed an appeal of a March 19, 2008 merit decision of the
Office of Workers’ Compensation Programs denying her traumatic injury claim. Pursuant to 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 established that she sustained a traumatic injury on
December 22, 2005 in the performance of duty.
FACTUAL HISTORY
On December 23, 2005 appellant, then a 31-year-old mail handler, filed a traumatic
injury claim alleging that, while walking to the bathroom the previous day, she passed out,
striking her head on the floor. She described the nature of her injury as “trauma to the head was
unconscious (as told by co-workers).” On January 4, 2006 the employing establishment
challenged the claim, contending that appellant’s fall was idiopathic.

The record contains a report from the employing establishment’s first aid response team,
reflecting that, on the date in question, appellant was found on the floor, unresponsive, lying on
her stomach. Appellant informed the responder that she “fell and hit her head.” She stated that
she “felt numb and hit [the] floor.”
Appellant submitted a December 22, 2005 Jamaica Hospital Emergency Department
aftercare report, reflecting a diagnosis of “syncope.” The record contains a December 22, 2005
duty status report, reflecting that appellant struck her head on the floor, causing trauma to the
head, as well as numbness.
In a December 29, 2005 report, Dr. Eric L. Freeman, a Board-certified orthopedic
surgeon, diagnosed cervical strain, with a likely herniated disc. He stated that appellant injured
her cervical spine while lifting on December 22, 2005.
In a report dated January 4, 2006, Dr. N.K. Raman, a treating physician, diagnosed
herniated disc of the cervical spine. He related appellant’s report that she experienced an episode
of “LOC [loss of consciousness]” at work on December 22, 2005, “resulting in a fall, hitting her
head.”
In a letter dated February 9, 2006, the Office informed appellant that the information
submitted was insufficient to establish her claim. It advised her to provide additional
information and evidence, including details surrounding the alleged incident, witness statements
and a physician’s report with a diagnosis and an opinion explaining how the incident resulted in
the diagnosed condition.
Appellant submitted January 13, 2006 physical therapy notes, signed by Michael
Flowers, a physical therapist. The notes reflect appellant’s report that she fainted and struck her
head while at work on December 22, 2005.
Appellant submitted a report dated February 1, 2006 from Dr. Edward Toriello, a Boardcertified orthopedic surgeon, who stated that appellant allegedly slipped and fell on
December 22, 2005, injuring her head and neck. Dr. Toriello’s examination revealed evidence of
resolved cervical hyperextension injury.
In a February 10, 2006 statement, appellant indicated that, on the date in question, she
was on her way to use the restroom when she fell to the floor and struck her head in an area
where there were “post-cons.” She noted that she was not sure whether she struck her head on
the post-con, but she knew that her face was flat on the floor after the fall. Immediately after
falling, appellant’s body was “paralyzed,” and she felt numbness and pain in her neck and head.
She reported that she had been experiencing migraines for 10 years, but that she had never
passed out from the effects of a migraine and had never had fainting spells.
In a February 15, 2006 report, Dr. James M. Liguori, a Board-certified neurologist, stated
that appellant sustained injuries to her head and neck on December 22, 2005, when she fell,
striking her head on the floor, and losing consciousness for approximately 30 seconds. He
diagnosed post-traumatic head trauma, with postconcussion headache syndrome and cervical
radiculopathy with myelopathy.

2

On March 1, 2006 Dr. Freeman stated:
“[Appellant] clearly has a causal related accident from December 22, 2005. This
happened when she was lifting, although she has been suffering from headaches,
this was unrelated to her acute injury. Additionally, [appellant] had a traumatic
injury where she had fallen and hit her head on the floor at the initial accident
from December 22, 2005.”
By decision dated March 20, 2006, the Office denied appellant’s claim on the grounds
that the evidence failed to establish that she had sustained an injury in the performance of duty.
It accepted that she fell on December 22, 2005, but that the cause of the fall was unknown or
unexplained.
On May 30, 2006 appellant requested reconsideration. She stated that, while walking to
the bathroom on December 22, 2005, she tripped on a rubber mat, causing her to fall, strike her
head on a postcon and pass out.
Appellant submitted reports dated March 30 and April 20, 2006 from Dr. Sebastian
Lattuga, a Board-certified orthopedic surgeon. On March 30, 2006 Dr. Lattuga stated that
appellant “hurt herself at work on December 22, 2005, injuring her neck and head.” On
April 20, 2006 he indicated that appellant was “at work walking when she tripped over a mat and
hit her head on the post cart (sic). At that time she was knocked out and found on the floor
several minutes later.”
By decision dated August 30, 2006, the Office denied modification of its March 20, 2006
decision. It found that inconsistencies in the record cast serious doubt on the validity of
appellant’s claim, and that she had submitted insufficient factual evidence to establish that the
incident occurred at the time, place and in the manner alleged.
On November 16, 2006 appellant, through her representative, requested reconsideration.
The representative stated that Dr. Freeman misunderstood the circumstances of the December 22,
2005 incident, and that the injury occurred as a result of a fall, not as a result of lifting. He
contended that the fall should be compensable, as it occurred in the performance of duty. The
representative stated that it should not be considered an idiopathic fall because appellant hit her
head on a postcon when she fell.
In a statement dated September 28, 2006, appellant indicated that she cut through the
postcons (used for mail break-ups) on her way to the bathroom on the date in question. She
stated that she tripped and fell when her feet got caught in the mat. As she fell, she allegedly hit
her head on a postcon and lost consciousness. When she regained consciousness, she was in
severe pain and was taken to the hospital.
In an October 18, 2006 report, Dr. Freeman stated that appellant had been “documenting
that it was not actually from lifting but she had fallen. There was a misunderstanding on the
initial visit.”

3

On September 26, 2006 Dr. Liguori stated that appellant suffered from cervical
radiculopathy and cerebral concussion as a result of injuries sustained in a work-related incident
on December 22, 2005. He indicated that her migraine condition did not cause her to fall.
In a January 17, 2007 statement, employing establishment supervisor, Joseph Stallone,
reported that he had interviewed Violet Desruisseaux, a first aid responder, who was the first
person to appear on the sight of the incident. Ms. Desruisseaux stated that appellant had been
found lying on the floor on December 22, 2005. She indicated that appellant told her that
“everything went numb and the next thing she remembered was waking up and being
questioned,” The first aid responder noted that at no time did appellant mention that she had
tripped over a floor mat or that she struck her head.
By decision dated March 1, 2007, the Office denied modification of its previous decision,
finding that the evidence presented was inconsistent and insufficient to establish the fact of
injury.
On January 10, 2008 appellant again requested reconsideration. In a January 4, 2008
statement, she reiterated her allegation that, after tripping on a mat on December 22, 2005, she
fell, striking her head on the postcon.
Appellant submitted a November 3, 2007 report from Dr. Lattuga, who stated that, on
December 22, 2005, appellant had tripped on a mat, striking her head on a post cart. As a result
of the fall, she reportedly passed out and fell flat on her stomach. Dr. Lattuga diagnosed cervical
sprain and radiculopathy and herniated disc.
By decision dated March 19, 2008, the Office denied modification of its previous
decisions.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”3
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of her claim, including the fact that the individual is an “employee of the
United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
1

5 U.S.C. § 8101 et seq.

2

Id. at § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).

4

duty as alleged, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.4 When an employee claims that she sustained a
traumatic injury in the performance of duty, she must establish the “fact of injury,” namely, she
must submit sufficient evidence to establish that she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged, and that such event, incident or
exposure caused an injury.5
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial
doubt on a claimant’s statements. The employee has not met her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.6
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof in establishing that
she sustained a traumatic injury on December 22, 2005. There are inconsistencies in the
evidence which cast serious doubt on the validity of her claim.
Appellant has provided inconsistent versions of the alleged incident. In her original
statement, she indicated that, while walking to the bathroom on the date in question, she passed
out, striking her head on the floor. Appellant told the employing establishment’s first aid
response team that she “felt numb and hit [the] floor.” On February 10, 2006 she stated that all
she remembered was falling to the floor and striking her head in an area where there were “postcons.” Appellant noted that she was not sure whether she struck her head on a postcon, but she
knew that her face was flat on the floor after the fall. However, on May 30, 2006, after the
Office’s initial denial of the claim, she provided a different version of the incident, alleging that
she tripped on a rubber mat, fell to the floor, struck her head on a postcon, and passed out. On
September 28, 2006 appellant alleged that, as she cut through the postcons (used for mail breakups) on her way to the bathroom on the date in question, she tripped and fell when her feet got
caught in a mat. She has stated conflicting versions of the facts surrounding her alleged injury,
but has not presented any evidence, such as witness statements, to substantiate any of her
allegations, nor did she explain why the details she provided on the date of the alleged event, and
shortly thereafter, differed substantially from those provided after the Office’s denial of her
claim.
The factual and medical evidence of record also reflects appellant’s divergent reports of
how the alleged incident occurred. A December 22, 2005 duty status report reflects that
appellant struck her head on the floor, causing trauma to the head, as well as numbness.
4

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

5

Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54 ECAB 608 (2003). 5 U.S.C. § 8101(5).
See 20 C.F.R. § 10.5(ee).
6

See Betty J. Smith, supra note 5.

5

However, on December 29, 2005 Dr. Freeman stated that appellant injured her cervical spine
while lifting on December 22, 2005. On March 1, 2006 he revised the history of injury to reflect
that appellant also fell and hit her head on the floor on the date of the alleged incident. On
October 18, 2006 Dr. Freeman again modified his report, noting that appellant had been
“documenting that it was not actually from lifting but she had fallen, and that there was a
misunderstanding on the initial visit.” On January 4, 2006 Dr. Raman related appellant’s report
that she lost consciousness at work on December 22, 2005, “resulting in a fall, hitting her head.”
January 13, 2006 physical therapy notes reflect appellant’s report that she fainted and struck her
head while at work on December 22, 2005. On February 1, 2006 Dr. Toriello provided an
entirely different report of injury, indicating that appellant slipped and fell on December 22,
2005, injuring her head and neck. In a February 15, 2006 report, Dr. Liguori stated that appellant
sustained injuries to her head and neck when she fell, striking her head on the floor, and losing
consciousness for approximately 30 seconds. On April 20, 2006 and November 3, 2007
following the Office’s initial denial of appellant’s claim, Dr. Lattuga stated that appellant was
knocked unconscious when she tripped over a mat and hit her head on the post cart on
December 22, 2005. Appellant did not attempt to reconcile these conflicting reports.
The Board finds that appellant has failed to establish the fact of injury: she did not
submit sufficient evidence to establish that she actually experienced an employment incident at
the time, place and in the manner alleged.7 The inconsistencies in both appellant’s allegations
and the evidence of record cast serious doubt on the validity of her claim.8 She initially alleged
that she fell to the floor after experiencing numbness. However, after the Office denied her
claim, appellant modified her allegations to reflect that she had tripped over a mat and hit her
head on a postcon. Appellant provided no evidence to corroborate either version of alleged facts.
The medical evidence of record, which provides at least four different accounts of the incident,
creates further confusion. Given the surrounding facts and circumstances and her subsequent
course of action, appellant’s claim lacks credibility. Due to the inconsistencies in the evidence
regarding the time, place and manner in which the alleged incident occurred, the Board finds that
appellant has failed to establish her claim.9
CONCLUSION
The Board finds that appellant has not established that she sustained a traumatic injury on
December 22, 2005 in the performance of duty.

7

Betty J. Smith, supra note 5; see also Tracey P. Spillane, supra note 5. 5 U.S.C. § 8101(5). See 20 C.F.R.
§ 10.5(ee).
8

See Betty J. Smith, supra note 5.

9

See Caroline Thomas, 51 ECAB 451, 455 (2000).

6

ORDER
IT IS HEREBY ORDERED THAT the March 19, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 19, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. SECRET SERVICE, COMMUNICATIONS
CENTER, Washington, DC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1091
Issued: July 27, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 12, 2021 appellant filed an appeal from a July 13, 2020 merit decision of the Office
of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned
Docket No. 21-1091.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180th day following the July 13, 2020 decision was January 9, 2021. As appellant did
not file an appeal with the Board until July 12, 2021, more than 180 days after the July 13, 2020
OWCP decision, the Board finds that the appeal docketed as No. 21-1091 is untimely filed. The
Board is without jurisdiction to review the appeal. Appellant has not offered a reason to explain
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

the failure to timely file an appeal with supporting documentation sufficient to establish
compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1091 is dismissed.
Issued: July 27, 2021
Washington, DC

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

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

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

3

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, SARASOTA MAIN
POST OFFICE, Sarasota, FL, Employer
__________________________________________
Appearances:
Joanne Marie Wright, for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0850
Issued: December 6, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On May 18, 2021 appellant, through his representative filed a timely appeal from an
April 2, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 The
Clerk of the Appellate Boards docketed the appeal as No. 21-0850.
On August 11, 2016 appellant, then a 57-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on August 11, 2016 he was involved in a motor vehicle accident and

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

The Board notes that, following the April 2, 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.

sustained an injury to his chest while in the performance of duty. 3 He did not stop work. On
August 22, 2016 OWCP accepted appellant’s claim for cervical spine sprain. It subsequently
expanded the acceptance of this claim to include thoracic sprain, thorax front wall contusion, and
cervical radiculopathy.
On November 5, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award due to his August 11, 2016 cervical sprain.
By decision dated December 2, 2020, OWCP granted appellant a schedule award for 24
percent permanent impairment of his left arm and 24 percent permanent impairment of his right
arm.4
On January 11, 2021 appellant, requested reconsideration of the December 2, 2020
decision and submitted additional medical evidence. By decision dated April 2, 2021, OWCP
denied modification.
The Board has duly considered the matter and finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined where correct
adjudication depends on frequent cross-referencing between files and where two or more injuries
occur to the same part of the body. Due to OWCP’s cross-referencing of the claims, for a full and
fair adjudication, the case must be returned to OWCP to administratively combine the current case
record, OWCP File No. xxxxxx110, with OWCP File No. xxxxxx619.5 This will allow OWCP to
consider all relevant claim files in developing appellant’s schedule award claim.
Accordingly, the Board will remand the case to OWCP to administratively combine OWCP
File Nos. xxxxxx110 and xxxxxx619. Following this and other such development as deemed
necessary, OWCP shall issue a de novo decision on appellant’s schedule award claim.

3

The present claim was assigned OWCP File No. xxxxxx110. Appellant has a prior claim for a January 25, 2010
traumatic injury, which OWCP accepted for right shoulder rotator cuff tear under OWCP File No. xxxxxx619. By
decision dated September 30, 2016, in OWCP File No. xxxxxx619, OWCP granted appellant a schedule award for 24
percent permanent impairment of his right arm. Appellant’s claims have not been administratively combined.
4

It noted that appellant was previously awarded 24 percent permanent impairment of the right arm on
September 30, 2016 under OWCP File No. xxxxxx619.
5

Id.; see R.S., Docket No. 20-1232 (issued April 28, 2021).

2

IT IS HEREBY ORDERED THAT the April 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this order of the Board.
Issued: December 6, 2021
Washington, DC

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

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

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

3


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

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1288
Issued: April 24, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 13, 2018 appellant, through counsel, filed a timely appeal from a May 18, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the May 18, 2018 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 evidence for
the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $19,668.87 because he concurrently received
Social Security Administration (SSA) benefits while also receiving FECA benefits for the period
March 1, 2016 through October 14, 2017; (2) whether OWCP properly determined that appellant
was at fault in the creation of the overpayment, thereby precluding waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$400.00 every 28 days from appellant’s continuing compensation.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 26, 2006 appellant, then a 56-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed heel pain in his left foot due to walking while in the
performance of his federal job duties. On June 14, 2007 OWCP accepted appellant’s claim for left
plantar fasciitis and left calcaneal stress fracture. Appellant stopped work on October 29, 2007.
He underwent surgical external neurolysis of Baxter’s nerve left heel and subtotal plantar
fasciotomy left foot on that date. Beginning March 19, 2008 OWCP paid appellant wage-loss
compensation on the periodic rolls. It directed him to report any retirement income, disability
income, or compensation benefits from a federal agency.
In an informational letter dated March 2, 2012, OWCP informed appellant that FECA
required his wage-loss compensation benefits to be reduced if he began receiving SSA retirement
benefits based on his age and federal service. It notified him of his obligation to report receipt of
such retirement benefits to avoid an overpayment of compensation.
On June 21, 2013 OWCP referred appellant for vocational rehabilitation services. By
decision dated July 21, 2015, it reduced his wage-loss compensation benefits, effective that date,
based on his capacity to earn wages in the constructed position of customer service representative.
On August 3, 2015 appellant, through counsel, requested an oral hearing from an OWCP hearing
representative. By decision dated May 3, 2016, OWCP’s hearing representative affirmed the
July 21, 2015 decision. Appellant appealed this decision to the Board and in its April 21, 2017
decision, the Board affirmed the May 3, 2016 decision of OWCP’s hearing representative.
In completed EN1032 forms signed by appellant on March 25, 2016 and March 29, 2017,
he responded “No” to the question of whether he received benefits from SSA as part of an annuity
for federal service during the prior 15 months. By signing the forms, appellant certified that he
understood that he “must immediately report to OWCP any improvement in his medical condition,
any employment, any change in the status of claimed dependents, any third-party settlement, and
any change in income from federally[-]assisted disability or benefit programs.” He also certified
that all the statements made in response to the questions on the form were true, complete, and
correct to the best of his knowledge and belief. In the March 16, 2016 and March 21, 2017 letters
accompanying the EN1032 forms, appellant was advised that the information he provided would
4

Docket No. 16-1309 (issued April 21, 2017).

2

be used to decide whether he was entitled to continue receiving these benefits or whether his
benefits should be adjusted.
On April 11, July 26, and October 5, 2017 OWCP provided SSA with a form for
calculation of dual benefits. SSA responded on May 9, July 26, and October 18, 2017 and
indicated that beginning in March 2016 appellant’s SSA rate, including his federal employment
under FERS, was $2,076.00 per month. The SSA rate that appellant was entitled to without his
federal employment was $1,071.50. Beginning in December 2016 these rates increased to
$2,082.20 and $1,074.50 respectively.
In a letter dated October 20, 2017, OWCP informed appellant that he had been receiving a
prohibited dual benefit resulting in an overpayment of benefits. It noted that the portion of SSA
benefits earned as a federal employee was part of his retirement and that the receipt of wage-loss
compensation under FECA and federal retirement simultaneously was prohibited. OWCP adjusted
appellant’s FECA benefits to account for his SSA offset of $930.00, which along with his health
benefits of $481.50 reduced his FECA wage-loss compensation payments from the gross amount
of $1,359.00 to negative $52.54. It further informed appellant that the prohibited dual benefit had
resulted in an overpayment of compensation for the period March 1, 2016 through
October 14, 2017.
In a notice dated November 3, 2017, OWCP advised appellant of its preliminary
determination that he had received a $19,668.87 overpayment of compensation for the period
March 1, 2016 through October 14, 2017 due to the failure to offset his FECA benefits for SSA
benefits he had received. It found him at fault in the creation of the overpayment because he
accepted payments which he knew or should reasonably have known were incorrect. OWCP
advised appellant that he could submit evidence challenging the fact, amount, or fault finding and
request waiver of recovery of the overpayment. Additionally, it informed him that within 30 days,
he could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing. OWCP requested that appellant complete an enclosed overpayment
recovery questionnaire (Form OWCP-20) and submit supporting financial documentation.
On November 14, 2017 appellant requested a waiver and a prerecoupment hearing with
OWCP’s Branch of Hearings and Review. Appellant disagreed that the overpayment had
occurred.
A hearing regarding the $19,668.87 overpayment was held on April 9, 2018. Appellant
testified that he believed that his SSA benefits had been increased to compensate him for his
decreased FECA wage-loss compensation due to the July 21, 2015 loss of wage-earning capacity
determination.
On April 26, 2018 OWCP received a Form OWCP-20, signed on April 21, 2018, in which
appellant listed monthly income of $4,615.00, monthly expenses of $3,735.51, and assets of
$11,100.00.
By decision dated May 18, 2018, an OWCP hearing representative affirmed the
preliminary determination regarding the $19,668.87 overpayment. He further found that appellant
was at fault in the creation of the overpayment as he knew or reasonably should have known that
he was receiving both SSA age-related benefits and OWCP wage-loss compensation benefits
concurrently and therefore denied waiver of recovery of the overpayment. OWCP’s hearing
3

representative reviewed appellant’s financial documents and found that his monthly income
exceeded his monthly debts by $880.00 per month. He determined that an offset of $400.00 every
28 days from appellant’s continuing FECA compensation would allow for repayment of the
overpayment of compensation without depriving appellant of the funds needed for ordinary and
necessary household expenses. OWCP’s hearing representative determined that there was no
evidence of record that recovery would be contrary to “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 duty.5 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.6
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA benefits that are attributable to federal service of the
employee.7 FECA Bulletin No. 97-9 provides that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA 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.8
Section 404.310 of SSA regulations provides that entitlement to SSA compensation begins
at 62 years of age.9 Section 404.409 of SSA regulations provides that for individuals born from
1943 to 1954, full retirement age is 66 years.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $19,668.87.
OWCP found that an overpayment of compensation was created in the amount of
$19,668.87 for the period March 1, 2016 through October 14, 2017. The overpayment was based
on the evidence received from SSA on April 11, July 26, and October 5, 2017 regarding benefits
paid to appellant. The record indicates that while appellant was receiving compensation for total
disability under FECA he concurrently received SSA age-based retirement benefits. A claimant
cannot receive both compensation for wage-loss and SSA retirement benefits attributable to federal

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

8

FECA Bulletin No. 97-09 (February 3, 1997).

9

20 C.F.R. § 404.310.

10

Id. at § 404.409.

4

service for the same period.11 The information provided by SSA indicated that appellant received
age-based SSA benefits that were attributable to federal service during the period March 1, 2016
through October 14, 2017.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received evidence from SSA with respect
to the specific amount of age-based SSA retirement benefits that were attributable to federal
service. The SSA provided the SSA rate with FERS, and without FERS, for specific periods
commencing March 1, 2016 and continuing through October 14, 2017. OWCP provided its
calculations for each relevant period based on the SSA worksheet. Appellant has not contested
the amount of the $19,668.87 overpayment and no contrary evidence has been provided to show
that OWCP’s calculations were incorrect. The Board has reviewed OWCP’s calculation of
benefits received by appellant for the period March 1, 2016 through October 14, 2017 and finds
that an overpayment of compensation in the amount of $19,668.87 was created.12
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made “because of an error of fact or law,” adjustment shall be made by decreasing later payments
to which an individual is entitled.13 The only exception to this requirement is a situation which
meets the tests set forth as follows in section 8129(b): “Adjustment or recovery by the United
States may not be made when incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.”14 No waiver of payment is possible if the claimant is not
“without fault” in helping to create the overpayment.15
In determining whether an individual is not “without fault” or alternatively “at fault” in the
creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations
provides in relevant part:
“A recipient who has done any of the following will be found to be at fault with respect
to creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or

11

See supra notes 7 and 8.

12

See S.O., supra note 7; G.T., Docket No. 15-1314 (issued September 9, 2016).

13

5 U.S.C. § 8129(a).

14

Id. at § 8129(b).

15

See S.O., and L.J., supra note 7.

5

(3) Accepted a payment which he or she knew or should have known to be
incorrect.”16
Section 10.433(b) of OWCP’s regulations provides:
“Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment.
The degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.”17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant was at fault in the creation
of the $19,668.87 overpayment of compensation, thereby precluding waiver of recovery of the
overpayment.
OWCP applied the standard of 20 C.F.R. § 10.433(a)(3) in determining that appellant was
at fault in the creation of the $19,668.87 overpayment. In order for OWCP to establish that he was
at fault in creating the overpayment of compensation, it must establish that appellant accepted a
payment which he knew or should have known to be incorrect.18
In a March 19, 2008 notice, OWCP informed appellant that he was being placed on the
periodic compensation rolls and it advised him that he was required to immediately inform it upon
filing for or receiving SSA retirement benefits. Appellant began to receive SSA benefits as part
of an annuity for federal service on March 1, 2016. He had regularly completed EN1032 forms
which specifically instructed him to report any monies or income or change in monies or income
from federally-assisted disability or benefit programs, and any retirement benefits or SSA benefits
under FERS. The evidence of record establishes that for the EN1032 forms dated March 25, 2016
and March 29, 2017, appellant failed to report his receipt of SSA benefits as part of an annuity for
federal service. These EN1032 forms provided information to appellant regarding reporting
income or monies from federally-assisted programs such as SSA.
The record reflects that on EN1032 forms dated March 25, 2016 and March 29, 2017, each
of which covered the 15 months prior to the date signed, appellant signed and acknowledged, “I
understand that I must immediately report to OWCP any employment or employment activity, any
change in the status of claimed dependents, any third-party settlement, and any monies or income
or change in monies or income from federally-assisted disability or benefit programs.” Each
EN1032 informed appellant of the consequences of not accurately reporting his employment
activities and earnings, such as being subjected to criminal penalties and losing the right to receive
workers’ compensation. In each of these forms, he reported receiving no SSA benefits as part of
an annuity for federal service.

16

20 C.F.R. § 10.433(a).

17

Id. at 10.433(b).

18

See supra note 15.

6

Consequently, the evidence of record establishes that appellant knew or should have known
that he was not entitled to receive dual payments from both SSA and FECA and therefore he
accepted payments which he knew or should have known to be incorrect.19 The Board therefore
finds that OWCP met its burden of proof to establish that appellant was at fault in the creation of
the $19,668.87 overpayment, thereby precluding waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441(a) of OWCP’s regulations provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”20
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment of
compensation by deducting $400.00 every 28 days from appellant’s continuing compensation
payments.
In determining that appellant could repay the overpayment through $400.00 deductions
from continuing compensation payments, OWCP took into consideration the financial information
submitted by appellant as well as the factors set forth in 20 C.F.R. § 10.441 and found that this
method of recovery would minimize any resulting hardship on appellant. It discussed appellant’s
financial circumstances and noted that appellant’s income exceeded his expenses by $880.00 per
month. Therefore, OWCP properly required recovery of the overpayment by deducting $400.00
from appellant’s compensation payments every 28 days.
CONCLUSION
The Board finds that OWCP properly determined that appellant received a $19,668.87
overpayment of compensation because he concurrently received SSA and FECA benefits for the
period March 1 through October 14, 2017. The Board further finds that OWCP properly
determined that appellant was at fault in the creation of the overpayment of compensation, thereby
precluding waiver of recovery of the overpayment. The Board further finds that OWCP properly
required recovery of the overpayment by deducting $400.00 from appellant’s continuing
compensation payments every 28 days.

19

See C.N., Docket No. 16-0134 (issued March 8, 2016) (finding that a claimant who failed to report SSA benefits
on multiple EN1032 forms was at fault in the creation of an overpayment received during a period covered by the
forms).
20

20 C.F.R. § 10.441(a); see S.O., supra note 7; Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

7

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 24, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Houston, TX, Employer
)
___________________________________________ )
J.H., Appellant

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

Docket No. 06-886
Issued: February 8, 2007

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 March 8, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 15, 2005 decision which found that she was not entitled to a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
schedule award determination.
ISSUE
The issue is whether appellant is entitled to a schedule award following her February 28,
1998 refusal of suitable employment.
FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In a January 11, 2000
decision, the Board affirmed the Office’s February 28 and August 12, 1998 decisions which
1

Docket No. 99-2506 (issued January 11, 2000).

terminated appellant’s compensation effective February 28, 1998 on the grounds that she
neglected suitable work. The Board also affirmed the Office’s February 18, 1999 decision
finding that the Office did not abuse its discretion in refusing to reopen appellant’s claim for
merit review. The facts and the history contained in the prior appeal are incorporated by
reference.
On February 15, 2000 appellant requested that her case be reopened.2 She alleged that
she did not purposefully abandon her job. Appellant submitted a copy of an October 25, 1999
decision from the Social Security Administration decision finding that she had met the disability
requirements entitling her to compensation for disability commencing March 10, 1997.
In a September 28, 2000 report, Dr. Larry L. Likover, a Board-certified orthopedic
surgeon and fitness-for-duty physician, indicated that appellant complained of severe bilateral
shoulder pain. However, his clinical examination reflected significant inconsistencies and no
objective findings to indicate a serious or substantial injury to either the right or left shoulder.
Furthermore, Dr. Likover noted that appellant’s magnetic resonance imaging (MRI) scan was
normal. He advised that appellant’s subjective complaints of disabling pain were not verified by
his examination or by diagnostic testing. Dr. Likover opined that appellant was capable of
working and that no restriction of her activities was required.
On November 20, 2000 the employing establishment requested that the Office address
appellant’s ability to return to work.
By decision dated December 18, 2000, the Office denied appellant’s request for
reconsideration on the grounds that her request neither raised substantial legal questions nor
included new and relevant evidence and thus it was insufficient to warrant review of its prior
decision.
On April 16, 2003 appellant again requested that the Office reopen her case and
requested a schedule award.
By letter dated June 12, 2003, the Office advised appellant that additional medical
evidence was needed.
By letter dated August 6, 2003, the Office requested that appellant’s treating physician
provide an impairment rating according to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides). However, no impairment
rating was received.
By decision dated December 29, 2003, the Office denied appellant’s request for a
schedule award as no medical evidence established that she had any permanent impairment. The
Office noted that appellant’s physician failed to provide an impairment rating.
In a December 15, 2003 report, Dr. Marcos V. Masson, a Board-certified orthopedic
surgeon, opined that appellant was at maximum medical improvement. In a January 2, 2004
2

The Office treated this request as a request for reconsideration.

2

report, he advised that appellant was at maximum medical improvement and had impairment of
seven percent. In a January 14, 2004 report, Dr. Masson advised that the fifth edition of the
A.M.A., Guides was utilized and that appellant had a two percent impairment of the left arm,
five percent of the right arm and one percent of the right hand.
On January 7, 2004 appellant requested a hearing, which was held on June 22, 2004.
In an August 5, 2004 letter, appellant’s representative indicated that he was enclosing
additional medical evidence to support of her claim that she had not refused suitable
employment. He enclosed a June 15, 2004 report from Dr. Rafael E. Sacasa, a clinical
psychologist, and contended that the report was sufficient to show that appellant had severe
debilitating depression since her injury. Appellant’s representative argued that all job-related
and nonjob-related conditions needed to be considered and the Office did not properly develop
this aspect of her claim.
In a June 15, 2004 report, Dr. Sacasa noted that he began treating appellant in 2001 for
severe depression, which originated at that time. He opined that appellant could not hold a job or
work and that her emotional state was interfering with her ability to function “in any work
environment.”
By decision dated September 17, 2004, the Office hearing representative found that
appellant was not entitled to a schedule award because the Office previously terminated her
compensation benefits on February 28, 1998 under the provisions of 5 U.S.C. § 8106(c) for
neglecting suitable work after suitable work was offered. The Office hearing representative
noted that the current review was confined to the schedule award decision as the appeal rights
had expired with respect to the suitable work termination decision.
By letter dated September 12, 2005, appellant’s representative repeated his previous
arguments that the modified position was not suitable and that appellant’s claim was not properly
developed. He reargued matters with regard to the termination. Appellant’s representative
referenced appellant’s other accepted work-related injury for an exacerbation of left shoulder
tendinitis and alleged that this was not considered.3
In a January 26, 1998 attending physician’s report, Dr. Thomas Melhoff, a Boardcertified orthopedic surgeon, diagnosed impingent syndrome of the right shoulder and right and
left carpal tunnel releases. He opined that appellant’s condition was due to the injury for which
compensation was claimed. Dr. Melhoff provided permanent restrictions of no lifting over 10
pounds and recommended changing jobs to accommodate her restrictions.
By decision dated December 15, 2005, the Office denied modification of the
September 17, 2004 decision.4
3

File No. 16-0346775.

4

The Office advised appellant that the issues of suitability and sanctions imposed under 5 U.S.C. § 8106(c) were
addressed correctly in the previous decisions. The Office also found that the issues of causal relationship and
conflict of medical opinion were not at issue in the present case.

3

LEGAL PRECEDENT
The Office regulation provides that in termination under section 8106(c) of the Federal
Employees’ Compensation Act5 a claimant has no further entitlement to compensation under
sections 8105, 8106 and 81076 of the Act, which includes payment of continuing compensation
for permanent impairment of a scheduled member.7 The Board has found that a refusal to accept
suitable work constitutes a bar to the receipt of a schedule award for any impairment which may
be related to the accepted employment injury.8
ANALYSIS
In a decision dated February 28, 1998, the Office terminated appellant’s compensation,
effective that same date, on the grounds that she neglected suitable work under section 8106. On
April 16, 2003 appellant filed a claim for a schedule award.
In a decision dated September 17, 2004, the Office hearing representative found that
appellant was not entitled to a schedule award because the Office had previously terminated her
compensation benefits under the provisions of 5 U.S.C. § 8106(c).9 As the Office terminated
appellant’s compensation benefits on February 28, 1998, she is barred from receiving schedule
award compensation for any period after the termination decision was reached.10 The record, as
reflected in Dr. Masson’s December 15, 2003 report, indicates that appellant reached maximum
medical improvement in 2003 following the February 28, 1998 termination date.11 The only
medical evidence submitted to the record establishes the date of maximum medical improvement
well after the termination arising in 1998. Therefore, the hearing representative properly denied
her claim for a schedule award. The Office denied modification of this decision on
December 15, 2005.
On appeal it is argued that the Office did not properly develop the suitable work issue.
However, this aspect of the claim is not properly before the Board. The only issue on appeal is
the denial of the schedule award claim.

5

5 U.S.C. § 8106(c).

6

5 U.S.C. §§ 8105, 8106, 8107.

7

20 C.F.R. § 10.517.

8

See Stephen R. Lubin, 43 ECAB 564, 573 (1992).

9

Appellant was also informed that the appeal rights had expired with respect to the prior termination decision.

10

See supra note 8.

11

See Lizzie M. Greer, 49 ECAB 681 (1998) (where the date of maximum medical improvement occurred after
the termination of compensation based on the refusal to accept a suitable offer of employment, section 8106(c) bars
a claim for a schedule award).

4

CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award
following her refusal of suitable work under section 8106(c).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 15, 2005 is affirmed.
Issued: February 8, 2007
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Green Bay, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-2060
Issued: January 15, 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 August 2, 2007 appellant filed a timely appeal of the July 5, 2007 decision of the
Office of Workers’ Compensation Programs, which affirmed the denial of his occupational
disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant’s lumbar degenerative disc disease is causally related to
his employment as a modified mail carrier.
FACTUAL HISTORY
On October 14, 2006 appellant, a 41-year-old modified mail carrier, filed an occupational
disease claim for degenerative disc disease. He previously injured his back at work on
June 16, 2003.1 Appellant stated that he had been on light duty since November 2004 because of
1

Appellant’s June 16, 2003 employment injury was accepted for lumbosacral strain and aggravation of lumbar
degenerative disc disease (09-2034690).

his prior injury. His modified letter carrier duties required sitting at a desk performing computer
work and other light work for supervisors. Appellant also brought out express mail and relays.
Over time, his back pain progressively worsened from performing different jobs. It increased to
the point where his doctor took him off work on June 20, 2006. Appellant stated that sitting on a
wooden, hard-backed desk chair caused him constant back pain.2 He also stated that the work
trucks he used were too small and he had to constantly bend while using the work trucks.
In an August 15, 2006 report, Dr. Michelle A. Shields, a Board-certified family
practitioner, diagnosed lumbar disc disease with radiculopathy. She explained that appellant had
been off work since June 20, 2006 because of unrelenting back pain. Dr. Shields noted that
appellant had previously injured his back on June 16, 2003 while lifting a 35- to 70-pound tray of
mail. She explained that degenerative disc disease progresses with time and does not require
another injury to worsen.
Appellant resumed limited-duty work on September 19, 2006.
Dr. Shields provided another report on October 8, 2006. She explained that a recent
magnetic resonance imaging scan showed a disc herniation at L5-S1 and that appellant was not a
candidate for surgery. The stated purpose of Dr. Shields’ report was to explain the causal
relationship between appellant’s recent disability beginning June 20, 2006 and his original
June 2003 injury of acute lumbosacral strain and aggravation of degenerative disc disease.3 She
indicated that it was well known that persons with degenerative disc disease do not require a
severe injury to cause an exacerbation of their disease. According to Dr. Shields, the injury can
be the accumulation of repetitive movements, such as bending reaching or kneeling. She further
explained that the natural course of the disease is to wax and wane. Dr. Shields described the
physical requirements of appellant’s regular letter carrier duties and explained that because of his
worsening back pain and spasms, he was unable to perform those duties between June 20 and
September 18, 2006.4
In a decision dated December 22, 2006, the Office denied the claim finding that the
medical evidence did not establish a causal relationship between appellant’s current back
complaints and his light-duty assignment.
Appellant requested an oral hearing, which was held on May 7, 2007. At the hearing, he
testified regarding the various duties he performed as a modified mail carrier. Appellant did not
submit additional medical evidence.
By decision dated July 5, 2007, the Office hearing representative affirmed the
December 22, 2006 decision.

2

The employing establishment indicated that appellant was able to change positions as needed.

3

This report was submitted under file number 09-2034690.

4

Dr. Shields described appellant’s duties as lifting up to 70 pounds, with 35 pounds on a shoulder. She also
noted that appellant had to work and stand for eight hours a day, with kneeling or repeated bending for two hours a
day.

2

LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act5 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.6
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.7
ANALYSIS
The medical reports from Dr. Shields established a diagnosis of lumbar degenerative disc
disease with radiculopathy. Dr. Shields was of the opinion that appellant’s back pain and spasms
precluded him from working during the period June 20 to September 18, 2006. The Board finds
that Dr. Shields’ reports fail to establish that appellant’s current lumbar condition is causally
related to the duties he performed as a modified mail handler. Neither of her reports make
mention of appellant’s modified letter carrier duties. Dr. Shields’ reports suggest that appellant’s
current back complaints are a result of the natural progression of his degenerative condition. In
both reports she explained that an exacerbation can occur without further severe injury.
Although Dr. Shields stated that an exacerbation could also result from an accumulation of
repetitive movements, such as bending reaching or kneeling, she did not indicate that those
particular factors were responsible for appellant’s current condition. As such, the medical
evidence of record is insufficient to establish a causal relationship between appellant’s condition
and his current job duties. The Office, therefore, properly denied appellant’s claim.
CONCLUSION
Appellant’s has not established that his lumbar degenerative disc disease is causally
related to his employment as a modified mail carrier.
5

5 U.S.C. §§ 8101-8193 (2000).

6

20 C.F.R. § 10.115(e), (f) (2007); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion evidence. See Robert G.
Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of whether there is a causal relationship between
the claimant’s diagnosed condition and the implicated employment factors must be based on a complete factual and
medical background of the claimant. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, in order to be
considered rationalized, the opinion must be expressed in terms of a reasonable degree of medical certainty, and
must be supported by medical rationale, explaining the nature of the relationship between the diagnosed condition
and appellant’s specific employment factors. Id.
7

Victor J. Woodhams, supra note 6.

3

ORDER
IT IS HEREBY ORDERED THAT the July 5, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 15, 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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 08-1703
Issued: January 14, 2009

Case Submitted on the Record

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

JURISDICTION
On May 27, 2008 appellant filed a timely appeal from an April 14, 2008 decision of the
Office of Workers’ Compensation Programs which denied her request for reconsideration on the
grounds that the request was not timely filed and failed to establish clear evidence of error.
Because more than one year has elapsed from the last merit decision dated March 15, 2007 to the
filing of this appeal on May 27, 2008, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her April 7, 2008 request was untimely filed
and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On January 19, 2007 appellant, then a 57-year-old post office clerk, filed a claim for pain
in her left arm and shoulder which she attributed to her federal employment duties. She

indicated that she first realized her left arm condition on December 17, 2006 and its relation to
her employment on December 20, 2006. Appellant stopped work on December 17, 2006 and
returned to modified duties on January 5, 2007.
By decision dated March 15, 2007, the Office denied appellant’s claim for an injury in
the performance of duty as there was no medical evidence from a qualified physician which
provided a diagnosis which could be connected to the claimed event. It found that the
December 18, 2006 report of Dr. Jason Chung, a chiropractor, had no value in establishing
appellant’s claim as he did not diagnose a subluxation of the spine as demonstrated by x-ray
evidence.
On April 7, 2008 appellant requested reconsideration of the Office’s March 15, 2007
decision denying her claim. In support of her claim, she submitted medical reports from
Dr. Mark Greenspan, an orthopedic surgeon, dated September 18, October 23 and December 4,
2007 and January 8 and February 19, 2008. In his reports, Dr. Greenspan diagnosed appellant
with left shoulder tendinopathy, bursitis and bicipital tendinitis. He opined that appellant’s
conditions were caused by her work on the delivery bar code sorter (DBCS) machine as she
described a viable mechanism of injury and her complaints and clinical findings were consistent
with the type of injury described.
By decision dated April 14, 2008, the Office denied appellant’s April 7, 2008 request for
reconsideration without a merit review, finding that she had not timely requested reconsideration
and had failed to submit evidence sufficient to establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.1 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted the Office under section 8128(a) of the Act.2
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
establishes clear evidence of error.3 Office regulations and procedure provide that the Office
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set

1

20 C.F.R. § 10.607(a).

2

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

3

See 20 C.F.R. § 10.607(b); Cresenciano Martinez, 51 ECAB 322 (2000).

2

forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of
error on the part of the Office.4
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.5 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.6 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. 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 in the most recent merit decision. To
show clear evidence of error, the evidence submitted must be of sufficient probative value to
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of the decision. The Board makes an independent determination of whether a
claimant has submitted clear evidence of error.7
ANALYSIS
In its April 14, 2008 decision, the Office properly determined that appellant filed an
untimely request for reconsideration. Its last merit decision in this case was dated
March 15, 2007.
Appellant requested reconsideration on April 4, 2008.
Thus, the
reconsideration request is untimely as it was made outside the one-year time limit.
The Board also finds that appellant’s April 4, 2008 request for reconsideration failed to
show clear evidence of error. Appellant submitted several medical reports from Dr. Greenspan,
an orthopedic surgeon, in support of her untimely request for reconsideration. Dr. Greenspan
provided several diagnoses on appellant’s left shoulder condition and opined her medical
conditions were attributable to her work on the DBCS machine. He stated that appellant’s
description of injury was a viable mechanism of injury and her complaints and findings were
consistent with the type of injury described. However, these reports do not establish that the
Office erred in its denial. The Board notes that clear evidence of error is intended to represent a
difficult standard. Evidence such as a detailed, well-rationalized medical report which, if
submitted before the merit denial might require additional development of the claim, is
insufficient to establish clear evidence of error.8
4

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). Office procedure further provides that the term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the Office made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
5

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

6

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

7

Nancy Marcano, 50 ECAB 110 (1998).

8

See supra note 4.

3

A review of the medical evidence of record does not establish that the Office erred in
denying a merit review. Evidence which does not raise a substantial question concerning the
correctness of the Office’s decision is insufficient to establish clear evidence of error.
Dr. Greenspan’s reports do not raise a substantial question as to the correctness of the Office’s
March 15, 2007 merit decision or demonstrate clear evidence of error.
For these reasons, the Office properly denied appellant’s request for reconsideration.
CONCLUSION
The Board finds appellant’s untimely request for reconsideration did not establish clear
evidence of error on the part of the Office.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated April 14, 2008 is affirmed.
Issued: January 14, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4