United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY,
MCGUIRE AIR FORCE BASE, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1884
Issued: November 8, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 6, 2017 appellant, through counsel, filed a timely appeal from an April 25,
2017 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.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The record provided to the Board includes evidence received after OWCP issued its April 25, 2017 decision. The
Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether appellant has met her burden of proof to establish that she developed
bilateral carpal tunnel syndrome causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 27, 2012 appellant, then a 51-year-old sales associate/cashier, filed an
occupational disease claim (Form CA-2) alleging that she developed carpal tunnel syndrome in
the performance of duty on or about February 10, 2010. She explained that her sales associate
position entailed lifting food items of various weights, such as canned goods; uncooked meats;
gallons of milk, juice, and soda; animal food; and cat litter “10 [to] 50 lbs.”
In a note dated October 17, 2012, Dr. Raymond Ragland, III, a Board-certified orthopedic
hand surgeon, diagnosed bilateral carpal tunnel syndrome. On physical examination he noted
positive bilateral results for Tinel’s sign and direct compression. Dr. Ragland reported that, to a
reasonable degree of medical certainty, appellant’s bilateral carpal tunnel syndrome symptoms
were work-related processes. He recommended an open right carpal tunnel release procedure.
Appellant’s diagnoses included right de Quervain’s tenosynovitis, left trigger thumb, and
bilateral carpal tunnel syndrome. On November 9, 2012 Dr. Ragland performed an endoscopic
right carpal tunnel release.
By decision dated December 31, 2012, OWCP denied appellant’s occupational disease
claim, finding that the evidence of record was insufficient to establish that the claimed events(s)
occurred as described. It further found that she had not established that her bilateral carpal tunnel
syndrome was causally related to her federal employment duties.
In a note dated April 18, 2013, Dr. Ragland indicated that appellant had clinical and
neurometric findings consistent with bilateral carpal tunnel syndrome. He added that, in reviewing
her history, clinical findings, and neurometric findings, her bilateral carpal tunnel syndrome was
a work-related process, and that this opinion was rendered within a reasonable degree of medical
certainty.
By decision dated June 12, 2013, a representative of OWCP’s Branch of Hearings and
Review modified the December 31, 2012 decision to find that appellant had established that the
claimed events occurred as alleged. However, the hearing representative affirmed the denial of
benefits, finding that the medical evidence of record was insufficient to establish causal
relationship between her diagnosed upper extremity conditions and the accepted work factors of
“lifting items, scanning items, and keying data into the register.”

4

Docket No. 13-1873 (issued March 13, 2014).

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By decision dated March 13, 2014, the Board affirmed the hearing representative’s
June 12, 2013 decision. The Board found that the reports of Dr. Ragland were insufficient to
establish that appellant’s bilateral carpal tunnel syndrome was work related. The Board also found
that a July 25, 2012 form report from Dr. Daniel K. Mullin, a Board-certified emergency medicine
specialist, was insufficient to establish causal relationship.5 Lastly, the Board rejected counsel’s
argument that appellant had established a prima facie case, thereby, warranting further medical
development by OWCP.6
On March 13, 2015 counsel timely requested reconsideration. He submitted a
September 5, 2013 left upper extremity electromyogram and nerve conduction velocity
(EMG/NCV) study that revealed evidence of moderate left median nerve neuropathy consistent
with a clinical diagnosis of carpal tunnel syndrome.
In a March 24, 2015 report, Dr. Ragland reviewed his treatment of appellant dating back
to May 2011, including the surgery he performed on November 9, 2012, and her postoperative
care through December 21, 2012. He noted that, after a long absence, she returned on February 11,
2015 at which time she presented with persistent left carpal tunnel syndrome symptoms.
Examination of the left hand revealed normal range of motion with positive tests for Tinel’s sign,
Phalen’s test, and a median nerve compression test. There was diminished sensation in the thumb,
index, and middle fingers. An EMG was performed and Dr. Ragland recommended a left carpal
tunnel release. Dr. Ragland noted that he reviewed appellant’s medical records as well as her job
description. He noted that she was a cashier who, on occasion, had been required to lift heavy
items between 25 and 60 pounds. Dr. Ragland observed, “The repetitive stress nature of
[appellant’s] job has most certainly been an aggravating factor, if not a causative factor, in her
current complaints of left carpal tunnel syndrome pain. He explained that the medical literature
supports repetitive stress injury as an aggravating or causative factor of carpal tunnel syndrome in
the workplace setting. Dr. Ragland also found noteworthy the fact that appellant had no
complaints of carpal tunnel syndrome symptoms prior to her current job. He concluded that, to a
reasonable degree of medical certainty, appellant’s current left carpal tunnel syndrome complaints
were work related. Dr. Ragland reiterated that in light of her continued discomfort and
dysfunction, left carpal tunnel release was recommended.
By decision dated June 9, 2015, OWCP reviewed the merits of appellant’s case, but denied
modification of its December 31, 2012 decision. It found that Dr. Ragland’s report of March 24,
2015 was insufficient to establish the claim because he did not note how often she performed any
specific duties of her federal employment or how those work factors had caused or aggravated her
diagnosed condition. OWCP noted that he had not demonstrated a thorough understanding of
appellant’s duties, as he did not explain what “repetitive stress” he was referring to.
OWCP subsequently received additional treatment records from Dr. Ragland dated
between February 11 and September 2, 2015, including a June 16, 2015 operative report. On

5

Dr. Mullin reported that appellant sustained an overuse injury requiring follow-up with a hand surgeon. He
indicated by checkmark that the injury “was incurred in line of duty.”
6

Id.

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June 16, 2015 Dr. Ragland performed a left carpal tunnel release on appellant’s left upper
extremity, which was completed without complications.
By letter dated September 17, 2015, Dr. Ragland observed that appellant had persistent
bilateral carpal tunnel syndrome symptoms, which were “most certainly a work-related process.”
He reviewed her responsibilities at work, including significant repetitive activities such as cash
register keying, merchandise scanning, and intermittent lifting of heavy items at work.
Dr. Ragland explained that these activities had caused a significant worsening of her symptoms
overtime, requiring multiple bilateral carpal tunnel injections and therapy. He concluded, “To a
reasonable degree of medical certainty, the patient’s bilateral carpal tunnel syndrome symptoms
are work related.”
On March 11, 2016 counsel requested reconsideration of OWCP’s June 9, 2015 decision.
He referenced Dr. Ragland’s September 17, 2015 letter, as well as his treatment records.
By decision dated July 15, 2016, OWCP reviewed the merits of appellant’s case and denied
modification of its June 9, 2015 decision. It found that, while Dr. Ragland had opined as to the
causal relationship between her bilateral carpal tunnel syndrome and specific duties of her federal
employment, his opinion was insufficient to establish causal relationship because he did not
explain how cash register keying, merchandise scanning, and lifting of heavy items at work
directly caused or aggravated her carpal tunnel syndrome. OWCP further noted that he should
also explore and consider nonwork-related factors when providing an explanation on causal
relationship.
On October 17, 2016 appellant, through counsel, requested reconsideration of OWCP’s
July 15, 2016 decision. Attached to the request was a September 16, 2016 report from
Dr. Ragland. Dr. Ragland reported that appellant had bilateral carpal tunnel syndrome, with a
history of bilateral carpal tunnel release surgery and a revision procedure on the left. He noted
persistent burning pain and weakness in both hands despite conservative and surgical treatment.
Dr. Ragland further reported that appellant’s carpal tunnel syndrome symptoms were related to
her prior employment as a cashier, noting that in prior correspondence, he had delineated her
subjective and objective findings consistent with the diagnosis of bilateral carpal tunnel syndrome.
He cited three medical journal articles regarding carpal tunnel syndrome. Dr. Ragland explained,
“A review of her job history shows relevant exposure risk with regard to significant intermittent
peak hand force use, forceful hand repetition rates and percentage of time in forceful hand
exertions.” He noted that these factors were clinically significant risks in the development of
carpal tunnel syndrome.
December 7, 2016 EMG/NCV studies revealed bilateral median nerve impairments at the
wrists, moderate at the right and mild on the left. The EMG/NCV studies further revealed severe
left bilateral ulnar nerve impairment and significant right bilateral ulnar nerve impairment, as well
as moderate right posterior interosseous nerve impairment at the dorsal elbow/radial tunnel level.
By decision dated December 20, 2016, OWCP reviewed the merits of appellant’s case, but
denied modification of its July 15, 2016 decision. It found that Dr. Ragland’s September 16, 2016
report was insufficient to establish her claim because, although he included her job history and
described forceful hand use, exertion, and repetition, he did not describe her specific work factors
or provide a rationalized medical opinion as to how the work factors directly caused or aggravated
4

her condition. OWCP further noted that he had provided medical studies to support his opinion
and that these studies were of no evidentiary value in establishing causal relationship, because they
were of general application.
In a report dated October 26, 2016, Dr. Scott M. Fried, an osteopath and Board-certified
orthopedic surgeon, reviewed appellant’s list of duties, noting regular keying and scanning on a
register, lifting and carrying, handling of groceries, and lifting of large bags. He noted that, prior
to February 10, 2010, she had no problems, but that on or about that date she began developing
progressive problems in her hands, including numbness and tingling. Dr. Fried reviewed
appellant’s medical history with Dr. Ragland, including her surgery for her right carpal tunnel
syndrome in 2012 and for her left carpal tunnel syndrome on June 16, 2015. He examined her,
finding positive tests for carpal tunnel syndrome bilaterally. Dr. Fried opined that there is “no
doubt a direct cause and effect relationship between this patient’s work activities and the current
clinical complaints and physical manifestations of these injuries.” He explained the general causes
of her condition, including repeated stress and strain on the flexor tendons and her prognosis,
recommending continued treatment.
In a functional capacity evaluation (FCE) dated November 29, 2016, Dr. Fried noted that
appellant was employed as a military cashier and had sustained repetitive strain injuries to her
upper extremities resulting in right radial neuropathy, bilateral medium neuropathy, brachial
plexopathy, and right cervical radiculopathy while at work. He reviewed her history of treatment
with Dr. Ragland and noted that she had not worked since shortly after her first carpal tunnel
surgery. Dr. Fried performed a hand function evaluation, administration of standardized tests, and
observation of performance of physical demands with job simulation. He concluded that appellant
was unable to perform repetitive activities including simple grasping, fine manipulation, firm
grasping, pushing/pulling, or overhead/shoulder-level reaching with her upper extremities.
Dr. Fried noted that she was unable to lift more than two pounds or carry more than one pound of
weight without complaining of nerve symptoms.
On December 23, 2016 Dr. Fried reviewed the FCE of November 29, 2016. He noted that
appellant had increased symptoms with work simulation activities, diminished ability to
manipulate small objects, and increased symptoms with lifting and carrying activity. Appellant
was able to write for 2.75 minutes and key for 1 minute before exacerbating her symptoms.
Dr. Fried noted that these should be considered permanent limits.
On January 30, 2017 appellant, through counsel, requested reconsideration of OWCP’s
December 20, 2016 decision. He argued that Dr. Fried’s November 29, 2016 FCE, read together
with diagnostic tests and the previous reports of Dr. Ragland, provided sufficient medical evidence
to establish her claim for bilateral carpal tunnel syndrome. Counsel further argued that there
existed at least prima facie evidence of appellant’s claimed occupational disease.
By decision dated April 25, 2017, OWCP reviewed the merits of appellant’s case, but
denied modification of its December 20, 2016 decision. It found that Dr. Fried’s October 26, 2016
report did not sufficiently explain how her diagnosed conditions were caused or aggravated by
factors of her federal employment. As such, it was insufficient to establish appellant’s claim.

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LEGAL PRECEDENT
A claimant seeking benefits under FECA7 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.9
Causal relationship is a medical question, which generally requires rationalized medical
opinion evidence to resolve the issue.10 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factors must be
based on a complete factual and medical background.11 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factors.12
ANALYSIS
The Board finds that this case is not in posture for decision.13
The record contains medical reports from Dr. Ragland dated March 24, 2015;
September 17, 2015; and September 16, 2016, as well as a report from Dr. Fried dated
October 26, 2016.14 In his report dated March 24, 2015, Dr. Ragland indicated that he first treated
appellant on May 6, 2011 for with complaints of discomfort of the radial aspect of her right wrist,
7

Supra note 2.

8

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

9

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

See Robert G. Morris, 48 ECAB 238 (1996).

11

Supra note 8.

12

Id.

13

See E.B., Docket No. 17-1909 (issued March 16, 2018).

14

With regard to the reports of Dr. Ragland and other medical evidence the Board notes that it is unnecessary for
the Board to consider the evidence appellant submitted prior to the issuance of OWCP’s June 9, 2015 decision because
the Board has already considered this evidence in its March 13, 2014 decision and found that it failed to establish that
she developed bilateral carpal tunnel syndrome causally related to factors of her federal employment. Findings made
in prior Board decisions are res judicata absent further review by OWCP under section 8128(a) of FECA. See A.C.,
Docket No. 18-0484 (issued September 7, 2018).

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with intermittent parasthesias in the median nerve distribution of the right hand, and saw her again
on additional occasions. He noted that she had no prior complaints of carpal tunnel syndrome
symptoms prior to her current place of employment at her current job. Dr. Ragland reviewed
specific appellant’s duties of her federal employment in his report of September 17, 2015 and
opined that these duties had caused or aggravated her bilateral carpal tunnel syndrome within a
reasonable degree of medical certainty. He also reviewed test results demonstrating positive
testing for symptoms of bilateral carpal tunnel syndrome, as well as her medical history. On
October 17, 2016 Dr. Ragland explained how specific movements related to appellant’s duties had
caused or aggravated her bilateral carpal tunnel syndrome, writing, “A review of [appellant’s] job
history shows relevant exposure risk with regard to significant intermittent peak hand force use,
forceful hand repetition rates and percentage of time in forceful hand exertions.” Dr. Fried’s
medical report of October 26, 2016 concurred with Dr. Ragland’s opinion that her condition had
been caused by specific factors of her federal employment.
Dr. Ragland and Dr. Fried provided affirmative opinions on causal relationship. They
accurately identified specific employment factors to which appellant claimed caused her condition
and identified findings on examination.
The Board notes that, while none of the reports of appellant’s attending physicians is
completely rationalized, they are consistent in indicating that she sustained an employment-related
wrist condition and are not contradicted by any substantial medical or factual evidence of record.
While the reports are insufficient to meet her burden of proof to establish her claim, they raise an
uncontroverted inference between her wrist condition and the identified employment factors and
are sufficient to require OWCP to further develop the medical evidence and the case record.15
The Board finds that the March 24 and September 17, 2015, and September 16, 2016
reports of Dr. Ragland, considered together with the report of Dr. Fried are sufficient, given the
absence of any opposing medical evidence, to require further development of the record.16
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done.17 The case shall, therefore, be remanded to OWCP. On remand, it shall refer
appellant, a statement of accepted facts, and the medical evidence of record to an appropriate
Board-certified specialist for an examination, diagnosis, and a rationalized opinion as to whether
she sustained an employment-related occupational disease. After this and other such further
development deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

15

E.J., Docket No. 09-1481 (issued February 19, 2010); see also John J. Carlone, 41 ECAB 354, 360 (1989).

16

See A.F., Docket No. 15-1687 (issued June 9, 2016); Id.

17
D.G., Docket No. 15-0702 (issued August 27, 2015); Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).

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ORDER
IT IS HEREBY ORDERED THAT the April 25, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for proceedings consistent
with this opinion of the Board.
Issued: November 8, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jerome, ID, Employer
__________________________________________

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

Docket No. 22-0003
Issued: March 3, 2022

Case Submitted on the Record

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

JURISDICTION
On October 1, 2021 appellant filed a timely appeal from a September 28, 2021 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 an
overpayment of compensation in the amount of $3,223.12 for the period July 19 through
August 14, 2021, for which she was without fault, because she continued to receive wage-loss
compensation after she returned to work; and (2) whether OWCP properly denied waiver of
recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 12, 2021 appellant, then a 44-year-old rural carrier associate, filed an
occupational disease claim (Form CA-2) alleging that she sustained bilateral carpal tunnel
syndrome causally related to factors of her federal employment, including the repetitive nature of
her duties. OWCP accepted the claim for carpal tunnel syndrome of the right and left upper limb.
On May 18, 2021 appellant underwent an OWCP-authorized right carpal tunnel release and on
June 1, 2021 she underwent an OWCP-authorized left carpal tunnel release. OWCP paid her
wage-loss compensation by electronic funds transfer on the supplemental rolls beginning March 2,
2021 and on the supplemental rolls from March 2 through May 7, 2021, and on the periodic rolls
from March 8 through August 14, 2021.
Appellant returned to her full-time usual employment on July 19, 2021. In a telephone
memorandum (Form CA-110) dated August 13, 2021, she advised OWCP that she had submitted
paperwork showing that she had returned to work but had continued to receive compensation.
In an August 23, 2021 preliminary overpayment determination, OWCP notified appellant
of is preliminary finding that she had received an overpayment of compensation in the amount of
$3,223.12 because she returned to full-time work on July 19, 2021 but continued to receive wageloss compensation for total disability on the periodic rolls through August 14, 2021. It further
advised her of its preliminary determination that she was without fault in the creation of the
overpayment. OWCP requested that appellant submit a completed overpayment recovery
questionnaire (Form OWCP-20) to determine a reasonable payment method, and advised her that
she could request waiver of recovery of the overpayment. It further requested that she provide
supporting financial documentation, including copies of income tax returns, bank account
statements, bills and canceled checks, pay slips, and any other records supporting income and
expenses. Additionally, OWCP provided an overpayment action request form and notified
appellant 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.
In an overpayment action request form dated August 29, 2021, appellant requested a
decision based on the written evidence. She contended that the recovery of the overpayment
should be waived, contending that she called and had sent forms to OWCP advising that she had
been released to return to work. On an accompanying OWCP-20 form, appellant listed monthly
income of $4,500.00 and monthly expenses of $1,565.00 for housing, $706.81 for utilities,
$2,854.92 for other expenses, and $500.00 for credit card payments, a total of $5,626.73. She
advised that she used any extra for food and clothing. Appellant indicated that she had funds on
hand of $157.39. She submitted financial documentation showing various bills and account
statements. Appellant further submitted a U.S. Individual Income Tax Return (Form 1040) filed
with her spouse showing income of $124,605.00 and taxable income of $99,595.00. She also
provided a statement showing that she had received a distribution of $14,169.00 in 2020 from her
Thrift Savings Plan (TSP).
By decision dated September 28, 2021, OWCP finalized its finding that appellant received
an overpayment of $3,223.12 for the period July 19 through August 14, 2021 because it had paid
her wage-loss compensation for total disability after she returned to work. It calculated the
overpayment by finding that she received net compensation in the amount of $3,342.49 for the

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period July 18 to August 14, 2021. OWCP divided $3,342.49 by 28 days and multiplied by 27,
the number of days of the overpayment, to find a total overpayment of $3,223.12. It further
finalized its finding that appellant was without fault in the creation of the overpayment. OWCP
denied waiver of recovery of the overpayment. It found that based on a joint 2020 tax return,
appellant and her husband had an estimated income of approximately $6,389.00 per month after
taxes. OWCP further noted that appellant had not provided a breakdown of her assets, described
her other expenses of $2,854.92, or documented her utility expenses other than to submit a gas bill
of $72.00. It indicated that individual was responsible for providing information about income,
expenses, and assets. OWCP found that appellant should submit the full amount as recovery of
the overpayment.
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. 2 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 b y the Secretary of Labor by
decreasing later payments to which an individual is entitled. 3
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments u ntil 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.4 OWCP’s procedures provide that an overpayment of compensation is created when a
claimant returns to work, but continues to receive wage-loss compensation. 5
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,233.12 for the period July 19 through August 14, 2021, for
which she was without fault because she continued to receive wage-loss compensation for total
disability after she returned to full-time work.
Appellant resumed to full-time regular employment on July 19, 2021. OWCP, however,
continued to pay her wage-loss compensation for total disability following her return to work

2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

4

Id. at § 8116(a).

5

L.T., Docket No. 19-1389 (issued March 27, 2020); K.P., Docket No. 19-1151 (issued March 18, 2020); Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment, Chapter
6.300.4(g) (September 2020).

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through August 14, 2021, which resulted in an overpayment of compensation. Appellant was not
entitled to receive temporary total disability benefits and actual earnings for the same time period. 6
In determining the amount of overpayment, OWCP calculated the net amount of disability
compensation that appellant had received for the period July 18 through August 14, 2021,
$3,342.49, divided this amount by 28, and multiplied the remainder by the 27 days that she worked
during this period to find an overpayment of $3,223.12. Thus, the Board finds that appellant
received an overpayment of $3,223.12 during the above-noted period.7
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. 8
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or f ormerly entitled beneficiary 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 the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 9 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 $50.00.10 Also, 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. 11 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits. 12
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financ ial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
6

J.R., Docket No. 20-0025 (issued December 13, 2021); L.T., Docket No. 19-1389 (issued March 27, 2020); S.N.,
Docket No. 19-1018 (issued November 12, 2019).
7

J.R., id.

8

5 U.S.C. § 8129.

9

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Pa rt 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400(2)(3) (September 2020).
10

Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
11

Id. at Chapter 6.400.4(a)(2).

12

Id. at Chapter 6.400.4(b)(3).

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worse.13 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, and that his or her action was based primarily or solely on reliance on the payment(s)
or on the notice of payment. 14
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 15
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. 16
The Board finds that appellant has not established that recovery of the overpayment would
defeat the purpose of FECA because she did not fully complete the Form OWCP-20 or submit
adequate documentation of her income or expenses. In an OWCP-20 form dated August 29, 2021,
appellant listed monthly income of $4,500.00 and monthly expenses totaling $5,626.73. She
advised that she had assets of $157.39 and no money in stocks and bonds. Supporting
documentation, however, indicated that appellant had withdrawn $14,169.00 from her TSP in
2020. She thus had assets in a TSP but did not provide information regarding this account. Savings
in a TSP account are included in the asset base. 17 A tax return from 2020 further indicated that
appellant had more monthly income than disclosed on the OWCP-20 form. Although OWCP
advised her to submit a Form OWCP-20 and documentation fully substantiating her income and
expenses, she failed to do so, as required by section 10.438 of OWCP’s regulations. 18
As appellant did not submit sufficient financial inf ormation and documentation, the
evidence of record is, therefore, insufficient to establish that recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience.19

13

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

14

Supra note 9 at Chapter 6.400.4c(3).

15

Supra note 9 at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

16

See J.R., Docket No. 17-0181 (issued August 12, 2020); L.S., 59 ECAB 350 (2008).

17

See S.C., Docket No. 17-0762 (issued March 19, 2018); C.P., Docket No. 14-0975 (issued September 11, 2014).

18

20 C.F.R. § 10.438; see R.M., Docket No. 19-1570 (issued June 1, 2020).

19

See supra note 15; S.L., Docket No. 21-0902 (issued December 22, 2021).

5

Consequently, as appellant did not submit the information required under 20 C.F.R.
§ 10.438 of OWCP’s regulations, which was necessary to determine her eligibility for waiver, the
Board finds that OWCP properly denied waiver of recovery of the overpayment. 20
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,223.12 for the period July 19 through August 14, 2021, for
which she was without fault, because she continued to receive wage-loss compensation after she
returned to work. The Board further finds that OWCP properly denied waiver of recovery of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing
those cases where OWCP seeks recovery from continuing compensation benefits under FECA. As appellant is no
longer receiving wage-loss compensation, the Board does not have jurisdiction with respect to the recovery of the
overpayment under the Debt Collection Act. R.W., Docket No. 18-1059 (issued February 6, 2019); Cheryl Thomas, 55
ECAB 610 (2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, SCOTTSDALE
HOPI STATION, Scottsdale, AZ, Employer
__________________________________________

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

Docket No. 11-1655
Issued: May 18, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 8, 2011 appellant, through her attorney, filed a timely appeal from the May 16,
2011 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 met her burden of proof to establish an injury in the
performance of duty on February 22, 2006.
FACTUAL HISTORY
On August 16, 2006 appellant, then a 53-year-old customer service supervisor, filed a
traumatic injury claim alleging that she sustained injury on February 22, 2006 at 11:15 a.m. due

1

5 U.S.C. §§ 8101-8193.

to a motor vehicle accident that occurred in the performance of duty.2 The portion of the claim
form to be completed by the supervisor was completed and signed by Mr. Pierce, the acting
station manager. Appellant stopped work on February 22, 2006.
The record contains a February 22, 2006 accident report completed by a police officer
from Scottsdale, AZ, advising that appellant’s vehicle ran into the rear of a motor vehicle
stopped for a red light shortly before 11:00 a.m. Appellant was traveling at a speed of 40 to 50
miles per hour and failed to apply the brakes.3
In an August 16, 2006 letter, Jane Bermijo, an injury compensation specialist,
controverted the claim contending that appellant’s injury did not occur in the performance of
duty. She indicated that appellant was not performing any assigned duties or engaged in any
activity related to her employment at the time of the accident.
In an undated statement, Susan Service, a customer service supervisor, noted that
appellant was not feeling well on February 22, 2006 and Mr. Pierce took her to his office to call
her husband to pick her up and take her home for the day. Mr. Pierce instructed appellant to stay
seated in his office until her husband arrived. After he left for a meeting, appellant left his office
and walked around the workroom floor. Ms. Service had a conversation with appellant at about
10:45 a.m. in the restroom. Appellant then left the premises in her privately-owned motor
vehicle, leaving her cell phone and purse behind and missing her husband by 10 to 15 minutes.
Ms. Service stated that appellant’s husband arrived at about 11:00 a.m. and she assisted him in
looking for appellant in the building and parking lot but it was observed that her vehicle was
gone. Appellant’s husband left the premises to look for appellant and later learned she had been
injured in a motor vehicle accident that occurred on route to their home.
In a September 29, 2006 decision, OWCP denied appellant’s claim, finding that she did
not sustain a work-related injury on February 22, 2006 as the accident did not occur in the
performance of duty. It noted that she left her work premises due to a nonwork-related medical
condition and was thereafter involved in a motor vehicle accident. The evidence failed to
establish that appellant was engaged in any activity reasonably incidental to her employment at
the time of the accident.
Appellant requested reconsideration of her claim. Counsel argued that appellant’s injury
occurred in the performance of duty because the employing establishment failed to render
adequate assistance under the “human instincts” doctrine. He contended that the human instincts
doctrine, recognized in a line of cases starting with Mildred Drisdel,4 established a duty for the
employer to provide reasonable medical care or other assistance as an emergency may require so
that an affected employee may have her life saved or avoid further bodily harm to herself or
2

Appellant indicated that she sustained multiple right ankle and foot fractures which necessitated surgical repair.
She also had to undergo a splenectomy and partial liver removal. Appellant noted that various people had an
opportunity to observe her on February 22, 2006 between 8:00 a.m. and 11:00 a.m. including Tony Pierce, Donna
McClellan, Craig Anderson and others.
3

Other evidence of record indicates that the accident occurred about seven miles from appellant’s workplace.

4

32 ECAB 82 (1980).

2

others. Counsel argued that it was unreasonable for Mr. Pierce not to call 911 and to leave
appellant alone after she suffered a seizure, particularly since the safety plan had been followed
on prior occasions when appellant had a seizure. He discussed a case, Marianne Eick (George E.
Eick),5 in which the Board evaluated the facts of the case under the human instincts doctrine and
found that an injury had not occurred in the performance of duty. Counsel asserted that the facts
of Eick were distinguishable from those of the present case. In Eick, the manager had taken
adequate steps to determine that the employee was coherent and capable of driving and making
decisions about medical care. In the present case, there was evidence that appellant was
incoherent and the employing establishment failed to carry out a safety plan which had been
devised to deal with her particular medical condition.
In a February 26, 2006 statement, Pam Baker, a supervisor, stated that on February 22,
2006 at about 7:45 a.m. she heard a weird noise and looked to see three carriers standing around
appellant who was having a seizure. She told appellant to take some deep breaths and she kept
saying, “I’m okay.” Ms. Baker gave appellant a banana because she thought she might be
“crashing” due to a low sugar level given that she was diabetic. She advised that the seizure
lasted about 30 seconds and after it stopped, Mr. Pierce escorted appellant to his office.
Ms. Baker stated that she stood next to appellant “with my hand on the phone waiting to call
911” and indicated that appellant had suffered a longer-lasting seizure about three or four weeks
prior. She called appellant’s son who noted that he would call his father and see if he could get
appellant home. Appellant’s son called Ms. Baker back after he was unable to contact his father
and asked if someone could “just bring her home.” He stated that no one would be home when
appellant arrived but noted that, whenever she had a seizure, she slept for many hours.
Ms. Baker told appellant’s son that she would try to get appellant home and then he stated,
“Okay, I have to go to school.” She saw appellant walk by her desk and go to the bathroom at
about 10:30 a.m. and assumed she was going to lie down on a couch until her husband picked her
up. Someone told Ms. Baker that appellant had spoken to her husband and that he was meeting
her on the dock and taking her home. Ms. Baker saw appellant’s husband walking to the back
office at about 11:10 a.m. and she left work about 10 minutes later. She called appellant’s home
at about 1:30 p.m. and her son stated that appellant was not yet home. Ms. Baker learned that
appellant might have left to drive herself home and that her husband arrived at the worksite after
she left. She was subsequently advised that appellant had been in an accident in Scottsdale.6
In a July 16, 2006 statement, Donna McClellan, a coworker, advised that she was present
on February 22, 2006 when appellant had a seizure at work. Several coworkers who were
assisting appellant asked management to call 911 but they did not do so. A management official
helped appellant to an office in order to wait for a family member. Ms. McClellan stated:
“[Appellant] came back out of the office by herself with no one with her to keep
an eye on her. I [saw] her wandering around and went to management to say that
5

40 ECAB 1056 (1989).

6

In a brief February 23, 2006 statement, a coworker named Denise indicated that she spoke to appellant on
February 22, 2006 at about 10:30 a.m. to 10:45 a.m. regarding the fact that her husband was picking her up and
taking her home. The coworker stated that appellant stepped out of the office and walked toward the back of the
building.

3

[appellant] was wandering around on her own and should not be left alone, let
alone walking around because she was stumbling along. [Appellant] had stopped
at a few carrier cases and wandered to the dock doors. I repeated again to two
supervisors [that appellant] was wandering around and should not be left on her
own. I was ignored while they were making plans to go to lunch to make their
schedules for the carriers. I walked away as [appellant] was still wandering
around and went out the dock doors. Later that day as we were coming in from
the street, management was asking the carriers if we [have] seen [appellant].
[Appellant] had left and no one had seen her. We later found out she was in an
accident and was seriously hurt....”
In an undated statement, Ms. Service noted that on February 22, 2006 she arrived at work
at about 10:25 a.m., and as she walked toward her office, noticed that Mr. Pierce was not in his
office. After checking some paperwork in her office, she walked onto the workroom floor and
saw appellant there. As the two walked together to the restroom, a coworker stated “you’re still
here” to appellant and she responded “yes, I’m waiting to go home.” Ms. Service asked
appellant if she was leaving early and she responded “yes, tough day.” In the restroom, she
asked appellant how her fitness-for-duty examination went the prior day and appellant responded
that the examination never occurred because she got lost on the way. Ms. Service last saw
appellant at about 10:40 a.m. when they had a brief exchange about the filing of a report. She
stated, “In my conversations with [appellant] she seemed coherent; I would not have guessed that
she had a seizure that morning. She was walking and talking fine.”
Appellant submitted several reports from April 2006 in which Dr. Guillermo M. Estrada,
an attending Board-certified neurologist, advised that appellant had a history of diabetes and
epilepsy. Dr. Estrada stated that appellant had a seizure at work on February 22, 2006 and might
have had another seizure when she was driving home on that date. On July 5, 2006 Dr. Carolyn
Barlow, an attending osteopath and Board-certified family practitioner, stated that appellant had
a history of seizure disorder that was not problematic until she had a seizure while driving and
had a motor vehicle accident from which she sustained a right ankle fracture and surgery, partial
liver resection and splenectomy. The emergency room reports from February 22, 2006 noted
that appellant was unable to provide any history secondary to her confusion. Appellant was able
to answer some questions but appeared to be in a post-seizure state.
In a September 25, 2007 letter, counsel argued the fact that appellant left the worksite
without her purse or identification showed that she was in a confused state at the time.
On December 11, 2007 OWCP requested that the employer respond to a series of
questions regarding the handling of appellant’s medical situation on February 22, 2006, the
nature of any emergency medical plans in place and the handling of prior instances of medical
distress. Linda Hartshorn, a health manager for the employing establishment, responded to
OWCP’s questions. On February 22, 2006 an employee reported that there was something
wrong with appellant and her managers responded immediately because they were aware that she
had a medical condition that predisposed her to seizures. Ms. Hartshorn stated that the employer
had instructed employees to call 911 in case of a medical emergency and that this procedure
would have been followed if the employees present had any reason to believe that appellant was
having a medical emergency. Appellant told employees that she was okay and both her husband

4

and son were contacted but they gave no indication that she needed to be transported to a
hospital. Management had no reason to believe that appellant was unable to care for herself and
it exercised reasoned judgment in asking her to stay in Mr. Pierce’s office until her husband
arrived. Ms. Hartshorn stated that, when appellant had seizures in the past, Donna Fay, the
station manager, took appellant to her office, made her comfortable and made arrangements with
a family member to pick her up and drive her home.
In a February 14, 2008 decision, OWCP denied appellant’s claim. It found that
management acted reasonably on February 22, 2006 given that appellant stated that she was fine
and her behavior was observed to be normal.
In statements to the record, appellant noted that she might have told Ms. Baker that she
was okay immediately after her seizure, but such a brief, generic statement did not mean she was
not in medical distress or not in need of immediate medical care. After about 10:30 a.m., she
was able to make contact with her husband. Appellant only told her husband, “I’m sick come
and get me.”7 Mr. Pierce did not stay in the room while she made this call. He came back into
the office and asked if appellant’s husband was coming and left after he got an affirmative
response. Appellant stated that Mr. Pierce never spoke to her husband or any other family
member to explain her medical condition. Due to her confused state, she forgot that she had
called her husband and she took her car keys to drive away. On at least one prior occasion when
appellant had a seizure at work, the employing establishment had called 911. Appellant did not
understand why 911 was not called or why she was left alone by Mr. Pierce.
In an undated statement, appellant’s husband advised that she contacted him at about
10:30 a.m. on February 22, 2006 and asked him to pick her up at work because she had a seizure.
He asserted that, when appellant had experienced a previous seizure at work, management
officials called 911 and he visited her at the hospital.
In a March 11, 2009 decision, OWCP denied appellant’s claim. It found that appellant’s
managers had acted reasonably in handling her medical situation on February 22, 2002. There
was no evidence that her motor vehicle accident had a relationship to her medical condition on
that date.
In a September 23, 2010 decision, the Board remanded the case to OWCP for further
development. The Board noted that the question of why appellant apparently was left alone at
about 10:30 a.m. on February 22, 2006 had not been adequately developed. Moreover, the
question of her level of coherence needed to be further addressed.8
On remand, OWCP obtained additional witness statements. It contacted the employing
establishment to obtain a telephone number for Mr. Pierce and was informed that he had retired.
Jeff Day, the postmaster at appellant’s workplace on February 22, 2006, provided a statement
noting that the employing establishment did not have Mr. Pierce’s contact information. Mr. Day
indicated that coworkers stated that on February 22, 2006 appellant did not fall down or convulse
7

Appellant indicated that it took several attempts to recall the proper number due to her confused state.

8

Docket No. 09-2275 (issued September 23, 2010).

5

or hit her head or have obvious physical injuries. Based on the information he had, appellant
“stared off into space” and her hand twitched. Mr. Day stated that the seizure was transient and
that appellant was conversant shortly thereafter and requested that the manager not call 911. He
noted that the manager had the 911 number entered into her telephone but did not send the call
because of appellant’s worker’s request not to call emergency services. Mr. Day indicated that
appellant was taken to Mr. Pierce’s office and that the first person contacted was appellant’s son,
who was not able to pick up his mother because he was going to school. The son questioned
why the employing establishment could not bring her home and noted that she would probably
be more comfortable on soft furniture. The employing establishment contacted appellant’s
husband and he agreed to come to the employer’s address and pick up his wife. Mr. Day noted
that appellant acknowledged Mr. Pierce’s instruction to wait for her husband. Mr. Pierce had a
meeting elsewhere and left appellant in his office, sitting down with the lights off. Mr. Day
discussed the statements of Ms. Service who indicated that she saw appellant acting normally at
the bathroom at approximately 10:25 a.m. He stated that his managers were not medically
trained and that he believed that they acted appropriately by contacting the family and also
having been told by appellant, who was conversant and apparently capable of meaningful
interactions that she would wait for her husband. Mr. Day noted that appellant’s son and
husband indicated not to call emergency services. He stated that the employer had known for
about three weeks that appellant had seizures and that she had failed to attend a fitness-for-duty
examination. Mr. Day also noted that there was no nurse that worked at the station or in
Scottsdale, AZ, at the time of appellant’s seizure and there was no written emergency plan that
appellant had with the employing establishment.
An OWCP senior claims examiner contacted Mr. Pierce, who indicated that Ms. Baker
brought appellant into his office on the morning of February 22, 2006. Mr. Pierce stated that
appellant was conversant and talking. He told appellant that he would call 911 but she indicated
that she did not want 911 called. Appellant’s son was contacted first and was not able to come
and pick up appellant. The husband was subsequently contacted and he agreed but it would take
him at least an hour to get to the station. Mr. Pierce related that the immediate care for appellant
was to provide a comfortable place to sit, some water and a damp compress. He noted that
appellant was able to understand and take direction and that he was with her for approximately
20 minutes. Mr. Pierce left his office at about 8:00 a.m. to 8:10 a.m. as he had a meeting of
station managers to attend at the Main Post Office. He stated that his understanding with
appellant was that she would stay there until her husband arrived. Mr. Pierce indicated that there
were people at the station who could help appellant if needed, including Ms. Baker. He stated
that there was no particular “plan” that he knew of to call 911 when these events occurred.
OWCP additionally contacted the Hopi Station and spoke with Craig Anderson, who
indicated that he saw appellant on February 22, 2006. Mr. Anderson saw appellant in
Mr. Pierce’s office but he did not speak with her. He stated that she looked ill and was sitting in
a hunched over position looking at the floor. In a memorandum dated October 13, 2010,
Mr. Pierce noted that appellant had come to his office on February 22, 2006 and he told her not
to leave until she felt better. He indicated that he could not hold appellant down to prevent her
from leaving his office.
In a December 8, 2010 decision, OWCP found that appellant did not meet her burden of
proof to establish that she sustained an injury in the performance of duty on February 22, 2006.

6

It found from the preponderance of the witness statements that appellant was acting normally
after she suffered a brief seizure and that it was reasonable to direct her to rest in Mr. Pierce’s
office while waiting for her husband to pick her up.
By letter dated January 5, 2011, appellant, through counsel, wrote requesting a telephone
hearing with an OWCP hearing representative. At the hearing, appellant described in detail the
incidents which occurred in her workplace on February 22, 2006 and her contact with members
of management. Her husband supplied additional testimony.
In a May 16, 2011 decision, OWCP’s hearing representative affirmed the December 8,
2010 decision.
LEGAL PRECEDENT
Under the human instincts doctrine, an employer has the duty to make reasonable efforts
to procure medical aid or other means of relief to an employee who becomes ill or injured on the
job, and who as a result is helpless to provide for her own care. A failure, on the part of the
employer, to satisfy this duty may be sufficient to establish a causal connection between an
employee’s condition and the employment if it is shown that such failure contributed to the
condition for which compensation is claimed.9 In Eick,10 the Board found that the employing
establishment acted reasonably when it did not provide medical care to appellant’s husband and
allowed him to drive away from the premises because, despite the fact that he did not appear
well, he was found to be in a coherent state and had refused medical attention.11 In Jerry L.
Sweeden,12 the Board held that the employer acted reasonably in response to the employee’s
seizures in that coworkers transported him to a hospital in a timely manner.
ANALYSIS
Appellant filed a claim alleging that she sustained injury on February 22, 2006 at
11:15 a.m. due to a motor vehicle accident that arose in the performance of duty. She claimed
that the injury was covered under the human instincts doctrine because the motor vehicle
accident would not have occurred if her employer had reasonably cared for her after she
sustained a seizure on the work premises on the morning of February 22, 2006.
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on February 22, 2006. The evidence of record
establishes that the employing establishment took reasonable efforts after she became ill at about
7:45 a.m. on the morning of February 22, 2006. Appellant was only momentarily incapacitated

9

Joseph J. Rotelli, 40 ECAB 987 (1989).

10

Supra note 5.

11

The claimant’s husband died of heart attack about a day after his supervisor last spoke to him and offered to
provide him with transport to a medical facility.
12

41 ECAB 721 (1990).

7

when she suffered an apparent seizure and there is no credible evidence that, after a brief
apparent seizure of about 30 seconds, she was rendered helpless to provide for her own care.
Witness statements reveal that immediately after the seizure appellant indicated that she
was “okay,” she was provided with a bottle of water, wet rag and banana. Mr. Pierce, the station
manager, placed her in a darkened office with instructions to stay there pending the arrival of her
husband to pick her up and take her home. He indicated that appellant was lucid when he spoke
to her and that she answered in the affirmative when he asked her to rest in his office until her
husband arrived. Mr. Pierce had to leave appellant to attend a meeting, but there was no
indication when he left the office that she would not continue to rest comfortably in his office.
Following her seizure, appellant repeatedly assured personnel that she was okay and, despite the
fact that management was prepared to call 911, she advised that such an action was not
necessary. Both appellant’s son and her husband were contacted and neither individual provided
any indication that it was necessary to contact emergency services. Witness statements reveal
that several people spoke to appellant after her seizure and observed that she appeared lucid and
engaged in normal conversations. Ms. Service, a customer service supervisor, indicated that she
saw appellant at the bathroom and had a normal conversation with her at approximately
10:25 a.m. She had another normal conversation with appellant in the workroom at about
10:40 a.m., around the time appellant left the workplace to drive home.13
From the facts in the record, it appears that appellant was stable and waited for
approximately two and a half hours in Mr. Pierce’s office or another area of the workplace. It is
not contested that appellant was not well, but rather the information in the file indicates that she
was not in immediate need of emergency services. It should be noted that appellant’s son
indicated to management that after having these events appellant would be left alone in her room
where she would rest. This is essentially what the employing establishment did by placing
appellant in Mr. Pierce’s office. It does not appear that she was unable to provide care for
herself in that she was not unconscious or otherwise uncommunicative and she did not request
emergency services. Moreover, there is no evidence that appellant was engaging in any activity
incidental to her work at the time of her motor vehicle accident on February 22, 2006.
For these reasons, appellant did not establish that she sustained an injury in the
performance of duty on February 22, 2006. She may submit new evidence or argument with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to
5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on February 22, 2006.

13

Although it appears that appellant left her cell phone and purse behind when she exited the workplace, this
circumstance alone would not show that she was not lucid or was unable to care for herself at that time.
Ms. McClellan, a coworker, indicated that she saw appellant “stumbling along” at an unspecified time. However,
her statement regarding appellant’s condition is vague in nature and it does not appear that she spoke to appellant.

8

ORDER
IT IS HEREBY ORDERED THAT the May 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 18, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Houston, TX, Employer
__________________________________________

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

Docket No. 10-1351
Issued: January 14, 2011

Case Submitted on the Record

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

JURISDICTION
On April 20, 2010 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs’ merit decision dated December 8, 2009 denying her
recurrence 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 established that she sustained a recurrence of disability
beginning January 10, 2009 causally related to her November 29, 1999 employment injury.
FACTUAL HISTORY
This case has previously been before the Board. On May 21, 2007 the Board issued order
setting aside a November 8, 2006 Office nonmerit decision.1 The case was remanded for the
1

Docket No. 07-409 (issued May 21, 2007).

Office to reopen the claim and issue an appropriate decision on the merits in order to preserve
appellant’s appeal right. In a July 24, 2008 decision, the Board affirmed a July 18, 2007 Office
decision denying her claim for a recurrence of disability beginning January 29, 2003 causally
related to the accepted November 29, 1999 employment injury.2 The facts as set forth in the
Board’s decision are incorporated herein by reference.3
On August 24, 2009 appellant filed a claim for a recurrence of disability beginning
January 10, 2009. She alleged that while walking to her car her left knee gave out and she fell to
the ground. The employing establishment controverted her claim.
By letter dated October 22, 2009, the Office advised appellant as to the medical and
factual evidence required to support a recurrence claim. No evidence was received from
appellant.
By decision dated December 8, 2009, the Office denied appellant’s claim for a recurrence
of disability beginning January 10, 2009.
LEGAL PRECEDENT
The Office’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.4 If the disability results from new
exposure to work factors, the legal chain of causation from the accepted injury is broken, and an
appropriate new claim should be filed.5
ANALYSIS
The Office accepted appellant’s claim for left knee strain. On August 24, 2009 appellant
filed a recurrence of disability claim beginning January 10, 2009 due to her November 29, 1999
employment injury. She related that she fell to the ground when her knee gave out while
walking to her car. On October 22, 2009 the Office requested that appellant provide medical
evidence in support of her claim. Appellant did not respond to the Office’s request. She did not
submit any medical evidence to support her claim.

2

Docket No. 07-2298 (issued July 24, 2008).

3

On November 29, 1999 appellant, then a 56-year-old receptionist, filed a traumatic injury claim alleging that on
that date she injured her knee when she tripped while walking. The Office accepted the claim for left knee sprain.
Appellant was released to limited-duty work effective January 4, 2000. On December 1, 2003 the employing
establishment removed her from her position as information receptionist effective December 8, 2003 due to her
failure to maintain a regular work schedule.
4

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Phillip L. Barnes, 55 ECAB 426 (2004).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3 (May 1997), Donald T.
Pippin, 54 ECAB 631 (2003).

2

The Board finds that appellant has not established that she sustained a recurrence of
disability on January 10, 2009 causally related to her accepted employment injury. The Office’s
procedure manual provides that it is the employee’s burden to submit factual and medical
evidence in support of the claimed recurrence.6 It is not assumed that any subsequent incapacity
involving the injured part of the body is the result of the original injury solely because the
original injury was accepted.7 The procedure manual further states that medical evidence
includes a description of objective findings, reasoned medical opinion supporting causal
relationship and a discussion of any similar preexisting or intervening condition affecting the
same part of the body.8 Appellant did not submit any medical evidence prior to the Office’s
December 8, 2009 decision finding that she had not established a recurrence of disability. By
letter dated October 22, 2009, the Office advised her of the evidence necessary to establish a
recurrence of disability; however, she did not provide additional evidence. As appellant did not
submit medical evidence substantiating that she was disabled beginning January 10, 2009 due to
her accepted employment injury, the Office properly determined that she did not establish a
recurrence of disability.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a recurrence of disability or a medical condition on or after January 10, 2009 causally
related to her accepted left knee sprain of November 29, 1999.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.7(b)(1) (October 2009). See
also B.B., 61 ECAB ___ (Docket No. 09-1858, issued April 16, 2010); Mary A. Ceglia, 55 ECAB 626 (2004) (it is
appellant’s burden to submit rationalized medical evidence from a physician who concludes that the condition is
causally related to the employment injury).
7

Id.

8

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 8, 2009 is affirmed.
Issued: January 14, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Tampa, FL,
Employer
__________________________________________

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

Docket No. 06-2120
Issued: January 23, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 18, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 23, 2006 merit decision denying his claim for schedule award
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he was entitled to
a schedule award for hearing loss.
FACTUAL HISTORY
On December 27, 2005 appellant, then a 58-year-old retired special agent, filed an
occupational disease claim alleging that he sustained a hearing loss due to exposure to hazardous
noise at work since 1976, including noise from small arms and shoulder weapons. Appellant
retired from the employing establishment effective August 31, 2001.

Appellant submitted the results of several audiograms obtained between 1999 and 2003
which showed minimal hearing deficits at the frequencies of 500, 1,000, 2,000 and 3,000 cycles
per second.1 A number of the audiograms were not certified by a physician as accurate.
In March 2006 the Office referred appellant for otologic and audiologic testing to
Dr. Randall C. LaTorre, a Board-certified otolaryngologist, who reported the findings of the
testing obtained on April 11, 2006 which showed decibel losses of 15, 25, 20 and 30 respectively
in the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second and
decibel losses of 20, 20, 20 and 15 respectively in the left ear at the same levels. Dr. LaTorre
determined that appellant had a high frequency sensorineural hearing loss which was related to
exposure to noise at work.
The Office accepted that appellant sustained a noise-induced hearing loss due to exposure
to noise at work. On April 28, 2006 the Office medical adviser evaluated the findings of
Dr. LaTorre and determined that appellant had no ratable hearing loss.
By decision dated August 23, 2006, the Office determined that appellant was not entitled
to a schedule award for hearing loss.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) has been adopted by the implementing
regulation as the appropriate standard for evaluating schedule losses.4
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second,
the losses at each frequency are added up and averaged.6 Then, the “fence” of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions.7 The remaining
1

None of the losses at these frequency levels were greater than 5 or 10 decibels.

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id.

5

A.M.A., Guides 224-25 (4th ed. 1993); 226-51 (5th ed. 2001).

6

Id.

7

Id.

2

amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss.9 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.10
ANALYSIS
On April 28, 2006 the Office medical adviser reviewed the otologic and audiologic
testing performed on April 11, 2006 by Dr. LaTorre, a Board-certified otolaryngologist and
Office referral physician, and applied the Office’s standardized procedures to this evaluation.
Testing for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second
revealed decibel losses of 15, 25, 20 and 30 respectively. These decibel losses were totaled at
90 decibels and were divided by 4 to obtain the average hearing loss of 22.5 decibels. This
average loss was then reduced by 25 decibels (25 decibels being discounted as discussed above)
to equal a figure less than 0. Testing for the right ear at the frequency levels of 500, 1,000, 2,000
and 3,000 cycles per second revealed decibel losses of 20, 20, 20 and 15 respectively. These
decibel losses total 75 decibels and when divided by 4 result in an average hearing loss of 18.75
decibels. This average loss when reduced by 25 decibels (25 decibels being discounted as
discussed above) equals a figure less than 0. The Office medical adviser concluded that
appellant had no ratable hearing loss.
The Board finds that the calculations of the Office medical adviser were carried out in
accordance with the relevant standards of the A.M.A., Guides. The Office medical adviser
properly selected the April 11, 2006 testing of Dr. LaTorre for evaluation.11 For these reasons,
the Office properly determined that appellant was not entitled to a schedule award for hearing
loss.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he was
entitled to a schedule award for hearing loss.

8

Id.

9

Id.

10

Donald Stockstad, 53 ECAB 301 (2002); petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
11

Appellant submitted the results of several audiograms obtained between 1999 and 2003, but the audiograms
showed deficits at the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second which were less than those
found in the April 11, 2006 audiogram. A number of the audiograms were not certified by a physician as accurate
and the Board has held that if an audiogram is prepared by an audiologist it must be certified by a physician as being
accurate before it can be used to determine the percentage of hearing loss. See Joshua A. Holmes, 42 ECAB 231,
236 (1990).

3

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 23, 2006 decision is affirmed.
Issued: January 23, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hendersonville, TN, Employer
__________________________________________

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Appearances:
Cynthia H. Templeton, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-930
Issued: July 20, 2007

Case Submitted on the Record

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

JURISDICTION
On February 11, 2007 appellant filed a timely appeal from a merit decision of the Office
of Workers’ Compensation Programs dated January 30, 2007, which determined his wageearning capacity. He also timely appealed the Office’s November 16, 2006 nonmerit decision
denying his request for an oral hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of appellant’s claim.
ISSUES
The issues are: (1) whether appellant’s actual earnings as a modified city carrier fairly
and reasonably represented his wage-earning capacity; and (2) whether the Office properly
denied his request for an oral hearing as untimely filed.
FACTUAL HISTORY
On December 30, 2004 appellant filed a traumatic injury claim alleging that on
December 24, 2004 while getting out of his vehicle to deliver mail he fell forward and landed on
his arms injuring his left shoulder. The Office accepted that he sustained a left rotator cuff tear
and impingement syndrome in the performance of duty. Appellant underwent left shoulder

arthroscopic surgery with rotator cuff repair on January 6, 2006. On March 2, 2006 he accepted
a modified job offer with no lifting and returned to work on March 6, 2006. Appellant accepted
subsequent modified job offers on April 11, May 2 and 30, 2006.
In a report dated June 27, 2006, Dr. Robert Landsberg, appellant’s orthopedic surgeon,
advised that appellant had reached maximum medical improvement and should have permanent
restrictions of maximum lifting of 20 pounds with the left arm at the side, 10 pounds with the left
arm away from the side and no overhead lifting.
On June 27, 2006 appellant accepted a modified job offer of a city carrier with weight
limitations of 20 pounds with his left arm at the side and 10 pounds with his left arm away from
the body.
In a report dated October 6, 2006, Dr. Landsberg advised that appellant’s work
restrictions were permanent. He reiterated appellant’s weight limitations of 20 pounds with the
left arm at the side and 10 pounds with the left arm away from the body.
By decision dated November 16, 2006, the Office found that appellant’s actual earnings
as a modified city carrier fairly and reasonably represented his wage-earning capacity.
On December 28, 2006 appellant requested an oral hearing before an Office hearing
representative. By decision dated January 30, 2007, the Office denied his request for a hearing
on the grounds that it was untimely filed.
LEGAL PRECEDENT -- ISSUE 1
Wages actually earned are the best measure of a wage-earning capacity and in the
absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.1
An injured employee who is either unable to return to the position held at the time of
injury or unable to earn equivalent wages, but who is not totally disabled for all gainful
employment, is entitled to compensation computed on loss of wage-earning capacity.2 Under
section 8115(a) of the Federal Employees’ Compensation Act, wage-earning capacity is
determined by the actual wages received by an employee if the earnings fairly and reasonably
represent his or her wage-earning capacity. If the actual earnings do not fairly and reasonably
represent the employee’s wage-earning capacity or if the employee has no actual wages, the
wage-earning capacity is determined with due regard to the nature of the injury, the degree of
physical impairment, the employee’s usual employment, age, qualifications for other
employment, the availability of suitable employment and other factors and circumstances which
may affect wage-earning capacity in his or her disabled condition.3

1

Hayden C. Ross, 55 ECAB 455 (2004).

2

20 C.F.R. §§ 10.402, 10.403 (2006); see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

3

5 U.S.C. § 8115(a) (2000); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

2

Office procedures provide that a determination regarding whether actual earnings fairly
and reasonably represent wage-earning capacity should be made after an employee has been
working in a given position for more than 60 days.4
ANALYSIS -- ISSUE 1
On June 27, 2006 appellant accepted a modified city carrier position with physical
requirements which met his permanent work restrictions as described by Dr. Landsberg. He
worked in this capacity for more than 60 days prior to the Office’s November 16, 2006 wageearning capacity decision. There is no indication that the job was temporary, part time, seasonal
or otherwise not appropriate for a wage-earning capacity determination.5 There is no evidence
that appellant’s actual earnings did not fairly and reasonably represent his wage-earning
capacity.
The formula for determining loss of wage-earning capacity based on actual earnings
developed in Albert C. Shadrick,6 has been codified by regulation at 20 C.F.R. § 10.403.
Subsection (d) of this regulation provides that the employee’s wage-earning capacity in terms of
percentage is obtained by dividing the employee’s actual earnings by the current pay rate for the
job held at the time of injury.7 In the instant case, as a modified letter carrier, appellant’s actual
earnings are identical to the current pay rate of the job held at the time of injury. Appellant
therefore has no loss of wage-earning capacity.
The Board finds that the Office properly determined appellant’s loss of wage-earning
capacity.
LEGAL PRECEDENT -- ISSUE 2
A claimant dissatisfied with a decision of the Office shall be afforded an opportunity for
an oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a review of the written record must be submitted in writing, within 30 days of the date
of the decision for which a hearing is sought.8 If the request is not made within 30 days or if it is
made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.9 The Board has held that the Office, in its broad discretionary
authority in the administration of the Act,10 has the power to hold hearings in certain
4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity.
Chapter 2.814.7(c) (July 1996).
5

Monique L. Love, 48 ECAB 678 (1997).

6

5 ECAB 376 (1953).

7

20 C.F.R. § 10.403 (d) (1999); see Afegalai L. Boone, 53 ECAB 533 (2002).

8

20 C.F.R. § 10.616(a) (2004).

9

Claudio Vazquez, 52 ECAB 496 (2001).

10

5 U.S.C. §§ 8101-8193.

3

circumstances where no legal provision was made for such hearings and that the Office must
exercise this discretionary authority in deciding whether to grant a hearing.11 The Office’s
procedures, which require the Office to exercise its discretion to grant or deny a hearing when
the request is untimely or made after reconsideration, are a proper interpretation of the Act and
Board precedent.12
ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s request for an oral hearing on
the grounds that it was untimely filed. Appellant requested an oral hearing on December 28,
2006, more than 30 days after the date of the November 16, 2006 decision. He was not entitled
to a hearing as a matter of right.
After it determined that appellant’s request was untimely, the Office properly exercised
its discretion by determining that the issue could be equally well addressed by requesting
reconsideration and submitting new evidence. The Board finds that the Office acted within its
discretion in denying appellant’s hearing request as untimely, because he failed to file the request
within the statutory time frame.
CONCLUSION
Appellant’s actual earnings as a modified rural carrier fairly and reasonable represent his
wage-earning capacity. The Office properly denied appellant’s request for an oral hearing as
untimely filed.

11

Marilyn F. Wilson, 52 ECAB 347 (2001).

12

Claudio Vazquez, supra note 9.

4

ORDER
IT IS HEREBY ORDERED THAT the January 30, 2007 and November 16, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 20, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Sanford, FL, Employer
__________________________________________

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

Docket No. 10-2309
Issued: August 5, 2011

Case Submitted on the Record

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

JURISDICTION
On September 15, 2010 appellant filed a timely appeal from an August 27, 2010 decision
of the Office of Workers’ Compensation Programs (OWCP) terminating her wage-loss and
medical benefits. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 OWCP properly terminated appellant’s wage-loss and medical
benefits effective August 29, 2010 on the grounds that she no longer had any residuals or
disability causally related to her accepted employment-related injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 25, 2004 appellant, then a 54-year-old transportation screener, filed a
traumatic injury claim alleging that on March 15, 2004 she injured her lower back due to lifting a
heavy piece of luggage. OWCP accepted the claim for L4-5 herniated disc permanent
aggravation of lumbar degenerative disc disease and lumbago. Appellant stopped work on
March 24, 2004 and was placed on the periodic rolls in receipt of temporary total disability.2
She returned to work as a legal secretary in the private sector working 40 hours a week on
November 28, 2005. On February 2, 2006 OWCP issued a loss of wage-earning capacity
decision reducing appellant’s wage-loss compensation. It found that her actual wages as a legal
secretary/receptionist represented her wage-earning capacity. Accordingly, appellant began
receiving compensation for partial disability.
On May 11, 2010 Dr. Mark S. Storey, a treating Board-certified internist, advised that
appellant continued to be totally disabled due to her herniated lumbar disc. He stated this finding
had been documented by a July 21, 2004 magnetic resonance imaging (MRI) scan.
On May 6, 2010 OWCP referred appellant to Dr. David B. Lotman, a Board-certified
orthopedic surgeon, for a second opinion evaluation for a current assessment of her back
condition. By report dated June 18, 2010, Dr. Lotman noted appellant’s complaint of mid
thoracolumbar back pain radiating into the pelvis and both legs. He provided findings on
physical examination and addressed the accepted conditions. Physical findings included diffuse
midline tenderness on gentle palpitation; mild-to-moderate tenderness in the left sciatic notch
and sacroiliac joint; and trace mild tenderness right sciatic notch and sacroiliac joint. In answer
to specific OWCP questions, Dr. Lotman advised that appellant sustained an aggravation of her
preexisting degenerative disc disease, but such aggravation was not permanent. He related that
her degenerative disc disease was chronic and preexisted the 2004 accepted employment injury.
Dr. Lotman attributed appellant’s symptoms to her chronic degenerative disc disease with
probable bilateral facet joint arthritis. Next, he advised that she has no residuals from her
accepted March 2004 employment injury and that any disability was a result of her nonwork
related chronic degenerative disc disease and facet arthropathy. In a July 2, 2010 clarification,
Dr. Lotman circled “yes” to the question of whether he was referring to accepted conditions of
aggravated degenerative disc disease and lumbago when he concluded that appellant no longer
had any residuals from her March 2004 employment injury. He also circled “yes” to the
question of whether the permanent restrictions he found were due to her underlying condition of
degenerative disc disease and not the accepted employment conditions of lumbago and
aggravated degenerative disc disease.
On July 21, 2010 OWCP issued a notice proposing to terminate appellant’s compensation
benefits on the grounds that she no longer had any residuals or disability due to her accepted
aggravated degenerative disc disease and lumbago. It found the weight of the medical evidence
rested with Dr. Lotman’s opinion.

2

Appellant returned briefly to work on July 9, 2005. She worked 1½ days before stopping on July 10, 2005.

2

In a letter dated July 29, 2010, appellant disagreed with the proposal to terminate her
compensation benefits and contended that Dr. Lotman failed to conduct a thorough examination.
By decision dated August 27, 2010, OWCP terminated appellant’s compensation
effective August 29, 2010. It found the evidence of record established that appellant no longer
had any disability or residuals due to her accepted lumbago and aggravated degenerative disc
disease.3
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to her federal employment, it may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
The Board has held that once the wage-earning capacity of an injured employee is
determined, a modification of such determination is not warranted unless there is a material
change in the nature and extent of the injury-related condition, the employee has been retrained
or otherwise vocationally rehabilitated or the original determination was, in fact, erroneous.9
The burden of proof is on the party attempting to show a modification of the wage-earning
capacity determination.10 In certain situations, if the medical evidence is sufficient to meet

3

The Board notes that, following the August 27 decision, OWCP received additional evidence. See 20 C.F.R.
§§ 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005);
Rosemary A. Kayes, 54 ECAB 373 (2003); M.B., Docket No. 09-176 (issued September 23, 2009). The Board
precluded from reviewing new evidence on appeal as its reviews is limited to the evidence before OWCP at the time
of the final decision. See 20 C.F.R. § 501.2(c)(1).
4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

7

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

9

Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000).

10

Stanley B. Plotkin, id.

3

OWCP’s burden of proof to terminate benefits, this evidence may negate a loss of wage-earning
capacity such that a separate evaluation of the prior determination is unnecessary.11 OWCP’s
burden to demonstrate no further disability is effectively the same, irrespective of whether there
is an existing loss of earning capacity determination.12
ANALYSIS
OWCP accepted appellant’s claim for L4-5 herniated disc, lumbago and permanent
aggravation of lumbar degenerative disc disease and paid appropriate compensation and medical
benefits. By decision dated August 27, 2010, it terminated her compensation benefits effective
August 29, 2010 finding that the weight of the medical opinion evidence rested with Dr. Lotman,
OWCP referral physician. The Board finds that OWCP did not meet its burden of proof to
terminate appellant’s compensation benefits.
OWCP referred appellant for a second opinion evaluation with Dr. Lotman for a current
assessment of her accepted employment-related conditions. In his June 18, 2010 report,
Dr. Lotman concluded that her accepted lumbago and aggravated degenerative disc disease had
resolved. He opined that appellant had no residuals and no physical limitations from her
accepted conditions. Dr. Lotman noted that there was no permanent aggravation of the
degenerative disc disease and lumbago as the conditions predated the March 15, 2004
employment injury. However, OWCP accepted a permanent aggravation. The opinion of
Dr. Lotman departed from the statement of accepted facts and history accepted by OWCP. This
renders his opinion of reduced probative value. Dr. Lotman attributed appellant’s current
disability to nonwork-related degenerative disc disease but, OWCP accepted a permanent
aggravation. The medical evidence indicated that appellant has residuals and her employmentdisability has not resolved. The Board finds that Dr. Lotman’s opinion is insufficient to meet
OWCP’s burden of proof.
CONCLUSION
The Board finds that OWCP has not met its burden of proof in terminating appellant’s
wage-loss and medical benefits effective August 29, 2010.

11

A.P., Docket No. 08-1822 (issued August 5, 2009). There may exist a situation where a separate analysis
would be necessary, based on preexisting conditions or other medical conditions, but that situation does not present
itself in this case. Should those particular facts arise, this decision does not preclude a further consideration of the
matter. Id.
12

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 27, 2010 is reversed.
Issued: August 5, 2011
Washington, DC

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

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

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

5