United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Haven, CT, Employer
__________________________________________

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Appearances:
Charles F. Chester, Esq., for the appellant1
No appearance, for the Director

Docket No. 16-0451
Issued: March 17, 2017

Oral Argument January 24, 2017

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 11, 2016 appellant, through counsel, filed a timely appeal from a July 22,
2015 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 right shoulder
condition causally related to factors of her federal employment.
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 December 22, 2014 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on July 14, 2014 she first became aware of radiating
and piercing pain stemming from her right shoulder down her entire right arm. She further
alleged that on November 25, 2014 she first realized that her condition was caused or aggravated
by her federal employment.3 Appellant claimed that casing mail several hours a day and
carrying mail on her right shoulder for over 25 years added to the deterioration of her right
shoulder condition. She stopped work on December 3, 2014.
In a December 22, 2014 letter, appellant related that in addition to casing mail several
hours a day, she was also required to lift up to 70 pounds. She noted that Dr. Robert Henry, an
internist, referred her to physical therapy for three weeks. Appellant was later referred to
Dr. David B. Cohen, a Board-certified orthopedic surgeon, who diagnosed a rotator cuff
condition as confirmed by a December 3, 2014 magnetic resonance imaging (MRI) scan.
Dr. Cohen opined that this condition was the primary cause of appellant’s pain. Appellant
maintained that her job duties were the reason for her increasing pain.
Appellant submitted an October 13, 2014 report from her physical therapist who
addressed the treatment of appellant’s right upper extremity pain.
In a November 25, 2014 medical report, Dr. Cohen noted appellant’s complaint of right
shoulder pain that had progressively increased over the last three months and worsened while she
was reaching and carrying things at work and sleeping. Appellant’s pain was sharp, throbbing,
severe, constant, and worse with any overhead activity. She attempted physical therapy with
minimal improvement in her condition and required prescription medication at night. Dr. Cohen
reported findings on physical and x-ray examination. He provided an impression of persistent
right shoulder pain that was nonresponsive to conservative measures. Dr. Cohen recommended a
repeat MRI scan to rule out a rotator cuff condition.
In a December 3, 2014 right shoulder MRI scan report, Dr. Joseph A. Gagliardi, a Boardcertified internist, provided an impression of scattered mild degenerative change with rotator cuff
tendinopathy without evidence of a full-thickness tear. In an addendum note, he reported that
high signal intensity in the distal supraspinatus tendon on a single coronal oblique image
appeared to involve a segment of greater than 50 percent thickness which could represent a near
complete focus of a full-thickness tear.
On December 9, 2014 Dr. Cohen reported that appellant continued to experience severe
right shoulder pain. He noted that she attributed her progressively increasing pain to her mail
carrier job requirements which involved constant reaching and lifting. Dr. Cohen provided
findings on physical examination and reviewed a right shoulder MRI scan which demonstrated a
high-grade, partial-thickness cuff tear that went 75 percent through the tendon. Based on
appellant’s severe degree of pain that had persisted despite efforts at conservative management,
3

Appellant noted that she had previously filed a claim under File No. xxxxxx700 for a right shoulder injury
sustained on May 18, 1988 as a result of a motor vehicle accident while in the performance of her letter carrier
duties. This prior claim is not before the Board on the present appeal.

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he recommended arthroscopic rotator cuff repair and subacromial decompression. In a
December 13, 2014 duty status report (Form CA-17), Dr. Cohen noted a clinical finding of
shoulder pain. He advised that appellant could work four hours a day with certain restrictions,
which included only delivering mail using her body weight and not her arms for two hours, and
casing mail with no lifting above her waist for the same time period.
By letter dated February 3, 2015, OWCP advised appellant of the deficiencies of her
claim and requested that she submit medical evidence including a detailed narrative report from
her physician which included a history of the injury and a medical explanation with objective
evidence of how the reported work activities caused, contributed to, or aggravated the claimed
condition. Appellant was afforded 30 days to submit the requested evidence.
In a March 16, 2015 decision, OWCP denied appellant’s occupational disease claim. It
found that the medical evidence of record did not contain a physician’s rationalized opinion,
supported by a medical explanation, as to how and why the established employment factors
caused, contributed to, or aggravated her right shoulder condition. OWCP noted that appellant
did not respond to the February 3, 2015 development letter.
In a report dated December 23, 2014, received by OWCP on March 23, 2015, Dr. Cohen
noted seeing appellant for follow-up of her right shoulder full-thickness rotator cuff tear. He
further noted that appellant continued to try to work as a mail carrier, but she was quite limited
by pain. Appellant’s lateral elbow pain was mild and somewhat improved after receiving an
injection. Dr. Cohen reported findings on examination and recommended that she continue to
work with restrictions as tolerated. He noted that appellant was scheduled to undergo surgery at
the end of January 2015. On January 20, 2015 Dr. Cohen advised that appellant had a
preoperative evaluation for her right shoulder surgery to repair her traumatic rotator cuff tear.
He noted that she would be out of work following surgery. In a February 13, 2015 progress note,
Dr. Cohen noted seeing appellant for follow-up of her right shoulder traumatic rotator cuff tear.
He advised that she was doing well 10 days status post arthroscopic right shoulder surgery as her
moderate pain was under control with narcotic pain medication. Dr. Cohen reported findings on
physical and x-ray examination. He provided a diagnosis of work-related injury and traumatic
rotator cuff tear.
On March 13, 2015 Dr. Cohen noted appellant’s complaints of right shoulder pain,
provided findings, and restated his diagnosis of traumatic right shoulder rotator cuff tear. He
indicated that appellant underwent surgery on January 30, 2015 to repair her right shoulder
rotator cuff tear with impingement. Dr. Cohen advised that appellant would be off work
approximately four months and then she could return to restricted duty. He further advised that
she would not be able to return to full duty until six to eight months after her surgery. Dr. Cohen
concluded that he believed repetitive reaching and lifting at work caused the rotator cuff tear. In
a May 8, 2015 work status form report, he indicated with a checkmark that the causative event of
appellant’s injury was work related. Dr. Cohen also indicated by checking a box marked “Yes”
indicating that she was temporarily totally disabled.
On June 4, 2015 appellant requested reconsideration of the March 16, 2015 decision. She
submitted an April 10, 2015 progress note from Dr. Cohen who had seen her for follow-up of her
right shoulder rotator cuff repair. Dr. Cohen listed examination findings and restated his

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assessment of a work-related injury of an unspecified site and traumatic right rotator cuff tear.
He related that it appeared appellant’s overall upper extremity complaints were causally related
to her work duties given that the onset of her shoulder, elbow, and hand issues were associated
with pushing a cart and repetitive lifting. Dr. Cohen noted that there was no injury to her
shoulder or upper extremity outside of her work duties. He concluded, therefore, that there was a
causal relationship between appellant’s injury and work duties. In a June 9, 2015 work status
report, Dr. Cohen again indicated with a checkmark that the causative event of appellant’s injury
was work related. He noted her physical restrictions.
By decision dated July 22, 2015, OWCP denied modification of the March 16, 2015
decision. It found that Dr. Cohen’s reports were not sufficiently rationalized to establish that
appellant’s right shoulder condition was causally related to the accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, 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 specific employment factors identified by the employee.6
ANALYSIS
It is undisputed that appellant performed the work duties of a mail carrier, which
involved casing mail and heavy lifting. The Board finds, however, that the medical evidence of
4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.

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record is insufficient to establish a right shoulder condition caused or aggravated by the accepted
work factors.
Appellant submitted several reports from Dr. Cohen. In a March 13, 2015 report,
Dr. Cohen noted appellant’s January 30, 2015 surgery to repair her right shoulder rotator cuff
tear with impingement and addressed her work capacity. He related that he believed repetitive
reaching and lifting at work caused the rotator cuff tear. Although Dr. Cohen found that
appellant was injured at work, he did not provide medical rationale explaining the basis of his
conclusory opinion regarding the causal relationship between her right shoulder condition,
resultant surgery, and disability and the established employment factors.7 Therefore, this
evidence is insufficient to meet appellant’s burden of proof.
In his April 10, 2015 progress note, Dr. Cohen provided examination findings and
diagnosed traumatic right rotator cuff tear and a work-related injury of an unspecified site. He
opined that appellant’s overall upper extremity complaints “appeared” to be causally related to
her work duties, which included pushing a cart and repetitive lifting, as she did not have a
shoulder or upper extremity injury outside of her work duties. Dr. Cohen’s opinion, however, is
vague and speculative in nature and, thus, of little probative value.8 Moreover, an opinion that a
condition is causally related to employment because the employee was asymptomatic before the
work factors is insufficient, without supporting rationale, to establish causal relationship.9
Dr. Cohen did not explain how appellant’s traumatic right rotator cuff tear was caused by her
work duties.
The Board therefore finds that Dr. Cohen’s report is of limited probative value and
insufficient to meet appellant’s burden of proof.
Dr. Cohen’s May 8 and June 9, 2015 work status reports failed to provide a firm
diagnosis of a particular medical condition10 or provide a history of injury.11 Moreover, his
opinion contained in these reports that appellant’s injury was caused by a work-related event
consists solely of a checkmark to a medical form question. Dr. Cohen did not address how
casing mail and heavy lifting would cause or contribute to appellant’s injury. The Board has
7

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
8

See S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has generally held that opinions such as the
condition is probably related, most likely related or could be related are speculative and diminish the probative value
of the medical opinion); Cecilia M. Corley, 56 ECAB 662 (2005) (medical opinions which are speculative or
equivocal are of diminished probative value).
9

T.M., supra note 7; Michael S. Mina, 57 ECAB 379 (2006).

10

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
11

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).

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held that a checkmark or affirmative notation in response to a form question on causal
relationship is insufficient, without medical rationale, to establish causal relationship.12
Dr. Cohen’s remaining reports and progress notes addressed appellant’s right shoulder
pain and rotator cuff tear, January 30, 2015 right shoulder surgery, work capacity, and
restrictions, but failed to offer a medical opinion addressing whether the diagnosed condition and
resultant surgery and disability were causally related to the established employment factors.
Medical evidence that does not offer an opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.13
Similarly, Dr. Gagliardi’s December 3, 2014 diagnostic test results and addendum note
are of diminished probative value regarding causal relationship. Although he diagnosed right
shoulder rotator cuff tear, he did not provide any opinion on the cause of appellant’s diagnosed
condition.14
The October 13, 2014 report from appellant’s physical therapist has no probative medical
value as physical therapists are not considered physicians as defined under FECA.15 As such,
this evidence is also insufficient to meet appellant’s burden of proof.
Appellant’s belief that factors of her federal employment caused or aggravated her
condition is insufficient, by itself, to establish causal relationship.16 The issue of causal
relationship is a medical one and must be resolved by probative medical opinion evidence from a
physician. The Board finds that there is insufficient medical evidence of record to establish that
appellant’s right shoulder condition was caused or aggravated by the established employment
factors. Appellant, therefore, did not meet her burden of proof.
On appeal, counsel cites Board precedent and contends that the medical evidence of
record is sufficient to establish appellant’s claim. He also disputes OWCP’s arbitrary reliance on
Barbara J. Williams, 40 ECAB 649 (1989) in denying the claim. However, for the reasons set
forth above, the Board finds that the weight of the medical evidence does not establish that
appellant sustained a right shoulder condition causally related to the accepted employment
duties.
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.
12

K.T., Docket No. 15-1758 (issued May 24, 2016).

13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
14

Id.

15

5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law);
See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006); A.C., Docket No. 08-1453 (issued November 18, 2008).
16

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

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CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a right
shoulder condition causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the July 22, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 17, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, NORTHWEST
DALLAS POST OFFICE, Dallas, TX, Employer
__________________________________________

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

Docket No. 21-0449
Issued: October 25, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 5, 2021 appellant filed a timely appeal from a September 22, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount $144,233.05 during the period January 4, 2019 through July 18, 2020, as he continued to
receive wage-loss compensation and medical benefits while a third-party surplus was outstanding;
and (2) whether it properly determined that appellant was at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 3, 2016 appellant, then a 52-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on the previous day, he sustained fractures to his lower
back when he slipped and fell while shielding himself from a dog attack while in the performance
of duty. OWCP initially accepted the claim for sprain of the ligaments of the lumbar spine, and
later expanded the acceptance of his claim to include closed fracture of thoracic vertebrae, wedge
compression fracture of the T11-T12 vertebra with delayed healing, ankylosing spondylitis of the
thoracic region, and acute pyelonephritis. Appellant stopped work on the date of injury and has
not returned. OWCP paid appellant wage-loss compensation on the supplemental rolls from
September 17 through October 15, 2016, and on the periodic rolls as of October 16, 2016.
In a March 30, 2018 letter, OWCP advised appellant that a third party may be liable for his
work-related injury. It informed him that he had an obligation to pursue an action against the
responsible third party and that should the claim against one or more responsible third parties result
in a recovery of money or property, including a settlement, he had to pay a portion of the recovery
to OWCP for benefits paid under FECA.
By letter dated October 31, 2018, OWCP advised appellant’s then-representative that a
third party may be liable for his work-related injury and enclosed a Long Form Statement of
Recovery (Form CA-1108) for the then-representative’s completion in order to calculate the refund
due OWCP and to calculate any surplus related to the claim.
OWCP received the Form CA-1108, signed by appellant on November 14, 2018. The form
noted a gross recovery of $1,050,000.00 and with the Federal Government’s statutory right to
refund in the amount of $147,530.61, and a surplus credit against future FECA benefits in the
amount of $332,954.99.
In a November 21, 2018 letter, the Department of Labor, Office of the Solicitor of Labor
(SOL) requested repayment of the $147,530.61 refund within 30 days and noted that if payment
was not received within 30 days, interest would begin to accrue as of the date of the letter. In a
December 21, 2018 letter, SOL notified appellant’s then-representative that the $147,530.61
refund had not been paid and that according to the regulations implementing FECA, if the required
refund was not paid within 30 days of the request for payment, OWCP could, in its discretion,
collect the refund by withholding all or part of any payments currently payable to appellant under
FECA with respect to any injury. 2
On January 22, 2019 appellant’s then-representative enclosed a check in the amount of
$147,530.61, the full amount of the lien.
In a January 4, 2019 letter, OWCP advised appellant’s representative that the third-party
settlement resulted in a third-party surplus of $332,954.99. It advised that, until the surplus had
been exhausted, he was not entitled to further wage-loss compensation or medical benefits under
FECA.

2

See 20 C.F.R. § 10.716.

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On January 4, 2019 SOL closed the third-party aspect of appellant’s case. It advised
OWCP that a surplus of $332,954.99 remained.
Appellant continued to receive compensation payments under FECA after the third -party
notice was placed in the file by SOL indicating a third-party surplus of $332,954.99. He received
compensation in the gross amount of $1,123.00 for the periods December 9, 2018 through
January 5, 2019 and January 6 through February 2, 2019; in the gross amount of $1,124.79 for the
period February 3 through March 2, 2019; in the gross amount of $1,143.00 for the 28-day period
from March 3, 2019 through February 29, 2020; and in the gross amount of $1,169.00 for the 28day period from March 1 through July 18, 2020.
In a July 20, 2020 letter, OWCP advised appellant that the third-party settlement resulted
in a credit against his future FECA benefits, resulting in a third-party surplus. It advised him that,
until the surplus had been exhausted, he was not entitled to further wage -loss compensation or
medical benefits under FECA. As appellant was no longer eligible to receive compensation and
medical benefits from OWCP, OWCP stopped his benefits effective July 19, 2020.
On August 19, 2020 OWCP issued a preliminary overpayment determination of an
overpayment of compensation in the amount of $144,233.05 for the period January 4, 2019
through July 18, 2020 because appellant received wage-loss compensation and medical benefits
during a period of a third-party surplus. It found that he was at fault in the creation of the
overpayment because he knowingly accepted payments which he knew or reasonably should have
known were incorrect. The preliminary overpayment determination included a worksheet, which
provided an explanation of the calculation of the $144,233.05 overpayment, which was the gross
amount of wage-loss and medical compensation received during the stated period. It indicated
that appellant received $23,032.00 of wage-loss compensation from January 4, 2019 through
July 18, 2020, and medical benefits in the amount of $121,201.05. OWCP requested that appellant
complete the enclosed overpayment recovery questionnaire (Form OWCP-20) and submit
supporting financial documentation. Additionally, it provided him with an overpayment action
request form and notified him that, within 30 days of the date of the letter, he could request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
On August 26, 2020 appellant requested that OWCP make a decision based on the written
evidence on the issues of fault and possible waiver of the overpayment. In an enclosed Form
OWCP-20, appellant indicated that he had a monthly household income of $1,433.00, monthly
expenses totaling $1,200.00, and total funds/assets of $135.00.
By decision dated September 22, 2020, OWCP finalized that the preliminary overpayment
determination that appellant had received an overpayment of compensation in the amount of
$144,233.05 for the period January 4, 2019 through July 18, 2020 because he accepted wage-loss
compensation and medical benefits when a third-party surplus was outstanding. It found that he
was at fault in the creation of the overpayment because he knew or reasonably should have known
that he was not entitled to compensation benefits “until the surplus was exhausted.” Consequently,
waiver of recovery of the overpayment was precluded. OWCP requested that appellant repay the
overpayment in $150.00 monthly installments.

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LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3 Section 8132 of FECA outlines that where an injury or death for which compens ation is
payable is caused under circumstances creating a legal liability in a person other than the United
States to pay damages and a beneficiary entitled to compensation from the United States for that
injury or death receives money or other property in satisfaction of that liability as a result of suit
or settlement by him or her in his or her behalf, the beneficiary, after deducting therefrom the costs
of suit and a reasonable attorney’s fee, shall refund to the United States the amount of
compensation paid by the United States and credit any surplus on future payments of compensation
to him or her for the same injury. 4 The applicable regulations reiterate that, after the refund owed
to the United States is calculated, FECA beneficiary retains any surplus remaining and this amount
is credited, dollar for dollar, against future compensation for the same injury. 5 OWCP will resume
the payment of compensation only after FECA beneficiary has been awarded compensation, which
exceeds the amount of the surplus.6 Where a beneficiary who has received a third-party recovery
has made the required refund, but subsequent events result in payment of compensation benefits,
including medical benefits, this may result in an overpayment of compensation. 7 Such an
overpayment of compensation should be adjudicated and processed by OWCP according to the
usual overpayment procedures. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $144,233.05 for the period January 4, 2019 through July 18,
2020 as he continued to receive wage-loss compensation and medical benefits while a third-party
surplus was outstanding.
Appellant received a third-party recovery of $1,050,000.00. He signed a Form CA-1108
on November 14, 2018, which provided the calculations of the amount that needed to be refunded
directly to OWCP. After appropriate deductions for the costs of the third-party suit and attorney

3

Id. at § 8102.

4

Id. at § 8132. See R.M., Docket No. 20-0686 (issued May 20, 20201); E.K., Docket No. 18-0599 (issued
February 26, 2020); see also T.D., Docket No. 16-0565 (issued May 5, 2016).
5

20 C.F.R. § 10.712.

6

Id.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Third-Party Subrogation Guidelines, Chapter 2.1100.10
(March 2006).
8

Id.

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fees, a surplus was created against future compensation in the amount of $332,954.99. Future
compensation payments are to be charged against a surplus until it has been exhausted. 9
For the period January 4, 2019 through July 18, 2020, appellant continued to receive
compensation benefits in the amount of $144,233.05 from his FECA claim. This amount was
required to be credited against the remaining surplus rather than paid to him. 10
Therefore, the Board finds that OWCP properly found an overpayment of compensation in
the amount of $144,233.05.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments to
which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or be against equity and good conscience. 11 No waiver of
payment is possible if appellant is with fault in helping to create the overpayment. 12
In determining whether an individual is at fault, section 10.433(a) of OWCP’s regulations
provides in relevant part:
“An individual is with fault in the creation of an overpayment who-Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
Failed to provide information which he or she knew or should have known
to be material; or accepted a payment which he or she knew or should have
known to be incorrect.”13
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant was at fault in the creation
of the overpayment of compensation, thereby precluding waiver of recovery of the overpayment.
OWCP found that appellant was at fault in the creation of the overpayment because he
accepted payments he knew or should have known were incorrect. In a letter dated January 4,
2019, OWCP advised appellant’s then-representative of record that the third-party settlement
9

20 C.F.R. § 10.712; E.K., Docket No. 18-0599 (issued February 26, 2020).

10

E.K., id.; see B.G., Docket No. 14-0850 (issued September 17, 2014).

11

5 U.S.C. § 8129(b).

12

E.K., supra note 9; Robert W. O Brien, 36 ECAB 541, 547 (1985).

13

20 C.F.R. § 10.433(a).

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resulted in a third-party surplus of $332,954.99. It further advised that, until the surplus had been
exhausted, he was not entitled to further wage-loss compensation or medical benefits under FECA.
Following receipt of the January 4, 2019 letter, appellant received payments for wage-loss
compensation and reimbursement for medical payments in the amount of $144,233.05.
Although OWCP may have erred in not applying the third-party surplus when issuing the
wage-loss compensation and medical reimbursement payments, this does not relieve appellant
from his obligation to repay the overpayment. Fault can be established if the circumstances show
that the claimant accepted a payment he should have known was incorrect. 14 The Board finds that
OWCP provided a specific explanation regarding the nature and amount of the surplus and the
resultant impact on appellant’s entitlement to further compensation payments until the surplus had
been absorbed. Therefore, appellant should have known that the wage-loss compensation benefits
and medical reimbursements were incorrect. 15 Thus, OWCP properly found him at fault in the
creation of the overpayment, thereby precluding waiver of recovery of the overpayment.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $144,233.05 during the period January 4, 2019 through July 18,
2020, as he continued to receive wage-loss compensation while a third-party surplus was
outstanding; and that appellant was at fault in the creation of the overpayment of compensation,
thereby precluding waiver of recovery of the overpayment.

14

P.B., Docket No. 17-1046 (issued January 2, 2018); B.G., Docket No. 14-0850 (issued September 17, 2014).

15

E.K., Docket No. 18-0599 (issued February 26, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the September 22, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, BLUE LAGOON
POST OFFICE, Miami, FL, Employer
__________________________________________

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

Docket No. 20-1085
Issued: December 31, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 11, 2020 appellant filed a timely appeal from an October 1, 2019 merit decision
and a December 16, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $1,666.09 for which she was without fault because
health insurance premiums had not been deducted from her FECA compensation for the period
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the October 1, 2019 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id

November 21, 2017 through November 10, 2018; (2) whether it properly denied waiver of
recovery of the overpayment; and (3) whether OWCP properly denied appellant’s request for a
prerecoupment hearing under 5 USC § 8124.
FACTUAL HISTORY
On October 13, 2017 appellant, then a 31-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that on October 6, 2017 she strained her low back when bending
over to pick up a package while in the performance of duty. She stopped work on October 7, 2017.
OWCP accepted her claim for low back strain. It paid appellant wage-loss compensation
beginning November 21, 2017 and placed her on the periodic rolls, effective December 10, 2017.
In a January 10, 2018 letter, S.L., a health and resource management specialist for the
employing establishment, informed OWCP that health benefit insurance (HBI) was not identified
at the time that appellant submitted the wage-loss compensation form (Form CA-7) dated
December 20, 2017. She noted that appellant was enrolled in the Federal Employees Health
Benefit (FEHB) plan under “Code LVI.”
Beginning November 11, 2018, OWCP deducted $145.40 for HBI premiums from
appellant’s continuing wage-loss compensation payments.
In a memorandum of telephone call (Form CA-110) dated December 3, 2018, OWCP
informed appellant that it was recalculating her wage-loss compensation to deduct for HBI
premiums for the period November 21, 2017 through November 10, 2018.
On December 4, 2018 appellant returned to full-time, modified-duty work.
A compensation payment worksheet, dated December 4, 2018, outlined the deduction of
HBI premiums for the period November 21, 2017 through November 10, 2018. It noted that for
FEHB code LVI appellant should have paid $1,666.09 during the claimed period.
OWCP received a Notice of Change in Health Benefits Enrollment form dated
December 10, 2018, signed by a payroll official, which indicated that appellant had been enrolled
in FEHB code LVI, effective November 21, 2017.
In a preliminary overpayment determination dated January 17, 2019, OWCP notified
appellant that an overpayment of compensation in the amount of $1,666.09 had been created
because HBI premiums had not been deducted from her FECA compensation for the period
November 21, 2017 through November 10, 2018. It further advised her of its preliminary
determination that she was not at fault in the creation of the overpayment. OWCP provided
appellant an overpayment action request form and an overpayment recovery questionnaire (Form
OWCP-20). Additionally, it notified her that within 30 days of the date of the letter, she could
request a telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing.
On February 15, 2019 appellant returned the overpayment action request. She did not
indicate whether she requested a review of the written evidence or a pre-recoupment hearing before
a representative of OWCP’s Branch of Hearings and Review. Appellant explained that she was
2

not sure which option to select because the overpayment was not her fault. She also alleged that
the employing establishment had taken money from her paycheck.
In a February 7, 2019 letter, appellant indicated that the employing establishment had taken
$330.75 out of her paycheck due to OWCP not paying her health benefits. She argued that OWCP
had provided notice that they would pay back the employing establishment the amount that was
owed by her, but OWCP had not yet done so.
Appellant provided an Employee Earnings Statement for the period January 19 through
February 1, 2019 and a December 20, 2018 statement from the employing establishment’s
disbursing office for the amount of $330.75.
On July 30, 2019, OWCP’s Branch of Hearings and Review advised appellant that it would
finalize the January 17, 2019 preliminary overpayment determination via a review of the written
record.
By decision dated October 1, 2019, an OWCP hearing representative affirmed the
January 17, 2019 preliminary overpayment determination.
OWCP subsequently received a statement from appellant asserting that she was unable to
repay the overpayment amount.
By appeal request form postmarked October 31, 2019, appellant requested a hearing before
a representative of OWCP’s Branch of Hearings and Review.
OWCP, by letter dated November 13, 2019, acknowledged appellant’s hearing request and
informed her of its related procedures.
By decision dated December 16, 2019, OWCP denied appellant’s request for a hearing,
finding that, since she had already received a review of the written record, she was not entitled to
a second hearing as a matter of right whether an oral hearing or a review of the written record on
the same issue.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 Section 8129(a) of FECA provides, in pertinent part, that 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.4
An employee entitled to disability compensation may continue his or her health benefits
under the FEHB program. The Office of Personnel Management (OPM), which administers the
3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

3

FEHB program, by regulation provides guidelines for the registration, enrollment, and
continuation of enrollment for federal employees.
In this connection, 5 C.F.R.
§ 890.502(a)(1) provides:
“Employees and annuitants are responsible for paying the enrollee share of the cost
of enrollment for every pay period during which they are enrolled. An employee
or annuitant incurs a debt to the United States in the amount of the proper employee
or annuitant withholding required for each pay period during which they are
enrolled if the appropriate health benefits withholdings or direct premium payments
are not made.”5
In addition, 5 C.F.R. § 890.502(c)(1) provides:
“An agency that withholds less than the amount due for health benefits
contributions from an individual’s pay, annuity or compensation must submit an
amount equal to the uncollected employee contributions and any applicable agency
contributions required to OPM for deposit in the Employee’s Health Benefits
Fund.”6
Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.7 An establishment that withholds less than the
proper health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.8 The Board has recognized that, when an under withholding of health benefit
premiums is discovered, the entire amount is deemed an overpayment of compensation because
OWCP must pay the full premium to OPM when the error is discovered.9
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$1,666.09 for which she was without fault because HBI premiums had not been deducted from her
FECA compensation for the period November 21, 2017 through November 10, 2018,
The record reflects that appellant received wage-loss compensation for total disability
beginning November 21, 2017, but OWCP did not deduct HBI premiums from appellant’s wageloss compensation payments until November 11, 2018. The record reflects that on January 10,
2018 OWCP was informed that appellant was enrolled in a FEHB plan under “Code LVI”. OWCP
also received a Notice of Change in Health Benefits Enrollment form dated December 10, 2018,
which indicated that appellant had been enrolled in a FEHB “Code LVI”, effective
5

Id. at § 890.502(a)(1).

6

Id. at § 890.502(c).

7

Id. at § 890.502(b)(1).

8

Id. at § 890.502(d).

9

R.M., Docket No. 19-0183 (issued November 18, 2019); James Lloyd Otte, 48 ECAB 334 (1997).

4

November 21, 2017. For the period November 21, 2017 through November 10, 2018, OWCP
calculated that appellant had been overpaid $1,666.09 because it had not deducted the appropriate
HBI premiums.10 The Board has reviewed the December 4, 2018 overpayment worksheet that
reflects the above-noted overpayment and therefore finds that an overpayment of compensation in
the amount of $1,666.09 was created for the period November 21, 2017 through November 10,
2018 for which she was without fault.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.11
Thus, a finding that appellant was without fault does not automatically result in waiver of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good conscience.12
Section 10.436 of OWCP’s implementing regulations provides that recovery of an
overpayment would defeat the purpose of FECA if such recovery would cause hardship because
the beneficiary from whom OWCP seeks recovery needs substantially all of his or her current
income (including compensation benefits) to meet current ordinary and necessary living expenses
and, also, if the beneficiary’s assets do not exceed a specified amount as determined by OWCP
from data provided by the Bureau of Labor Statistics.13 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.14
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt;
and when an individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.15 OWCP’s procedures
provide that, to establish that a valuable right has been relinquished, an individual must
demonstrate that the right was, in fact, valuable, that he or she was unable to get the right back,

10

See M.R., Docket No. 18-0271 (issued June 11, 2019).

11

5 U.S.C. § 8129(a) – (b).

12

L.S., 59 ECAB 350 (2008).

13

20 C.F.R. § 10.436. OWCP’s procedures provide that the assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(3) (September 2018).
14

Federal (FECA) Procedure Manual at Chapter 6.400.4(a)(3) (September 2018).

15

20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

5

and that his or her action was based primarily or solely on reliance on the payment(s) or on the
notice of payment.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.17
In its preliminary determination dated January 17, 2019, OWCP clearly explained the
importance of providing the completed Form OWCP-20 recovery questionnaire and supporting
financial documentation. It advised appellant that it would deny waiver of recovery if she failed
to furnish the requested financial information within 30 days. Appellant, however, did not submit
a completed Form OWCP-20 recovery questionnaire or otherwise submit financial information
necessary for OWCP to determine if recovery of the overpayment would defeat the purpose of
FECA or if recovery would be against equity and good conscience.18
Consequently, as appellant did not submit the information required under 20 C.F.R.
§10.438, which was necessary to determine her eligibility of waiver, the Board finds that OWCP
properly denied waiver of recovery of the overpayment of compensation in the amount of
$1,666.09.19
LEGAL PRECEDENT -- ISSUE 3
OWCP’s regulations provide that before collecting an overpayment, it must provide the
claimant with written notice of the fact and amount of the overpayment, the finding of fault, the
right to submit evidence challenging the fact, amount or finding of fault and the right to request
waiver of the overpayment.20 The regulations further provide that a claimant may request a
prerecoupment hearing with respect to an overpayment.21 However, once the overpayment
decision has been finalized the only right to review of a final overpayment decision is to the

16

FECA Procedure Manual, supra note 13 at Chapter 6.400.4c(3) (September 2018).

17

20 C.F.R. § 10.436.

18
See S.W., Docket No. 20-0544 (issued September 21, 2020); see also S.M., Docket No. 17-1802 (issued
August 20, 2018).
19

See J.A., Docket No. 19-1946 (issued July 13, 2020); see also T.E., Docket No. 19-0348 (issued
December 11, 2019).
20

20 C.F.R. § 10.431.

21

Id. at § 10.432.

6

Board.22 The hearing provisions of 5 USC § 8124(b) do not apply to a final overpayment
decision.23
ANALYSIS -- ISSUE 3
OWCP notified appellant of its preliminary determination that he received an overpayment
of compensation in a letter dated March 3, 2010. By letter dated March 11, 2010, appellant
requested a prerecoupment hearing.
A telephonic hearing was scheduled on June 17, 2010, and appellant received notification
of the hearing 30 days in advance of the hearing. However, appellant failed to appear.
In the July 19, 2010 decision, OWCP found that appellant had abandoned his request for a
prerecoupment hearing and issued a final decision affirming the preliminary overpayment finding.
Appellant requested a second prerecoupment hearing on April 15, 2011, citing hardship as the
reason for this request.
The Board finds that OWCP properly determined that appellant was not entitled to a second
hearing under section 8124 as a matter of right.
OWCP’s regulations and Board case law are clear that the only right to review of a final
overpayment decision is an appeal to the Board.24 The hearing provisions of section 8124(b)
(5 USC § 8124(b)) do not apply to final overpayment decisions. The Branch of Hearings and
Review has no discretion to grant a hearing after an overpayment decision has been finalized.
Accordingly, the Board finds that OWCP properly denied appellant’s request for a second hearing,
after his overpayment was finalized.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$1,666.09 for which she was without fault, because HBI premiums had not been deducted from
her FECA compensation for the period November 21, 2017 through November 10, 2018. The
Board also finds that OWCP properly denied waiver of recovery of the overpayment. The Board
further finds that OWCP properly denied appellant’s request for hearing under 5 U.S.C. § 8124.

22

Id. at § 10.440(b).

23

Id.; see also G.G., Docket No. 12-159 (issued May 24, 2012); R.H., Docket No. 11-1790 (issued April 2, 2012);
Philip G. Feland, 48 ECAB 485 (1997).
24

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the December 16 and October 1, 2019 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: December 31, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO & FIREARMS,
Falls Church, VA, Employer
__________________________________________

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

Docket No. 09-1663
Issued: March 1, 2010

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 June 23, 2009 appellant filed a timely appeal from October 6, 2008 and June 12, 2009
merit decisions of the Office of Workers’ Compensation Programs denying his traumatic injury
claim. 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 has established that he sustained an injury on August 5,
2008 in the performance of duty.
FACTUAL HISTORY
On August 29, 2008 appellant, then a 44-year-old special agent, filed a claim alleging
that he sustained probable food poisoning on August 5, 2008 in the performance of duty. He
related that, while on official travel status in New Jersey, he became ill with what he “now
believed was food poisoning from a restaurant….” After eating dinner in the restaurant on

August 5, 2008, appellant awoke at midnight with severe nausea. He “began vomiting profusely,
including blood.”
By letter dated September 3, 2008, the Office requested that appellant submit medical
evidence in support of his claim, including a report from a physician explaining how the
identified work incident caused or aggravated the claimed condition.
In a decision dated October 6, 2008, the Office denied the claim finding that appellant
failed to submit medical evidence supporting that he sustained an injury due to the established
work factor.
In a statement dated October 22, 2008, a supervisor related that appellant was on travel
status when he became ill. Appellant received treatment at the emergency room. He submitted
an October 22, 2008 statement and related that he became ill while on official travel. Appellant
stated:
“In short, I was on official travel in Trenton/Princeton, NJ [New Jersey], when I
took ill while in my hotel room. I awoke around midnight vomiting blood. I
believed I might have swallowed something at dinner, possibly a broken toothpick
(part of which I found in some iced tea I had been drinking). I went to the local
emergency room to get evaluated.”
In a hospital report dated August 5, 2008, received by the Office on October 28, 2008,
Dr. Daniel Farber, Board-certified in emergency medicine, evaluated appellant for possible
ingestion of a toothpick six hours prior. Appellant provided a history of eating dinner in a chain
restaurant that evening and indicated that he had no prior symptoms or exposure to illness. He
related that he had been vomiting blood. Dr. Farber noted that a reading of x-rays was
unremarkable.1 A nurse indicated that appellant left the hospital without discharge instructions
or signing discharge paperwork.
On March 9, 2009 appellant requested reconsideration. In a decision dated June 12,
2009, the Office denied modification of its October 6, 2008 decision. It noted that he had not
submitted a medical report providing a firm diagnosis of a condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 Where an employee is
1

X-rays obtained on August 5, 2008 revealed no radiodense foreign bodies.

2

5 U.S.C. §§ 8101-8193.

3

Anthony P. Silva, 55 ECAB 179 (2003).

2

on temporary-duty assignment away from his federal employment, he is covered by the Act 24
hours a day with respect to any injury that results from activities essential or incidental to his
temporary assignment.4
The Board has recognized that Larson, in his treatise, The Law of Workers’
Compensation, sets forth the general criteria for performance of duty as it relates to travel
employees or employees on temporary-duty assignments as follows:
“Employees whose work entails travel away from the employer’s premises are
held in the majority of jurisdictions to be within the course of their employment
continuously during the trip, except when a distinct departure on a personal errand
is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating
in restaurants away from home are usually held compensable.”5
It is not sufficient, however, simply to show that an employee is on a special mission or
in travel status during the time a disabling condition manifests itself.6 The medical evidence
must establish an injury causally related to activities incidental to the travel assignment.7
ANALYSIS
Appellant alleged that he became ill with food poisoning while on travel status. As
noted, while on travel status he is covered 24 hours a day with respect to any injury that results
from activities incidental to these duties.8 The employing establishment confirmed that he was
on travel status and in the performance of duty at the time of the alleged employment incident on
August 5, 2008. Appellant, therefore, would be covered from any injury established as resulting
from employment factors while on official travel.
In order to establish that he sustained an injury on August 5, 2008, appellant must submit
medical evidence on causal relationship between a diagnosed condition and an incident of his
travel.9 On August 5, 2008 Dr. Farber evaluated appellant at the hospital for the possible
ingestion of a toothpick. He noted that appellant had eaten at a chain restaurant. Appellant
related that he had no exposure to illness or prior symptoms. Dr. Farber reviewed x-rays, which
were unremarkable for a foreign body. A nurse related that appellant left the hospital without
signing paperwork or receiving discharge instruction. Dr. Farber did not provide a diagnosis or
address the cause of appellant’s condition or its relationship to incidents of his travel. Without a
firm diagnosis or opinion on causal relationship supported by medical rationale, the report is of
4

See Susan A. Filkins, 57 ECAB 630 (2006); Cherie L. Hutchings, 39 ECAB 639 (1988).

5

A. Larson, The Law of Workers’ Compensation, § 25.01 (2000); see also Susan A. Filkin, supra note 4;
Lawrence J. Kolodzi, 44 ECAB 818 (1993).
6

See Susan A. Filkins, supra note 4; William B. Merrill, 24 ECAB 215, 219 (1973).

7

Id.

8

Susan A. Filkins, supra note 4.

9

Id.

3

little diminished value.10 Dr. Farber did not explain how appellant’s condition was causally
related to activities essential to or incidental to his temporary assignment and his opinion is
insufficient to establish causal relationship. In the absence of probative medical evidence, the
Board finds that appellant did not meet his burden of proof.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
August 5, 2008 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 12, 2009 and October 6, 2008 are affirmed.
Issued: March 1, 2010
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

10

See Conard Hightower, 54 ECAB 796 (2003) (medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of diminished probative value on the issue of causal relationship); Samuel
Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease was not definite
and was unsupported by medical rationale, it was insufficient to establish causal relationship).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
U.S. POSTAL SERVICE, ALBANY
PERFORMANCE CLUSTER, Albany, NY,
Employer
__________________________________________

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

Docket No. 07-2354
Issued: March 26, 2008

Case Submitted on the Record

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

JURISDICTION
On July 24, 2007 appellant filed a timely appeal from a July 24, 2006 nonmerit decision
of the Office of Workers’ Compensation Programs which denied his request for reconsideration.
Because more than one year elapsed between the most recent merit decision of the Office, dated
April 29, 2005, and the filing of this appeal 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 refused to reopen appellant’s claim for further
merit review pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 3, 2004 appellant, then a 39-year-old mail handler, filed a traumatic injury
claim alleging that he hurt his back that day when the equipment he was holding was struck by
equipment being pushed by another employee. He first sought medical treatment on

February 12, 2004 and started working part time on February 13, 2004.1 Appellant retired on
disability November 15, 2005.
By decision dated August 5, 2004, the Office found that appellant experienced the
claimed incident in the manner alleged, but denied the claim as the medical evidence was
insufficient to establish a causal relationship between a diagnosed medical condition and the
February 3, 2004 work incident.
In a January 17, 2005 letter, appellant requested reconsideration of the Office’s August 5,
2004 decision. He submitted the December 22, 2004 medical report of Dr. Kevin L. Hastings, an
osteopath; an April 12, 2005 magnetic resonance imaging (MRI) scan; and evidence predating
the current claim and relating to File No. 020711825.
By decision dated April 29, 2005, the Office denied modification of its August 5, 2006
decision. It found that the medical evidence was insufficient to establish a causal relationship
between a diagnosed medical condition and the February 3, 2004 work incident.
In an April 16, 2006 letter, appellant requested reconsideration of the Office’s April 29,
2005 decision. He alleged that there were two errors in the Office’s decision. Appellant asserted
that, contrary to the Office’s statement, he did not go off eight hours of work per day until
February 13, 2004. He asserted that his back spasms were initially caused by a March 24, 1996
injury under File No. 020711825. Appellant stated that his symptoms remained through
February 3, 2004 and never abated. He requested that the Office consider a letter written by
Richard Nappi, an Officer in Charge, who confirmed that appellant was unable to continue
working after his February 3, 2004 injury. Appellant submitted copies of clock rings for the
period February 2 to 20, 2004 and a duplicative copy of the April 12, 2005 MRI scan previously
of record. A statement from Mr. Nappi was not of record.
By decision dated July 24, 2006, the Office denied appellant’s request for reconsideration
without conducting a merit review. It found that the evidence submitted in support of appellant’s
request was irrelevant to the medical issue in the case.
On appeal, appellant contended that the Board should consider the current claim in
relation to his prior claim under File No. 020711825, alleging his work restrictions under that
claim were violated on February 3, 2004. Appellant asserts that he reported the February 3, 2004
incident to his treating physician. Evidence pertaining to File No. 020711825 was submitted.2
LEGAL PRECEDENT
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
1

The Office assigned the claim File No. 022049528. On February 22, 2004 appellant also filed a recurrence
claim under File No. 020711825 alleging that his February 3, 2004 injury was a recurrence of his March 24, 1996
injury.
2

The Board, however, lacks jurisdiction to consider this evidence for the first time on appeal as it was not before
the Office at the time of its July 24, 2006 decision. See 20 C.F.R. § 501.2(c).

2

application by a claimant.3 Section 10.606(b)(2) of Office regulations provides that a claimant
may obtain review of the merits of the claim by either: (1) showing that the Office erroneously
applied or interpreted a specific point of law; (2) advancing a relevant legal argument not
previously considered by the Office; or (3) constituting relevant and pertinent new evidence not
previously considered by the Office.4 Section 10.608(b) provides that when an application for
reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.5 The Board has held that the submission of evidence which does not
address the particular issue involved does not comprise a basis for reopening a case.6 It is well
established that evidence which repeats or duplicates that already of record does not constitute a
basis for reopening a case for merit review.7
ANALYSIS
The only decision before the Board in this appeal is the July 24, 2006 decision of the
Office denying appellant’s application for review of its April 29, 2005 decision. The underlying
issue in this claim was whether appellant submitted sufficient medical evidence to establish that
he sustained an injury causally related to the accepted February 3, 2004 incident. Thus, to be
relevant, the arguments and evidence submitted in support of the April 16, 2006 request for
reconsideration must address this issue.
The Board finds that appellant neither raised new and relevant legal arguments nor
asserted that the Office misapplied or misinterpreted a point of fact or law. In his April 16, 2006
letter, appellant advised that he took off work prior to February 13, 2004 and submitted copies of
clock rings for the period February 2 to 20, 2004. However, the letter and clock rings are not
relevant to the basis on which the Office denied the claim. As noted, the submission of evidence
which does not address the particular issue involved does not comprise a basis for reopening a
case.8
While appellant asserts that his back injury of February 3, 2004 is a recurrence of his
prior claim under File No. 020711825, the Board notes that the Office properly adjudicated the
current claim as a new injury. A recurrence of disability means an inability to work after an
employee has returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.9 As the Office accepted that the February 3, 2004
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b).

6

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

7

See Arlesa Gibbs, 53 ECAB 204 (2001).

8

Joseph A. Brown, Jr., supra note 6.

9

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

3

incident occurred as alleged, this incident represents an intervening injury or new exposure to the
work environment. Therefore, appellant’s argument does not show that the Office erroneously
applied or interpreted a specific point of law nor does it advance a relevant legal argument not
previously considered. Accordingly, the Board finds that appellant did not meet the first two
criteria warranting a merit review.
Appellant has not submitted any new and relevant evidence warranting reopening of the
claim for a merit review. Since the underlying issue in the case is medical in nature, the factual
evidence submitted by appellant is not relevant. The only medical evidence appellant submitted
was the April 12, 2005 MRI scan report, which was previously of record and which does not
address the cause of appellant’s claimed condition. As noted, evidence which repeats or
duplicates that already of record does not constitute a basis for reopening a case for merit
review.10 Thus, appellant did not meet the third criteria for warranting a merit review.
The Board finds that appellant did not meet any of the above-listed three criteria
warranting a merit review. The Office properly denied his request for reconsideration without
conducting further merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 24, 2006 is affirmed.
Issued: March 26, 2008
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

10

See Arlesa Gibbs, supra note 7.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, Denver, CO, Employer
__________________________________________

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

Docket No. 13-1531
Issued: October 21, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On June 5, 2013 appellant filed a timely appeal from the January 23, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received a
$2,016.50 overpayment of compensation; and (2) whether it properly determined that she was at
fault in the creation of the overpayment of compensation, thereby precluding waiver of recovery
of the overpayment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
In March 2005, OWCP accepted that appellant, then a 46-year-old office automation
assistant, sustained bilateral/lateral epicondylitis due to the repetitive computer-related duties of
her job. It later accepted that she also sustained bilateral ulnar nerve lesions, bilateral chronic
forearm tendinitis and other peripheral enthesopathies due to her work.2
In a January 25, 2011 letter, OWCP advised appellant that it had made a preliminary
determination that she received a $2,370.43 overpayment of compensation because she elected to
receive an Office of Personnel Management (OPM) annuity in lieu of OWCP compensation
starting retroactively on June 1, 2010 and improperly received both OPM and OWCP benefits
for the period June 1 to December 18, 2010.3 It also informed her that it had made a preliminary
determination that she was at fault in the creation of the overpayment because she knew or
should have known that she was not entitled to dual payments. Appellant was provided 30 days
from the date of the letter to submit evidence and argument challenging the overpayment.
In a March 1, 2011 decision, OWCP determined that appellant received a $2,370.43
overpayment of compensation and that she was at fault in the creation of the overpayment of
compensation, thereby precluding waiver of recovery of the overpayment.
In a March 28, 2011 letter, appellant advised OWCP that she had not yet received any
payments from OWCP.
In a June 3, 2011 letter to appellant, Michelle Taylor, an OWCP senior claims examiner,
advised that she had contacted OPM and confirmed that appellant had not actually received any
OPM benefits to date.4 She indicated that she sent OPM a letter informing it of appellant’s
election and requesting that it withhold and forward the amount of $2,370.43 to OWCP.
Ms. Taylor stated, “Until further notice you are absolved of the debt in the amount of $2,370.43.
However please note that … OWCP may take further action if OPM does not return the funds to
our agency. You are advised to notify … OWCP when you receive OPM benefits to ensure that
the dual benefit is collected and resolved.”
In a July 18, 2012 memorandum of a telephone conversation on that date, Paula
Turachak, an OWCP employee, stated, “Called OPM at 8:45. Spoke to Cathy. She stated
[claimant’s] disability retirement began on July 1, 2010.”

2

Appellant initially was compensated for partial disability under an informal wage-earning capacity
determination and in March 2010 she began receiving compensation on the periodic rolls. She filed for disability
retirement effective in June 2010. In a December 2, 2010 letter, the employing establishment advised OWCP that
appellant’s disability retirement had been approved as of November 22, 2010.
3

The record contains a form, signed February 17, 2010, in which appellant elected to receive OPM benefits
effective June 30, 2010.
4

The record contains a memorandum of a June 3, 2011 telephone conversation on that date in which Ms. Taylor
advised that an OPM official told her that appellant had not yet begun to receive OPM benefits.

2

In a July 25, 2012 letter, OWCP advised appellant that it had made a preliminary
determination that she received a $2,016.50 overpayment of compensation because she elected to
receive an OPM annuity in lieu of OWCP compensation starting retroactively on July 1, 2010
and improperly received both OPM and OWCP benefits for the period July 1 to
December 18, 2010. It also informed her that it had made a preliminary determination that she
was at fault in the creation of the overpayment because she knew or should have known that she
was not entitled to dual payments. Appellant was provided 30 days from the date of the letter to
submit evidence and argument challenging the overpayment.
In a July 28, 2012 letter, appellant advised OWCP that she did not receive a dual payment
causing an overpayment as alleged. She stated, “It is true that I elected to receive OPM annuity
retroactively to [July 1, 2010]. However, OPM deducted the $1,966.50 from my original
retroactive payment as a collection, which I assume they forwarded to you…. I did not receive
that money from OPM so I do not feel that I owe it back to you.” Appellant submitted a portion
of a document indicating that $1,966.50 was deducted from her OPM benefits for the period
February 1, 2010 to May 31, 2011 (in the amount of $12,116.00) under the category
“Government Claim Collection.”
In a November 2012 letter to OPM, Ms. Taylor stated that appellant provided OWCP
with a benefit statement which noted that she was retroactively paid an annuity beginning
February 1, 2010 rather than July 1, 2010. She stated:
“The amount of the retro[active] payment was for $12,116.00 prior to deductions.
I am asking your office to verify when [appellant’s] annuity actually started and
the period that it covered so that this office can correctly calculate the dual
entitlement and declare an overpayment. Further, there is indication that when
OPM placed the retiree on your rolls, that your office withheld funds to repay
FECA for at least part of this dual entitlement period in the amount of $1,966.50.
If so, please verify this as our office has no record of receiving these funds.
“To assist us with this claim, please provide the following information….
1. Provide the periods that OPM benefits were paid: From ____ To ____
2. Provide information as to whether or not OPM has refunded any money
to FECA for any period covering from approximately February 1, 2010 to
December 18, 2010.”
There is no indication in the record that OPM responded to the November 9, 2012 letter
from OWCP.
In a January 23, 2013 decision, OWCP determined that appellant received a $2,016.50
overpayment of compensation. It also determined that she was at fault in the creation of the
overpayment because she knew or should have known that she was not entitled to dual payments.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.5 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”6
Section 8116(a) of FECA provides that while an employee is receiving compensation or
if he has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.7 In Marcello A. Garcia,8 the Board determined that OWCP improperly
found an overpayment of compensation for a given period because OWCP had not shown that
the claimant actually received both OPM benefits and OWCP wage-loss compensation for that
period.
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision regarding whether OWCP
properly determined that appellant received a $2,016.50 overpayment of compensation.
OWCP based its overpayment finding on its determination that appellant received
impermissible dual benefits from both OPM and OWCP for the period July 1 to
December 18, 2010. While the record reflects that appellant received OWCP benefits for this
period, OWCP did not adequately show that appellant retroactively received OPM benefits for
this period. OWCP appears to have based its finding that appellant received OPM benefits for
the alleged period on a record of a July 18, 2012 telephone conversation in which an OWCP
employee, stated, “Called OPM at 8:45. Spoke to Cathy. She stated [claimant’s] disability
retirement began on July 1, 2010.” However, there is no document in the record clearly showing
precisely when appellant actually received OPM benefits, the periods for which she received
such benefits or the amounts of benefits she received. Moreover, appellant submitted a
document indicating that $1,966.50 was deducted from her OPM benefits for the period
February 1, 2010 to May 31, 2011 under the category “Government Claim Collection.”
Therefore, the evidence of record does not contain documents clearly showing that appellant
actually received OPM benefits for the period July 1 to December 18, 2010 as alleged. As it was
alleged that appellant received dual benefits during this period, OWCP has not established the
5

Id. at § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8116(a).

8

43 ECAB 842 (1992).

4

fact of a $2,016.50 overpayment for this period. The case should be remanded to OWCP for
further development of this matter to be followed by the issuance of an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether OWCP
properly determined that appellant received a $2,016.50 overpayment of compensation.9
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: October 21, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

9

Given that the case is not in posture regarding whether OWCP properly determined that appellant received a
$2,016.50 overpayment of compensation, it is premature for the Board to consider whether OWCP properly
determined that she was at fault in the creation of any overpayment.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Hauppauge, NY, Employer
__________________________________________

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

Docket No. 15-1365
Issued: September 23, 2015

Case Submitted on the Record

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

JURISDICTION
On June 1, 2015 appellant, through counsel, filed a timely appeal from an April 9, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an injury on September 30, 2013 in the performance of duty.
FACTUAL HISTORY
On October 17, 2013 appellant, then a 50-year-old revenue officer, filed a traumatic
injury claim alleging that on September 30, 2013 she injured her right leg and knee when she
1

5 U.S.C. § 8101 et seq.

“stood up from a sitting position [and] heard her knee pop….” She stopped work on
September 30, 2013. The employing establishment controverted the claim as appellant was
teleworking from home and it was unclear if the incident was work related.
In an emergency room report dated September 30, 2013, appellant provided a history of a
knee injury an hour early while walking. Dr. Ryosuke Ito, an osteopath, diagnosed knee pain, a
knee strain, and a possible ligament injury.
In a report dated October 1, 2013, Dr. Alexander S. Finger, a Board-certified orthopedic
surgeon, evaluated appellant for right knee pain. He stated, “She reports coming downstairs
yesterday when she twisted and felt a pop and pain in the right knee.” Dr. Finger diagnosed a
right knee strain and possible anterior cruciate ligament injury.
A magnetic resonance imaging (MRI) scan study performed on October 3, 2013 revealed
a tear of the medial meniscus of the posterior horn of the right knee.
In a progress report dated October 8, 2013, Dr. Finger discussed appellant’s continued
complaints of pain in her right knee and noted that an MRI scan study revealed arthritis and a
tear of the medial meniscus.2 He diagnosed a knee and leg sprain/strain and a tear of the medial
cartilage or meniscus of the knee. Dr. Finger referred appellant for physical therapy.
By letter dated October 22, 2013, OWCP requested that appellant submit additional
factual and medical evidence, including a factual statement describing the circumstances
surrounding the September 30, 2013 incident and a detailed report from her attending physician
addressing the causal relationship between any diagnosed condition and the identified work
incident.
In a statement dated October 28, 2013, appellant indicated that she worked full time from
her residence. She advised that immediately following a conference call with the power of
attorney for a taxpayer she went to fax a memorandum about the conversation. Appellant
stepped down into her den and “heard a pop [and] felt horrible pain” in her right knee. She
telephoned her supervisor within a half hour about the incident. Appellant’s daughter took her to
the hospital when she got home from school.
In a form report dated October 29, 2013, Dr. Finger diagnosed a tear of the meniscus of
the right knee and checked “yes” that the condition was caused or aggravated by employment.
The history of injury on the form indicated that appellant twisted her knee going downstairs
while working. Dr. Finger provided as a rationale for his causation finding that she “twisted
[her] knee at work.” He found that appellant was disabled for about eight weeks beginning
October 1, 2013.
On November 13, 2013 the employing establishment controverted the claim as the
history of injury on the claim form of appellant of experiencing a pop in her knee standing up
differed from the history of injury contained in the medical reports of her injuring her knee
walking down stairs. It also noted that she was working at home at the time of her injury.
2

On October 16, 2013 a physician assistant opined that appellant was unable to work.

2

In a disability certificate dated November 19, 2013, Dr. Finger determined that appellant
could resume work without restrictions. In a progress report dated November 19, 2013, he noted
that she had not improved with physical therapy. Dr. Finger diagnosed a knee and leg
sprain/strain and a tear of the medial cartilage or meniscus of the knee.
By decision dated November 29, 2013, OWCP denied appellant’s claim after finding that
she did not establish the occurrence of the September 30, 2013 work incident.3 It determined
that her description of the September 30, 2013 incident varied from the history of injury
contained in the medical evidence. OWCP further found that appellant had not shown that she
was injured at home performing a duty directly related to her employment.
On November 29, 2013 appellant requested an oral hearing before an OWCP hearing
representative. She stated that when she telephoned her manager after her injury she was in
significant pain and “by no means thinking clearly.” Appellant indicated that she was working at
her dining room table on her laptop and had to go to a lower level to use her fax machine. She
submitted evidence documenting that she was performing work duties at the time of her injury.
In an e-mail dated December 6, 2013, appellant’s supervisor confirmed appellant’s
description of the work duties she was performing on September 30, 2013.
At the telephone hearing, held on June 16, 2014, appellant stated that she worked at home
in an upstairs office and at her dining room table.4 She also used a fax machine for work located
in a sunken den that had a step leading down into it. On September 30, 2013 appellant stepped
down into her den to send a fax, heard a pop, and experienced “excruciating pain.” She stated
that she must have twisted her knee when she stepped down. Appellant crawled to the telephone
and called her supervisor. She indicated that her supervisor completed the traumatic injury
claim. Appellant noticed that the history was incorrect on the form, but did not believe that it
mattered.
In a report dated May 23, 2014, Dr. Gregg J. Jarit, a Board-certified orthopedic surgeon,
advised that appellant was status post partial lateral meniscectomy of the right knee. He opined
that she was unable to work.
In an e-mail dated July 2, 2014, appellant’s supervisor reviewed the hearing transcript
and stated that appellant was “hurt while working” and reported it “as soon as she could….”
By decision dated September 5, 2014, an OWCP hearing representative affirmed the
November 29, 2013 decision as modified to reflect that appellant had established the occurrence
of the work incident. She determined, however, that the medical evidence was insufficient to
show that she sustained a right knee condition as a result of the September 30, 2013 employment
incident.

3

A claims examiner signed the November 29, 2013 decision on December 2, 2013.

4

On March 14, 2014 appellant’s counsel requested a telephone hearing instead of an oral hearing.

3

In a report dated April 25, 2014, received by OWCP on January 15, 2015, Dr. Jarit noted
that appellant was scheduled for surgery on May 14, 2014 and would be off work until
May 28, 2014. He found that she could currently perform light duty.
In a form report dated December 12, 2014, Dr. Jarit described the injury as occurring
when appellant, while working from home, “tripped when walking from her office to the den.”
He diagnosed a medial and lateral meniscal tear status after a partial medial and lateral
meniscectomy. Dr. Jarit signed below a statement on the form that the work activities described
resulted in the diagnosed condition.
On January 15, 2015 appellant, through counsel, requested reconsideration.
By decision dated April 9, 2015, OWCP denied modification of its September 5, 2014
decision. It found that appellant had not submitted reasoned medical evidence showing how the
September 30, 2013 work incident caused or aggravated a diagnosed condition.
On appeal appellant’s counsel contends that OWCP did not properly evaluate the medical
evidence. He noted that she described a twisting injury to her knee which was supported by an
appropriate evaluation of the medical evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative, and substantial evidence.8 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.9 An employee may establish that the employment

5

5 U.S.C. § 8101 et seq.

6

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

7

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

8

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

9

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

4

incident occurred as alleged, but fail to show that her disability and/or condition relates to the
employment incident.10
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.11
OWCP’s procedures address off-premises injuries sustained by workers who perform
service at home. It states:
“Ordinarily, the protection of [FECA] does not extend to the employee’s home,
but there is an exception when the injury is sustained while the employee is
performing official duties. In situations of this sort, the critical problem is to
ascertain whether at the time of injury the employee was in fact doing something
for the employer. The official superior should be requested to submit a statement
showing:
(a) What directives were given to or what arrangements had been made
with the employee for performing work at home or outside usual working
hours;
(b) The particular work the employee was performing when injured; and
(c) Whether the official superior is of the opinion the employee was
performing official duties at the time of the injury, with appropriate
explanation for such opinion.”12
ANALYSIS
Appellant alleged that she injured her right knee on September 30, 2013 when she twisted
her knee walking down a step in her residence on her way to use a fax machine in furtherance of
her employment duties. Her supervisor confirmed that she was performing official work duties
in a telework status at the time of the alleged incident and thus in the performance of duty.13
While the original history of injury provided on the claim form of her experiencing knee pain
after standing from a sitting position varied from the history provided on the medical reports of
her twisting her knee going down stairs, appellant explained that her supervisor completed the
10

Id.

11

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

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(f)(1)
(August 1992); see also S.F., Docket No. 09-2172 (issued August 23, 2010).
13

Id.

5

claim form and that at the time she described the incident to her supervisor she was in
considerable pain and not able to think lucidly. Appellant subsequently provided a detailed
description of the circumstances surrounding the September 30, 2013 incident. OWCP accepted
the occurrence of the September 30, 2013 employment incident. The issue, which remains, is
whether the medical evidence is sufficient to establish that appellant sustained an injury as a
result of this incident.
On September 30, 2013 appellant received treatment from Dr. Ito at the emergency room.
She provided a history of experiencing knee pain one hour earlier while walking. Dr. Ito
diagnosed knee pain, a knee strain, and a possible ligament injury. He did not, however, directly
address the cause of the diagnosed conditions and thus his opinion is of little probative value.14
In a report dated October 1, 2013, Dr. Finger obtained a history of appellant experiencing
right knee pain and feeling a pop in her knee after going down stairs the day before. He
diagnosed a right knee strain and potential injury to the anterior cruciate ligament. Dr. Finger
did not, however, specifically attribute the diagnosed conditions to the September 30, 2013 work
incident; consequently, his opinion is insufficient to meet appellant’s burden of proof.15
On October 8, 2013 Dr. Finger evaluated appellant for continued right knee pain. He
reviewed the findings on an MRI scan study demonstrating arthritis and a medial meniscus tear.
Dr. Finger diagnosed a knee and leg sprain/strain and a tear of the medial cartilage or meniscus
of the knee. Again, however, he did not provide an opinion that the identified employment
incident resulted in the diagnosed right knee condition and thus his report is of diminished
probative value.16
In a form report dated October 29, 2013, Dr. Finger diagnosed a tear of the meniscus of
the right knee and checked “yes” that the condition was caused or aggravated by employment.
He explained his causation finding by noting that appellant “twisted [her] knee at work.”
Dr. Finger found that she was disabled from work for approximately eight weeks beginning
October 1, 2013. The Board has held, however, that when a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, without explanation or rationale,
that opinion has little probative value and is insufficient to establish a claim.17 While Dr. Finger
noted on the form that appellant twisted her knee while working, he did not provide any medical
reasoning explaining how or why the twisting of her knee resulted in the diagnosed conditions
and thus did not support a causation finding.18

14

See A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer
an opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
15

Id.

16

Id.

17

Deborah L. Beatty, 54 ECAB 340 (2003).

18

A medical report is of limited probative value on a given medical question if it is unsupported by medical
rationale. See K.D., Docket No. 14-1781 (issued August 14, 2015); T.F., 58 ECAB 126 (2006).

6

In a disability certificate dated November 19, 2013, Dr. Finger determined that appellant
could resume work without restrictions. In a progress report dated November 19, 2013, he
diagnosed a knee and leg sprain/strain and a tear of the medial cartilage or meniscus of the knee.
As Dr. Finger did not offer any opinion on the cause of appellant’s condition, his reports are of
diminished probative value on the issue of causal relationship.19
On April 25, 2014 Dr. Jarit indicated that appellant would be off work after surgery from
May 14 to 28, 2014. In a form report dated December 12, 2014, he obtained a history of
appellant tripping on her way from her office to her den while working at home. Dr. Jarit
diagnosed a medial and lateral meniscal tear status post a partial medial and lateral
meniscectomy. He signed below a statement that work activities described resulted in the
diagnosed condition. Dr. Jarit did not, however, provide a medical basis for his finding of
causation. Medical evidence that states a conclusion but does not offer any rationalized medical
explanation regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.20
On appeal appellant’s counsel contends that OWCP did not properly review or evaluate
the medical evidence. He asserts that she described a twisting injury that resulted in the
diagnosed condition and that a proper review of the medical evidence substantiates causation.
Appellant, however, has the burden to submit a well-reasoned medical report based on an
accurate history explaining how the work incident caused a diagnosed medical condition.21 As
discussed, she failed to submit a rationalized medical opinion supporting that her right knee
condition was causally related to the September 30, 2013 work incident. Consequently,
appellant did not meet her burden of proof to establish an employment-related traumatic injury.
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 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 she
sustained an injury on September 30, 2013 in the performance of duty.

19

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

20

See J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

21

See D.B., Docket No. 14-1815 (issued December 16, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the April 9, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2015
Washington, DC

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

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

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

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