United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, RICHMOND POST
OFFICE, Richmond, VA, Employer
__________________________________________

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Appearances:
Erik B. Blowers, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0331
Issued: November 22, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 6, 2021 appellant, through counsel, filed a timely appeal from a December 10,
2020 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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 10, 2020 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 medical condition
causally related to the accepted January 14, 2020 employment incident.
FACTUAL HISTORY
On January 24, 2020 appellant, then a 39-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on January 14, 2020, he sustained neck, back, and leg pain when
he was involved in a motor vehicle accident while in the performance of duty. On the reverse side
of the claim form, a supervisor indicated that appellant was not in the performance of duty at the
time of the injury as he noted that appellant had advised a coworker that he had sustained a flareup from a prior injury.
In a duty status report (Form CA-17) dated January 29, 2020, Dr. Andrea Hall, a Boardcertified family practitioner, diagnosed paraspinal/lumbar strain, noting an additional disabling
condition of sciatica. She indicated that appellant had been involved in a rear-end motor vehicle
collision on January 14, 2020 and advised that he could return to work on January 21, 2020 with
restrictions.
In a development letter dated January 28, 2020, OWCP informed appellant that he had
submitted insufficient medical evidence to establish his claim. It advised him of the type of
evidence needed and provided a questionnaire for completion. OWCP afforded appellant at least
30 days to respond. In a letter of even date, it requested additional information regarding the
circumstances of the January 14, 2020 incident from the employing establishment.
In an incident form report dated January 15, 2020, the incident of January 14, 2020 was
described by an employing establishment representative as involving a motor vehicle bumping
appellant’s postal vehicle from behind with no damage to either vehicle. The representative noted
that appellant stated that he was not hurt, but that the incident brought on a recurring injury.
In a note dated February 6, 2020, Dr. David Urquia, a Board-certified orthopedic surgeon,
diagnosed cervicalgia and low back pain, and noted that therapy was indicated for cervical lumbar
sprain.
On February 26, 2020 the employing establishment responded to OWCP’s development
letter. It confirmed that appellant was delivering mail as a rural carrier at the time of the motor
vehicle accident.
By decision dated March 6, 2020, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish causal relationship between his diagnosed
conditions and the accepted employment incident of January 14, 2020. It concluded, therefore,
that the requirements had not been met to establish an injury causally related to the accepted
employment incident.
Appellant submitted notes from a physical therapist dated from February 27 through
April 8, 2020. In a physical therapy note dated February 27, 2020, the therapist noted that
appellant explained to her that the January 14, 2020 employment incident was his third motor
vehicle accident after incidents in 2011 and 2012. Appellant advised the therapist that he had
2

experienced low back pain for years, but that, prior to the most recent motor vehicle accident, he
was mostly pain-free with intermittent flare-ups.
On June 25, 2020 appellant, through counsel, requested reconsideration. Enclo sed with
the request was a June 17, 2020 report from Dr. Dawn Quashie, a Board-certified family
practitioner. Dr. Quashie noted that appellant was involved in an automobile accident on
January 4, 2020, which resulted in cervical and lumbar pain. On physical examination of the
lumbar and cervical spine, she observed reduced range of motion with pain. Cervical compression,
maximal cervical compression, foraminal compression, and shoulder depression tests were
positive. Lumbar, sacroiliac, and hip tests were positive. Dr. Quashie diagnosed muscle spasm of
the back and sprains of the ligaments of the cervical, thoracic, and lumbar spine.
Dr. Quashie explained that, on January 4, 2020, appellant injured his neck and lower back
when his mail truck was struck in the rear by another vehicle, and that he immediately began to
feel pain in the neck and lower back, which intensified over time. She explained how during a
motor vehicle collision, the vehicle’s motion had the effect of moving the seatback/headrest into
the lower lumbar, thoracic, and cervical spine area of the occupant, which upon deceleration of the
cervical, thoracic, and lumbar area caused a rebounding effect off the seatback and headrest.
Dr. Quashie noted that as the body began to accelerate forward, the seatbelt caused th e body to
become restrained and snap back into the seat, causing a hyperextension/flexion injury to the entire
spine. She stated that under this scenario, the cervical, thoracic, and lumbar spine ligamentous
tissues reached a point where they became mechanically stretched sufficient to produce traumainduced injury, specifically sprain in the ligaments of the cervical, thoracic, and lumbar spine.
Dr. Quashie noted that appellant suffered from a grade 2 sprain in which his injury to the neck,
mid-back, and low back spinal ligaments resulted in sprain, inducing symptoms of pain from
muscle and ligament tears radiating down the shoulder, upper back, and buttocks. She explained
that his injury could be classified as a hyperextension/hyperflexion injury, commonly referred to
as “whiplash.” Dr. Quashie opined that, to a high degree of medical certainty, based on appellant’s
account of events, subjective and objective findings, and hospital records, that his cervical,
thoracic, and lumbar injuries were directly and causally attributable to a January 4, 2020 rear-end
automobile collision. She further explained that he experienced further exacerbations and pain
that he would not have experienced if he had not been involved in this collision. Dr. Quashie
stated that appellant was temporarily disabled from work at that time.
In a follow-up report dated June 17, 2020, Dr. Quashie clarified that the prior report
incorrectly referenced the date of the accident as January 4, 2020, and that the actual date of the
accident was January 14, 2020.
A magnetic resonance imaging (MRI) scan of appellant’s cervical and lumbar spine
obtained on April 24, 2020 demonstrated mild cervical spondylosis with severe left C5 -6
neuroforaminal narrowing due to a combination of disc osteophyte complex and uncovertable
hypertrophy, mild lumbar spondylosis with progression of disc bulge and extrusion at L4 -5
resulting in possible impingement of the descending bilateral L5 nerve roots with possible
impingement of the descending right S1 nerve root, seen previously, and prominent and mildly
enlarged cervical lymph nodes.

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By decision dated July 23, 2020, OWCP denied modification of its March 6, 2020 decision.
It found that Dr. Quashie had failed to provide a thorough discussion of appellant’s prior medical
history and conditions, and any relationship, if any, to his present condition.
On September 23, 2020 appellant, through counsel, requested reconsideration. With his
request, he submitted a letter of even date from Dr. Quashie. Dr. Quashie diagnosed muscle spasm
of the back and sprain of the ligaments of the cervical, thoracic, and lumbar spine. She noted that
the July 23, 2020 decision of OWCP found that she failed to discuss a complete and accurate
medical and factual history along with an explanation of how the claimed work factors caused or
contributed to appellant’s diagnosed conditions. Dr. Quashie stated that it was absurd that her
medical report was deemed insufficient because there was medical evidence on file suggesting his
current condition was related to a previous injury that was not specifically referenced. She noted
that she had reviewed and considered all pertinent medical evidence and stated unequivocally that
her opinion regarding causation of his current diagnosed conditions had not been altered.
Dr. Quashie explained that injuries from many years ago that were deemed fully resolved and were
followed by periods of unrestricted work activities could not logically be considered as a causation
factor or a significant contribution for a new acute spinal injury. She noted that she had detailed
in her June 17, 2020 report the mechanism and etiology of appellant’s injury, and that at present,
she found that his past cervical/lumbar medical conditions had absolutely no bearing, impact, or
influence upon his current diagnosed conditions with regard to onset.
Dr. Quashie explained that appellant was involved in a wo rk-related incident on
February 28, 2011 in which his postal vehicle was struck from behind, experiencing neck,
shoulder, and back pain following that incident, which was treated with pain medications and
physical therapy. She stated that in a medical note dated April 8, 2011, no prior pertinent history
for a similar condition was indicated. Shortly thereafter, appellant was released to return to work
at full duty as a rural carrier. Dr. Quashie explained that, on September 6, 2012, appellant was
involved in another work-related incident in which he was struck from behind in his postal vehicle
by another car. She noted that he was diagnosed with cervical sprain, referred to a neurologist for
headaches, and subsequently released to full duty. Dr. Quashie further explained that in 2015
appellant filed a workers’ compensation claim relating to a July 11, 2015 incident when he
sustained back pain when existing his vehicle. She noted that contemporaneous medical evidence
demonstrated that he was diagnosed with lumbar disc displacement and treated with epidural
steroid injections at L5-S1 and physical therapy. Appellant was released to full duty on
December 18, 2015.
Dr. Quashie opined that his current diagnoses clearly originated from the January 14, 2020
automobile accident at work. She noted that she had explained the nature of her diagnoses,
supporting diagnostic studies, the mechanism and etiology of his diagnosed conditions, the known
factors that caused these conditions, how his work activities and physical exertions caused his
current diagnoses, and how the uncontroverted evidence of the facts surrounding his injury were
consistent with her findings on examination. Dr. Quashie opined, to within a reasonable degree of
medical certainty, that the work activities relating to the January 14, 2020 incident caused and led
to his current diagnosed conditions. She recommended that he refrain from full-duty work until
necessary medical care including physical therapy was provided.
By decision dated December 10, 2020, OWCP denied modification of its July 23, 2020
decision.
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LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicab le time
limitation of FECA, 5 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 the
employment injury. 6 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. 7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration or precipitation,

4

Supra note 2.

5

F.H., Docket No.18-0869 (issued Ja nuary 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
In a June 17, 2020 report, Dr. Quashie conducted a physical examination and explained
that, on January 14, 2020, appellant injured his neck and lower back when his mail truck was struck
in the rear by another vehicle, and that he immediately began to feel pain in the neck and lower
back, which intensified over time. 12 She further explained in pathophysiological terms how the
incident of January 14, 2020 resulted in appellant’s diagnosed muscle spasm of the back and sprain
of the ligaments of the cervical, thoracic, and lumbar spine. Dr. Quashie opined that, to a high
degree of medical certainty, based on appellant’s account of events, subjective and objective
findings, and hospital records, that his cervical, thoracic, and lumbar injuries were directly and
causally attributable to a January14, 2020 rear-end automobile collision while engaged in duties
related to his role with the employing establishment. She further explained that appellant
experienced further exacerbations and pain that he would not have experienced if he had not been
involved in this collision. In a letter dated September 23, 2020, Dr. Quashie explained that with
regard to appellant’s alleged preexisting conditions, these had been injuries from many years ago
that were deemed fully resolved and were followed by periods of unrestricted work activities, and
as such could not logically be considered as a causation factor o r a significant contribution for a
new acute spinal injury. She noted that she had detailed in her June 17, 2020 report the mechanism
and etiology of appellant’s injury, and that at present, she found that his past cervical/lumbar
medical conditions had absolutely no bearing, impact, or influence upon his current diagnosed
conditions with regard to onset. Dr. Quashie opined, to within a reasonable degree of medical
certainty, that the work activities relating to the January 14, 2020 incident caused and led to his
current diagnosed conditions.
The Board finds that these reports from Dr. Quashie are sufficient to require further
development of the medical evidence. Dr. Quashie provided a comprehensive understanding of
the medical record and case history. She provided an extensive pathophysiological explanation as
to how the incident of January 14, 2020 caused appellant’s cervical, thoracic, and lumbar
conditions, and in her letter dated September 23, 2020, differentiated the effects of appellant’s
preexisting conditions from the current diagnoses.
The Board finds that Dr. Quashie’s opinion as expressed in her report and subsequent letter
demonstrates her knowledge of appellant’s preexisting neck and back conditions and, although her
opinion is not sufficiently rationalized to meet appellant’s burden of proof to establish his claim,

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
K.G., Docket No. 18-1598 (issued January 7, 2020); M.S., Docket No. 19-0913 (issued November 25, 2019).
While Dr. Quashie’s original report of June 17, 2020 referred to the date of the incident as January 4, 2020, she
later submitted a June 17, 2020 follow-up report correcting the date of injury to January 14, 2020.
12

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it is sufficient to require further development of the case by OWCP. 13 It is well established that
proceedings under FECA are not adversarial in nature, and while appellant has th e burden to
establish entitlement to compensation, OWCP shares responsibility in the development of the
evidence.14 OWCP has an obligation to see that justice is done. 15
Therefore, the Board finds that the case shall be remanded to OWCP. On remand, OWCP
shall prepare a statement of accepted facts and refer the matter to a medical specialist in the
appropriate field of medicine. Upon referral, the physician shall conduct a physical evaluation and
provide a rationalized medical opinion as to whether appellant’s diagnosed conditions were caused
or aggravated by the accepted January 14, 2020 employment incident. If the physician opines that
appellant’s cervical, lumbar and thoracic conditions are not causally related to the accepted
employment incident, he or she must explain with rationale how or why their opinion differs from
that of Dr. Quashie. After this and such other further development as OWCP deems necessary, it
shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

J.P., Docket No. 19-1206 (issued February 11, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); C.W.,
Docket No. 17-1293 (issued February 12, 2018); see also John J. Carlone, supra note 8; Horace Langhorne, 29 ECAB
820 (1978).
14

See M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985);
Michael Gallo, 29 ECAB 159, 161 (1978); William N. Saathoff, 8 ECAB 769, 770-71; Dorothy L. Sidwell, 36 ECAB
699, 707 (1985).
15

See C.M., Docket No. 17-1977 (issued January 29, 2019); A.J., Docket No. 18-0905 (issued December 10, 2018);
William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).

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ORDER
IT IS HEREBY ORDERED THAT the December 10, 2020 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: November 22, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jacksonville, FL, Employer
__________________________________________
Appearances:
Leslie Nitsch, for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1242
Issued: March 17, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 17, 2021 appellant sought an appeal from a purported July 14, 2021 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1242.2
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 3
This jurisdiction encompasses any final decision issued by OWCP within 180 days of the date
appellant filed his appeal. 4
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

This case has previously been before the Board. Docket No. 14-557 (issued April 6, 2015).

3

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
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The Board notes that the case record does not contain a final adverse decision of OWCP
dated July 14, 2021. The case record does contain a letter from OWCP dated July 14, 2021 to
appellant; however, it merely apprised appellant of the appeal rights accompanying the previously
issued decisions and that no further action would be taken until he specified w hat avenue of appeal
he wished to pursue..5 The most recent final adverse decision of OWCP was dated August 30,
2017, more than 180 days before appellant’s current August 17, 2021 appeal and is not subject to
review by this Board.6 As there is no final adverse decision of OWCP over which the Board may
properly exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-1242 must
be dismissed. 7 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1242 is dismissed.
Issued: March 17, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5

See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020) (correspondence that is purely informational in nature does not
constitute a final adverse decision of OWCP from which appellant may properly appeal).
6

See supra note 4.

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
7

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
West Palm Beach, FL, Employer
__________________________________________

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

Docket No. 19-0122
Issued: June 11, 2019

Case Submitted on the Record

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

JURISDICTION
On October 22, 2018 appellant filed a timely appeal from a May 23, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $22,560.44 for the period September 3, 1999 through November 11, 2017; (2) whether
OWCP properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 23, 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.

required recovery of the overpayment by deducting $500.00 every 28 days from appellant’s
continuing compensation payments.
FACTUAL HISTORY
On May 12, 1997 appellant, then a 55-year-old operations supervisor, filed a traumatic
injury claim (Form CA-1) alleging that she sustained “back and neck sprains and internal injuries
to the lower stomach and pelvic area” after she was struck by a cart while in the performance of
duty. OWCP accepted the claim for cervical sprain and abdominal contusion. It initially paid
appellant wage-loss compensation on the supplemental rolls, and then paid wage-loss
compensation on the periodic rolls commencing May 3, 1999.
In a letter dated May 6, 2002, OWCP informed appellant that her gross compensation was
$3,280.00, that her health benefits deduction was $189.66, that her optional life insurance
deduction was $8.30, that her basic life insurance deduction was $9.41, and that her net
compensation every 28 days was $3,063.22.
In an undated Office of Personnel Management (OPM) form regarding election of health
benefits and life insurance, received by OWCP on November 6, 2003, appellant marked boxes
electing to have basic life insurance and optional life insurance premiums withheld beginning
September 4, 1999 and continuing. Appellant also elected the “no reduction” option for postretirement basic life insurance (PRBLI).
In a letter dated August 13, 2004, OWCP informed appellant that her gross compensation
was $3,280.00, that her health benefits deductions was $225.76, that her life insurance deduction
was $17.20, that “other” deductions totaled $9.41, and that her net compensation was $3,148.22
paid every 28 days.3
In a letter dated March 16, 2017, appellant requested information regarding the dates and
amounts of any and all life insurance premiums withheld since March 3, 1997. On April 6, 2017
OWCP sent her the requested information.
By preliminary determination dated March 23, 2018, OWCP advised appellant that an
overpayment of compensation in the amount of $22,560.44 had been created because she had
elected PRBLI with no reduction effective September 3, 1999, but it did not begin deducting
PRBLI premiums from her compensation payments until November 11, 2017. Consequently,
appellant was in arrears for the premiums from September 3, 1999 through November 11, 2017.
OWCP found that she was without fault in the creation of the overpayment. It advised appellant
of her right to request a telephone conference, a final decision based on the written evidence, or a
3

In a letter dated April 28, 2016, OWCP informed appellant that an overpayment in the amount of $15.32 for the
period January 10 to March 5, 2016 was identified in her case. It indicated that the overpayment occurred because
Federal Employees Group Life Insurance (FEGLI) premiums were not deducted from appellant’s compensation
payments. OWCP related that debt collection actions on overpayments of less than $200.00 may be administratively
terminated at any time after overpayment had been identified. It found that the collection action on the overpayment
was administratively terminated because the overpayment was less than $200.00, and did not result from either a
refund due to OWCP as a result of a third-party settlement, or an election of OPM benefits where the debt can be
recovered from the retroactive part of annuities held by OPM.

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prerecoupment hearing, if she objected to the decision or requested waiver of the recovery of the
overpayment. OWCP further advised that appellant was to complete an overpayment recovery
questionnaire (Form OWCP-20) and submit supporting financial documents.
On April 24, 2018 appellant requested a telephone conference and contested the
overpayment because she believed the overpayment occurred through no fault of her own, and
requested a waiver. She submitted a completed Form OWCP-20 and relevant supporting financial
documents along with her request. Appellant indicated that she had a total monthly income of
$7,101.84 and total monthly expenses of $6,248.51. Monthly income consisted of $1,557.57 in
FECA benefits, $1,506.00 in SSA benefits, $3,638.27 in Veterans benefits, and $400.00 in other
income. Monthly expenses consisted of $800.00 for food, $400.00 for clothing, $1,301.51 for rent
or mortgage, $3,600.00 for American Express debt, and $147.00 for Bank of America debt. In
addition, appellant’s total net assets equaled $28,632.18. Her assets consisted of $150.00 cash on
hand, $28,282.18 savings, and $200.00 checking.
By decision dated May 23, 2018, OWCP finalized its preliminary determination that
appellant had received an overpayment of compensation in the amount of $22,560.44 because
PRBLI premiums were not properly deducted from her compensation payments for the period
September 3, 1999 through November 11, 2017. It found that she was without fault in the creation
of the overpayment, but that she was not entitled to waiver of recovery because she had not
provided information to support that adjustment or recovery would defeat the purpose of FECA or
be against equity and good conscious. OWCP directed recovery by deducting $500.00 every 28
days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8129(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 When an overpayment of compensation has been made to an individual
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which the individual is entitled.5
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in basic life insurance and one or more of the options.6 The coverage for basic life
insurance is effective unless waived,7 and premiums for basic and optional life coverage are
withheld from the employee’s pay.8 Upon retirement or upon separation from the employing
establishment or being placed on the periodic FECA compensation rolls, an employee may choose
to continue basic and optional life insurance coverage in which case the schedule of deductions
4

5 U.S.C. § 8129.

5

20 C.F.R. §§ 10.434-10.437; J.L., Docket No. 18-0212 (issued June 8, 2018).

6

5 U.S.C. § 8702(a).

7

Id. at § 8702(b).

8

Id. at § 8707.

3

made will be used to withhold premiums from his or her annuity or compensation payments.9
Basic insurance coverage shall be continued without cost to an employee who retired or began
receiving compensation on or before December 31, 1989.10 However, the employee is responsible
for payment of premiums for optional life insurance coverage which is accomplished by
authorizing withholdings from his or her compensation.11
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium).12
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible unless, during earlier
employment, he or she filed an election or waiver that remains in effect.13 An employee who does
not file a life insurance election with his or her employing office, in a manner designated by OPM,
specifically electing any type of optional insurance, is considered to have waived it and does not
have that type of optional insurance.14 When an underwithholding of life insurance premiums
occurs, the entire amount is deemed an overpayment of compensation because OWCP must pay
the full premium to OPM upon discovery of the error.15

9

Id. at § 8706.

10

Id. at § 8706(b)(2).

11

Id. at § 8706(b)(3)(B). See V.H., Docket No. 18-1124 (issued January 16, 2019); see also S.P., Docket No. 171888 (issued July 18, 2018); Edward J. Shea, 43 ECAB 1022 (1992) (the Board found that the claimant received
an overpayment of compensation where he elected PRBLI with no reduction and no premiums had been deducted
from his compensation from January 3, 1988 to May 6, 1989). See also Glen B. Cox, 42 ECAB 703 (1991) (the Board
found that an overpayment of compensation was created due to no deduction of premiums for optional life insurance
for the period July 1983 through November 1989).
12

See V.H., id.; see also S.P., id.; James J. Conway, Docket No. 04-2047 (issued May 20, 2005).

13

5 C.F.R. § 870.504(a)(1).

14

Id. at § 870.504(b).

15
5 U.S.C. § 8707(d); see V.H., supra note 11; see also Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd
Otte, 48 ECAB 334 (1997).

4

ANALYSIS -- ISSUE 1
The Board finds that an overpayment of compensation was created in the amount of
$22,560.44 for the period September 3, 1999 through November 11, 2018.
The Board finds that OWCP presented detailed findings of fact and a statement of reasons
to support its determination that appellant received an overpayment of compensation in the amount
of $22,560.44 for the period September 3, 1999 through November 11, 2018. The record contains
a signed form dated November 6, 2003 which indicates appellant’s election of PRBLI with no
reduction.16 OWCP, however, failed to properly deduct premiums for PRBLI, thereby creating an
overpayment of compensation in the amount of $22,560.44. It explained to appellant how the
overpayment occurred in its preliminary determination of overpayment dated March 23, 2018.17
The Board finds that OWCP provided a clear and detailed explanation of the fact and
amount of the overpayment. The mathematical calculations within these documents were
reproducible and showed the amount of the overpayment was in fact $22,560.44 for the period
September 3, 1999 through November 11, 2018. The Board thus finds that OWCP properly
determined the fact and amount of appellant’s overpayment.18
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA19 provides that an overpayment must be recovered unless “incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience.” Thus, a
finding that appellant was without fault does not automatically result in waiver of recovery of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of
the overpayment would defeat the purpose of FECA or would be against equity and good
conscience.20
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by

16

Compare D.T., Docket No. 17-0901 (issued January 29, 2018) (finding that OWCP had not established
an overpayment without a signed form supporting the claimant’s selection of PRBLI).
17

L.K., Docket No. 17-1393 (issued March 20, 2018).

18

V.H., supra note 10; E.H., Docket No. 15-0848 (issued July 6, 2016).

19

5 U.S.C. § 8129(1)-(b); A.C., Docket No. 18-1550 (issued February 21, 2019); see D.C., Docket No. 17-0559
(issued June 21, 2018).
20

A.C., id.; see V.T., Docket No. 18-0628 (issued October 25, 2018).

5

OWCP from data provided by the Bureau of Labor Statistics.21 An individual’s liquid assets
include, but are not limited to case, the value of stocks, bonds, savings accounts, mutual funds and
certificates of deposits.22 Nonliquid assets include, but are not limited to, the fair market value of
an owner’s equity in property such as a camper, boat, second home, and furnishings and supplies.23
Section 10.437 provides that recovery of an overpayment is considered to be against equity
and good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his
or her position for the worse.24 To establish that, a valuable right has been relinquished, it must
be shown that the right was in fact valuable, that it cannot be regained and that the action was
based chiefly or solely in reliance on the payments or on the notice of payment.25
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $22,560.44
overpayment.
OWCP found that appellant was without fault in the creation of the overpayment of
compensation and considered whether she was entitled to waiver of recovery. Waiver is only
possible if recovery would defeat the purpose of FECA or would be against equity and good
conscience.26 In order to establish that repayment of the overpayment would defeat the purpose
of FECA, appellant must show that she requires substantially all of her income to meet current
ordinary and necessary living expenses and that her assets do not exceed the established limit as
determined by OWCP procedures.27
The Board finds that OWCP properly determined that appellant did not require
substantially all of her income to meet ordinary living expenses. Appellant indicated that she had
monthly expenses of $6,248.51 and monthly income of $7,101.84. As her monthly income
exceeded her ordinary and necessary living expenses by more than $50.00, she did not need

21
20 C.F.R. § 10.436. OWCP procedures provide that assets must not exceed a resource base of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(June 2009).
22

Id.

23

Id.

24

20 C.F.R. § 10.437.

25

Id. at § 10.437(b)(1).

26

See A.C., supra note 19; see also E.K., Docket No. 18-0587 (issued October 1, 2018).

27

Supra note 21.

6

substantially all of her income for ordinary and necessary living expenses.28 Appellant also listed
net assets in the amount of $28,632.18, which exceed the resource base of $4,800.00.
Additionally, the evidence of record does not demonstrate that recovery of the overpayment
would be against equity and good conscience. Appellant has submitted no evidence that she had
relied upon the incorrect payments to her detriment or that she would experience severe financial
hardship attempting to repay the debt.29 Consequently, OWCP properly denied waiver of recovery
of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that when an overpayment of
compensation has been made to an individual who is entitled to further payments, the individual
shall refund to OWCP the amount of the overpayment as soon as the error is discovered or his or
her attention is called to the same. If no refund is made, OWCP shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate of
compensation, the financial circumstances of the individual and any other relevant factors, so as
to minimize hardship.30
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$500.00 every 28 days from appellant’s continuing compensation.
The Board finds that OWCP gave due regard to the financial information appellant
submitted as well as the factors set forth in section 10.441. As her monthly income exceeded her
ordinary and necessary expenses by $853.33, OWCP did not abuse its discretion in requiring
recovery by deducting $500.00 every 28 days from each of her continuing compensation
payments.31
CONCLUSION
The Board finds that an overpayment of compensation was created in the amount of
$22,560.44 for the period September 3, 1999 through November 11, 2018. The Board further
finds that OWCP properly denied waiver of recovery of the overpayment, and properly required
recovery by deducting $500.00 every 28 days from appellant’s continuing compensation
payments.

28

See A.C., supra note 19; see also M.P., Docket No. 18-0902 (issued October 16, 2018).

29

20 C.F.R. § 10.437; see also supra note 20.

30

20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

31

A.C., supra note 19; see G.C., Docket No. 18-1062 (issued December 4, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the May 23, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 11, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.M., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION, DIVISION OF
FEDERAL EMPLOYEES’ COMPENSION,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket Nos. 14-1050 &
14-1193
Issued: December 24, 2014

Case Submitted on the Record

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

JURISDICTION
On April 2, 2014 appellant filed a timely appeal from a March 20, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP), in which an OWCP hearing
representative affirmed a denial that additional conditions be accepted as compensable/work
related. On April 29, 2014 she filed a timely appeal from an April 23, 2014 OWCP decision in
which a hearing representative affirmed the termination of her wage-loss compensation on the
grounds that she refused an offer of suitable work.1 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 these cases.

1

The April 2, 2014 appeal was assigned Docket No. 14-1050; the April 29, 2014 appeal was assigned Docket No.
14-1193.
2

5 U.S.C. §§ 8101-8193.

ISSUES
The issues are: (1) whether appellant met her burden of proof to establish additional
conditions that were caused or aggravated by factors of her federal employment; and (2) whether
OWCP properly terminated her compensation benefits effective November 16, 2013 pursuant to
5 U.S.C. § 8106(c).
On appeal, appellant asserts that the decisions were based on inaccurate statements of
accepted facts, that the physician who rendered a second-opinion evaluation was asked leading
questions, and that the referee physician relied on tainted documents. She maintained that the
medical evidence established cervical and brachial plexus conditions and that OWCP erred in
terminating her monetary compensation because she established an additional consequential
injury to her left hand and could not perform the duties of the offered position.
FACTUAL HISTORY
On July 30, 2012 appellant, then a 47-year-old claims examiner, filed an occupational
disease claim alleging that typing, keying, and scrolling for eight plus hours daily caused pain,
numbness and tingling in both wrists. She indicated that she had carpal tunnel syndrome and
cervical and brachial plexus nerve entrapment. On the claim form, the employing establishment
indicated that appellant’s regular work hours were 8:15 a.m. to 4:45 p.m. Monday through
Friday. Appellant stopped work on July 26, 2012 and did not return. On August 24, 2012
OWCP accepted that she sustained bilateral carpal tunnel syndrome and bilateral radial tunnel
syndrome. Appellant received appropriate compensation and was placed on the periodic
compensation rolls.
Appellant came under the care of Dr. Scott M. Fried, a Board-certified osteopath
specializing in orthopedic surgery at the Upper Extremity Institute and began physical therapy.
On August 23, 2012 John W. McKenna, district director of the employing establishment,
informed OWCP that it was proposing a modified position for appellant in which she would
mentor new trainees and less experienced claims examiners. The job would require minimal
writing and typing with no repetitive activity and no head and neck posturing, and a headset
would be provided for telephone use. Mr. McKenna forwarded a copy of an August 16, 2012
letter in which he asked Dr. Fried to provide physical restrictions and asked whether appellant
could perform the mentor position. By letter dated September 19, 2012, he asked appellant to
provide a duty status report and informed her that speech recognition software had been installed
on her computer and instruction in its use had been arranged. On September 25, 2012
Mr. McKenna notified OWCP that Dr. Fried had not responded to the August 16, 2012 letter.
In September 2012, appellant was referred to a medical management nurse. The nurse
attempted to contact her on multiple occasions but she did not respond. Nursing services were
closed in March 2013.
In a report dated September 27, 2012, Dr. Fried indicated that he had reviewed a
September 14, 2012 functional capacity evaluation (FCE). He indicated that this demonstrated

2

that appellant could occasionally move her head and neck and could not perform fine
manipulation, firm grasping or pushing and pulling, and could not perform even sedentary work.
On October 2, 2012 appellant asked that her claim be expanded to include cervical
radiculopathy and brachial plexopathy. She enclosed a September 20, 2012 letter in which
Dr. Fried noted that her arm symptoms began in 2003 or 2004 and progressed to her current
complaints of bilateral pain in the upper trapezial area and neck with decreased neck range of
motion. Dr. Fried described appellant’s work as computer entry and writing and reported that
she was in a motorcycle accident on April 29, 2010 that involved minor injuries to her left hip
and shoulder and her right elbow. He provided findings and indicated that she had significant
upper extremity bilateral repetitive strain injury including significant brachial plexus
involvement caused by prolonged posturing of the head, neck, and arms and aggressive reaching
of the mouse. Dynamic testing of the brachial plexus thoracic outlet on the right hand was
consistent with a cervical radiculopathy/brachial plexopathy, caused by the repetitive work
activities. Dr. Fried continued to advise that appellant could not work.
An October 3, 2012 electrodiagnostic evaluation, performed by Richard L. Read a
physical therapist working at the Upper Extremity Institute, showed right brachial plexus level
nerve compromise, moderate left ulnar nerve compromise at the medial elbow level, and right
posterior interosseous nerve compromise at the radial tunnel. The remainder of the test was
normal.3
On October 18, 2012 Dr. Daniel D. Zimmerman, an OWCP medical adviser, stated that
the electrodiagnostic testing from the Upper Extremity Institute should not be authorized because
it was not done by a physician. He advised that OWCP should not accept additional conditions.
In an October 26, 2012 letter, OWCP asked that Dr. Fried provide medical rationale
explaining why appellant could not work, asked that he provide a treatment plan for her work
injuries, and inquired about Mr. Read’s credentials. On November 5, 2012 Dr. Zimmerman
reported that the FCE noted by Dr. Fried, was not in the record. He recommended that additional
conditions not be accepted. In a November 30, 2012 treatment note, Dr. Fried again discussed a
September 14, 2012 FCE without comment to questions posed by OWCP.
Dr. Fried continued to submit treatment notes reiterating his diagnoses and advising that
appellant was medically disabled from work due to employment injuries. On January 24, 2013
he recommended additional procedures. On February 4, 2013 Dr. Zimmerman, the medical
adviser, indicated that additional procedures and studies should not be authorized.
On February 8, 2013 OWCP referred appellant to Dr. Robert F. Draper, a Board-certified
orthopedic surgeon, for a second-opinion evaluation. In a February 22, 2013 report, Dr. Draper
noted his review of a January 29, 2013 statement of accepted facts and medical record. He
indicated that appellant reported that she typed 12 hours a day, four days a week and that these
duties caused burning in the trapezius area, neck pain, and carpal tunnel syndrome bilaterally,
and that she felt a little better since she stopped work in July 2012. Dr. Draper provided
extensive physical examination findings and diagnosed cervical strain, right and left trapezius
3

The report was not cosigned by a physician.

3

strains, mild bilateral carpal tunnel syndrome, and bilateral radial tunnel syndrome. He advised
that he saw no evidence of cervical radiculopathy or brachial plexopathy, indicating that his
examination did not show any definite motor or sensory deficits in the upper extremities, noting
that appellant had subjective complaints. Dr. Draper concluded that the diagnoses were directly
causally related to the repetitive use of the upper extremities associated with typing and
computer functions for six years, 12 hours a day, four days a week and advised that appellant
was capable of working 8 hours of modified duty daily. He provided restrictions that she could
not lift more than 20 pounds occasionally and 10 pounds frequently, and that she could stand and
sit for six hours in an eight-hour workday. Reaching above the shoulder was limited to two
hours, and computer use should not exceed four hours in an eight-hour workday.
Dr. Fried continued to submit reports based upon his evaluations of appellant. In a
March 6, 2013 report, Dr. A.J. Palmaccio, Jr., an orthopedic surgeon, advised that he first saw
appellant that day for complaints of right arm weakness. He found positive Tinel’s and Phalen’s
signs on the right and indicated that she demonstrated no significant motor or sensory loss on the
left. Dr. Palmaccio recommended a cervical magnetic resonance imaging (MRI) scan study to
rule out pathology.
On March 10, 2013 OWCP informed Dr. Draper that appellant’s normal workday was
eight hours a day, five days a week. It asked him to explain the standing and sitting restrictions
as they did not seem appropriate for arm conditions related to typing and computer functions.
OWCP asked whether the strain conditions had resolved and, if not, asked that he provide
temporary restrictions for the diagnosed cervical and trapezius strains and whether the
restrictions for the bilateral carpal and radial tunnel conditions were permanent or temporary. It
also asked Dr. Draper to clarify the computer work restriction in more specific terms.
A March 29, 2013 MRI scan cervical spine study showed mild disc protrusions at C2-3
and C4-5, and broad-based disc protrusions at C3-4 and C5-6. In a March 20, 2013 report,
Dr. Palmaccio noted the MRI scan findings and indicated that appellant was still having neck
pain with radiculopathy down the right arm. He recommended cervical epidural injections.
In an April 14, 2013 supplemental report, Dr. Draper advised that her diagnoses and
accepted conditions were bilateral carpal tunnel syndrome and bilateral radial tunnel syndrome,
which were related to repetitive use of the arms associated with fine manipulations and simple
grasping in keyboard and mouse use. He indicated that appellant had no restrictions on sitting
and standing and added a restriction that fine manipulation (keyboard and mouse use) and simple
grasping were limited to four hours per day in an eight-hour workday.
On May 9, 2013 Dr. Fried advised that appellant remained symptomatic, noting that she
was bothered on the left, secondary to overuse, and that she could not return to her regular work
duties.
OWCP determined that a conflict in medical opinion had been created between the
opinions of Dr. Fried and Dr. Draper regarding the conditions caused by appellant’s work and
regarding her ability to work. On June 3, 2013 it referred her to Dr. William H. Simon, a Boardcertified orthopedic surgeon, for an impartial evaluation.

4

In a July 6, 2013 report, Dr. Simon noted his review of a May 30, 2013 statement of
accepted facts that included a description of appellant’s regular duties, his review of the medical
record, and a history that appellant was in a 2010 motorcycle accident. Appellant reported
intermittent symptoms for over 10 years but left work on July 26, 2012 because she “could not
live with them anymore.” She noted that she did not return to light duty because Dr. Fried had
not released her. Dr. Simon indicated that he was unaware of a neuromuscular ultrasound that
was performed by Dr. Fried and that the electrodiagnostic study performed by Mr. Read did not
confirm bilateral carpal tunnel syndrome and bilateral radial tunnel syndrome. Dr. Simon
advised that a review of the record showed that appellant reported that her symptoms increased
after she stopped work which indicated that the symptoms were subjective in nature. He added
that the cervical MRI scan findings indicated degenerative disc disease, noting that this condition
was not caused by repetitive trauma in the workplace but was a naturally progressive disease,
and that any increase in symptoms, as reported by appellant and Dr. Fried, would be due to the
degenerative disc disease of the cervical spine. Dr. Simon noted reviewing Dr. Draper’s reports
and indicated that the cervical and bilateral trapezius strain diagnoses could not be due to workrelated incidents as they would heal in a matter of weeks, noting that Dr. Draper examined
appellant after months of therapy. He described her complaints of right worse than left neck
tension which was always there, difficulty in turning her head, tension headaches one to two
times weekly, tension and burning in the right trapezius, intermittent right forearm throbbing
pain, a dull right wrist ache, decreased right grip strength, intermittent tingling and numbness in
the last three fingers of the right hand, and tenderness between the blades of the scapula, more on
the right. On examination appellant complained of pain in cervical and shoulder range of
motion. Upper extremities demonstrated no measurable atrophy, and range of motion of the
elbows and wrists was normal, including normal motion in radial, and ulnar deviation. Tinel’s
and Phalen’s signs were negative bilaterally and grip strength was good bilaterally. Sensation
was intact in the arms. There was no tenderness to palpation over the normal entrapment site in
the right forearm, and spine examination showed no tenderness in the midline from the base of
the skull to the lumbosacral junction with some tenderness to palpation of the right trapezius, but
no involuntary paravertebral muscle spasm. Dr. Simon advised that, based on physical
examination, neurologic examination, and review of the 900-page plus medical record, appellant
had degenerative disc disease in multiple levels of the cervical spine and subjective symptoms
compatible with mild cervical radiculopathy involving the right upper extremity, greater than the
left, which were not supported by objective testing. He agreed with Dr. Draper regarding her
work status and indicated that she could perform the duties of the mentoring job which appellant
indicated she had previously done.
On July 18, 2013 OWCP asked the employing establishment to provide a job offer for
appellant that was in conformance with the restrictions provided by Dr. Draper and agreed upon
by Dr. Simon. On August 8, 2013 the employing establishment offered her a modified claims
examiner job requiring four hours of repetitive wrist and elbow movements, fine manipulation,
and simple grasping. An example of the duties to be performed included using office automation
equipment and a variety of software to read and review training, reference, and claims material,
and adjudicate claims, produce various documents/decisions which could include specialized
terminology and/or complex formats; review incoming mail; receive and refer telephone calls to
appropriate coworkers; assist staff members on individual projects; document telephone calls;
prepare written responses to incoming correspondence; determine claims actions that needed to
be taken to facilitate returns to work; update coding of claims in the computer system; determine
5

pay rates; make compensation payments; certify payments; calculate overpayments; and
maintain time and attendance records. The physical requirements indicated that appellant could
intermittently lift/carry up to five pounds; intermittently sit eight hours per day; intermittently
stand eight hours per day; intermittently walk up to two hours per day; intermittently pull/push
up to 15 minutes a day; grasp intermittently four hours per day; intermittently use fine
manipulation (keyboarding and mouse) four hours per day; and intermittently reach above
shoulder height up to 15 minutes per day. Her hours of work would be in accordance with the
flextime agreement and her scheduled days off would be Saturday and Sunday. A copy of a
regular claims examiner GS-12 position description was attached.
Appellant replied on August 13, 2013 that she had an outstanding work-related condition
that had not been addressed. On August 20, 2013 the employing establishment indicated that the
job offered was a permanent position and on August 26, 2013 indicated that the position was still
available.
By letter dated August 27, 2013, OWCP advised appellant that the position offered was
suitable. Appellant was notified that, if she failed to report to work or failed to demonstrate that
the failure was justified, pursuant to section 8106(c)(2) of FECA, her right to compensation for
wage loss or a schedule award would be terminated. She was given 30 days to respond.
In correspondence dated September 10 and 20, 2013, appellant disagreed that the offered
position was suitable. She noted that the offer did not indicate what she would be doing for the
four hours a day she was not keying and maintained that OWCP had not addressed whether
cervical radiculopathy and brachial plexopathy were employment related. Appellant also
claimed that she had a consequential injury to her left hand, noting that she typically had worse
grip strength, pain and numbness in the right hand and therefore overused her left hand. She
indicated that pain and symptoms in the left hand had been gradually increasing in the past few
months due to overuse.
In support of her assertions, appellant submitted an August 22, 2013 report from
Dr. Fried who indicated that she had a flare of symptoms on the left secondary to overuse with
progressive pain that was spreading into the fingers and was greatest with grip and pinch.
Dr. Fried diagnosed scapholunate ligament injury of the right wrist, bilateral carpal tunnel
median neuropathy, right posterior occipital neuralgia, bilateral radial neuropathy, brachial
plexopathy, and right cervical radiculopathy. He recommended massage therapy, ultrasound,
and TENS stimulation and indicated that appellant was medically disabled.
On September 19, 2013 Dr. Fried disapproved of the offered job because it fell outside
appellant’s limitations, based on a September 14, 2012 FCE. He attached his November 30,
2012 treatment note that discussed the September 14, 2012 FCE. Dr. Fried reported that a
September 24, 2013 neuromusculoskeletal ultrasound of the left second digit with special
attention to the metacarpophalageal joint demonstrated grade 2 laxity of the radial collateral
ligament with chronic partial tearing and early spur formation, which indicated radial sensory
neuritis. A September 24, 2013 neuromusculoskeletal ultrasound of the left brachial plexus
showed pathologic findings including perineural scarring, tractional fixation, substantial
swelling, nerve compression, and thoracic outlet syndrome.
A September 24, 2013
neuromusculoskeletal ultrasound of the left median nerve and carpal tunnel demonstrated

6

perineural scarring, substantial swelling, and nerve compression. In September 24 and
October 3, 2013 treatment notes, Dr. Fried noted these findings and reiterated his prior
diagnoses. He indicated that appellant’s plexus issues remained, right greater than left, and that
the left hand was bothersome due to overuse to compensate for the right and that carpal tunnel
issues also remained.
By decision dated October 9, 2013, OWCP denied appellant’s claim that cervical
radiculopathy and brachial plexopathy were caused by her federal job duties.
On October 10, 2013 the employing establishment confirmed that the modified job
remained available. On October 11, 2013 OWCP advised appellant that her reasons for refusing
the offered position were not valid, and she was given an additional 15 days to accept. In an
October 16, 2013 response, appellant maintained that the offered job was invalid as it did not
delineate her duties after her four-hour restriction on computer work. She maintained that the
medical evidence showed that she had additional left hand conditions and that the consequential
conditions should be accepted.
In a request postmarked October 28, 2013, appellant requested a review of the written
record of the October 9, 2013 OWCP decision. She maintained that the statements of accepted
facts were incorrect because they indicated that she worked eight hours a day when she actually
worked up to 11 hours daily, incorrectly stated that a September 11, 2012 neuromusculoskeletal
ultrasound procedures was performed by Mr. Reed, that the second-opinion evaluator changed
his opinion based on leading questions from OWCP, and that the reports of the medical adviser
were inflammatory, inaccurate and biased, and contaminated the opinion of the referee examiner,
Dr. Simon, who reviewed the medical adviser reports. Appellant further indicated that the record
contained evidence that the claims examiner and OWCP referral nurse were biased, and that
OWCP did not follow proper procedures because section 3.600 of OWCP’s procedures indicated
that an OWCP medical adviser was to remain neutral as to whether a case or medical condition
should be accepted. Appellant further noted that Dr. Fried referred her to Dr. Steven J.
Valentino, a Board-certified osteopath specializing in orthopedic surgery, but that his May 13,
2013 report was not discussed. She maintained that she worked over 8 hours a day on a flexible
work schedule, and worked on average 9 hours a day and sometimes up to 11 hours daily.
Appellant submitted a May 21, 2013 report in which Dr. Valentino, a Board-certified
osteopath specializing in orthopedic surgery, noted her complaints of neck pain with radiation
into both arms, paresthesias, and weakness, right greater than left. Neck motion was severely
limited in all planes. Appellant had decreased sensation with pulsatile sign over the radial and
carpal tunnels bilaterally. Deep tendon reflexes were intact and otherwise, the motor and sensory
examinations were normal. Dr. Valentino diagnosed carpal tunnel syndrome and lesion of the
radial nerve, opining that these were secondary to repetitive work. He recommended activity and
posture modification. On October 28, 2013 Dr. Fried reiterated his findings and conclusions. He
found appellant disabled until November 25, 2013.
On November 6, 2013 the employing establishment informed OWCP that the offered
position remained available. By decision dated November 8, 2013, OWCP terminated
appellant’s compensation benefits, effective November 16, 2013, on the grounds that she refused

7

to accept an offer of suitable work. It found that the weight of medical evidence rested with the
opinion of Dr. Simon who provided an impartial evaluation.
In a request postmarked November 19, 2013, appellant requested a review of the written
record of the November 8, 2013 decision. She maintained that the offered position was not
suitable, noting that OWCP ignored her consequential injury claim for overuse of the left hand
and reiterated her contention that OWCP and the referral physicians demonstrated bias.
Appellant also noted that the referee report predated the onset of symptoms for a claimed
consequential condition of her left hand and that OWCP erred in not considering this additional
condition involving the radial collateral ligament of the proximal phalanx of the left hand.
In a November 25, 2013 treatment note, Dr. Fried indicated that appellant attempted to
type appeal letters but could not finish due to elevated symptoms. He reiterated his diagnoses
and continued to find her disabled. On December 16, 2013 Dr. Fried noted treating appellant
since July 26, 2013 and described her care. He stated that an FCE was completed on
November 4, 2013 which indicated that she could work at a strict sedentary level and that she
could not perform any regular writing, pulling, pushing, gripping, keying, grasping, reaching,
overhead reaching, and could not perform her regular work duties. Dr. Fried added that
appellant showed the ability to see, speak, and interact but did not show a regular ability to
utilize her hands for regular work activities. He noted his review of Dr. Draper’s and
Dr. Simon’s reports and took issue with Dr. Simon’s conclusions. Dr. Fried indicated that
appellant could not perform the duties of the modified position but could return to work using a
headset for the telephone and voice-activated software but could not perform any work with her
hands. He continued to submit reports reiterating his findings and conclusions.
On March 20, 2014 an OWCP hearing representative affirmed the October 9, 2013
decision. The hearing representative found that the weight of the medical evidence rested with
the Dr. Simon who rendered an impartial opinion, and found that cervical radiculopathy and
brachial plexopathy were not causally related to employment factors.4
On April 23, 2014 a second OWCP hearing representative affirmed the November 8,
2013 decision. The hearing representative found that the weight of the medical evidence rested
with Dr. Simon, the impartial specialist, and found that OWCP met its burden to terminate
appellant’s monetary benefits on the grounds that she refused an offer of suitable work.
LEGAL PRECEDENT -- ISSUE 1
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 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
4

The Board notes that the March 20, 2014 decision contains a typographical error on the first page, indicating
that a November 8, 2013 decision was affirmed. A careful reading of the March 20, 2014 decision clearly indicates
that the October 9, 2013 decision was affirmed by the hearing representative.
5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

relationship between the diagnosed condition and the specific employment factors identified by
the employee.6 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.7
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.8 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.9 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.10
ANALYSIS -- ISSUE 1
As a preliminary matter, the Board finds that the statements of accepted facts provided to
Drs. Draper and Simon, dated January 29 and May 30, 2013 respectively, did not include
incorrect information. Appellant maintained that they included incorrect information because
they stated that she worked eight hours daily when she typically worked additional hours each
day. A careful reading of the statements, however, merely includes a description of the
requirements of her claims examiner position. Moreover, while appellant was permitted to work
a flexible schedule, the statements also include her assertion that she worked more than eight
hours daily. The Board further finds that OWCP did not pose leading questions to Dr. Draper,
who provided a second-opinion evaluation for OWCP. After receiving his initial February 22,
2013 report, OWCP noted that it contained inconsistencies and asked him specific questions
about items in his report and to clarify his restrictions. The Board finds these questions
necessary and therefore appropriate.11
The Board also finds that appellant did not meet her burden of proof to establish that the
conditions of cervical radiculopathy and brachial plexopathy were caused by her job duties. In
May 2013, OWCP determined that a conflict in medical opinion had been created between the
opinions of Dr. Fried and Dr. Draper regarding the conditions caused by appellant’s work and
regarding her ability to work, and on June 3, 2013 referred her to Dr. Simon for an impartial
6

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

7

Dennis M. Mascarenas, 49 ECAB 215 (1997).

8

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

9

20 C.F.R. § 10.321.

10

V.G., 59 ECAB 635 (2008).

11

See D.R., Docket No. 12-1441 (issued February 13, 2013).

9

evaluation. In a comprehensive report dated July 6, 2013, Dr. Simon advised that, because
appellant reported that her symptoms increased after she stopped work, this indicated that the
symptoms were subjective. He added that the cervical MRI scan findings indicated degenerative
disc disease, which was not caused by repetitive trauma at work but was rather a naturally
progressive disease, and that any increase in symptoms would be due to the degenerative disc
disease of the cervical spine. Dr. Simon noted his review of Dr. Draper’s reports and indicated
that the diagnoses of cervical and bilateral trapezius strains could not be due to work-related
incidents as they would heal in a matter of weeks. He described appellant’s complaints and
noted that on physical examination she complained of pain in cervical and shoulder range of
motion, but that range of motion of the elbows and wrists was normal, including normal motion
in radial and ulnar deviation. Dr. Simon found no measurable atrophy of the arms and she had
good bilateral grip strength and intact sensation. He found no tenderness to palpation over the
normal entrapment site in the right forearm. Spinal examination revealed no involuntary
paravertebral muscle spasm. Dr. Simon concluded that, based on physical and neurologic
examinations, and examination of the 900-page plus medical record, appellant had degenerative
disc disease in the cervical spine and subjective symptoms compatible with mild cervical
radiculopathy involving the right upper extremity which were not supported by objective testing.
He found no basis on which to attribute these conditions to her work. Dr. Simon agreed with
Dr. Draper regarding appellant’s work status and indicated that she could perform the duties of
the mentoring job which she had previously done.
The additional medical evidence submitted in response to Dr. Simon’s report is
insufficient to overcome the weight accorded to him as an impartial medical specialist regarding
this issue. While Dr. Fried submitted additional reports, he had been on one side of the conflict
in medical opinion regarding whether additional diagnoses were employment related. Reports
from a physician who was on one side of a medical conflict that an impartial specialist resolved,
are generally insufficient to overcome the weight accorded the opinion of the impartial physician
or to create a new conflict.12 Appellant also submitted a May 21, 2013 report in which
Dr. Valentino merely diagnosed carpal tunnel syndrome and lesion of the radial nerve.
Dr. Valentino did not indicate that she had cervical radiculopathy and brachial plexopathy.
The Board therefore concludes that Dr. Simon’s opinion that appellant did not have the
conditions of cervical radiculopathy and brachial plexopathy is entitled to the special weight
accorded an impartial medical examiner.13 The additional medical evidence submitted is
insufficient to overcome the weight accorded him as an impartial medical specialist regarding
this issue. Appellant therefore did not meet her burden of proof to establish that these conditions
were causally related to employment duties as a claims examiner.
LEGAL PRECEDENT -- ISSUE 2
Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”14
12

Jaja K. Asaramo, 55 ECAB 200 (2004).

13

See Sharyn D. Bannick, 54 ECAB 537 (2003).

14

5 U.S.C. § 8106(c).

10

It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.15 The implementing regulations provide
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.16 To justify termination, OWCP must show that the
work offered was suitable and that appellant was informed of the consequences of his or her
refusal to accept such employment.17 In determining what constitutes “suitable work” for a
particular disabled employee, OWCP considers the employee’s current physical limitations,
whether the work is available within the employee’s demonstrated commuting area, the
employee’s qualifications to perform such work and other relevant factors.18 The issue of
whether an employee has the physical ability to perform a modified position offered by the
employing establishment is primarily a medical question that must be resolved by medical
evidence.19 OWCP’s procedures state that acceptable reasons for refusing an offered position
include withdrawal of the offer or medical evidence of inability to do the work or travel to the
job.20
ANALYSIS -- ISSUE 2
The Board finds that OWCP met its burden of proof in terminating appellant’s wage-loss
compensation on the grounds that she refused an offer of suitable work. The accepted conditions
in this case are bilateral carpal tunnel syndrome and bilateral radial tunnel syndrome. Appellant
refused the offered position and asserted that she could not perform its duties and also claimed
that she had a disabling consequential injury to her left hand that OWCP did not address. In
September 2013, she maintained that symptoms in her left hand had been gradually increasing
due to overuse because she was limited by loss of use of her right hand. OWCP has not issued a
decision on the issue of whether appellant sustained a consequential left hand injury, and the
Board’s jurisdiction extends only to the review of final decisions by OWCP.21 However, in a
suitable work determination, OWCP must consider preexisting and subsequently acquired
medical conditions.22

15

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

16

20 C.F.R. § 10.517(a).

17

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
18

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

19

Gayle Harris, 52 ECAB 319 (2001).

20

Federal (FECA) Procedure Manual, Part -- 2 Claims, Reemployment: Determining Wage-Earning Capacity,
Refusal of Job Offer, Chapter 2.814.5 (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
21

20 C.F.R. § 501.2(c).

22

See Richard P. Cortes, 56 ECAB 200 (2004).

11

The Board finds that, in his July 6, 2013 report, Dr. Simon provided thorough physical
examination findings, advising that appellant had good bilateral grip strength and normal
sensation. Dr. Simon agreed with the restrictions provided by Dr. Draper who advised that she
could work eight hours daily with restrictions that she not lift more than 20 pounds occasionally
and 10 pounds frequently. Reaching above the shoulder was limited to 1 hour, and computer use
should not exceed four hours in an eight-hour workday. Dr. Simon did not indicate that the
restrictions were solely due to the accepted conditions.
The modified position offered to appellant was within these restrictions. It limited
repetitive wrist and elbow movements, fine manipulations and simple grasping, including using
the keyboard and mouse, to four hours daily. Reaching above the shoulder was limited to 15
minutes, with a five-pound weight restriction.
As noted above, in situations where there are opposing medical reports of virtually equal
weight and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight.23 Dr. Fried first reported left overuse
problems on May 9, 2013, before Dr. Simon’s examination in July. While he advised that
appellant could not perform the duties of the modified position because she could not perform
any work with her hands, as noted above, reports from a physician who was on one side of a
medical conflict that an impartial specialist resolved, are generally insufficient to overcome the
weight accorded the opinion of the impartial physician or to create a new conflict.24
The Board finds that, as Dr. Simon provided a comprehensive, well-rationalized opinion
in which he provided physical examination findings that indicated that appellant could work
eight hours a day with the above restrictions, his opinion is entitled to the special weight
accorded an impartial examiner and constitutes the weight of the medical evidence.25
There is also no evidence of a procedural defect in this case as OWCP provided appellant
with proper notice. Appellant was offered a suitable position by the employing establishment
and the offer was refused. Thus, under section 8106(c) of FECA, appellant’s monetary
compensation was properly terminated effective November 16, 2013 on the grounds that she
refused an offer of suitable employment.26
OWCP therefore met its burden of proof to terminate appellant’s wage-loss compensation
on the grounds that she refused an offer of suitable work.
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.
23

Supra note 10.

24

Supra note 12.

25

Supra note 10.

26

Supra note 15.

12

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective November 16, 2013 pursuant to section 8106(c) of FECA. The Board
further finds that she did not establish that her cervical radiculopathy and brachial plexopathy
conditions are casually related to employment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 23 and March 20, 2014 are affirmed.
Issued: December 24, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13