United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Toledo, Oh, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Brett E. Blumstein, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2097
Issued: September 24, 2009

Case Submitted on the Record

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

JURISDICTION
On July 23, 2008 appellant filed a timely appeal from a May 12, 2008 decision of the
Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a lower back injury and a consequential
urinary incontinence condition in the performance of duty; and (2) whether the Office abused its
discretion by denying his authorization for a laminectomy procedure.
FACTUAL HISTORY
This is the third appeal before the Board. Appellant, a 31-year-old clerk, filed a claim for
benefits, alleging that he sustained an injury to his lower back on August 19, 1987. The Office
accepted the claim for lower back strain. By decision dated March 9, 1990, it reduced
appellant’s compensation based on his wage-earning capacity as a personnel worker and that
decision was affirmed by an Office hearing representative on January 2, 1992. In a March 23,

1994 decision, the Board reversed the Office’s decisions and reinstated appellant’s
compensation.1 The Office subsequently accepted the conditions of chronic pain syndrome and
aggravation of degenerative disc disease at L5-S1. Appellant returned to light duty in July 1999.
On July 30, 2001 appellant filed a claim for benefits based on traumatic injury, alleging
that he sustained an injury to his lower back while pushing a heavy mail cart on July 25, 2001.
He submitted several reports from Dr. William D. Richardson, Board-certified in internal
medicine, who stated that appellant was unable to work due to an acute flare-up of chronic back
pain, which resulted from the July 25, 2001 work incident. Dr. Richardson stated that appellant
was experiencing protrusion of the disc, which placed pressure on the sacral nerve roots, causing
urinary incontinence because of dysfunction of the external urethral sphincter muscles. He
opined that the increased pain and disability appellant experienced were due to increased
inflammation of the back muscles due to acute strain and spasms of the muscles. Dr. Richardson
stated that appellant would have experienced pain had the July 25, 2001 incident not occurred,
but it would not have been as severe and disabling and could not have caused his urinary
incontinence. The Office referred appellant for a second opinion examination with Dr. Edwin S.
Carter, a Board-certified orthopedic surgeon, who opined that in a May 29, 2002 report appellant
had spondylolysis but did not have a condition related to a single episode of injury. Dr. Carter
stated that appellant’s subjective complaints were not supported by his objective findings, which
did not indicate that he sustained a back injury on July 25, 2001. He also stated that back
surgery was not necessitated by the July 2001 injury, the August 1987 work injury or by any
significant pathologic condition related to an injury.
By decision dated June 25, 2002, the Office denied appellant’s claim for benefits based
on traumatic injury, finding that he failed to submit sufficient medical evidence in support of his
claim.2 Appellant submitted additional reports from Dr. Richardson in which he expounded on
his previously stated findings and noted that appellant underwent an L5-S1 laminectomy
procedure in August 2002 to ameliorate his low back pain. By decision dated November 12,
2003, an Office hearing representative affirmed the June 25 and December 19, 2002 Office
decisions and denied authorization for the August 2002 back surgery. By decision dated
March 11, 2004, the Office denied appellant’s request for reconsideration.
In a November 10, 2005 decision,3 the Board set aside the Office’s November 12, 2003
decision. The Board found that there was a conflict in the medical evidence between
Dr. Richardson, the attending physician, and Dr. Carter, the referral physician, regarding whether
appellant’s alleged lumbar sprain was causally related to the July 25, 2001 work incident and
whether his August 2002 L5-S1 laminectomy was necessitated by this alleged injury. The Board

1

Docket No. 93-799 (issued March 23, 1994).

2

The Office also denied the recurrence of disability claim by decision dated December 19, 2002.

3

Docket No. 04-1268 (issued November 10, 2005).

2

therefore remanded the case to the Office for referral to an impartial medical examiner to resolve
the existing conflict. The complete facts of this case are set forth in the Board’s November 10,
2005 decision and are herein incorporated by reference.4
In order to resolve the conflict in the medical evidence, the Office referred the case to
Dr. R. Peter Mirkin, a Board-certified orthopedic surgeon. It compiled a list of questions for
Dr. Mirkin based on the Board’s November 10, 2005 decision and the statement of accepted
facts, including: whether surgery was necessary and if so, whether it was necessitated by the
July 25, 2001 work incident and whether his condition would have progressed to its August 2002
level regardless of whether the July 25, 2001 work incident had occurred. In a February 22,
2006 report, Dr. Mirkin stated findings on examination, thoroughly reviewed the medical history
and the statement of accepted facts and stated:
“It is my impression this is a patient who has a long history of back problems
dating back to at least 1987 and very likely before that. [Appellant’s] documented
subjective symptomatology has always been far in excess of what you would
expect with a patient with a disc protrusion and especially this type of disc
protrusion. The fact is that the disc protrusion is noted on the MRI [magnetic
resonance imaging] scan prior to the surgery is a small right[-]sided disc
protrusion that would in no way cause incontinence and he claims that he had that
both in 1987 and then in July of 2001. [Appellant] eventually underwent a small
procedure and tells me that he is not able to return to the work force. I would note
that it is extremely unlikely that this type of a small procedure with excellent
clinical results that he demonstrates objectively would preclude him from
returning to any type of work, much less the light work that he was on.
“The patient currently has subjective symptomatology, but certainly no subjective
symptomatology that would preclude him from returning to the work force.
“I also note that the pathology for which he underwent surgery was present, as per
the description of the medical records, prior to the July 25, 2001 report.”
Dr. Mirkin stated that appellant had sustained a relatively small disc protrusion at L5-S1,
which had intermittently caused symptomatology. He advised that this symptomatology would
have been the same whether or not he had pushed the cart on July 25, 2001, as it could have been
aggravated by bending, stooping, coughing or lifting. Dr. Mirkin asserted that appellant was
capable of performing his duty as a modified general clerk and could return to much more
vigorous work if he were to give a full effort and not display symptom magnification. He opined
that appellant’s August 2002 back surgery was performed for a condition, which existed prior to
the July 25, 2001 incident and that he would probably have or the procedure regardless of
whether the incident had occurred.

4

The Board noted that appellant had filed a separate claim for recurrence of disability stemming from the July 25,
2001 work incident, which it considered separately in its decision. The Board denied a claim based on a recurrence
of disability as of July 25, 2001.

3

Dr. Mirkin also noted that he had reviewed a videotape depicting a person pushing a cart
in the manner appellant claimed to have sustained his injury. He stated that it was extremely
unlikely for the pushing of a cart as shown in the tape to have caused a significant back injury.
In a March 8, 2006 supplemental report, Dr. Mirkin stated:
“It would be my opinion that the objective evidence does not support an injury
resulting from pushing a cart, as depicted in the videotape. Certainly, [appellant]
does have a lumbar condition that preexists that date. Certainly, I think he has
subjective symptoms that are out of proportion to his objective findings and do
not support his contention that he is disabled from work activities.”
By decision dated March 17, 2006, the Office determined that appellant’s low back and
urological conditions were not causally related to the July 25, 2001 work incident and denied
authorization for his August 2002 surgery. It found that Dr. Mirkin’s referee opinion represented
the weight of the medical evidence.
By letter dated January 21, 2007, appellant requested reconsideration.
Dr. Richardson in a report dated March 27, 2007, noted appellant’s complaints of back
pain, reviewed the medical evidence and diagnostic tests and reiterated that his injuries and
resulting conditions and disability were causally related to the July 25, 2001 work incident. He
stated that appellant was currently disabled from performing his usual work.
By decision dated May 2, 2007, the Office denied modification of the March 17, 2006
decision.
By letter dated May 2, 2008, appellant, through his attorney, requested reconsideration.
Counsel stated that Dr. Mirkin did not address whether appellant’s need for surgery was work
related because he did not consider the effects of his original injury from 1987. He noted that the
Office has accepted three conditions: low back strain, chronic pain syndrome and aggravation of
degenerative disc disease at L5-Sl and has acknowledged that appellant continued to have
residuals of his 1987 injury. Counsel also stated that appellant did not address the issue of
whether he was currently affected by chronic pain syndrome. In addition, he argues that
Dr. Mirkin’s opinion had a flawed factual foundation because he based it on a video of someone
pushing a cart. Counsel noted that the video did not depict appellant nor did it depict the actual
cart he pushed.5 He stated that he was submitting an April 8, 2008 report from Dr. Richardson.
By decision dated May 12, 2008, the Office denied modification of the March 17, 2006
decision.

5

Counsel also argued that the Office erred in finding that appellant did not sustain a recurrence of disability
because it applied the wrong standard. This argument is moot and without merit. The Board previously found in its
November 10, 2005 decision that appellant failed to establish that he sustained a recurrence of disability as of
June 25, 2001.

4

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act6 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.7 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.9 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.10 The medical evidence
required to establish causal relationship is usually rationalized medical evidence. Rationalized
medical opinion evidence is medical evidence which includes a physician’s rationalized opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factors. The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.11
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.12
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.13
6

5 U.S.C. §§ 8101-8193.

7

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

8

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

9

John J. Carlone, 41 ECAB 354 (1989).

10

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

11

Id.

12

See Joe T. Williams, 44 ECAB 518, 521 (1993).

13

Id.

5

ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision.
In order to resolve the conflict in the medical evidence between appellant’s treating
physician, Dr. Richardson, and Dr. Carter, the second opinion physician, the Office referred the
case to a referee medical specialist, Dr. Mirkin, who stated in his February 2006 report that the
small degree of low back symptomatology appellant experienced would have been the same
whether or not he had pushed the cart on July 25, 2001 and could have been aggravated by
bending, stooping, coughing or lifting. Dr. Mirkin advised that appellant had a long history of
back problems dating back to at least 1987, but that his documented subjective symptomatology
had always exceeded the objective findings normally associated with the type of disc protrusion
appellant sustained. He stated that this disc protrusion noted on the MRI scan prior to the 2002
surgery was a small right-sided disc protrusion which would in no way cause incontinence.
Dr. Mirkin stated that it was extremely unlikely that this type of small procedure with excellent,
objective clinical results would preclude him from returning to any type of work, much less the
light work that he was doing. He asserted that appellant could return to much more vigorous
work if he gave a full effort and did not display symptom magnification. Dr. Mirkin advised that
appellant had subjective symptomatology but not the type which would preclude him from
returning to the workforce. The Office relied on his opinion in its March 17, 2006 decision,
finding that appellant had no condition or disability causally related to the July 25, 2001 work
incident and was therefore not entitled to compensation or medical benefits. By decision dated
May 12, 2008, it denied modification and found that Dr. Mirkin’s opinion continued to represent
the weight of the medical evidence.
The Board finds that Dr. Mirkin’s referee opinion on causal relationship is of limited
probative value because he did not provide adequate medical rationale in support of his
conclusions.14 Dr. Mirkin did not describe appellant’s accident in any detail or explain his
opinion that the July 25, 2001 cart-pushing incident could not have caused the claimed low back
and urinary incontinence conditions. He noted in his February 22, 2006 report that appellant had
a long history of low back symptomatology, which “could have” been aggravated by bending,
stooping, coughing or lifting, as opposed to pushing a cart on June 25, 2001, but did not provide
adequate support for this assertion. Dr. Mirkin’s opinion is therefore of limited probative value
also because it is generalized in nature and equivocal in that he only noted summarily that
appellant’s conditions were not causally related to the June 25, 2001 work incident. The Board
therefore finds that Dr. Mirkin failed to provide a thorough, well-rationalized medical opinion
sufficient to meet the standard for an impartial medical specialist.
Because the Office relied on Dr. Mirkin’s opinion, the Board will set aside the May 12,
2008 Office decision and remand for further development regarding this issue. The case is
remanded to the Office for referral to a new medical specialist, to resolve the outstanding conflict
in the medical evidence regarding whether appellant’s low back and urinary incontinence
conditions were causally related to the June 2001 work incident.

14

William C. Thomas, 45 ECAB 591 (1994).

6

LEGAL PRECEDENT -- ISSUE 2
Section 8103 of the Act15 provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances and supplies prescribed
or recommended by a qualified physician, which the Office considers likely to cure, give relief,
reduce the degree or the period of disability or aid in lessening the amount of the monthly
compensation.16 In interpreting this section of the Act, the Board has recognized that the Office
has broad discretion in approving services provided under the Act. The Office has the general
objective of ensuring that an employee recovers from his injury to the fullest extent possible in
the shortest amount of time. It therefore has broad administrative discretion in choosing means
to achieve this goal. The only limitation on the Office’s authority is that of reasonableness.
Abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment or actions taken which are contrary to both logic and probable deductions
from established facts. It is not enough to merely show that the evidence could be construed so
as to produce a contrary factual conclusion.17
ANALYSIS -- ISSUE 2
The Board finds that Dr. Mirkin’s referee opinion regarding the necessity of appellant’s
August 2002 surgery is not based upon an adequate factual foundation and requires clarification.
The Office had accepted that appellant sustained the conditions of lower back strain, chronic
pain syndrome and aggravation of degenerative disc disease at L5-S1 as a result of his 1987
employment injury. The Board in its November 10, 2005 decision instructed the Office to obtain
an opinion from an impartial medical examiner regarding whether his 2002 surgery was
necessitated by the alleged June 25, 2001 injury or an employment-related injury. The Office
failed to ask Dr. Mirkin, in its January 9, 2006 list of questions, whether appellant’s surgery was
necessitated by an employment-related injury other than that alleged to have resulted from the
July 25, 2001 work incident. Given that Dr. Mirkin has indicated that appellant’s 2002 L5-S1
laminectomy was performed due to pathology documented in the medical records prior to the
July 25, 2001 work incident, including a degenerative disc condition at L5-S1 and that the
surgery was performed for a condition, which preexisted this nonwork-related incident, the
Board will set aside the May 12, 2008 Office decision and remand for further development
regarding the issue of whether the Office properly denied authorization for appellant’s
August 2002 L5-S1 laminectomy.
Accordingly, the Office’s May 12, 2008 decision is set aside and the case remanded for
referral to a new impartial medical examiner, to resolve the outstanding conflict in the medical
evidence regarding whether the Office properly denied authorization for appellant’s August 2002
L5-S1 laminectomy. On remand, it shall ask the new medical specialist whether appellant’s

15

5 U.S.C. §§ 8101-8193.

16

5 U.S.C. § 8103.

17

Daniel J. Perea, 42 ECAB 214 (1990).

7

2002 surgery was necessitated by an employment-related injury or condition.
development as it deems necessary, the Office shall issue a de novo decision.18

After such

CONCLUSION
The Board finds that the case is not in posture for decision with regard to the issue of
whether appellant’s low back and urinary incontinence conditions were causally related to the
July 2001 work incident. The Board finds that the case is not in posture for decision regarding
the issue of whether the Office properly denied appellant authorization for his August 2002
laminectomy procedure.
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision.
Issued: September 24, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

The Board notes that the Office stated in its May 12, 2008 decision, that appellant had not submitted new,
relevant evidence and that therefore it was not considering the merits of the claim. However, it appears from the
decision that the Office engaged in a thorough review of the evidence of record. The Board will therefore consider
the May 12, 2008 decision as a merit review; appellant’s appeal rights are preserved. The Board further notes that,
although appellant’s attorney stated that he submitted Dr. Richardson’s April 8, 2008 report with his request for
reconsideration, such a report is not contained in the instant record and was apparently not among the evidence
reviewed by the Office in its May 12, 2008 decision.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
DEFENSE LOGISTICS AGENCIES,
Fort Belvoir, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Capp P. Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1334
Issued: February 8, 2017

Case Submitted on the Record

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

JURISDICTION
On June 14, 2016 appellant, through counsel, filed a timely appeal from a May 12, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty on May 19, 2014.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 29, 2014 appellant, then a 55-year-old supply systems analyst, filed a traumatic
injury claim (Form CA-1) alleging that on May 19, 2014 she experienced dizziness, difficulty
standing up, and throbbing in her head when her chair rolled back and the chair hit the top of her
head. She explained that she was sitting in her chair and she bent over to tie her sneakers when
the chair rolled onto plexiglass and flipped her onto the floor. Appellant related that she fell onto
her hands and knees on the floor and the top part of the chair hit the back of her head. She
stopped work on May 19, 2014.
A May 29, 2014 accident incident report indicated that on May 19, 2014 appellant was
sitting in her chair, leaning forward to tie her shoes, when she fell forward. She landed on the
floor and the chair struck the back of her head. Appellant noted that she experienced dizziness
and confusion. It was reported that a plastic floor mat was underneath her seat, which may have
caused the chair to slip. Appellant’s supervisor removed the plastic floor mat and advised
appellant to seek medical treatment in the emergency room. The accident report indicated that
appellant was diagnosed with a head injury, dizziness, and hypoglycemia, which was a
preexisting condition.
Appellant was treated in the emergency room by Dr. Daniel E. Angeli, Board-certified in
emergency medicine, who noted in hospital records dated May 19, 2014 that she was examined
for complaints of head injury, dizziness, and hypoglycemia after a near syncopal episode at
work. Dr. Angeli described that she leaned forward in her chair to tie her shoes when her chair
slipped out from underneath her and the back of the chair hit her in the back of her head. He
noted that appellant experienced pain in her knees, chest, and head, and headaches and dizziness.
Dr. Angeli reviewed her medical history and conducted an examination. He reported that a
computed tomography (CT) scan of the head revealed no acute traumatic injury. Dr. Angeli
noted that appellant’s blood chemistry was abnormal and diagnosed headache, muscle pain, and
possible hypoglycemia. He related that the “injury mechanism was a fall.”
Dr. Sara S. Breeden, a Board-certified family practitioner also treated appellant and
indicated in examination notes dated May 22 and 27, 2014 that appellant was examined for
follow-up after being treated in the emergency room. She related that appellant fell down on the
floor at work when she was bending over and that a chair hit her on the back of the head.
Appellant experienced headaches, dizziness, abdominal pain, and sharp left arm and knee pain
afterwards. Dr. Breeden mentioned that appellant’s sugar level was 114 when tested in the
emergency room. She reviewed appellant’s history and reported that neurologically appellant
was alert and oriented. Deep tendon reflexes were positive in all four extremities. Dr. Breeden
diagnosed low blood sugar, unspecified hypertension, head injury, and abdominal pain. In work
status notes, she requested that appellant be excused from work from May 19 to June 1, 2014.
Appellant was treated by Dr. Richard E. Waller, a Board-certified neurologist, who
indicated in progress notes dated June 11 to July 10, 2014 that he examined her for complaints of
neurologic symptoms following a head injury. Dr. Waller related her history of injury regarding
the chair roll and fall and noted that she immediately experienced headaches and dizziness and
was transported to the emergency room. He related that since then appellant complained of daily
headaches, stabbing pains in her scapula, arms, legs, feet, and stomach. Dr. Waller reviewed her

2

medical history and conducted a physical examination, which found that her range of motion of
the neck was decreased in all directions. In a July 10, 2014 progress note, he related that a
magnetic resonance imaging scan of the cervical spine revealed multilevel degenerative changes.
Dr. Waller diagnosed postconcussion syndrome, cervical spondylosis, glucose intolerance, sleep
apnea, and hypertension. In a June 18, 2014 work status note, he indicated that appellant could
return to work half-days.
On July 8, 2014 appellant was examined by Dr. Vicki B. Latham, a Board-certified
internist, who reviewed appellant’s history of injury and provided physical examination findings.
Dr. Latham diagnosed foot and knee pain. She noted that appellant could return to work on
July 11, 2014.
By letter dated July 18, 2014, a senior human resources (HR) specialist at the employing
establishment requested that OWCP develop appellant’s traumatic injury claim. She asserted
that appellant’s underlying, preexisting, or degenerative medical conditions may have
contributed to her fall and should not be associated with the claim. The HR specialist listed the
medical reports she requested OWCP review and noted that these specific records noted
abnormal blood sugar and essential hypertension. She asked that OWCP review these medical
records and determine whether appellant’s underlying medical conditions were related to
appellant’s traumatic injury claim.
Appellant received medical treatment from Dr. Howard F. Duke, a Board-certified
podiatrist and foot surgeon, who related in examination notes dated August 7 and 11, 2014 that
she complained of Achilles tendinitis, edema, ankle and heel pain, numbness, and burning in her
feet. Dr. Duke related that she bent over in a chair at work to tie her shoes when the chair tipped
over. Appellant landed on her hands and knees and was hit in the back of the head by the chair.
Upon examination, Dr. Duke observed palpable dorsalis pedis and posterior tibial pulses and no
apparent varicosities. He diagnosed pain in limb, fasciitis, tendinitis, Achilles pain, edema,
hammertoe deformity, and neuropathy. Dr. Duke indicated that appellant would be unable to
work from August 7 to 8, 2014 due to surgery. On August 7, 2014 appellant underwent rigid
mallet toe deformity.
In a September 15, 2014 note, Kenn Shirley, a hospital clinical care manager, indicated
that appellant was admitted to the hospital on September 11, 2014 and was discharged on
September 15, 2014. He related that she was not cleared for work until September 29, 2014.
Dr. William C. Walker, Board-certified in physical medicine and rehabilitation, also
treated appellant. In reports dated October 20 and November 17, 2014, he related her history of
injury and discussed the medical treatment she received. Dr. Walker related that appellant
currently complained of trouble with memory and emotions and was taking medication for
depression. Upon neurological examination, he reported normal sensory and motor function.
Deep tendon reflexes were positive.
Dr. Walker diagnosed sleep apnea, depression,
postconcussion syndrome, post-traumatic headache, and cognitive disorder symptoms.
In an October 24, 2014 letter, Dr. Joy A. O’Grady, a clinical psychologist, reported that
appellant was struck on the head at work on May 19, 2014 and described the medical treatment
she received. She reported that, since the head injury, appellant had frequent headaches, was

3

forgetful, and was slower to process information. Dr. O’Grady conducted a neurological and
psychological evaluation. She reported that appellant’s neuropsychological profile reflected a
mix of strengths and weaknesses. Dr. O’Grady observed that simple cognitive processing speed
and verbal fluency were within normal limits, but impairments were noted in learning and simple
cognitive processing speed. She explained that appellant’s neuropsychological profile reflected
weaknesses in memory and executive skills. Dr. O’Grady diagnosed postconcussion syndrome
and adjustment disorder with mixed emotional features.
In a letter dated December 22, 2014, OWCP informed appellant that her claim was
initially accepted as a minor injury, but was now being reopened on the merits. It advised her
that the medical evidence on the record was insufficient to establish that she sustained a
diagnosed condition as a result of the May 19, 2014 employment incident. OWCP requested that
appellant submit additional evidence to establish her claim. Appellant was afforded 30 days to
submit the additional evidence.
Dr. Breeden related in a January 21, 2015 note that she had treated appellant for an injury
that occurred on May 19, 2014. She reiterated appellant’s history of injury and reported that
appellant experienced symptoms of dizziness and headache.
In a January 22, 2015 statement, an internal review supervisor at the employing
establishment explained that on the morning of May 19, 2014 she was making copies when
appellant walked by out of the office. When she asked appellant if she was okay, appellant told
her that she was bending over in her chair to tie her shoes when the chair hit her in the back of
the head. The supervisor advised appellant to sit down and instructed another employee to call
emergency medical services. She reported that appellant was in and out of the office from May
to June 2014. The supervisor noted that appellant still complained that she was not able to read
documents or concentrate on any projects.
On January 27, 2015 OWCP received a letter from an HR specialist at the employing
establishment, requesting that it conduct a review of all the medical documentation submitted by
appellant in order to determine if there was a causal relationship between the work-related
incident and her diagnosed psychological conditions. The HR specialist asserted that she had
some possible underlying, preexisting, or degenerative medical conditions, which may have
contributed to her fall at work on May 19, 2014. He reported that the employing establishment
was unaware of any possible connection between the head contusion suffered by appellant and
her present memory loss or any psychological condition as a result of her falling out of the chair
at work. The HR specialist noted that medical documentation seemed to indicate that she
suffered from low blood sugar and hypertension. He explained that a witness was within close
proximity to appellant when the alleged fall from chair occurred and the witness did not hear or
see the fall. The HR specialist requested that OWCP review all the evidence and make a
determination.
A February 2, 2015 statement from appellant’s coworker related that she sat three
cubicles over from appellant, which was less than 10 feet away, and did not hear or see appellant
falling out of her chair.
On February 19, 2015 appellant retired due to disability.

4

OWCP denied appellant’s claim in a decision dated May 5, 2015. It found that the
May 19, 2014 incident occurred as alleged and that she was diagnosed with postconcussion
syndrome, low blood sugar, and hypertension. OWCP denied appellant’s claim, however,
finding that the injury did not occur in the performance of duty because her fall was idiopathic
and not related to factors of appellant’s employment.
On April 25, 2016 OWCP received appellant’s request, through counsel, for
reconsideration of her claim based on a new legal argument. Counsel asserted that OWCP erred
because it did not consider whether certain objects involved in the event were factors of
employment as required pursuant to Albert E. Hermann, Jr., 35 ECAB 167 (1983). He alleged
explained that the wheeled desk chair and the vinyl chair mat contributed to the chair rolling
backwards, which caused appellant to fall forward onto the floor. Counsel argued that the fact
that her low blood sugar may have caused her to initially lose her balance did not detract from
the fact that the desk chair and vinyl mat also contributed to the accident. He noted that
appellant had identified factors of employment that contributed to the fall, and therefore, the
claim should be found compensable.
By decision dated May 12, 2016, OWCP denied modification of the May 5, 2015 denial
decision. It found that counsel’s submission was insufficient to establish that appellant sustained
a traumatic injury in the performance of duty. OWCP determined in its May 12, 2016 decision,
that counsel did not demonstrate that any incidents or factors of employment intervened or
contributed to her alleged injury other than an idiopathic fall.
LEGAL PRECEDENT
As a general rule, an injury is considered to occur in the course of employment if it
occurs at a time when the employee may reasonably be stated to be engaged in her master’s
business, at a place when she may reasonably be expected to be in connection with her
employment and while she was reasonably fulfilling the duties of her employment or engaged in
doing something incidental thereto.3 One exception to the general rule is if the injury was a
result of an idiopathic fall.4
It is a well-settled principle of workers’ compensation law and the Board has held that an
injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes an
employee to collapse and suffer injury upon striking the immediate supporting surface and there
is no intervention or contribution by any hazard or special condition of employment -- is not
within the coverage of FECA.5 Such an injury does not arise out of a risk connected with the
employment and is therefore not compensable. However, the fact that the cause of a particular
fall cannot be ascertained or that the reason it occurred cannot be explained, does not establish
that it was due to an idiopathic condition. If the record does not establish that the particular fall
3

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006);
Eugene G. Chin, 39 ECAB 598 (1988).
4

Roger Williams, 52 ECAB 468 (2001).

5

See Albert E. Hermann, Jr., 35 ECAB 167 (1983); Stanley H. Dunihue, Jr., Docket No. 05-1418 (issued
September 16, 2005).

5

was due to an idiopathic condition, it must be considered as merely an unexplained fall, one
which is distinguishable from a fall in which it is definitely proved that a physical condition
preexisted and caused the fall.6 To be considered an idiopathic fall, two elements must be
present: a fall resulting from a personal, nonoccupational pathology, and no contribution from
the employment.7
OWCP has the burden of proof to submit medical evidence showing the existence of a
personal, nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic
in nature. The fact that the cause of a particular fall cannot be determined does not establish that
it was due to an idiopathic condition and if the record does not establish a particular fall was due
to an idiopathic condition, it must be considered as merely an unexplained fall, which is covered
under FECA.8
ANALYSIS
The record of evidence supports that the May 19, 2014 incident occurred at a place where
appellant was reasonably expected to be and took place while she was fulfilling her duties or was
engaged in doing something incidental thereto. As such, the alleged injury occurred in the
course of her employment and would be considered compensable under the general performance
of duty rule.9
OWCP found that the alleged May 19, 2014 injury did not occur in the performance of
duty because it resulted from an idiopathic fall. It determined that the medical evidence of
record established that appellant suffered from low blood sugar and hypertension, which were
preexisting conditions, and were not established as causally related to her employment. The
Board finds that this case is not in posture for decision.
As previously noted, OWCP bears the burden of proof to establish an idiopathic fall.10 In
L.J.,11 the Board found that OWCP failed to prove that a fall was idiopathic in nature as the
medical evidence did not establish that an employee’s fall was solely the result of her
nonoccupational orthostatic hypotension condition. The Board determined that the medical
evidence of record demonstrated that the employee’s employment activities of bending over and
stooping down, at least partially, contributed to her falling at work.
Similarly, in this case, the Board finds that the medical evidence of record fails to show
that appellant’s fall was solely the result of a personal, nonoccupational pathology. Various
medical records, including Dr. Angeli’s May 19, 2014 hospital records, Dr. Breeden’s May 22
6

M.M., Docket No. 08-1510 (issued November 25, 2008).

7

N.P., Docket No. 08-1202 (issued May 8, 2009).

8

Jennifer Atkerson, 55 ECAB 317 (2004).

9

See supra note 3.

10

Id.

11

Docket No. 08-1415 (issued December 22, 2008).

6

and 27, 2014 examination notes, Dr. Waller’s June 11 and July 10, 2014 reports, Dr. Duke’s
August 7 and 11, 2014 reports, and Dr. Walker’s October 20 and November 17, 2014 reports all
describe how appellant was bending over in her chair to tie her shoes when the chair slipped out
from underneath her. Although the medical records also demonstrate that she suffered from
preexisting low blood sugar, hypoglycemia, and hypertension, none of the physicians opined that
the incident resulted from any of these preexisting conditions. The mere fact that an employee
has a preexisting medical condition, without supporting medical rationale to establish that it was
the cause of the employment incident, is insufficient to establish that a fall is idiopathic.12 The
medical reports of record demonstrate that appellant was sitting on her chair at her desk in her
cubicle at work and bent over to tie her shoes when the fall occurred. Therefore, while the
reports are insufficient to meet her burden of proof to establish her claim, they raise an
uncontroverted inference that employment factors contributed to the work incident on
May 19, 2014.13
Moreover, the Board notes that the factual evidence also supported that employment
conditions contributed to appellant’s fall at work. In the Form CA-1 appellant attributed her fall
off the chair to the fact that her wheeled chair rolled onto plexiglass and flipped. She did not
allege that she fell because of dizziness but, instead, that she experienced dizziness, difficulty
standing up, and throbbing in her head after the alleged fall occurred. The May 29, 2014
accident/incident report furthermore supported appellant’s statement. The report noted that a
plastic floor mat was underneath her wheeled chair and that it “may have caused the chair to
slip.” Accordingly, the record does support that conditions of employment did contribute, at
least partially, to appellant’s alleged fall on May 19, 2014.14
If the record does not establish that a particular fall was due to an idiopathic condition, it
must be considered as merely an unexplained fall, one which is distinguishable from a fall in
which it is definitely proved that a physical condition preexisting and caused the fall.15 The
Board finds that OWCP has failed to meet its burden to establish that appellant’s fall out of her
chair was of an idiopathic nature with no contribution or intervention from employment factors.16
The evidence of record is sufficient to require OWCP to further develop the medical evidence
and the case record.17
Accordingly, the case will be remanded for OWCP to determine the nature and extent of
any injury or disability that resulted from the March 19, 2014 fall. Following this and such
further development deemed necessary, OWCP shall issue an appropriate de novo decision.

12

See Steven S. Saleh, 55 ECAB 169 (2003).

13

See supra note 7.

14

Id.

15

Supra note 8.

16

R.D., Docket No. 13-1854 (issued December 23, 2014).

17

See Robert A. Redmond, 40 ECAB 796, 801 (1989).

7

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2016 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: February 8, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Hollywood, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-441
Issued: April 25, 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 December 6, 2006 appellant filed a timely appeal from a December 15, 2005 merit
decision of the Office of Workers’ Compensation Programs finding that she had failed to
establish a recurrence of medical condition, and January 23 and November 17, 2006 nonmerit
decisions denying her requests for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this appeal.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of medical condition
causally related to her January 25, 1999 employment injury; and (2) whether the Office properly
refused to reopen appellant’s case for further review of the merits of her claim pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 27, 2006 appellant, then a 44-year-old letter carrier, filed a claim for a
traumatic injury to her back occurring on January 25, 1999 in the performance of duty. The

Office accepted her claim for lumbosacral strain.1 Appellant returned to light-duty employment
on May 12, 1999.
Appellant was treated by Dr. Peter Hugh, Board-certified in the area of family medicine.
On October 3, 2000 Dr. Hugh noted that appellant continued to experience significant pain in the
lumbar spine due to her January 25, 1999 work injury. An April 15, 1999 report of a magnetic
resonance imaging (MRI) scan of appellant’s lumbar spine revealed mild dessication of L2,
L3-4, L5-S1 intervertebral discs. Dr. Hugh stated that appellant had minimal disc bulges at L2-3
and L3-4 areas. He further indicated that her condition would be aggravated by driving and
lifting heavy objects at work and that bending caused lower back pain radiating down to the
buttock area. Dr. Hugh reported that his requests for an orthopedic evaluation had been denied
by the Office. The record also contains duty status reports from Dr. Hugh dated December 17,
2000, January 16, March 26, April 30 and October 30, 2001, which diagnosed herniated disc and
lumbar radiculopathy related to appellant’s January 1999 work injury. The record contains
numerous physicians’ notes and work slips from Harriman Jones Medical Group, bearing
illegible signatures, for the period August 16, 2000 through October 30, 2001. The record also
contains a January 17, 2001 report of an MRI scan of appellant’s lumbar spine.
On November 5, 2005 appellant submitted a letter requesting that her case be reopened.
She stated that she had obtained an appointment with Dr. Hugh, after the employing
establishment asked her for a medical update. Appellant discovered that her case had been
closed, when the Office refused to pay her medical benefits.
In support of her request, appellant submitted an October 6, 2005 duty status report from
Dr. Hugh, which reflected that her condition was permanent and stationary. Dr. Hugh noted that
the date of injury was January 25, 1999 and provided a diagnosis of lumbosacral strain. He
stated that he had advised appellant to resume working January 27, 1999. Dr. Hugh
recommended that she be restricted from lifting or carrying more than 15 pounds for more than
four hours per day; standing or walking for more than four hours per day; sitting for more than
three hours per day; or pulling, pushing or grasping more than two hours per day. He further
recommended that appellant be restricted from any climbing, kneeling, bending, stooping,
twisting or fine manipulation. The record contains an October 6, 2005 return to work slip from
Dr. Hugh indicating that appellant was able to return to work on October 7, 2005 and a receipt
for services rendered by Dr. Hugh on October 6, 2005 in the amount of $70.00.
By letter dated November 15, 2005, the Office informed appellant that it had received her
November 5, 2005 claim for benefits. The Office requested that she submit a statement
describing why she believed her current disability or need for medical care was due to her
employment injury and notified her that she should obtain a narrative report from her attending
physician addressing her need for continuing medical treatment, the extent of any disability and
its relationship to her accepted employment injury. The Office provided appellant 30 days to
submit the requested information.

1

The Office’s December 15, 2005 decision reflects that appellant’s claim was accepted for lumbosacral strain.
However, the record does not contain documentation that the Office accepted appellant’s claim.

2

In a narrative statement dated December 12, 2005, appellant described her duties upon
return to work, and stated that she had experienced no new injuries subsequent to the accepted
January 1999 injury. She alleged that she had remained in constant pain since the original injury.
Appellant submitted an electronic print out of a schedule of patient appointments with
Dr. Bijal V. Patel, a Board-certified internist, for the period August 5, 2002 through
August 27, 2004.
By decision dated December 15, 2005, the Office denied appellant’s claim on the
grounds that the evidence did not establish that she sustained a recurrence of medical condition
due to her accepted employment injury. The Office informed her that no further medical
treatment was authorized and any prior authorization was terminated.
In a form dated January 9, 2006, appellant requested reconsideration of the Office’s
December 15, 2005 decision. She submitted a copy of a December 7, 2005 limited-duty job
offer from the employing establishment, reflecting that on December 14, 2005 she accepted a
modified carrier position, “under protest.” By decision dated January 23, 2006, the Office
denied appellant’s request for merit review, finding that she had failed to raise a substantial legal
question or to submit any new and relevant evidence.
On November 5, 2006 appellant again requested reconsideration of the Office denial of
her claim. She stated that the employing establishment had asked her to obtain Dr. Hugh’s
October 6, 2005 report and that she was “staggered to learn that [her] case was closed.”
Appellant indicated that she was unaware that she was obligated to submit paperwork to the
Office every year. In support of her request, she submitted duplicates of previously submitted
documents, including an October 3, 2000 letter from Dr. Hugh and an electronic print out of a
schedule of patient appointments with Dr. Patel for the period August 5, 2002 through
August 27, 2004. Appellant submitted a November 12, 2003 memorandum to appellant from the
employing establishment indicating that she had been reassigned due to work limitations
provided by her physician.
By decision dated November 17, 2006, the Office denied appellant’s request for
reconsideration on the grounds that appellant failed to submit sufficient evidence to warrant a
merit review.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking compensation under the Federal Employees’ Compensation Act2 has
the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence.3 In this case, appellant has the burden of establishing that
she sustained a recurrence of a medical condition causally related to her January 25, 1999
employment injury. This burden includes the necessity of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the condition is causally related to the employment injury and supports that conclusion with
2

5 U.S.C. §§ 8101-8193.

3

Edward W. Spohr, 54 ECAB 806 (2003).

3

sound medical rationale.4 Where no such rationale is present, the medical evidence is of
diminished probative value.5
Office regulations define a recurrence of medical condition as the documented need for
further medical treatment after release from treatment of the accepted condition when there is no
work stoppage. Continued treatment for the original condition is not considered a renewed need
for medical care, nor is examination without treatment.6
The Office’s procedure manual provides that, after 90 days of release from medical care
(based on the physician’s statement or instruction to return PRN [as needed], or computed by the
claims examiner from the date of last examination.), a claimant is responsible for submitting an
attending physician’s report which contains a description of the objective findings and supports
causal relationship between the claimant’s current condition and the previously accepted work
injury.7
ANALYSIS -- ISSUE 1
The Board finds that appellant has failed to establish a recurrence of her accepted medical
condition. The Office accepted appellant’s claim for lumbosacral strain. Appellant returned to
light-duty employment on May 12, 1999. She has not alleged that she stopped work due to a
withdrawal or change in her light-duty position. Appellant further has not submitted any medical
evidence showing that she was disabled from her light-duty position as of the date that she
ceased working for the employing establishment. She contends, however, that she requires
further medical treatment for her continuing employment-related condition.
The record reflects that appellant was treated for her accepted condition by Dr. Hugh, and
other members of the Harriman Jones Medical Group, through October 30, 2001. Appellant
submitted an electronic print out of a schedule of patient appointments with Dr. Patel for the
period August 5, 2002 through August 27, 2004. There is no evidence of record establishing that
appellant received medical treatment for her accepted condition between August 27, 2004 and
October 6, 2005, when she returned to Dr. Hugh. As computed from the date of Dr. Hugh’s last
examination on August 27, 2004, the treatment on October 6, 2005 was rendered more than 90
days after appellant’s release from medical care. Therefore, appellant was responsible for
submitting an attending physician’s report which contains a description of the objective findings
and supports causal relationship between her current condition and the previously accepted work
4

Ronald A. Eldridge, 53 ECAB 218 (2001).

5

Mary A. Ceglia, 55 ECAB 626 (2004); Albert C. Brown, 52 ECAB 152 (2000).

6

20 C.F.R. § 10.5(y).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (September 2003). The
procedure manual provides, with certain exceptions, that, within 90 days of release from medical care (as stated by
the physician or computed from the date of last examination or the physician’s instruction to return PRN), a claims
examiner may accept the attending physician’s statement supporting causal relationship between appellant’s current
condition and the accepted condition, even if the statement contains no rationale. See id., Chapter 2.1500.5(a).

4

injury.8 Appellant did not submit the evidence required and thus failed to establish a need for
continuing medical treatment.9
Appellant had the burden of submitting sufficient medical evidence to document the need
for further medical treatment.10 She was responsible for submitting a report from a physician
containing a description of the objective findings and supporting causal relationship between her
current condition and the accepted work injury.11 The medical evidence submitted was
insufficient to establish her claim. In an October 6, 2005 duty status report, Dr. Hugh indicated
that appellant’s condition was permanent and stationary. He noted that the date of injury was
January 25, 1999; provided a diagnosis of lumbosacral strain; and recommended that she be
restricted from lifting or carrying more than 15 pounds for more than four hours per day;
standing or walking for more than four hours per day; sitting for more than three hours per day;
or pulling, pushing or grasping more than two hours per day. Dr. Hugh further recommended
that appellant be restricted from any climbing, kneeling, bending, stooping, twisting or fine
manipulation. His report did not contain a description of the objective findings and a reasoned
opinion supporting a causal relationship between appellant’s current condition and the previously
accepted work injury, as required by Office procedures.12 Therefore, it is of diminished
probative value. Dr. Hugh’s report merely reflected that he examined appellant. Continued
treatment for the original condition is not considered a renewed need for medical care, nor is
examination without treatment.13 In an October 6, 2005 return to work slip, Dr. Hugh indicated
that appellant was able to return to work on October 7, 2005. However, he did not provide a
diagnosis or any opinion regarding the cause of appellant’s condition. The Board has long held
that medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value.14
The Office informed appellant of the type of evidence necessary to establish her claim by
letter dated November 15, 2005. In response, she submitted only a narrative statement alleging
that she had been in constant pain since the original injury. The mere fact that a disease
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two. Neither the fact that the disease became apparent during a period
of employment, nor the belief of appellant that the disease was caused or aggravated by
employment conditions, is sufficient to establish causal relation.15 Appellant also submitted an
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (September 2003).

9

See J.F., 58 ECAB ___ (Docket No. 06-186, issued October 17, 2006).

10

20 C.F.R. § 10.5(y).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (September 2003).

12

Id.

13

20 C.F.R. § 10.5(y).

14

See Michael E. Smith, 50 ECAB 313 (1999).

15

Froilan Negron Marrero, 33 ECAB 796 (1982).

5

electronic print out of a schedule of patient appointments with Dr. Patel from August 5, 2002
through August 27, 2004. The evidence submitted did not address the relevant issue, namely,
whether appellant has a documented need for further medical treatment after release from
treatment of the accepted condition. Consequently, she has not established a recurrence of a
medical condition, and the Office properly denied her claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act16 vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.17 Thus, the Act does not entitle a
claimant to a review of an Office decision as a matter of right.18
Section 10.608(a) of the Code of Federal Regulations provides that a timely request for
reconsideration may be granted if the Office determines that the employee has presented
evidence and/or argument that meets at least one of the standards described in section
10.606(b)(2).19 The application for reconsideration must be submitted in writing and set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; or (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.20
Section 10.608(b) provides that, when a request for reconsideration is timely, but fails to
meet at least one of these three requirements, the Office will deny the application for
reconsideration without reopening the case for a review of the merits.21
ANALYSIS -- ISSUE 2
Appellant’s reconsideration requests dated January 9 and November 5, 2006 neither
alleged, nor demonstrated that the Office erroneously applied or interpreted a specific point of
law. Additionally, she did not advance a relevant legal argument not previously considered by
the Office. Consequently, appellant is not entitled to a review of the merits of her claim based on
the first and second above-noted requirements under section 10.606(b)(2).

16

5 U.S.C. § 8128(a) (“the Secretary of Labor may review an award for or against payment of compensation at
any time on his own motion or on application”).
17

Raj B. Thackurdeen, 54 ECAB 396 (2003); Veletta C. Coleman, 48 ECAB 367 (1997).

18

20 C.F.R. § 10.608(a).

19

20 C.F.R. § 10.606(b)(1)-(2); see Sharyn D. Bannick, 54 ECAB 537 (2003).

20

20 C.F.R. § 10.608(b).

21

Id.

6

Appellant also failed to meet the third requirement of submitting relevant and pertinent
new evidence in both instances. In support of her January 9, 2006 request, appellant submitted a
copy of a December 7, 2005 limited-duty job offer from the employing establishment in
accordance with her doctor’s recommended restrictions. This evidence is not relevant to the
issue at hand, namely, whether appellant has established a documented need for further medical
treatment after release from treatment of the accepted condition. In support of her November 5,
2006 request, appellant submitted duplicates of previously submitted documents, including an
October 3, 2000 letter from Dr. Hugh and an electronic print out of a schedule of patient
appointments with Dr. Patel for the period August 5, 2002 through August 27, 2004. Evidence
that repeats or duplicates evidence already in the case record has no evidentiary value and does
not constitute a basis for reopening a case.22 Appellant also submitted a November 12, 2003
memorandum to her from the employing establishment indicating that she had been reassigned
due to work limitations provided by her physician. Again, this document does not constitute
medical evidence establishing appellant’s need for further medical treatment and is, therefore,
irrelevant. The Board finds that the Office properly denied appellant’s requests for a review on
the merits, as she failed to meet any of the three requirements of section 10.606(b)(2).
CONCLUSION
The Board finds that appellant failed to establish that she sustained a medical condition
causally related to her January 25, 1999 employment injury. The Board further finds that the
Office properly denied appellant’s requests for a merit review.

22

Roger W. Robinson, 54 ECAB 846 (2003).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 17 and January 23, 2006 and December 15, 2005 are
affirmed.
Issued: April 25, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, MAIL CARRIER
ANNEX, San Fernando, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0462
Issued: August 5, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 27, 2018 appellant, through counsel, filed a timely appeal from a
September 21, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction 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 Board notes that following the September 21, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a left knee condition
causally related to the accepted May 20, 2017 employment incident.
FACTUAL HISTORY
On May 30, 2017 appellant, then a 54-year-old postmaster, filed a traumatic injury claim
(Form CA-1) alleging that on May 20, 2017 he was conducting a route inspection in a long-life
vehicle, and when he pulled himself up to exit the vehicle he felt pain in his left knee. He stopped
work on May 24, 2017 and returned to work on May 30, 2017. On the reverse side of the claim
form, the employing establishment controverted the claim noting that appellant had not mentioned
the incident until four days after it had occurred.
On May 25, 2017 Dr. Patrick Butcher, Board-certified in emergency medicine,
recommended that appellant be excused from work for the period May 25 through 28, 2017. He
provided appellant emergency department discharge instructions for knee effusion and knee pain.
OWCP also received a June 1, 2017 work status report from Dale Pietrowski, a physician assistant,
who diagnosed left knee strain and left knee effusion and excused appellant from all work through
June 8, 2017.
In a development letter dated June 7, 2017, OWCP informed appellant that he had not
submitted sufficient factual or medical evidence to establish his claim. It advised him of the type
of evidence needed and provided a questionnaire for his completion. OWCP afforded appellant
30 days to respond.
OWCP subsequently received a May 30, 2017 initial examination report from Dr. Carlos
Garrett, a Board-certified internist. Dr. Garrett examined appellant for complaints of left knee
pain. Appellant informed him that he had sustained an injury on May 20, 2017 when he stood up
from a floor-level seat in a postal vehicle and felt a pain shoot through his left knee. He noted that
on May 24, 2017 he had visited an emergency room where liquid was drained from his left knee.
On examination, Dr. Garrett observed tenderness without joint effusion, full flexion, and a positive
patellofemoral grind test. He diagnosed left knee joint effusion, internal derangement of the left
knee, and a left knee ligament injury. Dr. Garrett recommended use of a cane.
In a June 1, 2017 follow-up report, Dr. Garrett noted that appellant recounted an injury on
May 20, 2017 when he was sitting in the cargo compartment of a postal vehicle in a seat bolted to
the floor and pulled himself up, feeling a pain shoot through his left knee. On examination he
noted tenderness, joint effusion, and limited flexion. Dr. Garrett diagnosed left knee effusion and
strain.
In a report dated June 8, 2017, Dr. Andree Leroy, Board-certified in physical medicine and
rehabilitation, diagnosed left knee effusion and recommended that appellant be off work until
June 15, 2017. He indicated that appellant stated that his left knee was 20 percent better. On
examination, Dr. Leroy observed joint effusion with limited flexion. He diagnosed left knee
effusion. After reviewing appellant’s account of the claimed injury, Dr. Leroy indicated that he
agreed with the mechanism of injury.

2

A June 12, 2017 left knee magnetic resonance imaging (MRI) scan revealed a lateral
meniscus horizontal oblique tear of the posterior horn, a medial meniscus oblique intermediate
signal intensity, a grade 1 medial collateral ligament sprain, mild degeneration of the anterior
cruciate ligament, popliteus moderate tendinosis at the femoral origin, and a moderate-sized joint
effusion. The diagnostic report noted that the findings were of indeterminate age.
In a follow-up report dated June 15, 2017, Dr. Garrett noted that appellant’s MRI scans
demonstrated a left meniscus tear. He diagnosed a complex tear of the left knee medial meniscus
and an acute left knee lateral meniscus tear. Dr. Garrett recommended that appellant remain off
work. On June 22, 2017 he noted that appellant was currently on modified duty. On examination
of the left knee, Dr. Garrett observed tenderness, no joint effusion, and limited flexion. He
diagnosed acute medial and lateral meniscus tears of the left knee.
By decision dated July 13, 2017, OWCP denied appellant’s claim finding that he had not
submitted sufficient evidence to meet his burden of proof to establish causal relationship between
his diagnosed conditions and the accepted May 20, 2017 employment incident.
OWCP subsequently received a June 27, 2017 report from Dr. Arash Dini, a Boardcertified orthopedic surgeon. Dr. Dini diagnosed a left tear of the medial meniscus and
recommended that appellant be off work until July 25, 2017. In an initial evaluation of the same
day, he evaluated appellant for complaints of left knee pain. Appellant informed Dr. Dini that he
sustained an injury at work on May 20, 2017 by “striking it.” On examination of the left knee, he
observed unrestricted range of motion, tenderness to palpation, positive lateral joint line
tenderness, and intact sensation. Dr. Dini referred to the MRI scan taken on June 12, 2017, which
demonstrated a tear of the lateral and medial menisci, anterior cruciate ligament degeneration, and
moderate joint effusion. He diagnosed a knee contusion and meniscal tears. Dr. Dini opined that
it appeared that appellant sustained an injury to the left knee arising out of and caused by industrial
exposure on May 20, 2017 and recommended that appellant remain off work.
Appellant submitted unsigned visit summaries dated February 5 through May 7, 2018, as
well as a report from a physician assistant dated July 12, 2018.
On June 25, 2018 appellant, through counsel, requested reconsideration of OWCP’s
July 13, 2017 decision. Counsel noted that a report from Dr. Garrett dated June 19, 2018 was
enclosed. Appellant resubmitted the reports of Dr. Garret, Dr. Leroy, and Dr. Dini.
By decision dated September 21, 2018, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to

3

the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue. A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical
rationale that explains the nature of the relationship between the diagnosed condition and
appellant’s employment incident.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to the accepted May 20, 2017 employment incident.
In support of his claim, appellant submitted medical reports from Dr. Garrett and
Dr. Leroy.
On May 30, 2017 appellant indicated to Dr. Garrett that he had sustained an injury on
May 20, 2017 when he stood up from a floor-level seat in a postal vehicle and felt a pain shoot
through his left knee. Dr. Garrett diagnosed left knee joint effusion, internal derangement of the
left knee, and a left knee ligament injury. This history of injury was replicated in subsequent
reports from Dr. Garrett. However, such generalized statements do not establish causal
relationship because they merely repeat appellant’s allegations and are unsupported by adequate
medical rationale explaining how the incident of May 20, 2017 actually caused the diagnosed
condition.9 As such, they are insufficient to satisfy appellant’s burden of proof with respect to
causal relationship.10

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

8

S.S., Docket No. 18-1488 (issued March 11, 2019).

9

See J.B., Docket No. 18-1006 (issued May 3, 2019); K.W., 59 ECAB 271, 279 (2007).

10

Id.

4

On June 27, 2017 Dr. Dini opined that it appeared appellant sustained an injury to the left
knee arising out of and caused by industrial exposure on May 20, 2017 and recommended that
appellant remain off work. Dr. Leroy’s brief statement and reports that he agreed with appellant’s
account of the mechanism of injury, along with Dr. Dini’s statement that appellant’s left knee
condition “appeared” to arise out of “industrial exposure” on May 20, 2017, also do not establish
that appellant’s left knee condition was causally related to the May 20, 2017 employment incident.
On June 8, 2017, after reviewing appellant’s account of the claimed injury, Dr. Leroy indicated
that he agreed with the mechanism of injury. The Board has held that a medical opinion is of
limited value if it is conclusory or speculative in nature.11 Dr. Leroy’s brief statement that he
agreed with appellant’s account of the mechanism of injury is conclusory in nature, as it does not
contain an explanation of how the incident of May 20, 2017 physiologically caused, contributed
to, or aggravated the specific diagnosed conditions.12 Similarly, Dr. Dini’s opinion refers to the
cause as “industrial exposure” and does not describe in physiological terms how the incident of
May 20, 2017 caused the diagnosed left knee conditions. Furthermore, Dr. Dini’s opinion was
couched in speculative terms, noting that appellant’s condition “appeared” to have been caused by
the incident of May 20, 2017. Entitlement to FECA benefits may not be based on surmise,
conjecture, speculation, or on the employee’s own belief of a causal relationship.13 While the
opinion supporting causal relationship does not have to reduce the cause or etiology of a disease
or condition to an absolute certainty, the opinion must be one of reasonable medical certainty and
not speculative or equivocal in character.14 As Dr. Dini’s opinion is speculative and equivocal in
nature, it does not carry appellant’s burden of proof as to causal relationship.
Appellant submitted reports from Dr. Butcher dated May 25, June 8 and 15, 2017,
respectively. However, these reports did not include opinions as to causal relationship. Medical
evidence which does not offer an opinion on causal relationship is of no probative value to the
issue of causal relationship.15 Therefore, these reports are insufficient to establish appellant’s
claim.
Appellant submitted unsigned visit summaries dated February 5 through May 7, 2018, as
well as a report from a physician assistant dated July 12, 2018. Reports that are unsigned or that
bear illegible signatures cannot be considered as probative medical evidence because they lack
proper identification.16 The Board has consistently held that physician assistants are not competent

11
See M.S., Docket No. 19-0189 (issued May 14, 2019); L.T., Docket No. 18-1603 (issued February 21, 2019);
B.H., Docket No. 18-1219 (issued January 25, 2019); Birger Areskog, 30 ECAB 571 (1979).
12

Id.

13

Id.

14

C.L., Docket No. 18-1379 (issued February 5, 2019).

15

See L.T., supra note 11.

16

T.C., Docket No. 18-1351 (issued May 9, 2019); Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams,
55 ECAB 343 (2004).

5

to render a medical opinion.17 As such, the reports of physician assistants are entitled to no
probative weight because a physician assistant is not a “physician” as defined by section 8101(2).18
Finally, appellant submitted a June 12, 2017 left knee MRI scan. The Board has previously
held, however, that diagnostic studies lack probative value as they do not address whether the
employment incident caused any of the diagnosed conditions.19 This report is therefore
insufficient to establish his claim.
For these reasons, the Board finds the evidence of record is insufficient to meet appellant’s
burden of proof on the issue of causal relationship.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to the accepted May 20, 2017 employment incident.

17
See K.C., Docket No. 16-1181 (issued July 26, 2017); Janet L. Terry, 53 ECAB 570 (2002); Allen C. Hundley,
53 ECAB 551 (2002).
18

Id.

19

See J.S., Docket No. 17-1039 (issued October 6, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the September 21, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 5, 2019
Washington, DC

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

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 08-1146
Issued: January 15, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 7, 2008 appellant filed a timely appeal from a merit decision of the Office
of Workers’ Compensation Programs dated February 6, 2008, which finalized an
overpayment of compensation in the amount of $5,121.54 for which waiver was denied.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in
the amount of $5,121.54, because health benefits insurance premiums were not deducted
from her compensation checks during the period January 7, 1995 to January 1, 1999; and
(2) whether the Office properly denied waiver of the overpayment; and (3) whether the
Office properly determined to recover the overpayment at the rate of $200.00 every four
weeks from her continuing compensation payments.

FACTUAL HISTORY
On November 28, 1994 appellant then a 37-year-old window clerk, filed an
occupational disease claim for right foot pain. The Office accepted the claim for
sesamoiditis right foot, release of several pedal nerves and tendons with release of three
compartments in the right foot, with surgery on January 6, 1995. Appellant stopped work as
of January 6, 1995. She received appropriate compensation and medical benefits and was
placed on the periodic rolls.
On October 6, 1997 appellant was notified of her compensation benefits and how
they would be computed.
A daily computation log dated September 26, 1997 noted that appellant’s weekly pay rate
was $684.69 per week or a net salary of $2,173.88 per month. The documents indicated that
there were no health benefits codes and no health benefits withholding dates.
On March 4, 1999 appellant completed a Federal Employee Health Benefits (FEHB)
enrollment form and selected the box indicating that she had elected not to enroll in the FEHB
program. The employing establishment indicated that the form was received on March 24, 1999
and that the date of the election would be March 28, 1999.
In a worksheet dated January 27, 1999, the Office determined that appellant received an
overpayment because her health insurance premiums were not deducted from January 7, 1995
through January 1, 1999. For the period January 7 to November 10, 1995, the Office found that
the premiums were $16.58 per pay period. It noted that appellant received 22 payments during
this time frame, which was equal to $364.76. For the period November 11, 1995 to January 5,
1996, the Office noted that the premiums were $45.65 per pay period and that appellant received
four payments which was equal to $182.60. For the period January 6, 1996 to January 3, 1997,
the premiums were $43.61 per pay period. The Office found that appellant received 26
payments equal to $1,133.86. For the period January 4, 1997 to January 2, 1998, the premiums
were $49.95 per pay period. The Office noted that appellant received 26 payments equal to
$1,298.70. For the period January 3, 1998 to January 1, 1999, the premiums were $82.37 per
pay period and appellant received 26 payments equal to $2,141.62. It added these amounts due
to determine that appellant received a total overpayment in the amount of $5,121.54.1 The
Office advised that appellant had contacted the insurance carrier and confirmed that she used her
health benefits “constantly even in 1998….”
On February 22, 2000 the Office issued a preliminary determination indicating that
appellant had been overpaid in the amount of $5,121.54, which occurred because health benefits
insurance premiums were not deducted from her compensation for the period January 7, 1995
through January 1, 1999. It made a preliminary finding that she was without fault in creating an
overpayment. The Office informed appellant of her right to challenge the amount of the
overpayment or request a waiver of the overpayment by requesting a telephone conference, a
request for a written review of the record, or a request for a prerecoupment hearing. If appellant
wished waiver of the overpayment, she was directed to submit financial information by
1

The record does not reflect that appellant received these worksheets.

2

completing an overpayment recovery questionnaire. The Office advised that the form should be
accompanied by supporting financial documentation such as income tax returns, bank account
statements, bills and canceled checks, plus any other documentation to support the income and
expenses shown on the form. Appellant was advised that, if she failed to provide the requested
information within 30 days, the Office would deny waiver.
By letter dated March 1, 2000, appellant stated that she had contacted the Office to
confirm who had responsibility for payment of her health benefits. She contended that she was
informed that she was not responsible for the premiums and did not believe that it was her fault
that an overpayment had occurred. Appellant completed an overpayment recovery questionnaire
and requested a telephone conference. She indicated that her monthly expenses were $5,000.00.
By letters dated July 20 and November 13, 2001, the Office advised appellant that it
received her March 1, 2000 letter and request for waiver. It requested that she complete a new
overpayment form, as her previous form was incomplete and did not list her monthly earnings or
itemize any expenses.
Appellant submitted an overpayment recovery questionnaire noting her monthly income
as $4,446.00 and her monthly expenses as amounting to $4,072.00. She also indicated that her
husband had recently passed away and she had not yet received his medical bills.
In a letter dated November 5, 2004, the Office again informed appellant that her
overpayment form was outdated and requested that she submit an updated form. It provided her
15 days to submit the requested information. Appellant submitted an overpayment recovery
questionnaire dated November 15, 2004 noting her monthly income as $4,069.87 and her
monthly expenses as amounting to $4,047.46. She also indicated that she had savings of
$28,000.00 from life insurance following the death of her husband.
By letter dated October 31, 2007, the Office advised appellant that she must complete
an updated overpayment recovery questionnaire before it could conduct a telephone
conference. Appellant was advised to complete the form and return it within 15 days.
On November 14, 2007 the Office received an updated overpayment recovery
questionnaire. Appellant disputed the overpayment because she never received any
statements saying that she was receiving “any form of health benefits payment deductions.”
She listed her monthly income as $5,618.00 and her monthly expenses as $5,591.63.
Appellant also had cash and savings in the amount of $4,228.00. She did not supply any
documentation to support her expenses, which included $2,050.00 in other expenses which
were not specifically identified.
By decision dated February 6, 2008, the Office finalized its finding that appellant had
received an overpayment of compensation in the amount of $5,121.54, for which she was not at

3

fault. It found that she was not entitled to waiver of recovery of the overpayment and directed
recovery from continuing compensation at the rate of $200.00 each four weeks.2
LEGAL PRECEDENT -- ISSUE 1
The regulations of the Office of Personnel Management, which administers the FEHB
program, provide guidelines for registration, enrollment and continuation of enrollment of
federal employees. In this connection, 5 C.F.R. § 890.502(a)(1) provides:
“[A]n employee or annuitant is responsible for payment of the employee or
annuitant share of the cost of enrollment for every pay period during which the
enrollment continues. An employee or annuitant incurs an indebtedness due the
United States in the amount of the proper employee or annuitant withholding
required for each pay period that health benefit withholdings or direct premium
payments are not made but during which the enrollment continues.”3
In addition, 5 C.F.R. § 890.502(c) provides:
“An agency that withholds less than the proper health benefits contributions from
an individual’s pay, annuity or compensation must submit an amount equal to the
sum of the uncollected contributions and any applicable agency contributions
required under section 8906 of Title 5 United States Code, to OPM for deposit in
the Employees’ Health Benefits Fund.”4
ANALYSIS -- ISSUE 1
In this case, deductions for health insurance premiums were not made from appellant’s
compensation payments for the period January 7, 1995 to January 1, 1999. The Office
determined that health benefits of $5,124.54 should have been deducted from her compensation
for this period as she had elected enrollment and premiums were not deducted. Appellant
disputed the overpayment contending that she never received any statements saying that she was
receiving “any form of health benefits payment deductions.” However, on March 4, 1999
appellant completed FEHB enrollment form and selected the box electing not to continue her
enrollment in the FEHB program. The Office confirmed that appellant used her health insurance
benefits extensively during this time frame, noting that she used her health benefits “constantly
even in 1998.” Other evidence from the employing establishment and her insurer also confirm
that she was covered during the period in question. The Office calculated appellant’s share of
the premiums, which were not withheld from her compensation payments and determined an
overpayment in the amount of $5,121.54.

2

The Office indicated that on January 16, 2008 a call was placed to appellant to schedule a conference, which
was set for January 24, 2008. However, it indicated that appellant did not answer her telephone on the date of the
scheduled conference.
3

See 5 C.F.R. § 890.502(a)(1); see John Skarbek, 53 ECAB 630 (2002).

4

Id. at § 890.502(c).

4

As no health benefit deductions were made from her compensation during this time
period and there is no evidence that she cancelled her health benefits enrollment, until March 4,
1999, the Board finds that an overpayment was created in the amount of $5,124.54 from
January 7, 1995 to January 1, 1999, due to the nonwithholding of health insurance premiums.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of the Federal Employees’ Compensation Act provides that, where an
overpayment of compensation has been made because of an error of fact or law, adjustment shall
be made by decreasing later payments to which an individual is entitled. The only exception to
this requirement is a situation which meets the tests set forth as follows in section 8129(b):
Adjustment or recovery by the United States may not be made when incorrect payment has been
made to an individual who is without fault and when adjustment or recovery would defeat the
purpose of the Act or would be against equity and good conscience.5
Office regulations, at 20 C.F.R. § 10.438, state:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [the Office]. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of the Act or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”6
ANALYSIS -- ISSUE 2
Although appellant was found without fault in creating the $5,121.54 overpayment, she
bears responsibility for providing the financial information necessary to support her request for
waiver. She submitted several overpayment recovery questionnaires, the most recent dated
November 14, 2007, which revealed monthly income of $5,618.00, expenses of $5,591.63 and
$4,228.00 cash on hand. Although the Office asked appellant to submit supporting financial
documents including, copies of bills supporting the expenses listed, she did not respond within
the 30-day time period. It explained that this information was necessary to consider the question
of waiver and to determine a reasonable method for collection. The Office properly explained
that failure to submit the requested information would result in the denial of waiver. Because
appellant failed to submit sufficient evidence, as requested by the Office, showing that recovery
of the overpayment would defeat the purpose of the Act or would be against equity and good
conscience, the Board finds that the Office properly denied waiver of the recovery of the
overpayment pursuant to 20 C.F.R. § 10.438(b).
5

5 U.S.C. § 8129.

6

20 C.F.R. § 10.438.

5

LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where the Office seeks recovery from continuing compensation under the Act. Section
10.441(a) of the regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.”7
ANALYSIS -- ISSUE 3
The record reflects that appellant continues to receive wage-loss compensation under the
Act. As noted, she completed an overpayment recovery questionnaire but, failed to submit
additional supportive financial documents requested by the Office prior to the issuance of the
February 6, 2008 overpayment decision.
In cases where the claimant is being paid compensation on the periodic rolls and the
claimant does not respond to the preliminary overpayment decision, a final decision should be
issued without conducting a conference and the debt should be recovered from such benefits as
quickly as possible.8 Furthermore, without the appropriate financial documentation as required
by 20 C.F.R. § 10.441, the Office was unable to consider her financial circumstances. On
appeal, appellant contends that she timely submitted the requested financial information.
However, as noted above, she did not submit the supporting financial documentation. The Board
finds that the Office did not abuse its discretion in following its regulations and deducting
$200.00 every four weeks from her continuing compensation payments.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $5,121.54 from January 7, 1995 to
January 1, 1999. The Board further finds that the Office properly denied waiver of the recovery
of the overpayment. The Board finds that the Office properly required repayment of the
overpayment by deducting $200.00 from appellant’s continuing compensation payments.

7

20 C.F.R. § 10.441.

8

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(c)(2) (October 2004).

6

ORDER
IT IS HEREBY ORDERED THAT the February 6, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 15, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7