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

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

Docket No. 08-1376
Issued: November 12, 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 April 2, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated March 26, 2008, which denied her reconsideration
request on the grounds that it was untimely filed and failed to establish clear evidence of error.
Because more than one year has elapsed between the last merit decision dated April 22, 2004 and
the filing of this appeal on April 2, 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(d)(2).
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
On June 25, 2002 appellant, a 48-year-old bulk mail technician, injured her neck when a
coworker fell on her. She filed a claim for benefits, which the Office accepted for cervical strain.
The Office paid appropriate compensation for periods of temporary total and partial disability.

On January 17, 2003 appellant accepted a job as a modified mail technician with the
employing establishment and returned to full-time work on January 31, 2003. She continued to
receive disability compensation for intermittent dates.
In a report dated March 13, 2003, Dr. Alvin M. Stinson, Board-certified in physical
medicine and rehabilitation, released appellant to light work and stated that she had a three
percent impairment rating of the whole body.
On March 24, 2003 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her left upper extremity.
In a May 1, 2003 report, Dr. Stinson stated that appellant had reached maximum medical
improvement on February 20, 2003. He asserted that appellant had a three percent impairment
rating of the total body due to myofascial pain and neck pain. Dr. Stinson noted that appellant’s
complaints of pain consistently pertained to her neck and did not include complaints of pain
down the upper extremity or hands.
By decision dated July 21, 2003, the Office denied appellant’s claim for a schedule
award. It found that the medical evidence did not establish any permanent impairment stemming
from her accepted cervical strain condition pursuant to the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) fifth edition.
By decision dated July 21, 2003, the Office found that the position of modified mail
technician, based on actual weekly wages of $843.52, represented appellant’s wage-earning
capacity. It noted that the position fairly and reasonably represented her wage-earning capacity
and that she had worked in this position for at least 60 days.
On July 31, 2003 appellant requested an oral hearing, which was held on
February 25, 2004.
In a report dated July 22, 2003, Dr. Stinson noted evidence of numerous tender points to
the left and right cervical and trapezius regions on examination. He stated that appellant had
normal sensation, normal strength and normal muscle tone in her arms. Dr. Stinson advised that
appellant had no significant loss of range of motion of the neck. He stated:
“I gave appellant an impairment rating of three percent on March 13, 2003,
primarily for the complaints of neck pain which has limited her ability to fully
participate with her job. There are no impairments due to abnormalities to the
extremities. Therefore, if the total body impairment should be based strictly on
abnormalities within the extremities, there would be a zero percent impairment
rating. However, I do not feel that basing the impairment rating only on
extremities is very applicable in a patient with primarily complaints of neck
and/or lower back pain.”
In a report dated February 3, 2004, Dr. Stinson essentially reiterated his previous findings
and conclusions. He noted that appellant had myofascial pain syndrome and cervical
symptomatology and reported continued pain in the left arm and left shoulder region.

2

By decision dated April 22, 2004, an Office hearing representative affirmed the July 21,
2003 decisions.
In a report dated April 23, 2004, Dr. Timothy Jackson, Board-certified in orthopedic
surgery, stated findings on examination, reviewed the medical history and concluded that
appellant had myofascial pain syndrome in addition to cervical degenerative disc disease. He
indicated that she had sustained a permanent aggravation of cervical degenerative disc disease,
which could account for her persistent pain.
On January 2, 2008 appellant requested a schedule award based on a partial loss of use of
her left upper extremity.
By letter received March 10, 2008, appellant requested reconsideration of the July 21,
2003 schedule award decision. She stated that due to her accepted cervical injury she could no
longer lift more than 15 pounds. Appellant also asserted that the Office improperly denied
authorization for Dr. Stinson’s requests for her to undergo a magnetic resonance imaging (MRI)
scan.
Appellant submitted a January 18, 2008 report from Dr. Stinson, who stated that she had
been treated for myofascial pain, degenerative cervical spine and cervical strain. Dr. Stinson
noted that she occasionally had spasms in her neck, causing her neck to lock up in a forward
position however she did not know of any triggering mechanism which caused this to occur. He
stated that appellant had normal reflexes, normal muscle strength and normal sensation in the
upper extremities. In a report dated February 19, 2008, Dr. Stinson reiterated that appellant was
experiencing myofascial pain. He stated that his examination showed increased tightness in the
left middle trapezius region compared to the right. Dr. Stinson advised that her neurological
examination was normal in the upper extremities, with normal muscle strength, normal muscle
tone and normal reflexes. He noted that x-rays of the cervical spine showed some minimal
degenerative changes in the lower cervical spine. Dr. Stinson stated that there was no fracture or
dislocation in the cervical spine.
By decision dated March 26, 2008, the Office denied appellant’s request for
reconsideration without a merit review, finding that she had not timely requested reconsideration
and had failed to submit factual or medical evidence sufficient to establish clear evidence of
error. It stated that appellant was required to present evidence which showed that the Office
made an error and that there was no evidence submitted that showed that its final merit decision
was in error.1

1

In light of the fact that the Office received Dr. Jackson’s April 23, 2004 report following the issuance of the
April 22, 2004 Office decision, it stated that it was considering his report as new evidence pursuant to appellant’s
request for reconsideration.

3

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle an
employee to a review of an Office decision as a matter of right.3 This section, vesting the Office
with discretionary authority to determine whether it will review an award for or against
compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on [her] own motion or on application. The Secretary,
in accordance with the facts found on review may -(1) end, or increase the compensation awarded;
(2) award compensation previously refused or discontinued.”
The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).4 As one such limitation, it has stated that it
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.5 The Board has found that the imposition of
this one-year time limitation does not constitute an abuse of the discretionary authority granted
by the Office granted under 5 U.S.C. § 8128(a).6
In those cases where a request for reconsideration is not timely filed, the Board had held
however that the Office must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.7 Office procedures
state that the Office will reopen an appellant’s case for merit review, notwithstanding the
one-year filing limitation set forth in 20 C.F.R. § 10.607(b), if the appellant’s application for
review shows “clear evidence of error” on the part of the Office.8
To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by the Office.9 The evidence must be positive, precise and explicit and
2

5 U.S.C. § 8128(a).

3

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon., denied,
41 ECAB 458 (1990).
4

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

20 C.F.R. § 10.607(b).

6

See cases cited supra note 2.

7

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

8

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

9

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

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must be manifested on its face that the Office committed an error.10 Evidence which does not
raise a substantial question concerning the correctness of the Office’s decision is insufficient to
establish clear evidence of error.11 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.12 This entails a limited review by the Office of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of the Office.13 To
show clear evidence of error, the evidence submitted must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must be of
sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of the Office’s decision.14 The Board makes
an independent determination of whether an appellant has submitted clear evidence of error on
the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.15
ANALYSIS
The Office properly determined in this case that appellant failed to file a timely
application for review. It issued its last merit decision in this case on April 22, 2004. Appellant
requested reconsideration on March 10, 2008; thus, her reconsideration request is untimely as it
was outside the one-year time limit.
The Board finds that appellant’s March 10, 2008 request for reconsideration failed to
show clear evidence of error. The evidence appellant submitted is not pertinent to the issue on
appeal. The only new medical reports appellant submitted in support of her untimely request for
reconsideration were Dr. Jackson’s April 23, 2004 report and the January 18 and February 19,
2008 reports from Dr. Stinson. These reports are of limited probative value as they did not
provide a reasoned medical opinion on the relevant issue; i.e., whether appellant was entitled to a
schedule award stemming from her accepted June 25, 2002 cervical injury.16 The reports from
Drs. Jackson and Stinson provide findings on examination, relate appellant’s complaints of
cervical pain and indicate various diagnoses pertaining to her neck and left shoulder.
10

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

11

See Jesus D. Sanchez, supra note 3.

12

See Leona N. Travis, supra note 10.

13

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

14

Faidley, supra note 3.

15

Gregory Griffin, 41 ECAB 186 (1989), petition for recon., denied, 41 ECAB 458 (1990).

16

The Board notes that a claimant may seek an increased schedule award if the evidence establishes that she
sustained increased impairment at a later date causally related to the accepted employment injury. A proper claim
for an increase in permanent impairment is not subject to time limitations or to the clear evidence of error standard.
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.8087b (August 2002). See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994).
However, in the instant case appellant’s claim for a schedule award was denied; as she has not submitted evidence
of increased employment-related impairment with her request for reconsideration, this principle is not applicable.

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Dr. Jackson diagnosed myofascial pain syndrome and cervical degenerative disc disease. He
stated that appellant had sustained a permanent aggravation of cervical degenerative disc disease
which could account for her persistent pain. Dr. Stinson advised that appellant had myofascial
pain, degenerative cervical spine, degenerative cervical changes and cervical strain, with
occasional neck spasms. He found that appellant had a normal neurological examination. The
reports appellant submitted do not present any impairment ratings or address whether she
sustained any permanent impairment from her accepted June 25, 2002 cervical injury. No other
evidence was received by the Office.17 Therefore, appellant has failed to demonstrate clear
evidence of error on the part of the Office.
The Office reviewed the evidence appellant submitted and properly found it to be
insufficient to prima facie shift the weight of the evidence in favor of appellant. Consequently,
the evidence submitted by appellant on reconsideration is insufficient to establish clear evidence
of error on the part of the Office such that the Office abused its discretion in denying merit
review. The Board finds that the Office did not abuse its discretion in denying further merit
review.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of the Office in her reconsideration request dated March 10, 2008. Inasmuch as
appellant’s reconsideration request was untimely filed and failed to establish clear evidence of
error, the Office properly denied further review on March 26, 2008.

17

The Board rejects appellant’s argument that the Office arbitrarily denied authorization for Dr. Stinson to
administer an MRI scan. Appellant has submitted no documentation indicating that she or Dr. Stinson ever
requested authorization for an MRI scan or that the Office ever denied such as request.

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ORDER
IT IS HEREBY ORDERED THAT the March 26, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 12, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Q., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 10-1660
Issued: April 5, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 8, 2010 appellant filed a timely appeal from a May 20, 2010 schedule award
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant has ratable binaural hearing impairment entitling him to a
schedule award.
FACTUAL HISTORY
On December 2, 2009 appellant, then a 56-year-old retired special agent, filed an
occupational disease claim alleging that he sustained hearing loss in his left ear and bilateral
tinnitus due primarily to firearms exposure. He became aware of his condition and its
relationship to his employment on May 1, 2007. Appellant retired effective December 2, 2009.

In a statement accompanying the claim, appellant specified that he was first exposed to
workplace noise between April 1979 and May 1983 as a physical science technician with the
employing establishment, a position which required him to discharge rifles, pistols, revolvers and
shotguns in an enclosed room. After becoming a special agent in September 1983, he attended
mandatory firearms training sessions four times a year. Appellant also served as a firearms
instructor starting June 1990. In June 2001, he was assigned to a radio operations group and
exposed to noise whenever an agent spoke loudly into the “radio milk head.” Appellant denied
any preemployment history of ear problems. He was advised by the employing establishment
and a specialist on May 22, 2007 that he sustained hearing loss in the “right” ear.
Appellant submitted two audiograms received by the employer on December 24, 2009.
The date that each audiogram was taken is illegible. The first exhibited the following decibel
(dBA) losses at 500, 1,000, 2,000, 3,000 and 8,000 Hertz (Hz): 10, 5, 5, 15 and 20 for the right
ear and 10, 5, 10, 20 and 45 for the left ear. The second exhibited the following losses at the
same frequencies: 5, 5, 5, 15 and 20 dBA for the right ear and 5, 5, 10, 20 and 45 dBA for the
left ear.
A March 8, 2010 statement of accepted facts acknowledged that appellant was exposed to
occupational noise levels above 85 dBA during his employment.
On March 16, 2010 the Office referred appellant for a second opinion to Dr. Stephen M.
Bane, a Board-certified otolaryngologist. In a March 31, 2010 report, Dr. Bane examined
appellant and observed no physical abnormalities. He stated that appellant had no family history
of hearing loss. Appellant reported having continuous tinnitus. An audiogram performed that
day exhibited the following dBA losses at 500, 1,000, 2,000 and 3,000, Hz: 5, 0, 5 and 15 for the
right ear and 0, 0, 10 and 20 for the left ear. Dr. Bane diagnosed mild to moderate highfrequency sensorineural hearing loss in the left ear starting at 4,000 Hz and climaxing at 8,000
Hz. He also diagnosed binaural tinnitus. Dr. Bane opined that this asymmetric loss exceeded
what was normally predicated on presbycusis and was “probably due to” appellant’s extensive
history of significant, on-the-job firearms exposure. He advised that appellant wear hearing
protection and avoid noise.
By decision dated April 9, 2010, the Office accepted appellant’s claim for sensorineural
hearing loss of the left ear and bilateral tinnitus. Appellant filed a claim requesting a schedule
award on April 12, 2009.
On April 16, 2010 an Office medical adviser agreed with Dr. Bane’s conclusion that
appellant’s monaural hearing loss and tinnitus were caused by occupational noise exposure and
identified March 31, 2010 as the date of maximum medical improvement. Applying the standard
provided by the American Medical Association, Guides to the Evaluation of Permanent
Impairment1 (A.M.A., Guides) (hereinafter) to the March 31, 2010 audiometric findings, he
found that appellant had no ratable monaural or binaural hearing but “with the addition for
tinnitus it is one percent” The Office medial adviser stated that the one percent rating for
bilateral tinnitus was included “given the documentation of work[-]relate[d] noise exposure and
1

A.M.A., Guides (6th ed. 2008).

2

no other predisposing factors indicated in the chart.” He recommended annual audiograms and
hearing protection.
By decision dated March 11, 2010, the Office denied appellant’s claim for a schedule
award on the grounds that his hearing loss was not ratable.2
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss of or loss of use of scheduled members or functions
of the body. An employee is entitled to a maximum award of 52 weeks of compensation for
complete loss of hearing of one ear and 200 weeks of compensation for complete loss of hearing
of both ears.5 However, the Act does not specify the manner in which the percentage of loss
shall be determined. For consistent results and to ensure equal justice under the law to 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., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.6
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the “fence” of 25 dBA is deducted
because, as the A.M.A., Guides points out, losses below 25 dBA result in no impairment in the
ability to hear everyday speech under everyday conditions. The remaining amount is multiplied
by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss: the lesser
loss is multiplied by five, then added to the greater loss and the total is divided by six to arrive at
the amount of the binaural hearing loss. The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.7
ANALYSIS
Appellant filed a claim for hearing loss and the Office developed the matter by referring
him to Dr. Bane. After conducting a physical examination and reviewing audiometric data,
Dr. Bane opined that appellant sustained mild to moderate high-frequency sensorineural hearing
loss in the left ear and bilateral tinnitus related to his occupational noise exposure. The Office
medical adviser concurred with these findings, but calculated that appellant did not have a
2

The Office noted that appellant remained entitled to medical benefits related to the effects of the injury.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

5 U.S.C. § 8107(c)(13).

6

Supra note 4. See also Mark A. Holloway, 55 ECAB 321, 325 (2004).

7

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

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ratable hearing loss. Nonetheless, he determined that appellant sustained a one percent binaural
hearing impairment on account of his tinnitus. The Office subsequently denied a schedule award
on the grounds that appellant’s hearing loss was not ratable.
The Office medical adviser applied the Office’s standard procedures to the March 31,
2010 audiogram obtained by Dr. Bane. Under the Office’s standardized procedures, appellant’s
left ear recorded losses of 0, 0, 10 and 20 dBA at 500, 1,000, 2,000 and 3,000 Hz, respectively.
The total loss was 30 dBA. When divided by 4, the result was an average hearing loss of 7.5
dBA. The average hearing of 7.5 dBA was reduced by the fence of 25 dBA to equal zero dBA.
This figure was then multiplied by the established factor of 1.5, yielding zero percent monaural
impairment of the left ear. At the same frequency levels, appellant’s right ear recorded losses of
5, 0, 5 and 15 dBA. The total loss was 25 dBA. When divided by 4, the result was an average
hearing loss of 6.25 dBA. The average hearing of 6.25 dBA was reduced by the fence of 25 dBA
to equal zero dBA. This figure was then multiplied by the established factor of 1.5, yielding zero
percent monaural impairment of the right ear. As appellant did not sustain a ratable hearing loss
in either ear, he is not entitled to a schedule award.
The Office medical adviser opined that appellant has a one percent binaural hearing
impairment on account of his tinnitus. The A.M.A., Guides provides that, if tinnitus interferes
with activities of daily living such as sleeping, reading and other tasks requiring concentration,
up to five percent may be added to a measurable binaural hearing impairment.8 The Board has
held, however, that a claimant is not entitled to a schedule award for tinnitus if the measurable
hearing loss is not ratable under the standards set forth in the A.M.A., Guides.9 As stated above,
appellant did not sustain a ratable hearing loss. Therefore, he is not entitled to any additional
schedule award for tinnitus.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a ratable binaural
hearing impairment.

8

A.M.A., Guides, supra note 1, at 249. See also R.D., 59 ECAB 127 (2007).

9

Juan A. Trevino, 54 ECAB 358 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the May 20, 2010 schedule award decision of the
Office of Workers’ Compensation Programs is affirmed.
Issued: April 5, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF TRANSPORTATION,
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FEDERAL AVIATION ADMINISTRATION,
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Lawndale, CA, Employer
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___________________________________________ )
G.B., Appellant

Appearance:
Steven E. Brown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2399
Issued: September 16, 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 September 2, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 17, 2008, which affirmed the denial of his
claim for a recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of disability beginning February 22, 2006, causally related to his accepted
employment injury.
FACTUAL HISTORY
On February 24, 2004 appellant, then a 58-year-old air traffic control specialist, injured
his neck and low back when his chair broke at work and he fell. He stopped work that date and

returned to light duty on March 2, 2004. The Office accepted his claim for cervical and lumbar
strains and paid appropriate compensation.
In a March 11, 2004 report, Dr. Peter Chiu, a Board-certified internist and treating
physician, diagnosed cervical strain and ruled out a cervical disc herniation. In a May 13, 2004
report, Dr. Fulton S. Chen, a Board-certified physiatrist and a treating physician, noted a history
of the February 24, 2004 injury and advised that appellant reported having low back pain since
the “mid-1990s secondary to hoeing in the garden.” He advised that magnetic resonance
imaging (MRI) scans of the low back and neck showed nonspecific degenerative changes.
Dr. Chen noted that appellant also had a history of major depression and listed current diagnoses
as cervical and lumbar disc disease. He indicated that appellant’s February 24, 2004 fall
aggravated his low back and cervical spine pain. On February 28, 2006 Dr. Chen diagnosed
spondylolisthesis at L5-S1, cervical disc degeneration at C6-7 and chronic pain syndrome. He
advised that appellant was totally disabled. Dr. Chen indicated that he was concerned that
appellant was entering into chronic pain syndrome.
On March 3, 2006 appellant filed a recurrence of disability claim (Form CA-2a)
commencing February 22, 2006. He noted being on limited duty since his 2004 injury;
however, in January 2006, his employer changed his duties. Appellant stopped work on
February 22, 2006. The employing establishment confirmed that appellant was assigned to
administrative duties since his return to work. In an undated statement, appellant advised that
the employing establishment accommodated him by allowing him to work in an oceanic control
position, which enabled him to stand as needed to alleviate his discomfort. He stated that his
recurrence began on February 22, 2006 and, a few days prior, he attempted to perform his duties
in the domestic sector which required more movement than he had been performing the previous
two years in the oceanic control position. Appellant noted that he was not able to get up to
relieve his muscle spasms and he went home.
Appellant filed Form CA-7 claims for disability commencing February 22 to
April 19, 2006. In a February 22, 2006 report, Dr. Chiu diagnosed neck pain, low back pain,
sciatica and radiculopathy. He placed appellant off work from February 22 to March 1, 2006.
In a statement received on March 30, 2006, Bradley Bachman, administrative front line
manager, stated that appellant’s restrictions had been accommodated, including that he was
unable to sit or stand for extended periods. He indicated that appellant was recertified to the
oceanic control position. In 2006, appellant was assigned to recertify on a radar associate
position that he had previously been checked out on. The position allowed him the latitude to sit
or stand at his discretion. Mr. Bachman advised:
“[That the] only ‘other duties’ that [appellant] claims the employer assigned him
would be to be placed in the training program to recertify. This is a condition of
employment. I advised him that he would have the same flexibility to sit or stand
during his training program that he has had on all operational positions that he has
been working since 2004.”
In a March 13, 2006 report, Dr. William Clauson, a Board-certified anesthesiologist,
diagnosed lumbar L5-S1 spondylolisthesis Grade 1, early degenerative disc disease at L4-5,

2

cervical degenerative disc disease at C5-6 and C6-7, obesity, high cholesterol and high blood
pressure. In an April 19, 2006 report, Dr. Clauson indicated that appellant had increased
symptomatology from lumbar degenerative disc disease and spondylolisthesis at S1 and that he
was unable to work.
The Office received disability slips and progress reports from Dr. Chen placing appellant
off work as of February 22, 2006 for six weeks. On April 13, 2006 Dr. Chen opined that
appellant was “not able to perform his usual and customary duties due to functional deficits.” He
diagnosed chronic neck and low back pain and chronic pain syndrome. Dr. Chen noted that
appellant reported that he was unable to work secondary to his neck and low back pain and
placed him on temporary total disability.
In an April 3, 2006 statement, appellant noted that, on February 4, 2006, he was only able
to work because he was sent home and used six hours of leave. He did not recertify on the radar
position. In an April 4, 2006 statement, John Noblitt, a controller, indicated that appellant was
asked to train on the radar position; however, he informed his supervisor that he could not work
the radar position. On April 19, 2006 appellant distinguished between the oceanic and radar
associated positions. His description was signed by several coworkers. On May 12, 2006
appellant provided a statement describing his medications and how they affected his ability to
work.
In a June 2, 2006 decision, the Office denied appellant’s claim on the grounds that the
factual and medical evidence was insufficient to establish that he sustained a recurrence of
disability causally related to the accepted employment injury.
On May 31, 2007 appellant’s representative requested reconsideration. In a May 30,
2007 report, Dr. Clauson noted that he had treated appellant for approximately 15 months. He
noted that the work-related injury of February 24, 2007 “was causal in regards to [appellant’s]
severe low back and neck pain. I am so stating that conclusion again today.”1 Dr. Clauson
opined that the unexpected collapse of a chair could be catastrophic and noted that appellant
weighed over 275 pounds. The finding at the time was spondylolisthesis of L5 anterior to S1.
Dr. Clauson opined that the “forces of the collapse involved can easily fracture a pars in the facet
joints and cause this type of spondylolisthesis with no way to protect yourself from such an
unexpected collapse.” Appellant experienced immediate pain shooting down his legs and arms
and into his little fingers bilaterally along with the spondylolisthesis. Dr. Clauson advised that
appellant’s injury had permanently aggravated a chronic condition of multi-level lumbar disc
disease and cervical degenerative disc disease.
By decision dated July 9, 2007, the Office denied modification of the June 2, 2006
decision. It also found that no medical rationale was provided to substantiate that appellant’s
chronic multi-level lumbar disc disease and cervical degenerative disc disease were related to the
accepted cervical and lumbar strains.
In a letter dated April 18, 2008, appellant’s representative requested reconsideration. He
enclosed a copy of therapeutic drug guidelines for air traffic controllers. Because appellant was
1

This appears to be a typographical error as the injury date is February 24, 2004.

3

taking medications for his accepted injury, he was disqualified from his duties as an air traffic
controller.
In an April 10, 2008 report, Dr. Clauson reviewed appellant’s history of injury and
diagnosed degenerative disc disease. He stated that appellant returned to work full time until
February 9, 2006. Dr. Clauson noted that appellant was placed in a different job “where the
ergonomics were not the same as the other job where he did not have to twist, lean and change
positions all the time, but, at this time in his work, he twisted and leaned every hour.”
Appellant’s low back pain was aggravated and he examined sleep deprivation due to pain.
Dr. Clauson advised that he was placed on chronic opioids and unable to work. As to appellant’s
degenerative disc disease, an MRI scan from 2004 showed minor Grade 1 spondylolisthesis at
L5 and SI and minimal disc bulge at L4-5 and facet changes at L3-4, L4-5, and L5-S1 with some
minor arthritis. He opined that appellant’s physical condition was aggravated by the workrelated injury and that there was no nonwork-related intervening cause for his low back pain.
Dr. Clauson opined that “these two episodes obviously caused him to have pain flares, the last
one the worse, so that he has been unable to return to work.” He also advised that, while
appellant had some degenerative changes in his back before the work injury, he was able to work
with those changes without medication for many years until the 2006 episode.
By decision dated July 17, 2008, the Office denied modification of the July 9, 2007
decision.
LEGAL PRECEDENT -- ISSUE 1
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that he can perform the light-duty position, the employee has the burden to establish by the
weight of the reliable, probative and substantial evidence a recurrence of total disability and
show that he cannot perform such light duty. As part of this burden, the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and
extent of the light-duty job requirements.2
Office regulations define the term “recurrence of disability” as an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition that
had resulted from a previous injury or illness without an intervening injury or a new exposure to
the work environment that caused the illness. This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed the employee’s physical
limitations.3

2

Conard Hightower, 54 ECAB 796 (2003).

3

20 C.F.R. § 10.5(x).

4

Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship, generally, is rationalized medical evidence.4 This consists of a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.5 The physician’s
opinion must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained cervical and lumbar strains on
February 24, 2004. Appellant returned to modified duties after his work injury. He claimed a
recurrence of disability beginning February 22, 2006. Appellant also contends that the
degenerative disc disease of his spine was aggravated by his injury. The Board finds that this
case is not in posture for decision.
In support of his claim for a recurrence of disability, appellant submitted reports from
Dr. Clauson who diagnosed lumbar L5-S1 spondylolisthesis Grade 1, early degenerative disc
disease at L4-5, cervical degenerative disc disease at C5-6 and C6-7, obesity, high cholesterol,
and high blood pressure. Dr. Clauson stated that the collapse of the chair on February 24, 2004
could easily fracture a pars in the facet joints and cause this type of spondylolisthesis. He noted
ergonomic differences in the new work sector and advised that appellant’s chronic condition of
multi-level lumbar disc disease and cervical degenerative disc disease had been permanently
aggravated by the 2004 injury. As the ergonomics were not the same as the prior job, where
appellant did not have to twist, lean, and change positions, in the new sector he twisted and
leaned every hour. This aggravated appellant’s back and he developed sleep deprivation because
he could not sleep due to the pain. Dr. Clauson advised that appellant was placed on chronic
opioids and was unable to work.
The Board finds that, while the medical evidence from Dr. Clauson is insufficiently
rationalized to establish that appellant sustained a recurrence of disability or that his work injury
caused an aggravation of a preexisting degenerative spine condition, this evidence raises an
unrefuted inference of causal relationship sufficient to require further development of the case
record by the Office.7

4

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

5

Duane B. Harris, 49 ECAB 170, 173 (1997).

6

Gary L. Fowler, 45 ECAB 365, 371 (1994).

7

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978); see also Cheryl A. Monnell,
40 ECAB 545 (1989); Bobby W. Hornbuckle, 38 ECAB 626 (1987) (if medical evidence establishes that residuals of
an employment-related impairment are such that they prevent an employee from continuing in the employment, he is
entitled to compensation for any loss of wage-earning capacity resulting from such incapacity).

5

Regarding appellant’s light-duty job requirements, the Board also notes that the evidence
requires clarification regarding the two positions. Appellant alleged that his light-duty
requirements were changed by his employer in January 2006, when it required that he work in
the domestic sector. He alleged that the new position required more movement than work in the
oceanic control position. Appellant described certain ergonomic differences such that he was not
able to relieve the muscle spasms he was having. He also submitted statements from several air
traffic controllers who indicated that they agreed with his descriptions of the two positions.
Although the employing establishment provided a statement from Mr. Bachman which indicated
that appellant was allowed the latitude to sit or stand at his discretion to relieve pain, he also
indicated that appellant was also placed in the training program to recertify. The evidence is not
clear with regard to the ergonomic differences of the two positions. The Board finds that
additional development is needed with regard to the changes in the nature and extent of the lightduty job requirements.
Proceedings under the Federal Employees’ Compensation Act are not adversarial in
nature, nor is the Office a disinterested arbiter.8 While the claimant has the burden to establish
entitlement to compensation, the Office shares responsibility in the development of the evidence
to see that justice is done.9
On remand the Office should further develop the factual and medical evidence as to
whether there was a change in the nature and extent of appellant’s work-related condition,
including whether the work injury aggravated his preexisting degenerative disc disease, or a
change in the nature and extent of his light-duty job requirements. Following this and such
further development of the case record as it deems necessary, the Office should issue a de novo
decision on the issue of whether appellant established a recurrence of disability as of
February 22, 2006
CONCLUSION
The Board finds that this case is not in posture for decision.

8

Phillip L. Barnes, 55 ECAB 426 (2004).

9

Donald R. Gervasi, 57 ECAB 281 (2005); William B. Webb, 56 ECAB 156 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the July 17, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further action consistent with
this decision.
Issued: September 16, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTATION MEDICAL
CENTER, Loma Linda, CA, Employer
__________________________________________

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

Docket No. 07-143
Issued: May 8, 2007

Case Submitted on the Record

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

JURISDICTION
On October 20, 2006 appellant filed a timely appeal from a merit decision of the Office
of Workers’ Compensation Programs dated July 26, 2006, which terminated her wage-loss
compensation on the grounds that she refused an offer of suitable work. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
effective July 26, 2006 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On August 19, 2002 appellant, then a 54-year-old nurse, filed a traumatic injury claim
alleging that she injured her right lower arm and buttock on that date when she slipped and fell.
The Office accepted the claim for contusion to buttock, lumbosacral strain, lumbar disc
herniation, aggravation of trochanteric bursitis and lumbosacral radiculopathy and authorized

lumbar surgery, which was performed on May 17, 2004. A L5 laminectomy with bilateral
facectomy and right iliac crest bone graft was performed on August 3, 2004.1 The Office placed
appellant on the periodic rolls for temporary total disability effective May 16, 2004.
In a report dated August 8, 2005 and signed on September 28, 2005, Dr. Keola Chun, a
treating Board-certified orthopedic surgeon, concluded that appellant was capable of performing
modified work. Work restrictions included no repetitive bending, stooping and heavy lifting.
On February 13, 2006 Dr. Bunsri T. Sophon, a second opinion Board-certified orthopedic
surgeon, noted the history of injury and findings on examination. He advised that appellant was
status post L4-5 and L5-S1 spinal fusion, which was secondary to L4-5 discogenic disease and
degenerative Grade 1 L5-S1 spondylolisthesis. Dr. Sophon found that she was capable of
working with restrictions. In an attached work capacity evaluation (Form OWCP-5c), he
indicated that appellant had permanent restrictions which included up to six hours of sitting,
walking and standing and eight hours of bending/stooping and four hours of lifting.
In a letter dated March 3, 2006, appellant disagreed with Dr. Sophon’s conclusions. She
contended that she was totally disabled.
On April 28, 2006 the employing establishment offered appellant a modified position as a
Move program RN assistant coordinator based upon the eight-hour per day restrictions issued by
Dr. Sophon. The employing establishment offered appellant the position of Move program RN
assistant coordinator with the hours of 9:00 a.m. to 5:00 p.m. within the physical restrictions
noted by Dr. Sophon. The position was available as of May 14, 2006. Duties of the position
included providing “indirect patient care mainly via telephone and other form of correspondence
care by promotion education.” Appellant refused the offered position contending that she could
not work the hours indicated and that her pain medication made her sleepy.
In a June 8, 2006 letter, the Office advised appellant that the offered position was found
suitable and conformed with her medical limitations. Appellant was notified of the penalty
provisions of section 8106 of the Federal Employees’ Compensation Act2 and given 30 days to
respond. It noted that the work restrictions set by Dr. Chun, her attending physician, were in
agreement with those set by Dr. Sophon.
On June 12, 2006 appellant responded to the June 8, 2006 letter. She contended that she
was unable to perform the duties of the offered position as the prescribed medication made her
drowsy. Appellant also stated that she was incapable of working the offered schedule. She
alleged that she would not function well at work or be able to drive to work because of the side
effects of her medication.

1

On March 17, 2003 appellant filed a claim for a recurrence of disability beginning August 31, 2002, which was
denied by the Office by decision dated May 5, 2003.
2

5 U.S.C. §§ 8101-8193, § 8106.

2

On July 10, 2006 the Office found that the offered position was still available and advised
appellant that her reasons for refusing it were not acceptable. Appellant was given an additional
15 days to respond. It noted that the job offer conformed to the work restrictions given by
Dr. Sophon and her attending physician, Dr. Chun.
On July 18, 2006 appellant reiterated that she was unable to accept the position as she
was “not physically able to return to work” and that she was only able to sit or walk for
30 minutes. She also noted that she was unable to move in the morning until she took the pain
medication which made her drowsy.
By decision dated July 26, 2006, the Office terminated appellant’s wage-loss
compensation effective that date on the grounds that she refused an offer of suitable work.3
LEGAL PRECEDENT
The Act provides at section 8106(c)(2) that a partially disabled employee who refuses or
neglects to work after suitable work is offered is not entitled to compensation.4 Once the Office
accepts a claim, it has the burden of justifying termination or modification of compensation
benefits under section 8106 for refusing to accept or neglecting to perform suitable work.5 The
Board has recognized that section 8106(c) serves as a penalty provision as it may bar an
employee’s entitlement to future compensation and, for this reason, will be narrowly construed.6
To establish that, a claimant has abandoned suitable work, the Office must substantiate that the
position offered was consistent with the employee’s physical limitations and that the reasons
offered for stopping work were unjustified.7 The issue of whether an employee has the physical
ability to perform a modified position offered by the employing establishment is primarily a
medical question that must be resolved by the medical evidence of record.8

3

The Board notes that, following the July 26, 2006 decision, the Office received additional evidence. However,
the Board may not consider new evidence on appeal. See 20 C.F.R. §§ 501.2(c); Donald R. Gervasi, 57 ECAB ___
(Docket No. 05-1622, issued December 21, 2005); Rosemary A. Kayes, 54 ECAB 373 (2003). The Board also notes
that appellant filed a request for an oral hearing before an Office hearing representative on August 3, 2006. A
hearing was initially scheduled for December 21, 2006 but was cancelled due to appellant’s filing the present appeal
with the Board.
4

5 U.S.C. § 8106(c)(2).

5

See Bryant F. Blackmon, 56 ECAB ___ (Docket No. 04-564, issued September 23, 2005); Howard Y.
Miyashiro, 51 ECAB 253 (1999).
6

See Richard P. Cortes, 56 ECAB ___ (Docket No. 04-1561, issued December 21, 2004); H. Adrian Osborne,
48 ECAB 556 (1997).
7

See Wayne E. Boyd, 49 ECAB 202 (1997).

8

See John E. Lemker, 45 ECAB 258 (1993); Camillo R. DeArcangelis, 42 ECAB 941 (1991).

3

Section 10.517(a) of the Act’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.9 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.10
ANALYSIS
The Board finds that the Office properly terminated appellant’s wage-loss compensation
for refusing to accept suitable work. The employing establishment offered her a position as a
Move program RN assistant coordinator within the physical restrictions that were provided by
both Dr. Sophon and Dr. Chun. In determining the daily work hours, the employing
establishment used Dr. Sophon’s limitation of eight hours as Dr. Chun provided no opinion as to
the number of hours appellant was capable of working. The medical evidence of record,
therefore, establishes that appellant could physically perform the duties of the offered position
particularly as the restrictions complied with those noted by Drs. Chun and Sophon.11
In order to properly terminate appellant’s compensation under section 8106, the Office
must provide notice of its finding that an offered position is suitable and give appellant an
opportunity to accept or provide reasons for declining the position.12 The record in this case
establishes that the Office properly followed the procedural requirements. By letter dated June 8,
2006, the Office advised appellant that a partially disabled employee who refused suitable work
was not entitled to compensation and that the offered position had been found suitable.
Appellant was notified of the penalty provisions of section 8106 and allotted 30 days to either
accept or provide reasons for refusing the position. In a letter dated July 10, 2006, the Office
advised appellant that the reasons given for not accepting the job offer were unacceptable. She
was given an additional 15 days in which to accept the job. There is no evidence of a procedural
defect in this case as the Office provided appellant with proper notice. She was offered a
suitable position by the employing establishment and such offer was refused. Thus, under
section 8106 of the Act, her compensation was properly terminated effective July 26, 2006.13
Appellant generally alleged that it was improper for the Office to terminate her
compensation benefits because her medication made her drowsy and unable to drive to work or
work for eight hours. The Board notes the duties of the offered position were within her
restrictions provided by both Drs. Chun and Sophon. Appellant did not submit medical evidence
to establish that the eight-hour workday or duties of the position were outside appellant’s
restrictions. The employing establishment complied with the restrictions noted by Drs. Chun
9

20 C.F.R. § 10.517(a); Richard P. Cortes, 56 ECAB ___ (Docket No. 04-1561, issued December 21, 2004);
Ronald M. Jones, 52 ECAB 190 (2000).
10

20 C.F.R. § 10.516; Mary E. Woodard, 57 ECAB ___ (Docket No. 05-1023, issued November 14, 2005).

11

Gayle Harris, 52 ECAB 319 (2001).

12

Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

13

Joyce M. Doll, 53 ECAB 790 (2002).

4

and Sophon by offering the job with restrictions on lifting and standing. As the job complied
with her physical restrictions, appellant failed to submit medical evidence to establish that she
was physically unable to perform the duties of the offered position or was impaired from
performing the job due to her medication. The record is devoid of any medical evidence
supporting appellant’s contention that the medication she takes would prevent her from
performing the duties of the offered position or working eight hours. The Office properly
terminated her wage-loss compensation effective July 26, 2006 on the grounds that she refused
an offer of suitable work.14
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss compensation
effective July 26, 2006 pursuant to 5 U.S.C. § 8106(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 26, 2006 is affirmed.
Issued: May 8, 2007
Washington, DC

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

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

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

14

Id.

5


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

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

Docket No. 20-1668
Issued: March 2, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 28, 2020 appellant, through counsel, filed a timely appeal from an August 5,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over 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
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP following the August 5, 2020 decision.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case
record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by
the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that OWCP should
expand the acceptance of her claim to include a low back injury, pelvic or hip condition, right lower
extremity pain, and a balance disorder causally related to an accepted July 23, 2019 employment
injury.
FACTUAL HISTORY
On July 23, 2019 appellant, then a 52-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her right shin when she stepped into a hole
on a customer’s property while in the performance of duty. She stopped work on July 23, 2019. On
August 7, 2019 OWCP accepted the claim for right ankle sprain, a right lower extremity laceration,
and cellulitis of the right lower extremity.
In an August 8, 2019 report, Dr. Amy S. Beck, an osteopath Board-certified in internal
medicine, noted that the right anterior shin laceration was healing poorly, with serous sanguineous
fluid and mild surrounding reactive erythema. In a separate note of the same date, she held appellant
off work through August 29, 2019.
OWCP paid appellant wage-loss compensation on the supplemental rolls from September 7
through 13, 2019.
In September 18, 2019 reports, Dr. David S. German, a Board-certified plastic surgeon,
noted that appellant sustained a right lower leg injury with flap laceration on July 23, 2019. He
diagnosed a healed chronic ulcer of the right anterior lower leg and right lower leg discomfort with
activity. In a work status report of the same date, Dr. German returned appellant to light-duty work
with a restriction against operating vehicles.
Appellant returned to part-time, light-duty work on or about September 18, 2019 and again
stopped work on September 21, 2019.
In a September 23, 2019 prescription note, Dr. German held appellant off work through
October 3, 2019. In a report dated September 27, 2019, he returned her to light-duty work for four
hours a day with restrictions. Dr. German released appellant to full-duty work as of
October 14, 2019.4
Appellant resumed light-duty work on October 5, 2019. She stopped shortly afterward due
to right lower extremity pain. 5

4

Dr. German submitted periodic reports dated through November 6, 2019 noting appellant’s continuing lumbar and
right lower extremity symptoms.
5

OWCP received an October 5, 2019 hospital emergency department report signed by Nichole MacLellan, a family
nurse practitioner.

2

In a letter dated October 10, 2019, appellant requested that OWCP expand its acceptance of
her claim to include a balance problem, paraspinal muscle spasms, back pain, right hip pain,
coccygeal pain right lower extremity pain, right knee pain, and right-sided pelvic pain.
In an October 11, 2019 report, Dr. Mahesh Bagwe, a Board-certified orthopedic surgeon,
noted appellant’s complaints of back discomfort due to a slight limp. He opined that October 10,
2019 magnetic resonance imaging (MRI) scans of the right lower extremity demonstrated edema at
the anterior tibia wound site, and mild tendinitis along multiple tendons of the right ankle. 6
Dr. Bagwe recommended physical therapy to address muscle weakness in the right lower extremity.
In a development letter dated October 22, 2019, OWCP informed appellant of the additional
evidence needed to expand her claim for additional conditions causally related to the July 23, 2019
employment incident. It afforded her 30 days to submit the necessary evidence.
In response, appellant submitted an October 5, 2019 emergency department report by
Dr. John P. Fortney, Board-certified in emergency medicine, who diagnosed low back pain and
sequela of the accepted right lower extremity injury.
In an October 6, 2019 emergency department report, Dr. Steven Hilton, Board-certified in
emergency medicine, noted appellant’s complaints of back pain after lifting items and placing
weight on her right leg while at work. Appellant also experienced right-sided low back spasms
while pushing and pulling carts at work. Dr. Hilton opined that her back pain and spasms were due
to not bearing weight on her right leg for some time and continuing to favor it.
In an October 8, 2019 report, Dr. Beck diagnosed acute right-sided low back pain, neck pain,
weakness, and gait instability.
In an October 30, 2019 report, Dr. Bagwe noted slight weakness of right plantar flexion. He
recommended physical therapy to address deficits in balance and strength.
Appellant returned to work for four hours a day in early November 2019.
In a November 6, 2019 emergency department report, Dr. Thomas F. Wheeler, Boardcertified in emergency medicine, diagnosed lumbar spasm.
In reports dated November 8 and 13, 2019, Dr. Bagwe opined that appellant had right leg
weakness as she had not been physically active for months during recuperation from the July 23,
2019 employment injury. He recommended a work conditioning program. 7
In a December 12, 2019 development letter, OWCP again informed appellant of the type of
medical evidence needed to expand acceptance of her claim to include additional conditions causally

6

An October 10, 2019 MRI scan of the right lower extremity demonstrated subcutaneous edema in the region of a
skin wound anterior to the tibia, intramuscular edema within the tibialis anterior muscle and mild irregularity of its
myotendinous junction, and possible fluid collection along the anterior margin of the tibialis anterior muscle.
7

November 14, 2019 electromyography/nerve conduction velocity testing of the right lower extremity was within
normal limits.

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related to the July 23, 2019 employment incident. It noted that there was no deadline for her to
request expansion of her claim.
In a December 13, 2019 report, Dr. Bagwe noted that appellant was able to balance easily
on her right lower extremity and had run half a mile on a treadmill without difficulty. He noted that
an MRI scan demonstrated an injury to the tibialis anterior musculature with soft tissue injury and
a partial tear of the tibialis anterior tendon. In reports through January 15, 2020, Dr. Bagwe
recommended that appellant gradually increase her work hours.
By decision dated January 29, 2020, OWCP denied expansion of the claim to include
additional diagnosed conditions of the back or right knee, finding that the medical evidence of record
did not diagnose a back or knee condition or support a causal relationship between any additional
conditions and the July 23, 2019 employment injury.
On February 4, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review held on June 5, 2020. She submitted
additional evidence.
In January 31, 2020 reports, Dr. Bagwe noted that appellant had scar tissue at the site of the
accepted injury that moved with flexion of the tibialis anterior muscle. He opined that she had
residual weakness in her tibialis anterior musculature that affected her balance. Dr. Bagwe
permanently restricted lifting to 60 pounds.
In an April 2, 2020 report, Dr. Bagwe opined that appellant had attained maximum medical
improvement (MMI) on January 31, 2020. He opined that she had sustained 15 percent permanent
impairment of the right lower extremity. Dr. Bagwe noted permanent work restrictions against
working more than eight hours a day and lifting more than 60 pounds. He opined that these
restrictions and permanent impairment were “the result of [appellant’s] loss of strength of the tibialis
anterior musculature due to a partial tendon and muscular laceration.” Appellant had chronic right
lower extremity weakness that precipitated “early fatigue and poor balance with isolated weight
bearing on [her] right lower extremity.”
By decision dated August 5, 2020, the hearing representative affirmed the prior decision.
She found that the medical evidence was insufficient to establish causal relationship between the
July 23, 2019 employment incident and right knee, pelvis, hip, low back, or balance conditions.
Additionally, appellant related her conditions to restricted duties performed following the accepted
injury.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.8

8

D.B., Docket No. 20-1280 (issued March 2, 2021); R.R., Docket No. 19-0086 (issued February 10, 2021); K.T.,
Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

4

Causal relationship is a medical question that requires medical opinion evidence to resolve
the issue.9 The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the accepted
employment injury.10
To establish causal relationship between the condition as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evidence. 11 The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant. 12 The weight of medical evidence is determined by
its reliability, its probative value, its convincing quality, the care of analysis manifested, and the
medical rationale expressed in support of the physician’s opinion.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that OWCP
should expand the acceptance of her claim to include additional medical conditions as causally
related to an accepted July 23, 2019 employment injury.
Dr. Fortney indicated in his October 5, 2019 report that appellant had low back pain related
to sequela of the accepted right lower extremity injury. Dr. Hilton opined on October 6, 2019 that
appellant’s lumbar spasms were caused by not bearing weight on her right lower extremity during
recuperation and continuing to favor it. Both physicians provided a conclusory opinion and did not
explain, with rationale, their opinions as to how the accepted employment injury had caused or
aggravated additional diagnosed conditions. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/disability was causally related to employment factors.14 Thus, their opinions are
of limited probative value and insufficient to establish expansion of the claim.
In an August 8, 2019 reports, Dr. Beck held appellant off work noting that her right anterior
shin laceration was healing poorly. She observed objective right leg weakness and acute right-sided
lumbar pain, as noted in her October 8, 2019 report. Dr. Wheeler diagnosed gait instability and
right lower extremity weakness in his November 6, 2019 report. However, these medical reports
9

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

10

Id.

11

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
12

D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
13

See P.M., Docket No. 18-0287 (issued October 11, 2018).

14

D.S., Docket No. 21-0673 (issued October 10, 2021); A.L., Docket No. 18-1706 (issued May 20, 2019); Y.D.,
Docket No. 16-1896 (issued February 10, 2017).

5

do not offer an opinion as to whether these diagnosed conditions were causally related to the
accepted employment injury. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 15 These reports are, therefore, of no probative value on the issue of causal
relationship and are insufficient to meet appellant’s burden of proof.
In an October 11, 2019 report, Dr. Bagwe noted appellant’s complaints of back discomfort
due to a slight limp. In an October 30, 2019 report, he noted slight weakness of right plantar flexion.
In November 8 and 13, 2019 reports, Dr. Bagwe attributed this weakness to physical inactivity
during recuperation from the July 23, 2019 employment injury. He opined in January 31, 2020
reports that residual weakness in the tibialis anterior musculature affected appellant’s balance.
Dr. Bagwe noted in an April 2, 2020 report that the accepted laceration caused weakness of the
tibialis anterior musculature that precipitated poor balance with isolated weight bearing on
appellant’s right lower extremity. Although Dr. Bagwe indicated that the accepted injury could
cause or contribute to the additional conditions, he did not specify the objective clinical findings
that established causation. The Board has held that a medical opinion must provide an explanation
of how the specific employment incident or employment factors physiologically caused or
aggravated the additional diagnosed conditions. 16 Therefore, the Board finds that Dr. Bagwe’s
reports are of limited probative value and insufficient to establish appellant’s burden of proof.
In September 18, 2019 reports, Dr. German noted that appellant sustained a right lower leg
injury with flap laceration on July 23, 2019 and diagnosed a healed chronic ulcer of the right anterior
lower leg and right lower leg discomfort with activity. In a work status report of the same date, he
returned appellant to light-duty work with a restriction against driving vehicles. In a September 23,
2019 prescription note, Dr. German held appellant off work through October 3, 2019. In a report
dated September 27, 2019, he returned her to light-duty work for four hours a day with restrictions,
releasing appellant to full-duty work as of October 14, 2019. Dr. German also submitted periodic
reports through November 6, 2019, noting appellant’s continuing lumbar and right lower extremity
symptoms. In none of those reports, however, did Dr. German provide an opinion regarding causal
relationship between appellant’s additional diagnosed conditions and the accepted July 23, 2019
employment injury. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship. 17 Thus, the Board finds that the reports of Drs. German are of no probative value on
the issue of causal relationship and are insufficient to meet appellant’s burden of proof.

15

S.S., Docket No. 21-0837 (issued November 23, 2021); see J.M., Docket No. 19-1926 (issued March 19, 2021);
L.D., Docket No. 20-0894 (issued January 26, 2021); T.F., Docket No. 18-0447 (issued February 5, 2020); L.B., Docket
No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
16

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and a
diagnosed condition/disability).
17

Id.

6

Appellant also submitted diagnostic studies that addressed her right lower extremity.
However, the Board has held that diagnostic studies, standing alone, lack probative value on the
issue of causal relationship. 18
As the medical evidence of record is insufficient to establish expansion of the acceptance of
the claim to include additional conditions causally related to or as a consequence of her accepted
employment injury, the Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that OWCP
should expand the acceptance of her claim to include a low back injury, pelvic or hip condition,
right lower extremity pain, and a balance disorder causally related to an accepted July 23, 2019
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 2, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

S.S., id.; C.H., Docket No. 20-0228 (issued October 7, 2020); E.G., Docket No. 17-1955 (issued
September 10, 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Albuquerque, NM, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1303
Issued: January 9, 2012

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 May 5, 2011 appellant, through his attorney, filed a timely appeal from the March 24,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) regarding an
overpayment of compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to establish that appellant
received a $3,689.38 overpayment of compensation; and (2) whether OWCP abused its
discretion by refusing to waive recovery of the overpayment.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. In a June 16, 2010 decision,2 the Board
reversed OWCP’s September 1, 2009 decision finding that appellant received a $3,689.38
overpayment of compensation and that the overpayment was not subject to waiver. The Board
found that OWCP did not adequately explain how the overpayment occurred and that he would
not be able to understand the precise defect of his claim and the kind of evidence which would
tend to overcome it. The Board noted that the overpayment calculation appeared to be based, at
least in part, on a June 8, 2009 worksheet completed by Tim Cooper, an OWCP benefits
consultant. The worksheet was not provided to appellant in connection with OWCP’s
preliminary overpayment determination and several of the calculations contained in the
worksheet were not adequately explained or supported by the record.3
In a July 8, 2010 notice, OWCP advised appellant of its preliminary determination that he
received a $3,689.38 overpayment of compensation “because Optional B freeze premiums were
not being collected.”4 It made a preliminary determination that he was not at fault in the creation
of the overpayment. OWCP advised appellant that he could submit evidence challenging the
fact, amount or finding of fault and request waiver of the overpayment. It requested that he
complete and return an enclosed financial information questionnaire within 30 days even if he
was not requesting waiver of the overpayment.
In an accompanying memorandum, OWCP provided a calculation of the overpayment
which noted that mistakes in withholding life insurance premiums resulted in amounts of
compensation being owed to appellant and amounts which constituted overpayments to him.
Although no mention was made of the June 8, 2009 worksheet of Mr. Cooper, it appears that the
calculations contained in this memorandum were based on the calculations contained in the

2

Docket No. 09-2353 (issued June 16, 2010). OWCP accepted that on July 16, 1990 appellant, then a 50-yearold blind rehabilitation specialist, sustained a work-related permanent aggravation of angina. Appellant retired from
the employing establishment in 1991. The record contains an Option B life insurance election form showing that
appellant elected to freeze his Option B life insurance at its value when he turned 65 years old.
3

In his June 8, 2009 worksheet finding a $3,689.38 overpayment, Mr. Cooper indicated that mistakes in
withholding life insurance premiums resulted in amounts of compensation being owed to appellant and amounts
which constituted overpayments to appellant. Mr. Cooper asserted that appellant was owed $76.82 because between
June 26, 1994 and October 30, 2004 improper figures were used for basic life insurance premiums. Appellant was
owed $567.60 because between September 4, 2005 and December 20, 2008 OWCP improperly deducted basic life
insurance premiums as he was over 65 years old during this period. Mr. Cooper claimed that appellant received a
$663.53 overpayment because basic life insurance premiums were not deducted between June 1, 1991 and
June 25, 1994. Appellant was owed $879.84 because between September 4, 2005 and April 11, 2009 postretirement
“0 percent reduction premiums” were deducted instead of “50 percent reduction premiums.” He received a
$1,148.16 overpayment because a “postretirement under deduction of premiums” was made between June 26, 1994
and June 15, 2002. Mr. Cooper asserted that appellant received a $3,402.05 overpayment because Option B freeze
payments were not collected between December 1, 2004 and September 3, 2005. To conclude that appellant
received a $3,689.38 overpayment of compensation, Mr. Cooper offset the amounts owed to appellant against the
amounts found to constitute overpayments of compensation.
4

In another part of the notice, OWCP indicated that Option B freeze premiums were not collected for the period
June 1, 1991 to June 24, 1994.

2

June 8, 2009 worksheet.5 However, no further explanation of the calculations contained in the
June 8, 2009 worksheet was provided. OWCP did not provide any further documents in support
of the calculations.
Appellant requested a hearing with an OWCP hearing representative regarding the
overpayment matter. At the December 15, 2010 hearing, counsel contended that OWCP did not
adequately explain the fact and amount of the claimed overpayment. On January 4, 2011
appellant completed a financial information questionnaire in which he indicated that he had
$3,633.00 in monthly income and $3,500.00 in monthly expenses.
In a March 24, 2011 decision, an OWCP hearing representative determined that appellant
received a $3,689.38 overpayment of compensation and that the overpayment was not subject to
waiver. She provided another recitation of the calculations contained in the July 8, 2010
preliminary overpayment notice, but did not provide any additional explanation of the
calculations. The hearing representative reviewed the financial information provided by
appellant and determined that the overpayment was not subject to waiver. She asserted that
some of the monthly expenses listed by him were inflated and were not adequately supported by
documentation. It was determined that appellant could repay the overpayment at a rate of
$150.00 per month.
LEGAL PRECEDENT
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.6 Section 8129(a) of FECA provides, in pertinent part, “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”7
Under the Federal Employees’ Group Life Insurance Program (FEGLI), most civilian
employees of the Federal Government are eligible to participate in basic life insurance and one
or more of the options.8 The coverage for basic life insurance is effective unless waived9 and the
premiums for basic and optional life coverage are withheld from the employee’s pay.10 While
the employee is receiving compensation under FECA, deductions for insurance are withheld
from the employee’s compensation.11 At separation from the employing establishment, the
5

See infra note 3.

6

5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

8

Id. at § 8702(a).

9

Id. at § 8702(b).

10

Id. at § 8707.

11

Id. at § 8707(b)(1).

3

FEGLI insurance will either terminate or be continued under “compensationer” status. If the
compensationer chooses to continue basic and optional life insurance coverage, the schedule of
deductions made will be used to withhold premiums from his compensation payments.12 When
an under withholding of life insurance premiums occurs, the entire amount is deemed an
overpayment of compensation because OWCP must pay the full premium to the Office of
Personnel Management upon discovery of the error.13
In determining whether a claimant has discharged his burden of proof and is entitled to
compensation benefits, OWCP is required by statute and regulations to make findings of fact.14
OWCP procedure further specifies that a final decision of OWCP must include findings of fact
and provide clear reasoning which allows the claimant to “understand the precise defect of the
claim and the kind of evidence which would tend to overcome it.”15 These requirements are
supported by Board precedent.16
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to establish that appellant
received a $3,689.38 overpayment of compensation.
In a July 8, 2010 notice, OWCP advised appellant of its preliminary determination that he
received a $3,689.38 overpayment of compensation stating that the overpayment occurred
“because Optional B freeze premiums were not being collected.” It provided a calculation of the
overpayment which appears to have been based on a June 8, 2009 worksheet in which
Mr. Cooper, an OWCP benefits technician, provided calculations ostensibly showing a $3,689.38
overpayment of compensation.17
Despite the fact that the July 8, 2010 notice contains the substance of the June 8, 2009
worksheet of Mr. Cooper, the nature of the claimed overpayment was not adequately explained.18
As noted in the prior decision, the June 8, 2009 worksheet was not sufficient, of itself, to explain
or support the overpayment calculations. For example, Mr. Cooper claimed that appellant
received a $663.53 overpayment because basic life insurance premiums were not deducted
between June 1, 1991 and June 25, 1994. The record reveals that appellant retired in 1991 but it
12

Id. at § 8706(b).

13

Id. at § 8707(d); see Keith H. Mapes, 56 ECAB 130 (2204); James Lloyd Otte, 48 ECAB 334 (1997).

14

Id. at § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or
against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.”
15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997).

16

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

17

There is no indication that appellant was provided with this worksheet in connection with OWCP’s preliminary
overpayment determination.
18

The March 24, 2011 decision finalizing the $3,689.38 overpayment does not contain any additional information
regarding the nature of the overpayment.

4

does not contain any documents showing whether or when he elected to have basic life insurance
coverage after his retirement. Mr. Cooper asserted that appellant received a $1,148.16
overpayment because a “postretirement under deduction of premiums” was made between
June 26, 1994 and June 15, 2002. However, there is no explanation of the nature of these
premiums or why it was felt that they were not fully deducted for this period. Mr. Cooper stated
that appellant received a $3,402.05 overpayment because Optional B freeze payments were not
collected between December 1, 2004 and September 3, 2005 but OWCP’s preliminary
overpayment determination also indicated that this noncollection occurred between June 1, 1991
and June 25, 1994. The Board also notes that OWCP did not provide any further documents in
support of the overpayment calculations such as documents showing when appellant might have
started certain insurance coverages or documents showing the amount of his insurance
premiums.
Although OWCP provided additional information in support of its calculation of a
$3,689.38 overpayment of compensation, it still failed to address many of the deficiencies
outlined by the Board in its June 16, 2010 decision reversing OWCP’s finding of an
overpayment. For these reasons, it did not meet its burden of proof to show that appellant
received a $3,689.38 overpayment of compensation. As noted above, its burden of proof
includes providing a given claimant with fact findings and reasoning which would allow the
claimant to understand the precise nature of the determination being made by OWCP.19 This
burden of proof was not met by OWCP in the present case.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to show that appellant
received a $3,689.38 overpayment of compensation.

19

See supra note 15. Because OWCP has not established the existence of an overpayment of compensation, it is
not necessary to consider whether OWCP abused its discretion by refusing to waive recovery of the overpayment.

5

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 9, 2012
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Mobile, AL, Employer
__________________________________________

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

Docket No. 08-263
Issued: June 3, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 27, 2007 regarding a forfeiture of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether the Office properly determined that appellant forfeited his
compensation pursuant to 5 U.S.C. § 8106(b)(2) for the periods January 1, 1995 to April 21,
1997, January 16, 1998 to April 7, 2004 and April 22, 2004 to July 22, 2005.
FACTUAL HISTORY
The Office accepted that appellant sustained cervical and facial fractures, leg and foot
contusions and a concussion in the performance of duty on January 14, 1992 when he was struck
by a falling tree while in the performance of duty. Appellant received compensation for total
disability on the periodic rolls.

In accord with established Office procedure, appellant was required to complete Form
EN1032 questionnaire forms regarding his earnings and employment activity for the previous 15
months. The form explained that a claimant must report all self-employment or involvement in
any business enterprise, including, but not limited to, farming, sales work, operating a business
or providing services in exchange for money, goods or other services. In addition, the EN1032
advised the employee that, if duties were performed in any business enterprise for which he or
she was not paid, he was to report the rate of pay it would have cost to hire someone to perform
such duties. On EN1032 forms signed on April 1, 1996, April 21, 1997, April 16, 1999, April 5,
2000, April 4, 2001, April 9, 2002, April 3, 2003, April 7, 2004 and July 22, 2005 appellant
indicated that he had no self-employment or business enterprise involvement for the previous 15
months.
On May 7, 2007 the Office received an investigative memorandum dated May 1, 2007
from the Office of the Inspector General (OIG). The evidence included a December 6, 2006
report from the employing establishment’s criminal investigation division. According to the
OIG report, appellant had received subsidies from the Department of Agriculture (USDA) in
1995, 1996 and 1999 to 2003. A farm subsidy database reported that appellant had received
subsidies for livestock feed and livestock emergency assistance. In the years 2000 and 2002 to
2004, sale of cattle were recorded under appellant’s name. The last cattle sale in 2004 was
reported as April 16, 2004. The December 6, 2006 report stated that appellant was interviewed
on September 26, 2006 and he “admitted he sold cattle for profit, but stated that his family
cooperatively raised the livestock and had done so since the 1970’s. He stated profits from the
sale of cattle were divided equally among approximately eight family members.”
By letter dated May 25, 2007, the Office advised appellant of the findings in the
investigative reports and requested additional information. In a June 11, 2007 response,
appellant asserted his brothers had sold cattle, but he himself had never sold cattle. He stated he
was not involved with his brothers because he could not do the work.
By decision dated September 27, 2007, the Office determined that appellant had forfeited
his right to compensation for the periods January 1, 1995 to April 21, 1997, January 16, 1998 to
April 7, 2004 and April 22, 2004 to July 22, 2005.
LEGAL PRECEDENT
Section 8106(b) of the Federal Employees’ Compensation Act provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at times the Secretary specifies.… An employee who -(1) fails to make an affidavit or report when required; or
(2) knowingly omit or understates any part of his earnings;
forfeits his right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this subsection, if

2

already paid, shall be recovered … under section 8129 of this title, unless
recovery is waived under that section.”1
The Office’s regulations provide “Earnings from employment or self-employment
means:
“(1) Gross earnings or wages before any deductions and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack of profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”2
ANALYSIS
The forfeiture determination in this case is based on the submission of specific EN1032
forms. On these forms appellant denied any self-employment or involvement in a business
enterprise, and reported no earnings for the previous 15 months. With respect to the forms
completed on April 1, 1996, April 21, 1997 and April 16, 1999 the evidence of record supports a
finding that appellant failed to report earnings. In 1995, 1996 and 1999, appellant received
Department of Agriculture subsidies for livestock-related expenses. A subsidy is a benefit
provided by the government to a work enterprise.3 As noted above, reimbursed expenses are
considered earnings from employment or self-employment. The subsidies are remuneration to
appellant and the value of such remuneration constitutes earnings.4 The EN1032 requires that
earnings from self-employment or a business enterprise be reported, and for the years 1995, 1996
and 1999 appellant failed to report earnings.
With respect to EN1032 forms completed in April of the years 2000 through 2004, the
evidence also supports a finding that appellant failed to report earnings. Appellant received
USDA livestock subsidies in the years 2000 through 2003, according to the evidence of record.
In addition, there were sales of cattle in appellant’s name in 2000 and from 2002 through
April 16, 2004. According to appellant, these sales were made by his brothers, but the evidence
from the stockyard that conducted the sales reported the sales in appellant’s name. None of these
earnings were reported on the EN1032 forms.
1

5 U.S.C. § 8106(b).

2

20 C.F.R. § 10.5(g) (April 2007).

3

A subsidy is defined as a “grant of money made by the government in aid of the promoters of any enterprise,
work or improvement in which the government desires to participate, or which is considered a proper subject for
government aid, because such purpose is likely to be of benefit to the public.” Black’s Law Dictionary (5th ed.
1979).
4

As the Board explained in Christine P. Burgess, 43 ECAB 449 (1992), every form of remuneration, including
reimbursed expenses and similar benefits, must be reported as earnings.

3

The Board notes that the Office also forfeited compensation for the 15-month period
prior to a July 22, 2005 EN1032. The forfeiture in this case appeared to be based on the sale of
cattle in 2004. But the documents of cattle sales reported the last sale in 2004 was on
April 16, 2004. The period covered by the July 22, 2005 EN1032 began on April 22, 2004. The
Office did not document any earnings during this period. There was no evidence of subsidies,
cattle sales or any unreported remuneration. The Board accordingly finds the evidence does not
support a forfeiture of compensation for the period April 22, 2004 to July 22, 2005.
Since the evidence does establish appellant omitted earnings, the remaining question is
whether the omission was “knowingly.” The term “knowingly” is defined in the regulations
governing administration of claims filed under the Act as “[w]ith knowledge, consciously,
willfully, or intentionally.”5 The language in the EN1032 is clear and unambiguous regarding
self-employment and specifically includes farming. The USDA subsidies were a direct payment
to appellant and he offered no explanation as to why he did not report the earnings. As to the
cattle sales, appellant appeared to indicate to the investigators that, since he split the proceeds
with family members, he did not believe he needed to report the earnings. There is no language
in the EN1032 suggesting that income divided among family members need not be reported.
The form states that even if appellant did not receive any direct payment for work benefiting a
family member in a business enterprise, the value of the work must be reported.
Based on the probative evidence, the Board finds that appellant knowingly omitted
earnings on the EN1032 forms from April 1, 1996 to April 21, 1997 and April 16, 1999 to
April 7, 2004. Pursuant to 5 U.S.C. § 8106(b), the Office properly forfeited his compensation.
CONCLUSION
Appellant forfeited his compensation from January 1, 1995 to April 21, 1997 and
January 16, 1998 to April 7, 2004 because he knowingly omitted earnings. For the period
April 22, 2004 to July 22, 2005, the evidence was not sufficient to establish a forfeiture of
compensation was warranted.

5

20 C.F.R. § 10.5(n).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 27, 2007 is affirmed with respect to the periods
January 1, 1995 to April 21, 1997 and January 16, 1998 to April 7, 2004. The September 27,
2007 decision is reversed with respect to the period April 22, 2004 to July 22, 2005.
Issued: June 3, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5