United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Memphis, TN, Employer
__________________________________________

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

Docket No. 07-65
Issued: October 11, 2007

Case Submitted on the Record

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

JURISDICTION
On October 10, 2006 appellant filed a timely appeal of an April 20, 2006 merit decision
of the Office of Workers’ Compensation Programs, finding that he received an overpayment in
the amount of $63,595.14 for which he was at fault and deducting $400.00 each month from his
continuing compensation; an April 21, 2006 merit decision, finding that he received an
overpayment in the amount of $1,159.45, denying waiver of the overpayment and deducting
$116.00 from his continuing compensation, and a June 15, 2006 nonmerit decision, denying his
untimely request for reconsideration and finding that it failed to establish clear evidence of error.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
overpayment issues.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $63,595.14 from June 18, 2000 to September 6, 2003, due to receipt of total disability
compensation instead of partial disability compensation based on a loss of wage-earning capacity
determination; (2) whether the Office properly found that appellant was at fault in the creation of
this overpayment and, therefore, ineligible for waiver of the overpayment; (3) whether the Office

properly directed that this overpayment should be recovered by deducting $400.00 from
appellant’s continuing monthly compensation payments; (4) whether appellant received an
overpayment of compensation in the amount of $1,159.45 from August 22, 1993 to June 17,
2000 and September 7, 2003 to June 11, 2005, due to an incorrect loss of wage-earning capacity
pay rate; (5) whether the Office properly denied waiver of this overpayment; (6) whether the
Office properly directed that this overpayment should be recovered by deducting $116.00 from
appellant’s continuing monthly compensation payments; and (7) whether the Office properly
determined that the issue presented was whether appellant’s October 3, 2005 request for
reconsideration was timely filed and established clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board on three occasions. In an order issued on
August 31, 1994,1 the Board dismissed appellant’s appeal of the Office’s January 24, 1994
decision, denying his request for reconsideration of its August 6, 1993 decision which found that
the constructed position of orthotist represented his wage-earning capacity.2 Appellant wished to
submit new evidence to the Office in support of a request for reconsideration. By decision dated
February 7, 1997, the Board affirmed the Office’s January 24, 1994 decision.3 It found that the
Office properly denied appellant’s request for a merit review of the Office’s August 6, 1993 loss
of wage-earning capacity decision. The Board also affirmed the Office’s November 16, 1994
decision, denying appellant’s August 10, 1994 request for reconsideration of the August 6, 1993
decision. It found that his reconsideration request was not timely filed and failed to establish
clear evidence of error. In a July 14, 2003 decision, the Board found that the Office did not meet
its burden of proof to terminate appellant’s wage-loss and medical compensation effective
June 18, 2000.4 It found that a conflict existed in the medical opinion evidence between
Dr. Rommel G. Childress, appellant’s attending physician, and Dr. James T. Gaylon, an Office
referral physician, as to whether appellant had any residuals of his February 18, 1987
employment-related acromioclavicular separation, cervical strain and post-traumatic stress
syndrome. The facts and the circumstances of the case as set forth in the Board’s prior decisions
are incorporated herein by reference.5 The facts and the history relevant to the present issues are
hereafter set forth.

1

Docket No. 94-2190 (issued August 31, 1994).

2

The Office’s August 6, 1993 decision found that appellant had a weekly wage-earning capacity of $430.00. On
September 20, 1993 he advised the Office that he obtained work as an orthotist as of August 23, 1993. On
December 11, 1993 appellant advised the Office that he had been laid off from this position because his physical
limitations caused him to work slowly.
3

Docket No. 95-917 (issued February 7, 1997).

4

Docket No. 03-838 (issued July 14, 2003).

5

On March 3, 1987 appellant, then a 38-year-old correctional officer, filed a traumatic injury claim alleging that
on February 28, 1987 he separated his acromioclavicular joint separation of the right shoulder as a result of a motor
vehicle accident while in the performance of his work duties. The Office accepted his claim for acromioclavicular
joint separation of the right shoulder, post-traumatic stress disorder and cervical strain.

2

Following the issuance of the Board’s July 14, 2003 decision, the Office, by letter dated
December 9, 2003, advised appellant that he received a check, dated October 3, 2003 for an
incorrect payment in the amount of $89,672.79 for the period June 18, 2000 to
September 6, 2003.6 It stated that the check was incorrectly issued for total disability
compensation as he was only entitled to partial disability compensation based on its August 6,
2003 loss of wage-earning capacity decision. The Office informed appellant that it was currently
calculating the amount of the overpayment and that he would be notified by a separate letter.
On December 16, 2003 the Office made a preliminary determination that appellant
received an overpayment in the amount of $63,628.63 because he received a check in the amount
of $89,627.79 for retroactive compensation for temporary total disability covering the period
June 18, 2000 to September 6, 2003 based on the Board’s July 14, 2003 decision when he was
only entitled to compensation in the amount of $26,285.51 based on its August 6, 1993 loss of
wage-earning capacity decision.7 The Office further determined that he was at fault in the
creation of the overpayment because he was aware that the compensation he received prior to the
termination of his compensation on June 18, 2000 was based on its loss of wage-earning capacity
determination. It stated that it was reasonable to assume that appellant knew that the retroactive
check he received for the period June 18, 2000 to September 6, 2003 in the amount of
$89,914.14 was incorrect as his compensation prior to termination was based on his loss of
wage-earning capacity determination. The Office related that a day after this check was issued
appellant’s first regular 28-day compensation check in the amount of $647.00 was issued and
included his loss of wage-earning capacity. It stated that simple mathematics would have
indicated that the retroactive amount was incorrect. Appellant was advised that he could request
a telephone conference, a final decision based on the written evidence only or a hearing within
30 days if he disagreed that the overpayment occurred, with the amount of the overpayment or if
he believed that recovery of the overpayment should be waived. The Office requested that he
complete an accompanying overpayment recovery questionnaire (Form OWCP-20) and submit
financial documents in support thereof within 30 days.
In a letter dated January 15, 2004, appellant, through his attorney, disagreed with the
Office’s preliminary determination and requested a hearing. He submitted an OWCP-20 form
dated January 14, 2004 which provided his monthly income and expenses. Appellant explained
that he thought he was entitled to the incorrect payment because the Board twice ruled in his
favor and the basis for its decisions, was based at least in part, on medical reports of record
6

A computer printout of record indicates that appellant was issued a compensation check dated October 3, 2003
in the amount of $89,627.79 for the period June 18, 2000 to September 6, 2003 by direct deposit into his checking
account. The check was based on a pay rate of $455.80 effective February 28, 1987. The October 4, 2003 check in
the amount of $647.00 was based on a pay rate of $455.80 and a wage-earning capacity of $322.60. By letter dated
November 25, 2003, appellant advised the Office that the $455.80 pay rate was incorrect. He argued that the
Board’s July 14, 2003 decision clearly indicated that the medical evidence of record established that he sustained a
recurrence of disability.
7

The Board notes that, in a memorandum accompanying the December 16, 2003 overpayment preliminary notice,
the Office stated that appellant received compensation for total disability in the amount of $89,914.14 for the period
June 18, 2000 to September 6, 2003 and not $89,627.79 as stated in its preliminary notice. In the memorandum, the
Office subtracted $26,285.51, the amount appellant should have received during the stated period, from $89,914.14,
resulting in an overpayment of $63,628.63.

3

establishing that he was totally disabled and unable to work. He stated that he believed that the
Board’s ruling entitled him to full disability benefits.
Following an October 20, 2004 hearing, appellant submitted copies of checks pertaining
to his expenses.
By decision dated February 2, 2005, an Office hearing representative found that appellant
was with fault in the creation of the overpayment in the amount of $63,628.63. She found that
appellant’s belief that his recurrence of disability claim had been accepted by the Office based on
the Board’s July 14, 2003 decision was not reasonable. The hearing representative noted that his
March 1997 recurrence of disability claim had been denied by the Office and he continued to
receive compensation based on his loss of wage-earning capacity. She also noted that appellant
did not appeal the denial of his recurrence of disability claim to the Board. The hearing
representative determined that it was reasonable for him to recognize that the check he received
in the amount of $89,628.63, which was just over three years of compensation, was significantly
higher than the amount he was receiving at the time his compensation was terminated by the
Office. She found that appellant had monthly income of $4,747.00 and expenses of $2,730.94
which established that his monthly income exceeded his monthly expenses by $2,016.06. The
hearing representative stated that appellant was receiving compensation of $647.00 every 28
days and directed that $400.00 per month be deducted from his continuing compensation.
By letter dated October 3, 2005, appellant, through his attorney, requested
reconsideration of the Board’s July 14, 2003 decision. Counsel noted that, at the end of the
hearing, the hearing representative advised him that he could file a request for reconsideration
for appellant’s full monthly amount of disability “if there was new evidence of his full disability
at this time.” Counsel argued that accompanying medical evidence established that appellant
was currently totally disabled. In a September 20, 2005 report, Dr. Childress noted his prior
opinion that appellant had made significant efforts at being retrained to work but the efforts were
unsuccessful due to his inability to function even with retraining. He stated that appellant had
increasing numbness, tingling and pain in his upper extremities with repetitive activities of more
than one and one-half hours. He also had increasing post-traumatic stress disorder that required
continued treatment and monitoring by Dr. Antoine Jean-Pierre, a psychiatrist. Dr. Childress
reviewed a September 13, 2001 magnetic resonance imaging (MRI) scan of appellant’s cervical
spine which demonstrated a small herniated disc at C3-4. An MRI scan of his right shoulder and
electromyogram/nerve conduction studies (EMG/NCS) of the right and left upper extremities
was normal. Dr. Childress opined that in light of these relatively recent test results, his opinion
remained that appellant was unable to be gainfully employed and that he was totally disabled due
to a combination of physical and post-traumatic stress difficulties. He stated that his bilateral
ulnar nerve neuropathy had reverted to normal due to conservative measures; he was not
performing activities and functions that would aggravate or accelerate the condition.
Dr. Childress stated:
“[T]hat [appellant] had deterioration of his cervical problem, in that his original
diagnosis of cervical strain, now includes evidence of a C3-4 disc rupture. This is
a late result of injury and can be a potential situation that may need surgical
intervention if the small disc rupture increases or worsens.

4

“My opinion is that [appellant] continues to be totally disabled and note, indeed
his MRI scan documenting the cervical disc pathology is even more reason to
limit his work function. His post-traumatic stress syndrome is also active and is
directly related to his original injury and is still requiring active treatment by
psychiatrist, Dr. Jean-Pierre, and I would recommend a full status report regarding
this to show its significance in [appellant’s] overall status.”
On November 28, 2005 the Office issued a decision, modifying its August 6, 1993 loss of
wage-earning capacity decision. It stated that the prior wage-earning capacity calculation was
based on a date-of-injury pay rate of $430.13. The Office indicated that in October 1995
appellant’s date-of-injury pay rate was increased to $455.80 to include Sunday pay and night
differential.8 It stated that an adjustment was made to appellant’s compensation payments and a
retroactive adjustment was made back to April 17, 1987. However, no adjustment was made to
his date-of-injury pay rate or the addition of the night differential and Sunday pay to his current
date-of-injury pay rate. Pursuant to 5 U.S.C. § 8128, the Office modified its August 6, 1993
decision to reflect the adjustment for all future compensation payments beginning with the
November 26, 2005 payment.9 It advised that overpayment deductions which began with the
July 9, 2005 compensation check had been stopped and appellant would be reimbursed for all
deductions previously made. The Office stated that the change in appellant’s loss of wageearning capacity amount made the February 2, 2005 overpayment amount of $63,628.63
incorrect. It also stated that any retroactive compensation due back to August 22, 1993 to
October 29, 2005 would be calculated and applied to a new overpayment amount. The Office
advised that a new overpayment decision would be issued. It concluded that this decision only
applied to the change in the calculations pertaining to appellant’s loss of wage-earning capacity
and not to any other issue involved in its August 6, 1993 decision.
On January 25, 2006 the Office assigned appellant’s October 3, 2005 request for
reconsideration to a senior claims examiner for review. It determined that he was requesting
reconsideration of its August 6, 1993 decision and not the Board’s July 14, 2003 decision which
reversed the termination of his compensation and directed the Office to put him back on the rolls.
The Office stated that, based on appellant’s statement that the hearing representative’s decision
indicated that he could request reconsideration of the loss of wage-earning capacity
determination if he submitted medical evidence establishing that he was totally disabled, it
appeared that he was requesting reconsideration of this decision.
On March 17, 2006 the Office made a preliminary determination that appellant received
an overpayment in the amount of $63,595.14. He received a check in the amount of $89,627.79
for retroactive compensation for total disability covering the period June 18, 2000 to
September 6, 2003 based on the Board’s July 14, 2003 decision. The Office, however, stated
that he was only entitled to compensation in the amount of $26,032.65 based on its August 6,
1993 loss of wage-earning capacity decision. It determined that appellant was at fault in the
8

The Board notes that the Office’s November 2, 2005 note stated that appellant’s pay rate changed in 1994 and
not in October 1995 to include night differential and Sunday pay.
9

The Office’s November 28, 2005 decision found that appellant had a 71 percent wage-earning capacity or
weekly wages of $323.62.

5

creation of the overpayment because he accepted a payment that he knew or reasonably should
have known was incorrect. The Office stated that the day after he received a retroactive
compensation check in the amount of $89,914.14 for the period June 18, 2000 to September 6,
2003 appellant received a compensation check in the amount of $647.00 for his regular 28-day
compensation which included the loss of wage-earning capacity determination. It further stated
that simple mathematics would have indicated that the retroactive amount was incorrect. The
Office requested that appellant complete an accompanying OWCP-20 form and submit financial
documents in support thereof within 30 days. He did not respond within the allotted time period.
On March 20, 2006 the Office made a preliminary determination that appellant received
an overpayment in the amount of $1,159.45 because he was paid at an incorrect wage-earning
capacity rate for the period August 22, 1993 to June 17, 2000 and September 7, 2003 to
June 11, 2005. It stated that when it determined that appellant was entitled to a higher loss of
wage-earning capacity for the period June 18, 2000 to September 6, 2003 retroactive payments
were made back to the start of his compensation payments. The Office further stated that, due to
the modification of his loss of wage-earning capacity amount, he was overpaid and it had to
calculate a new overpayment amount for the period August 22, 1993 to June 17, 2000 and
September 7, 2003 to June 11, 2005. It indicated that, for the period August 22, 1993 to June 17,
2000, appellant received $50,147.17 in compensation based on a weekly loss of wage-earning
capacity pay rate of $323.62 when he should have received compensation in the amount of
$49,117.75 based on a weekly loss of wage-earning capacity pay rate of $322.60. The Office
subtracted $49,117.75 from $50,147.17 to calculate an overpayment of $1,029.42. For the
period September 7, 2003 to June 11, 2005, it determined that appellant received compensation
in the amount of $15,121.93 based on a weekly loss of wage-earning capacity pay rate of
$323.62 when he should have received $14,991.90 in compensation based on a weekly loss of
wage-earning capacity pay rate of $322.60. The Office subtracted $14,991.90 from $15,121.93
to calculate an overpayment in the amount of $130.03. The payments totaled $1,159.45. The
Office found that appellant was without fault in the creation of the overpayment. It informed
him of the options available to him, asked him to submit financial information and informed him
that waiver could be denied if he failed to submit financial information within 30 days.
Appellant did not respond within the allotted time period.
By decision dated April 20, 2006, the Office found that appellant was at fault in the
creation of the overpayment in the amount of $63,595.14 because he accepted a payment that he
knew or reasonably should have known was incorrect. It ordered repayment of the overpayment
by deducting $400.00 every 28 days from appellant’s compensation because he did not provide
any additional evidence or arguments following the issuance of its March 17, 2006 preliminary
overpayment notice.
In a decision dated April 21, 2006, the Office found that appellant was without fault in
the creation of the overpayment in the amount of $1,159.45 but denied waiver of recovery of the
overpayment because he did not respond to its March 20, 2006 preliminary overpayment notice.
By decision dated June 15, 2006, the Office found that appellant’s letter requesting
reconsideration was dated October 3, 2005, more than one year after the Board’s July 14, 2003
decision and was untimely. It further found that he did not submit evidence to establish clear
evidence of error in the prior decision which reinstated his entitlement to partial disability

6

compensation based on its loss of wage-earning capacity determination and not total disability
compensation.
LEGAL PRECEDENT -- ISSUES 1 & 4
The Federal Employees’ Compensation Act provides that the United States shall pay
compensation as specified by this subchapter for disability or death of an employee resulting
from personal injury sustained while in the performance of duty.10 If the disability is total, the
United States shall pay the employee during the disability monthly monetary compensation equal
to 66 2/3 percent of his or her monthly pay, which is known as basic compensation for total
disability.11 If a claimant receives compensation for total disability after returning to work with a
loss of wage-earning capacity, this results in an overpayment of compensation.12
Compensation benefits are computed based on an employee’s pay rate during the relevant
timeframe.13 In computing one’s pay rate, section 8114(e) of the Act provides for the inclusion
of certain “premium pay” received.14 However, overtime pay, among other things, is excluded
from consideration in determining one’s rate of pay.15 As pay rate is a critical component in the
determination of the amount of compensation to which one is entitled, an incorrect pay rate may
result in ether the underpayment or overpayment of compensation. In cases where compensation
payments were based erroneously on a pay rate greater than that to which the employee was
entitled, the difference between the compensation the employee should have received and did
receive constitutes an overpayment of compensation.16
ANALYSIS -- ISSUES 1 & 4
A loss of wage-earning capacity determination was made on August 6, 1993. The Office
found that appellant was no longer totally disabled and he had the capacity to earn wages in a
constructed position of orthotist. At that time, the Office calculated a weekly loss of wageearning capacity of $430.00. On November 28, 2005 the Office modified its loss of wageearning capacity determination to reflect appellant’s correct pay rate in his date-of-injury job. It
determined that he had a 71 percent wage-earning capacity or weekly wages of $323.62. He
received retroactive compensation for total disability for the period June 18, 2000 to
September 6, 2003.

10

5 U.S.C. § 8102(a).

11

5 U.S.C. § 8105(a); see also Duane C. Rawlings, 55 ECAB 366 (2004).

12

Tammi L. Wright, 51 ECAB 463 (2000).

13

5 U.S.C. §§ 8101(4), 8114; see Marco Padilla, 51 ECAB 202, 207-08 (1999).

14

5 U.S.C. § 8114(e).

15

Id.

16

See generally Monte Fuller, 51 ECAB 571 (2000) (discussion of proper determination of pay rate).

7

On December 9, 2003 the Office determined that appellant’s compensation payments for
the stated period were incorrectly processed after the Board’s July 14, 2003 decision which
reversed the Office’s termination of appellant’s compensation. The record reflects that he was
incorrectly paid compensation for total disability. As a result, appellant received compensation
in the amount of $89,627.79. However, his compensation should have been $26,032.65 based on
the Office’s November 28, 2005 wage-earning capacity determination. The difference paid to
appellant created an overpayment of compensation. The Office calculated that during the period
June 18, 2000 to September 6, 2003 appellant received compensation for total disability in the
amount of $89,627.79, but was only entitled to compensation for partial disability in the amount
of $26,032.65. The Board finds that this created an overpayment of $63,595.14.
The Office further recalculated appellant’s entitlement to compensation based on the
correct pay rate and determined that he received a total overpayment of $1,159.45 for the periods
August 22, 1993 to June 17, 2000 and September 7, 2003 to June 11, 2005. In the instant case,
the record reflects that appellant received compensation in the amount of $50,147.17 during the
period August 22, 1993 to June 17, 2000 and $15,121.93 during the period September 7, 2003 to
June 11, 2005. These payments were based on an erroneous weekly pay rate of $323.62.
Applying the correct pay rate of $322.60, the Office determined that appellant should have
received $49,117.75 for the period August 22, 1993 to June 17, 2000 and $14,991.90 for the
period September 7, 2003 to June 11, 2005. The Office, therefore, subtracted the amount
appellant should have received from the amount he was paid for each stated period and added
these amounts to correctly calculate an overpayment of compensation in the amount of
$1,159.45. The Board finds that for the periods August 22, 1993 to June 17, 2000 and
September 7, 2003 to June 11, 2005 appellant received an overpayment of $1,159.45 due to his
receipt of benefits calculated using an incorrect loss of wage-earning capacity pay rate.
Appellant does not dispute that he received the overpayments in question nor does he dispute the
amount of the overpayments. The Office explained how the overpayments occurred and
provided this to appellant with the preliminary notices of overpayment. The Board finds that the
Office properly determined the amount of the overpayments that covered the periods June 18,
2000 to September 6, 2003, August 22, 1993 to June 17, 2000 and September 7, 2003 to
June 11, 2005.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act17 provides that an overpayment of compensation shall be
recovered by the Office unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of the Act or would be against
equity and good conscience.18 Thus, the Office may not waive the overpayment of compensation

17

5 U.S.C. § 8129(b).

18

Michael H. Wacks, 45 ECAB 791, 795 (1994).

8

unless appellant was without fault.19 Adjustment or recovery must, therefore, be made when an
incorrect payment has been made to an individual who is with fault.20
On the issue of fault, section 10.433 of the Office’s regulations, provides that an
individual will be found at fault if he or she has done any of the following:
“(1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect;
“(2) failed to provide information which he or she knew or should have known to
be material; or
“(3) accepted a payment which he or she knew or should have known was
incorrect.”21
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provides in relevant part:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”22
In determining fault under section 10.433(a)(3), where the claimant receives
compensation through direct deposit, the payment goes directly from the U.S. Treasury to the
claimant’s account. The Office may not deposit compensation into a claimant’s account without
authorization. The claimant must first complete a form authorizing the electronic transfer of
payment to a named financial institution to be deposited to a designated account. It is only with
the claimant’s intent that these payments are deposited to his or her account which is something
more than receipt; it is acceptance. When control of the funds passes to the claimant upon
deposit, the acceptance necessary under section 10.433(a)(3) is established.23
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment of $63,595.14. In order for the Office to establish that appellant was at fault in
creating the overpayment of compensation, the Office must establish that, at the time appellant

19

Norman F. Bligh, 41 ECAB 230 (1989).

20

Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994).

21

20 C.F.R. § 10.433(a).

22

Id. at § 10.433(b).

23

Tammy Craven, 57 ECAB ____ (Docket No. 05-249, issued July 24, 2006).

9

received the compensation checks in question, he knew or should have known that the payment
was incorrect.24
Based on the circumstances of this case, the Board finds that appellant is not with fault in
creating the overpayment. The Office found that appellant should have known that he received
an incorrect payment for his retroactive compensation because the next regular compensation
check he received was for $647.00 and that based on simple mathematics he should have
determined that the amount of the $89,914.14 check was incorrect. The Board has found the
claimant to be at fault in cases where he or she is receiving compensation checks through direct
deposit which involve a series of payments over several months with clear knowledge that the
payments were incorrect.25 It is not appropriate, however, to make a finding that a claimant has
accepted an overpayment via direct deposit until such time as a reasonable person would have
been aware that this overpayment had occurred. This awareness could be established either
through documentation such as a bank statement or notification from the Office or where a
reasonable period of time has passed during which a claimant could have reviewed independent
confirmation of the incorrect payment.26
In this case, appellant received compensation in the amount of $89.914.14 by direct
deposit. Since Office regulations define fault by what the claimant knew or should have known
at the time of acceptance, one of the consequences of electronic fund transfers is that in many
cases the claimant will not be at fault for accepting the first incorrect payment because the
requisite knowledge is lacking at the time of deposit.27 Appellant had no reason to suspect at the
time the $89,914.14 payment was deposited into his checking account that the Office had issued
an incorrect payment, given that this was the first incorrect payment made by the Office.28
Furthermore, because the funds were deposited directly into his bank account, appellant was not
in a position to immediately decline acceptance of the amount paid by the Office. Thus, the
Board finds that he was not at fault in either creating or accepting the overpayment of $63,595.14
for the period June 18, 2000 to September 6, 2003.29 A finding of no fault does not mean,
however, that the claimant may keep the money, only that the Office must consider eligibility for
waiver for this period, and the case must be remanded for the Office to determine whether he is
entitled to waiver for this period. After such further development as the Office may find
necessary, it should issue an appropriate decision on the issue of whether the overpayment
should be waived.
Based on the Board’s determination in the second issue in this case, issue three regarding
recovery of the $63,595.14 overpayment need not be addressed at this time.
24

Diana L. Booth, supra note 20.

25

See Karen K. Dixon, 56 ECAB ____ (Docket No. 03-2265, issued November 9, 2004).

26

See K.H., Docket No. 06-191 (issued October 30, 2006).

27

See Karen K. Dixon, supra note 25.

28

See Tammy Craven, supra note 23.

29

Id.

10

LEGAL PRECEDENT -- ISSUE 5
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.30 As noted, the statutory
guidelines are found in section 8129(b) of the Act which states: “Adjustment recovery [of an
overpayment] by the United States may not be made when [an] incorrect payment has been made
to an individual who is without fault and when adjustment or recovery would defeat the purpose
of [the Act] or would be against equity and good conscience.”31
Section 10.436 of the implementing regulation32 provides that recovery of an
overpayment would defeat the purpose of the Act if such recovery would cause hardship in a
currently or formerly entitled beneficiary because: the beneficiary from whom the Office seeks
recovery needs substantially all of his or her current income (including compensation benefits) to
meet current or ordinary and necessary living expenses; and (b) the beneficiary’s assets do not
exceed a specified amount as determined by the Office from data furnished by the Bureau of
Labor Statistics.33 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.34
Section 10.437 provides that recovery of an overpayment is considered against equity and
good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes
his or her position for the worse.35
Section 10.438 of the regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by the Office. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of the Act or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in the denial
of the waiver.36

30

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

31

See 5 U.S.C. § 8129(b); Carroll R. Davis, 46 ECAB 361, 363 (1994).

32

20 C.F.R. § 10.436.

33

An individual’s assets must exceed a resource based on $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent plus $960.00 for each additional dependent. This base includes all of the
individual’s assets not exempt from recoupment. See Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.6(a)(1)(b) (December 23, 2004).
34

See Sherry A. Hunt, 49 ECAB 467, 473 (1998).

35

20 C.F.R. § 10.437.

36

Id. at § 10.438.

11

ANALYSIS -- ISSUE 5
The Office found appellant to be without fault and eligible for consideration of waiver
with regard to its finding that he received an overpayment in the amount of $1,159.45. However,
he did not timely submit any requested information regarding his financial situation. The
applicable regulations provide that the individual who receives an overpayment is responsible for
providing financial information and that failure to submit the requested financial information
within 30 days of the request shall result in the denial of waiver.37 Appellant failed to submit
any evidence showing that he needs substantially all of the current monthly income to meet
living expenses or that the amount of the overpayment was wrongly computed, as requested by
the Office. Therefore, he does not qualify for waiver under the defeat the purpose of the Act
standard.38 Further, there is no evidence in this case, nor did appellant allege, that he
relinquished a valuable right or change his position for the worse in reliance on the excess
compensation he received from August 22, 1993 to June 17, 2000 and September 7, 2003 to
June 11, 2005. The Office properly denied waiver based on appellant’s failure to respond to the
preliminary notice of overpayment. Pursuant to its regulations, the Office properly denied
waiver of recovery of the overpayment amount of $1,159.45.
LEGAL PRECEDENT -- ISSUE 6
Section 10.441 provides that, if an overpayment of compensation has been made to an
individual entitled to further payments and no refund is made, the Office shall decrease later
payments of compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other relevant factors, so
as to minimize hardship.39
ANALYSIS -- ISSUE 6
With respect to the Office’s decision to deduct $116.00 every four weeks from
appellant’s continuing compensation to recover the overpayment in the amount of $1,159.45, the
Board finds that such a repayment schedule is in accordance with section 10.441(a). In
exercising its authority under section 10.441(a), the Office must take into account the probable
extent of future payments, the rate of compensation, the financial circumstances of the individual
and any other relevant factors, so as to minimize any hardship.40 Appellant did not respond to
the Office’s request for relevant financial information. Accordingly, the Board finds that the
Office properly imposed repayment from continuing compensation at the rate of $116.00 every
four weeks pursuant to its recovery procedures.41
37

Id.

38

See Nina D. Newborn, 47 ECAB 132 (1995).

39

20 C.F.R. § 10.441 (1999).

40

Id.

41

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.300.8
(May 2004).

12

LEGAL PRECEDENT -- ISSUE 7
A wage-earning capacity decision is a determination that either actual earnings or
earnings in a selected position, represents a claimant’s ability to earn wages. Compensation
payments are based on the wage-earning capacity determination and it remains undisturbed until
properly modified.42
The Office’s procedure manual provides that, “[i]f a formal [loss of wage-earning
capacity] decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance, the CE [claims examiner] will
need to evaluate the request according to the customary criteria for modifying a formal [loss of
wage-earning capacity].”43
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.44 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.45
ANALYSIS -- ISSUE 7
The Office developed the evidence and determined that the issue presented was whether
appellant’s October 3, 2005 request for reconsideration was timely filed and presented clear
evidence of error. Under the circumstances of this case, however, the Board finds that the issue
presented was whether the August 6, 1993 wage-earning capacity determination should be
modified.
According to the evidence of record, the Office found that the constructed position of
orthotist represented appellant’s wage-earning capacity. On December 11, 1993 appellant was
laid off from this position because his physical limitations caused him to work slowly. On
October 3, 2005 he contended that his condition had worsened to the extent that he became
totally disabled for work in the selected position. Appellant submitted Dr. Childress’s
September 20, 2005 report. In this report, Dr. Childress stated that appellant had increasing
numbness, tingling and pain in his upper extremities with repetitive activities of more than one
and one-half hours. He also had increasing post-traumatic stress disorder that required continued
treatment and monitoring by Dr. Jean-Pierre. Based on a September 13, 2001 MRI scan of
appellant’s cervical spine which demonstrated a deterioration of appellant’s cervical problem,
Dr. Childress opined that his original cervical strain had now resulted in a small herniated disc at
C3-4. He recommended surgical intervention if the small disc rupture increased or worsened.
42

See Sharon C. Clement, 55 ECAB 552 (2004).

43

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
44

Sue A. Sedgwick, 45 ECAB 211 (1993).

45

Id.

13

Dr. Childress further stated that his opinion remained that appellant was unable to be gainfully
employed and that he was totally disabled due to a combination of physical and post-traumatic
stress difficulties. Although he indicated that appellant’s bilateral ulnar nerve neuropathy had
reverted to normal, Dr. Childress opined that it was due to conservative measures as he was not
performing activities and functions that would aggravate or accelerate the condition.
The Board has held that, when a wage-earning capacity determination has been issued,
and appellant submits evidence with respect to disability for work, the Office must evaluate the
evidence to determine if modification of wage-earning capacity is warranted.46 The Office’s
procedure manual directs the claims examiner to consider the criteria for modification when the
claimant requests resumption of compensation for total wage loss. This section of the procedure
manual covers the situation when a claimant has stopped working, but the principle is equally
applicable to a claim of increased disability. As appellant submitted medical evidence
addressing his increased employment-related disability, the Board finds that the Office should
have considered the issue as a request for modification of the wage-earning capacity
determination. For this reason, the case must be remanded for an appropriate decision on this
issue.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $63,595.14 from June 18, 2000 to September 6, 2003, due to receipt of total disability
compensation instead of partial disability compensation based on the loss of wage-earning
capacity determination. The Board, however, finds that he was not at fault in the creation of this
overpayment. The Board further finds that appellant received an overpayment of compensation
in the amount of $1,159.45 from August 22, 1993 to June 17, 2000 and September 7, 2003 to
June 11, 2005, due to an incorrect pay rate regarding his wage-earning capacity determination.
The Board finds that the Office properly denied waiver of this overpayment and directed that the
overpayment should be recovered by deducting $116.00 from appellant’s continuing monthly
compensation payments. The Board finds that appellant’s claim for compensation for total
disability raised the issue of whether modification of the August 6, 1993 loss of wage-earning
capacity decision was warranted.

46

See Sharon C. Clement, supra note 39. The Board notes that consideration of the modification issue does not
preclude the Office from acceptance of a limited period of employment-related disability, without a formal
modification of the wage-earning capacity determination. Id. at 556, n.10; Cf. Elsie L. Price, 54 ECAB 734 (2003)
(acceptance of disability for an extended period was sufficient to establish that modification of the wage-earning
capacity determination was warranted).

14

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 15, 2006 decision is set aside and the case remanded for further proceedings consistent with
this decision of the Board with respect to appellant’s request for modification of the loss of
wage-earning capacity determination. The Office’s April 21, 2006 decision is affirmed. The
Office’s April 20, 2006 decision is affirmed in part as to the fact and amount of overpayment.
The decision is reversed with respect to the fault determination and remanded to the Office for
further proceedings consistent with this decision of the Board.
Issued: October 11, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

15


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 11-1621
Issued: March 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On July 5, 2011 appellant, through her attorney, filed an application for review of an
Office of Workers’ Compensation Programs’ (OWCP) decision dated June 9, 2011 which denied
modification of a decision denying appellant’s claim for compensation beginning
November 24, 2010.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,1 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued. Following OWCP’s
February 17, 2011 merit decision, appellant requested reconsideration on February 22, 2011.
Appellant also submitted additional evidence. This included reports dated April 11 and 25, 2011
from Dr. A. Stern, appellant’s treating physician, who addressed appellant’s disability. Dr. Stern
noted that appellant was diagnosed with right wrist/hand tenosynovitis/tendinopathy and
underwent conservative care including medications, physical and manipulating therapy and
injections and still had significant residual symptoms and disability. He advised that appellant
underwent shockwave therapy. These documents were received by OWCP on May 31 and
June 3, 2011. In its June 9, 2011 decision, OWCP denied appellant’s reconsideration request on
the grounds that the evidence submitted in support of her request was insufficient to establish
1

41 ECAB 548 (1990).

total disability for the period claimed. It did not note receipt or consideration of the April 11
and 25, 2011 reports.
The Board finds that OWCP, in its June 9, 2011 decision, did not review the April 11
and 25, 2011 reports from Dr. Stern that was received by OWCP on June 3, 2011. For this
reason, the case will be remanded to OWCP to enable it to properly consider all the evidence
submitted at the time of the June 9, 2011 decision. Following such further development as
OWCP deems necessary, it shall issue an appropriate decision on the claim.
IT IS HEREBY ORDERED THAT the June 9, 2011 decision of the Office of Workers’
Compensation Programs be set aside. The case record is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: March 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2


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

)
)
)
)
)
)
)
)

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

Docket No. 21-1195
Issued: March 17, 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 August 2, 2021 appellant, through counsel, filed a timely appeal from a June 22, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted April 19, 2020 employment incident.

1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 21, 2020 appellant, then a 39-year-old assistant rural carrier, filed a traumatic
injury claim (Form CA-1) alleging that on April 19, 2020 she sprained her back while in the
performance of duty. 3 She indicated that the cause of the injury was “unknown.” Appellant
stopped work on that date. On the reverse side of the claim form, G.T., a customer supervisor,
indicated that appellant was instructed to perform duties within her work limitations, but she did
not follow instructions.
In a May 4, 2020 letter, the employing establishment controverted appellant’s claim on the
basis of performance of duty and fact of injury. It noted that the alleged injury occurred on
April 19, 2020, but appellant did not report the injury until April 21, 2020 and did not seek medical
attention until April 22, 2020. The employing establishment also asserted that appellant was filing
a new traumatic injury claim because she had wage-loss compensation claims (Form CA-7s) that
were denied under a previous claim.
In a May 6, 2020 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and also provided a questionnaire for completion.
OWCP afforded appellant 30 days to provide the necessary factual information and medical
evidence.
Appellant submitted a statement dated April 21, 2020. She explained that on April 19,
2020 she repeatedly bent down to pick up packages and climbed up and down stairs while
delivering mail. Appellant recounted that she reached for two boxes and turned right to step out
of the long-life vehicle (LLV) when she felt a sharp pain in her back. She noted that she called
G.T., her supervisor, and informed him that her back had gone out. Appellant also provided a
statement by A.S. and P.S., appellant’s brother-in-law and sister, who indicated that on April 19,
2020 they picked appellant up from the job site after her alleged injury.
In April 20, 2020 reports, Dr. Shabnam Guard, a Board-certified family medicine
physician, recounted appellant’s complaints of thoracic and lumbar spine pain and noted that
appellant was injured last year at work. On physical examination, he reported reduced range of
motion and tenderness on palpation of the thoracic spine. Examination of the lumbar spine
revealed tenderness on palpation and limited range of motion due to pain. Dr. Guard diagnosed
degeneration of lumbar intervertebral disc and noted that it was a “work[-]related injury.” He
completed a work status note releasing appellant to limited duty on April 23, 2020.

3

OWCP assigned the present claim OWCP File No. xxxxxx088. Appellant has a previously accepted traumatic
injury claim related to a June 23, 2019 employment incident. OWCP assigned that claim OWCP File No. xxxxxx684
and accepted it for lumbar back strain. Appellant stopped work on June 23, 2019 and accepted a full-time, limitedduty position on January 31, 2020. She also subsequently filed another traumatic injury claim under OWCP File No.
xxxxxx425 for a back injury related to a September 18, 2020 employment incident. By decisions dated January 5 and
June 22, 2021, OWCP denied the claim. It has administratively combined OWCP File Nos. xxxxxx088, xxxxxx425,
and xxxxxx826, with the latter designated as the master file.

2

OWCP received an April 29, 2020 return to work note containing an illegible signature.
The note indicated a diagnosis of lumbar radiculopathy and low back pain and date of injury of
April 19, 2020.
In a May 21, 2020 letter, appellant informed E.S. that she had the same back condition as
under OWCP File No. xxxxxx684. She indicated that all her medical records said the same thing
and that she was waiting for a diagnostic test to determine how serious the back condition was.
In a May 21, 2020 letter, Dr. George Thomas, a family medicine specialist, indicated that
appellant was seen in the office for complaints of continued back pain. He noted that appellant
had an appointment with an orthopedic surgeon scheduled for June 1, 2020.
OWCP received an authorization for examination and/or treatment (Form CA-16) dated
April 21, 2020 signed by G.T., appellant’s supervisor, who authorized treatment at an urgent care
facility. Appellant’s alleged injury was described as middle back sprain.
In a letter dated May 15, 2020, A.N., an employing establishment human resource
management specialist, asserted that appellant had not met her burden of proof to establish “fact
of injury” or “performance of duty.” She also alleged that appellant switched doctors in order to
obtain stricter work limitations.
On May 22, 2020 appellant accepted a full-time, limited-duty position as an assistant rural
carrier.
A May 23, 2020 lumbar spine magnetic resonance imaging (MRI) scan interpreted by
Dr. Matthew Dobbs, a Board-certified radiologist, revealed mild facet ligamentous hypertrophy at
L4-5 and mild degenerative endplate changes and mild broad-based disc bulge and degenerative
changes at L5-S1.
In a June 1, 2020 examination report, Heather Wilson, a certified nurse practitioner, noted
that appellant was seen for complaints of chronic low back pain with recent exacerbation. She
reported no acute findings on physical examination and diagnostic films. Ms. Wilson diagnosed
low back pain and lumbar spondylosis.
A June 1, 2020 diagnostic report demonstrated mild degenerative disc changes at L5 -S1
and no acute abnormality.
Appellant submitted workers’ compensation injury form reports dated April 22 through
June 3, 2020 by a provider with an illegible signature. The report noted an April 19, 2020 date of
injury and diagnosis of lumbar radiculopathy or lumbar pain.
On June 23, 2020 OWCP received statements from appellant. Appellant indicated that on
April 19, 2020 she reached for a package and turned to get out of her LLV when she felt her back
give out. She noted that she notified her supervisor and called 911 for help. Appellant explained
that she initially sought treatment from an urgent care facility, but was informed that they did not
have a workers’ compensation doctor available on Sundays. She asserted that she did not suffer
another low back sprain, but had trauma to her disc due to repetitively ascending flights of stairs.

3

OWCP received epidural injection procedure notes dated June 25 and July 9, 2020 by
Dr. Jacob Vella, Board-certified pain management and anesthesiology, who noted a diagnosis of
lumbar radiculitis.
In a July 2, 2020 letter, Dr. Thomas noted that appellant injured her lower back and both
wrists on June 23, 2019 while lifting and delivering packages. He indicated that appellant
sustained another injury on April 19, 2020 after bending to organize packages and climbing up
stairs. Dr. Thomas explained that a lumbar spine MRI scan demonstrated increased loss in disc
height, a mild broad-based disc bulge, and mild left foraminal narrowing at L5-S1. He discussed
the medical treatment that appellant received and recommended that appellant’s activities be
limited to sitting and lifting up to 10 pounds.
By decision dated July 20, 2020, OWCP denied appellant’s claim. It accepted that the
April 19, 2020 incident occurred as alleged and that a lumbar condition had been diagnosed;
however, it denied her claim finding that she had failed to establish causal relationship between
the accepted employment incident and the diagnosed condition.
On July 24, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted additional medical evidence. In an April 29, 2020 examination note,
Dr. John Tinglin, a general surgeon, indicated that appellant was seen for follow-up of low back
pain and noted physical examination findings of marked tenderness of the lum bar spine. He
diagnosed low back pain.
In examination notes dated May 19 and 22, 2020, Dr. Bernard Hale, a family medicine
specialist, indicated that appellant was examined for follow-up of back pain. He reported that
musculoskeletal examination revealed abnormal gait and stance and diminished strength. Dr. Hale
diagnosed lumbar radiculopathy.
In examination notes dated May 23 and 27, 2020, Dr. Mark Pita, a family medicine
specialist, reported that he treated appellant for several months of lower back pain and lumbar
radiculopathy. He indicated that physical examination findings were normal and diagnosed lumbar
radiculopathy and low back pain.
In a September 10, 2020 work status note, Jessica Rollins, a nurse practitioner, indicated
that appellant could return to work on September 24, 2020.
On September 17, 2020 appellant accepted a full-time, limited-duty job offer for an
assistant rural carrier position.
In a September 21, 2020 report and return to work note, Dr. Thomas indicated that
appellant was treated for complaints of back pain and diagnosed with low back pain. He authorized
appellant to return to work on September 28, 2020.
In a September 24, 2020 letter, the employing establishment indicated that it continued to
challenge appellant’s claim on the basis of fact of injury and performance of duty. It alleged that
appellant went to several medical facilities in order to receive pain medication. The employing
establishment also noted that appellant had two previous back injuries.
4

On October 5, 2020 a telephonic hearing was held. Appellant testified that she had a
history of back pain, but that the incident that occurred on April 19, 2020 was different than a
sprain. She explained that she felt a disc in her back move and felt sharp pain that went down to
her legs.
An October 19, 2020 lumbar spine MRI scan interpreted by Dr. Ronald Ng, a Boardcertified diagnostic radiologist, demonstrated mild diffuse disc bulge and facet disease without
significant central foraminal canal stenosis at L5-S1.
In an October 28, 2020 report, Heather Wilson, a certified nurse practitioner, noted that
appellant was seen for low back pain. She reviewed diagnostic testing and diagnosed low back
pain.
In a November 2, 2020 letter, Dr. Thomas reported that appellant was treated on April 29
and May 21, 2020 for back pain following an April 19, 2020 work incident. He explained that
appellant was again seen in the office on September 18, 2020 after she injured her back at work.
In a November 24, 2020 decision, OWCP’s hearing representative affirmed, but modified,
the July 20, 2020 decision. He determined that the medical evidence of record did not include
medical evidence containing a diagnosis in connection with the accepted April 19, 2020
employment incident. Thus, OWCP’s hearing representative found that appellant had failed to
establish an injury or condition under FECA. 4
On May 7, 2021 appellant indicated that she wanted to appeal her claim under OWCP File
No. xxxxxx088.
In a September 18, 2020 emergency room report, Dr. Anitricia Lumpkin, an osteopathic
physician Board-certified in emergency and internal medicine, recounted that on September 18,
2020 appellant “tweaked” her back when she sat on a low chair at work. She noted that appellant
had a history of back injury and described the June 23, 2019 and April 19, 2020 work incidents.
Dr. Lumpkin reported physical examination findings of normal range of motion and no tenderness.
She indicated that a lumbar spine MRI scan demonstrated degenerative disc disease at L5-S1 and
no suspicious osseous lesion. Dr. Lumpkin diagnosed degenerative disc disease at L5-S1.
Emergency room discharge instructions noted diagnoses of back pain and lumbar degenerative
disc disease.
In a January 27, 2021 report, Dr. Timothy Holt, an orthopedic surgeon, indicated that
appellant was seen for evaluation of low back pain radiating down into her bilateral legs.
Regarding appellant’s mechanism of injury, he described that on June 23, 2019 appellant lifted
heavy boxes and tried to fix a seatbelt at work; on April 19, 2020 she bent down to organize
packages and had climbed three flights of stairs when she felt something twist in h er lower back;
and on September 18, 2020 she was changing chairs at work when it suddenly dropped down. On
physical examination, Dr. Holt reported positive straight leg raise and cram testing. He indicated
that a lumbar spine MRI scan demonstrated degenerative disc disease at L4-5 and L5-S1. Dr. Holt

4

The hearing representative also instructed OWCP to combine the present claim, OWCP File No. xxxxxx088, and
OWCP File No. xxxxxx684 serving as the master file.

5

diagnosed lumbar radiculopathy, cervicalgia, intervertebral disc displacement of the lumbar
region, and spinal instabilities of the lumbar region.
Dr. Holt continued to treat appellant and provided reports dated February 4 and
April 13, 2021. He reported physical examination findings of limited range of motion and
shuffling gait. Dr. Holt reviewed the results of a lumbar discogram and diagnosed lumbar
radiculopathy and lumbar intervertebral disc degeneration. He recommended surgical
intervention.
A March 15, 2021 lumbar spine MRI scan demonstrated chronically degenerated disc at
L4-5 with minimal bulge, chronically degenerated disc protruding at L5 -S1, and endplate
degeneration at the L5-S1.
In an April 21, 2021 report, Dr. Andrew W. Murkett, a Board-certified internal medicine
physician, noted physical examination findings of normal range of motion. He diagnosed low
back pain, status post lumbar L5-S1 fusion.
An April 23, 2021 discharge summary report noted that Dr. Holt performed an anterior
lumbar interbody fusion at the L5-S1 with a discharge diagnosis of lumbar degenerative disc
disease.
By decision dated June 22, 2021, OWCP denied modification of the November 24, 2020
decision.5
LEGAL PRECEDENT
An employee seeking benefits under FECA 6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence 7 including that the individual is an employee of the United States within the meaning of
FECA, that the claim was timely filed within the applicable time limitation of FECA, 8 that an
injury was sustained in the performance of duty as alleged, and that any specific condition or
disability from work for which compensation is claimed is causally related to that employment
injury.9 These are the essential elements of each and every compensation claim, regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease. 10

5

The Board notes that appellant has an appeal pending before the Board concerning a separate June 22, 2021
OWCP decision under File No. xxxxxx425. That appeal will proceed under Docket No. 21-1196.
6

Supra note 1.

7

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

8

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
9

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

10

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

6

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. 11
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. 12 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment incident
caused a personal injury. 13
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence. 14 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee. 15 The weight of the 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.16
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 17
ANALYSIS
The Board finds that appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted April 19, 2020 employment incident.
In April 20, 2020 reports, Dr. Guard reported reduced range of motion and tenderness on
palpation of the thoracic spine. Examination of the lumbar spine revealed tenderness on palpation
and limited range of motion due to pain. Dr. Guard diagnosed degeneration of lumbar
intervertebral disc and noted that it was a “work[-]related injury.”
In examination notes dated May 19 and 22, 2020, Dr. Hale noted that appellant was
examined for follow-up of back pain. He reported that musculoskeletal examination revealed
abnormal gait and stance and diminished strength. Dr. Hale diagnosed lumbar radiculopathy.
11

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

12

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

13

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

14

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

15

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
16

James Mack, 43 ECAB 321 (1991).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

7

In examination notes dated May 23 and 27, 2020, Dr. Pita indicated that physical
examination findings were normal and diagnosed lumbar radiculopathy and low back pain.
In a September 18, 2020 emergency room report, Dr. Lumpkin reported physical
examination findings of normal range of motion and no tenderness. She indicated that a lumbar
spine MRI scan demonstrated degenerative disc disease at L5-S1 and no suspicious osseous lesion.
Dr. Lumpkin diagnosed degenerative disc disease at L5-S1. Emergency room discharge
instructions noted diagnoses of back pain and lumbar degenerative disc disease.
In a January 27, 2021 report, Dr. Timothy Holt, an orthopedic surgeon, indicated that
appellant was seen for evaluation of low back pain radiating down into her bilateral legs. On
physical examination, he reported positive straight leg raise and cram testing. Dr. Holt indicated
that a lumbar spine MRI scan demonstrated degenerative disc disease at L4 -5 and L5-S1. He
diagnosed lumbar radiculopathy, cervicalgia, intervertebral disc displacement of the lumbar
region, and spinal instabilities of the lumbar region. The Board thus finds that evidence of record
establishes diagnoses including degenerative disc disease at L5-S1, lumbar radiculopathy,
cervicalgia, intervertebral disc displacement of the lumbar region, and spinal instabilities of the
lumbar region.
The Board further finds, however, that the case is not in posture for decision with regard
to whether the diagnosed medical conditions are causally related to the accepted April 19, 2020
employment incident. As the medical evidence of record establishes diagnosed medical
conditions, the case must be remanded for consideration of the medical evidence with regard to
the issue of causal relationship. 18 Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.19
CONCLUSION
The Board finds that appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted April 19, 2020 employment incident. The Board further

18

See F.D., 21-1045 (December 22, 2021).

19
A completed Form CA-16 authorization may constitute a contract for payment of medical expenses to a medical
facility or physician, when properly executed. The form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See
20 C.F.R. § 10.300(c); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

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finds that the case is not in posture for decision with regard to whether the diagnosed medical
condition is causally related to the accepted April 19, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2021 decision of the Office of Workers’
Compensation Programs is reversed in part and set aside in part. The case is remanded for further
proceedings consistent with this decision of the Board.
Issued: March 17, 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

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