United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Chicago, IL, Employer
__________________________________________

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

Docket No. 10-850
Issued: November 12, 2010

Case Submitted on the Record

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

JURISDICTION
On February 5, 2010 appellant filed a timely appeal from a January 21, 2010 merit
decision of the Office of Workers’ Compensation Programs granting her a schedule award.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award
decision.
ISSUE
The issue is whether appellant has more than a three percent permanent impairment of
each lower extremity.

1

Subsequent to appellant’s filing of her appeal on February 5, 2010, the Office issued a decision dated March 5,
2010 denying her request for reconsideration. The Board and the Office may not have simultaneous jurisdiction
over the same issue in a case. Consequently, any decision by the Office on an issue pending before the Board is null
and void. Douglas E. Billings, 41 ECAB 880 (1990). See also George H. Thomas, 2 ECAB 88 (1998).

FACTUAL HISTORY
On March 28, 2008 appellant, then a 45-year-old food service worker, filed a claim
alleging that on March 24, 2008 she broke her right ankle in the performance of duty. The
Office accepted the claim for a closed bimalleolar fracture of the right ankle and authorized an
open reduction and internal fixation of the fracture. Appellant stopped work on March 24, 2008
and resumed her regular employment on July 22, 2008.
In a report dated April 30, 2009, Dr. Mark Sokolowski, a Board-certified orthopedic
surgeon, noted appellant’s symptoms of back pain with radiculopathy after her March 24, 2008
fall, aggravated by her altered gait. He diagnosed an annual tear at L4-5 with radiculopathy by
magnetic resonance imaging (MRI) scan. On physical examination, Dr. Sokolowski noted that
appellant had full strength in her lower extremities, but decreased sensation of the left lower
extremity.
In June 2009, the Office expanded acceptance of appellant’s claim to include an annual
tear at L4-5 and lumbar radiculopathy.
On September 25, 2009 appellant filed a claim for a schedule award. By letter dated
October 1, 2009, the Office requested that she submit an impairment evaluation from her
attending physician determining the extent of any lower extremity impairment in accordance
with the American Medical Association, Guides to the Evaluation of Permanent Impairment (6th
ed. 2008) (A.M.A., Guides).
On October 22, 2009 Dr. Steven W. Miller, a podiatrist, found mild edema of the lateral
ankle without pain on palpation or with movement. He measured reduced strength and range of
motion on the left with full sensation. Dr. Miller also noted that appellant had radiculopathy and
pain. He opined that she had reached maximum medical improvement and referred her for a
functional capacity evaluation.
A December 3, 2009 functional capacity evaluation indicated that appellant experienced
right ankle swelling and reduced range of motion and strength. In a report dated December 23,
2009, Dr. Miller noted that she complained of swelling and pain in her right ankle with
prolonged activity. On examination, he found a neurovascularly intact right ankle and foot with
mild edema, weakness and stiffness, but no pain. Dr. Miller diagnosed status post ankle fracture
and listed work restrictions.
On January 13, 2010 an Office medical adviser reviewed the medical evidence. He noted
that the December 23, 2009 functional capacity evaluation showed that appellant had continued
right ankle pain and stiffness resulting in difficulty with her gait and extensive standing. The
Office medical adviser stated, “According to the most recent notes, the claimant has continued
left lower extremity symptoms that correspond to L4-5 left lower extremity radiculopathy.”
Citing to Table 16-12 on page 501 of the sixth edition of the A.M.A., Guides, he concluded that
appellant had a three percent right lower extremity impairment for the right ankle fracture and a
three percent permanent impairment of the left lower extremity due to “radicular symptoms in a
sciatic distribution.”

2

By decision dated January 21, 2010, the Office granted appellant a schedule award for a
three percent permanent impairment of each lower extremity. The period of the award ran for
17.28 weeks from October 22, 2009 to February 19, 2010.
On appeal, appellant contends that she is entitled to a greater award because of her
continued problems with her ankle and difficulties performing the activities of daily living.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing federal regulations,3 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.4 For Office decisions issued on or after May 1, 2009, the sixth edition of the A.M.A.,
Guides is used for evaluating permanent impairment.5
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on functional history (GMFH), physical examination (GMPE) and clinical studies
(GMCS).6 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
ANALYSIS
The Office accepted that appellant sustained a right ankle fracture and an annual tear at
L4-5 with radiculopathy due to a March 24, 2008 employment injury. On September 25, 2009
appellant filed a claim for a schedule award. In a report dated April 30, 2009, Dr. Sokolowski
noted that she had decreased sensation of the left lower extremity. In a report dated October 22,
2009, Dr. Miller found edema of the ankle without pain and reduced strength and loss of range of
motion on the left side. On December 23, 2009 he noted that appellant experienced right ankle
swelling and pain with extensive activity and listed findings of mild edema, pain and weakness.
Neither Dr. Sokolowski nor Dr. Miller provided an impairment finding or reference the A.M.A.,
Guides and thus these reports are of little probative value.

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6(a) (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

A.M.A., Guides at 494-531; see also J.B., 61 ECAB ___ (Docket No. 09-2191, issued May 14, 2010).

7

Id. at 521.

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On January 13, 2010 an Office medical adviser found that appellant had a three percent
impairment of the right ankle due to her right ankle fracture according to Table 16-12 of the
A.M.A., Guides. He did not, however, explain how he reached his conclusion. The sixth edition
of the A.M.A., Guides provides a diagnosis-based method of evaluation. It requires identifying
the impairment class for the diagnosed condition (CDX), which is then adjusted by grade
modifiers based on functional history (GMFH), physical examination (GMPE) and clinical
studies (GMCS).8 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX). The Office medical adviser identified only the table used without providing any
explanation of the diagnosis category, class rating or evaluation of the grade modifiers. As
discussed, grade modifiers should be considered for functional history, physical examination and
clinical studies and these grade modifiers can change the extent of a given impairment rating.9
Consequently, the Board finds that the opinion of the Office medical adviser requires further
clarification on the issue of appellant’s right lower extremity impairment.
The Office medical adviser further determined that appellant had a three percent
permanent impairment of the left lower extremity under Table 16-12 due to radiculopathy at
L4-5. Again, he did not identify the medical evidence that he relied upon in finding that
appellant had a permanent impairment of the left lower extremity due to her work injury. Office
procedures and Board precedent require that the record contain a medical report with a detailed
description of the impairment.10 This description must be in sufficient detail so that the claims
examiner and others reviewing the file will be able to clearly visualize the impairment with its
resulting restrictions and limitations.11 There is no medical report clearly describing permanent
left lower extremity impairment due to appellant’s employment injury.
The Office medical adviser did not explain how he applied the sixth edition of the
A.M.A., Guides in reaching his left lower extremity impairment determination. The sixth edition
of the A.M.A., Guides does not provide a separate mechanism for rating spinal nerve injuries as
extremity impairment. Recognizing that certain jurisdictions, such as under the Act, mandate
ratings for extremities and preclude ratings for the spine, the A.M.A., Guides has offered an
approach to rating spinal nerve impairments consistent with sixth edition methodology.12 The
Office has adopted this approach for rating impairment to the upper or lower extremities caused
by a spinal injury.13 The Board will remand the case for proper application of the A.M.A.,
Guides for further development of the evidence to determine whether appellant is entitled to a
schedule award for a permanent impairment of the left lower extremity.
8

Id. at 494-531.

9

Id. at 515-18.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(c)(1) (August 2002); Peter C . Belkind, 56 ECAB 580 (2005).
11

Vanessa Young, 55 ECAB 575 (2004).

12

Rating Spinal Nerve Extremity Impairment Using the Sixth Edition, the A.M.A., Guides Newsletter (A.M.A.,
Guides Chicago, IL), July/August 2009.
13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010) (Exhibit
1, 4).

4

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 21, 2010 is set aside. The case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: November 12, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Cherokee, NC,
Employer
__________________________________________

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

Docket No. 17-0874
Issued: July 25, 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 March 13, 2017 appellant, filed a timely appeal from a December 19, 2016 merit
decision and a February 3, 2017 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a right
bicep injury causally related to an October 30, 2016 employment incident; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 1, 2016 appellant, then a 35-year-old park ranger, filed a traumatic injury
claim (Form CA-1) alleging that on October 30, 2016, while attempting to assist a paramedic in
restraining a patient who had suffered a seizure and possible head injury, the patient bit his right
bicep. Appellant did not stop work.
By letter dated November 14, 2016, OWCP advised appellant to submit additional
information including a comprehensive medical report from his treating physician which
included a reasoned explanation as to how the specific work factors or incidents identified by
appellant had contributed to his claimed injury. It noted that medical evidence must be
submitted by a qualified physician under FECA. OWCP requested that the employing
establishment submit any treatment notes if appellant was treated by an agency medical facility.
No additional evidence was received.
In a December 19, 2016 decision, OWCP denied appellant’s claim, finding that he had
failed to submit medical evidence establishing that a medical condition was diagnosed in
connection with the accepted work incident.
On January 19, 2017 appellant requested reconsideration. He submitted an authorization
for examination (Form CA-16) dated October 30, 2016, signed by Michael Scheid, supervisory
park ranger. Mr. Scheid noted that appellant sustained a human bite on the right bicep and
authorized medical care or treatment for appellant as medically necessary for the effects of the
injury. Part B of the authorization for examination, the attending physician’s report, was
prepared by a nurse practitioner who noted a history of a human bite on the right arm. She
diagnosed human bite of the right upper extremity and noted by checking a box marked “yes”
that appellant’s condition was caused or aggravated by the employment activity described. The
nurse provided a tetanus shot and Augmentin. She noted that appellant was able to resume
regular work on October 31, 2016. The nurse recommended wound care, antibiotics and followup with workers’ compensation in two days for a wound check.
Appellant submitted emergency room general discharge instructions and a return to work
status report all dated October 30, 2016, prepared by a nurse practitioner, for a human bite. He
was treated for multiple superficial human bites to the right upper arm. The nurse practitioner
prescribed medication and recommended over-the-counter medications for pain.
She
recommended appellant return to work without restrictions on his next scheduled shift. The
nurse instructed appellant to check the wound in two days, perform wound care as discussed, and
follow up with workers’ compensation in two days for further evaluation. On November 1, 2016
she advised that appellant was excused from work for that day only and then could return to
work. Appellant also submitted a receipt from Walgreens dated October 31, 2016 as well as a
Form CA-1 claim for a traumatic injury dated November 1, 2016, previously of record.
In a February 3, 2017 decision, OWCP denied appellant’s December 23, 2016 request for
reconsideration as it concluded that the evidence submitted on reconsideration was insufficient to
warrant a merit review.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, 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. 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.3
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. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.4
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.5
ANALYSIS -- ISSUE 1
Appellant alleged that on October 30, 2016, while working as a park ranger, he attempted
to assist a paramedic in restraining a patient who had suffered a seizure and possible head injury
and was bitten by the patient in his right bicep. The Board notes that there is no dispute that the
incident occurred on October 30, 2016 as alleged. The Board finds, however, that there is
insufficient medical evidence to establish that appellant sustained a bite-related injury to the right
bicep causally related to his employment duties.
In a November 14, 2016 letter, OWCP requested that appellant submit a comprehensive
medical report from his treating physician addressing how the work incident had caused the
claimed injury. However, no medical evidence was submitted prior to OWCP’s decision of
December 19, 2016. As noted, part of appellant’s burden of proof includes the submission of
rationalized medical opinion evidence, based on a complete factual and medical background,
supporting such causal relationship between the employment incident and the diagnosed
condition. The record contains no such medical evidence. Because appellant has not submitted

2

Supra note 1.

3

Gary J. Watling, 52 ECAB 357 (2001).

4

T.H., 59 ECAB 388 (2008).

5

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

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a reasoned medical opinion explaining how and why his right bicep condition was employment
related, he has not met his burden of proof.
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. Causal relationship must be established by
rationalized medical opinion evidence.6 The Board finds that appellant failed to submit such
evidence, and OWCP therefore properly denied appellant’s claim for compensation.
On appeal appellant disagrees with OWCP’s decision denying his claim for
compensation. He indicated that he did not know that he had to be treated by a medical doctor
and noted he was treated in the emergency room by a nurse practitioner and he had no control
over who was on staff at the hospital when he was injured. OWCP advised appellant in its
November 14, 2016 letter that medical evidence must be from a qualified physician.7
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.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,8 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(3) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”9

6

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

7

See 5 U.S.C. § 8101(2) (this subsection defines a “physician” as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law).
8

Id. at § 8128(a).

9

20 C.F.R. § 10.606(b)(3).

4

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.10
ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim because he failed to submit medical evidence
establishing that a medical condition was diagnosed in connection with the accepted work
incident. Thereafter, it denied his reconsideration request, without conducting a merit review.
The issue presented is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. In his
request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. He did not identify a specific point of law or show that it was
erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument. In an appeal request form dated December 23, 2016, he requested reconsideration of
the December 19, 2016 decision. Appellant did not articulate any legal error by OWCP or set
forth a new and relevant legal argument. The underlying issue in this case is whether he
submitted sufficient evidence to establish the accepted work incident on October 30, 2016 caused
or aggravated a diagnosed medical condition. That is a medical issue which must be addressed
by relevant new medical evidence.11 However, appellant did not submit any new and relevant
medical evidence in support of his claim.
Appellant submitted a Form CA-1 claim for a traumatic injury dated November 1, 2016.
However, this form is duplicative of evidence previously submitted and considered by OWCP in
its earlier decision dated December 19, 2016. 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.12 Therefore, this report is insufficient to require OWCP to reopen the claim for a merit
review.
With respect to relevant and pertinent new evidence not previously considered by
OWCP, appellant submitted an authorization for examination (Form CA-16) dated October 30,
2016, authorizing medical care or treatment that was medically necessary for the effects of the
injury. Part B of the authorization for examination form, the attending physician’s report, was
prepared by a nurse practitioner. Appellant submitted emergency room general discharge
instructions for a human bite dated October 30, 2016, prepared by a nurse practitioner. Also
submitted was an October 30, 2016 return to work status report and a November 1, 2016 work
excuse note from a nurse practitioner. The Board has held that treatment notes signed by a nurse
practitioner13 are not considered medical evidence as these providers are not considered
10

Id. at § 10.608(b).

11

See Bobbie F. Cowart, 55 ECAB 746 (2004).

12

See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35
ECAB 1090, 1093-94 (1984).
13

Supra note 7. See also Paul Foster, 56 ECAB 208 (2004) (where the Board found that a nurse practitioner is
not a “physician” pursuant to FECA).

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physicians under FECA14 and their opinions have no probative value. Thus, her opinion is of no
relevance to the issue of causal relationship and does not comprise a basis for reopening the case
for a merit review.15
Appellant also submitted a drugstore receipt dated October 31, 2016. This evidence is
not relevant as the underlying issue is whether appellant has established by medical evidence that
the accepted work incident on October 30, 2016 caused or aggravated a diagnosed medical
condition. Therefore, OWCP properly determined that this evidence of record did not warrant
reopening the case for a merit review.
The Board accordingly finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or constitute relevant and pertinent new evidence not previously considered. Pursuant to
20 C.F.R. § 10.608, OWCP properly denied merit review.
The Board notes however, that the record does not verify that the issue of appellant’s
incurred medical expenses has been addressed. The record contains an undated Form CA-16
noting an October 30, 2016 incident, signed by a supervisor authorizing medical treatment.
Ordinarily, where the employing establishment authorizes treatment of a job-related injury by
providing the employee a properly executed CA-16 form,16 OWCP is under contractual
obligation to pay for the medical examination or treatment regardless of the action taken on the
claim.17 The Board finds that upon return of the case record, this matter should be addressed.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a right bicep
injury was causally related to the accepted October 20, 2016 employment incident. The Board
further finds that OWCP properly denied appellant’s request for reconsideration of the merits of
his claim pursuant to 5 U.S.C. § 8128(a).

14

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses, and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2), supra note 7 (defines the
term “physician”).
15

See J.D., Docket No. 16-1752 (issued March 1, 2017).

16

See Val D. Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure Manual, Part 3 -- Medical,
Authorizing Examination and Treatment, Chapter 3.300.3(a)(3) (February 2012).
17

5 U.S.C. § 8103; 20 C.F.R. § 10.304. See A.R., Docket No. 16-1416 (issued April 10, 2017); L.B., Docket No.
10-469 (issued June 2, 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing
Examination and Treatment, Chapter 3.300.3(a)(3) (February 2012).

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ORDER
IT IS HEREBY ORDERED THAT the February 3, 2017 and December 19, 2016
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 25, 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

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

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

Docket No. 21-0342
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On January 4, 2021 appellant filed a timely appeal from a November 10, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective April 26, 2020, because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2); (2) whether it properly
determined that appellant received an overpayment of compensation in the amount of $3,193.12
for the period April 26 through May 23, 2020, for which she was without fault, because she
continued to receive wage-loss compensation following the termination of her compensation

1

5 U.S.C. § 8101 et seq.

pursuant to 5 U.S.C. § 8106(c)(2); and (3) whether OWCP properly denied waiver of recovery of
the overpayment.
FACTUAL HISTORY
On June 4, 2008 appellant then a 38-year-old window clerk, filed a traumatic injury claim
(Form CA-1) alleging that on May 23, 2008 she bruised her right leg, head, neck, and tailbone
when she tripped on a stool and fell while in the performance of duty. OWCP accepted her claim
for contusions of multiple sites, not elsewhere classified and subsequently expanded the
acceptance of her claim to include sprain of the back, thoracic region, contusion of buttock,
displacement of lumbar intervertebral disc without myelopathy, intervertebral disc disorder with
myelopathy, cervical region, and displacement of cervical intervertebral disc without myelopathy.
Appellant stopped work on May 24, 2008 and worked intermittently thereafter until stopping work
completely on May 3, 2017. OWCP paid appellant wage-loss compensation on the supplemental
rolls and then on the periodic rolls.
OWCP referred appellant, along with the case record and a statement of accepted facts
(SOAF), for a second opinion examination to determine her disability status. In an August 3, 2017
report, Dr. Albert Sanders, a Board-certified orthopedic surgeon, opined that appellant continued
to have residuals of the work-related injury of May 23, 2008. He noted that appellant was status
post cervical fusion at C5-6 and lumbar fusion at L5-S1, but continued to have chronic pain in the
neck and low back. Dr. Sanders advised that appellant exhausted all treatment modalities and her
prognosis was poor. He opined that appellant reached maximum medical improvement (MMI) on
September 17, 2015. Dr. Sanders indicated that appellant underwent a functional capacity
evaluation (FCE) on August 11, 2017 that found that she was capable of performing sedentary
duty, but not the usual duties of a window clerk. He reviewed the job description for a modified
passport scheduler that did not require lifting/pulling/pushing over 10 pounds and occasional
standing and walking and opined that appellant could perform these duties without restrictions. In
a work capacity evaluation (Form OWCP-5c) dated August 11, 2017, Dr. Sanders noted diagnoses
and indicated that appellant reached MMI and could return to work without restrictions.
By letter dated October 25, 2017, the employing establishment offered appellant a position
as a modified clerk. The duties included: sitting to perform customer complaint cases for two
hours a day; sitting to process parcel returns on a laptop for two hours a day; processing passports
while sitting for two hours a day; and assisting customers at the window while standing for two
hours a day. The physical requirements included: lifting, pushing, and pulling no more than 10
pounds; standing and walking for no more than two hours each; reaching above the shoulder for
no more than two hours a day; and no twisting.
On November 3, 2017 the employing establishment indicated that appellant did not show
up for work and did not respond to the job offer. On February 21, 2018 the employing
establishment confirmed that the job remained available.
By notice dated February 23, 2018, OWCP advised appellant that it had determined that
she had refused or failed to report to the offered position as a modified clerk. It informed her that
it had reviewed the offered position and found it was suitable and in accordance with the medical
restrictions provided by Dr. Sanders’ August 3, 2017 report. Pursuant to 5 U.S.C. § 8106(c)(2),

2

OWCP afforded appellant 30 days to accept the position or to provide adequate reasons for refusal.
It informed her that an employee who refuses an offer of suitable work without cause is not entitled
to wage-loss or schedule award compensation.
In a letter dated March 8, 2018, appellant rejected the job offer, asserting that the job
exceeded her restrictions and that she was in severe incapacitating pain.
Appellant submitted a March 9, 2018 report from Dr. Kenneth Lee, a Board-certified
orthopedist, who noted a history of injury and diagnosed cervicalgia, low back pain, postlaminectomy syndrome, radiculopathy in the lumbar and cervical region, obesity, intervertebral
disc displacement of the lumbar region, and spinal stenosis of the lumbar region with neurogenic
claudication. Dr. Lee reviewed a post-lumbar computerized tomography myelogram (CTM) from
October 10, 2017, which revealed most prominently L3-4 four-millimeter disc bulge with
moderate central canal stenosis with effacement about traversing nerve roots producing severe
central canal and lateral recess stenosis. He indicated that appellant remained symptomatic with
low back pain and bilateral lower extremity pain and recommended surgical intervention lumbar
decompression and discectomy at L3-4. Dr. Lee further indicated that appellant could not return
to work even in a sedentary capacity due to severe central canal stenosis associated with
radiculopathy affecting her lower extremities.
On March 22, 2018 OWCP reviewed the evidence of record and determined that the
modified clerk position was not suitable. It determined that Dr. Lee’s March 9, 2018 report
revealed that appellant’s condition may have materially worsened and she may require surgery
and, therefore, could not work.
OWCP requested an addendum report from Dr. Sanders addressing Dr. Lee’s report and
providing an opinion on whether the proposed treatment was due to the accepted conditions. On
April 2, 2018 Dr. Sanders noted that he could not comment as he had not received a copy of the
cervical CTM or Dr. Lee’s report and his evaluation was performed eight months ago and
appellant’s current condition was not clear.
On May 4, 2018 OWCP referred appellant to Dr. Sanders for a supplemental second
opinion. In a May 24, 2018 report, Dr. Sanders opined that appellant continued to have residuals
of the work-related injury. He found that the most recent CTM of the lumbar spine dated
October 9, 2017 revealed prominent spinal stenosis at L3-4, and opined that these residuals were
due to the work-related injury. Dr. Sanders disagreed with Dr. Lee’s opinion that appellant should
remain off work and indicated that the prior FCE showed that appellant was capable of performing
sedentary work with restrictions. In a Form OWCP-5c dated June 1, 2018, he noted that appellant
could return to sedentary work with permanent restrictions of walking, standing, and reaching
above shoulders no more than two hours a day, pushing, pulling, and lifting up to 10 pounds for
no more than two hours, and no twisting, bending, squatting, kneeling, climbing or stooping.
On December 31, 2018 OWCP determined that there was a conflict of medical opinion
between Dr. Lee, appellant’s treating physician who opined that appellant was totally disabled
from work, and Dr. Sanders, the second opinion physician, who opined that appellant was capable
of working in a full-time limited-duty capacity.

3

OWCP referred appellant to Dr. Gwenevere Williams, a Board-certified physiatrist, for an
impartial medical evaluation. In her January 31, 2019 report, Dr. Williams noted reviewing the
SOAF, medical history, and the medical record, including appellant’s prior medical diagnosis and
procedures. Findings on examination revealed: a well-healed spinal incision; flattening of cervical
and lumbar lordosis; restricted range of motion in the lumbar and cervical spine; tenderness to
bilateral cervical paraspinals, splenius capitus, trapezii, infraspinatus, and rhomboid; moderate
tenderness to the right acetabulum and upper gluteals; and vague sensory dysesthesia to light touch
and pinprick to the left L5 and S1 dermatomes. Dr. Williams reported that appellant was obese
and concomitant of significant deconditioned state unrelated to the May 23, 2008 work injury. She
noted that the work-related injury was affected by the preexisting medical condition of obesity that
placed excessive load on the cervical and lumbar spine causing additional symptomology.
Dr. Williams related that appellant provided inconsistent effort during her February 1, 2019 FCE.
However, based upon results documented by the FCE, Dr. Williams opined that appellant was
capable of performing modified sedentary work on a full-time basis. In a Form OWCP-5,
Dr. Williams opined that appellant was capable of walking and standing up to two hours per day,
reaching above her shoulder up to two hours per day, pushing, pulling no more than 20 pounds up
to two hours per day, lifting no more than 10 pounds up to two hours per day, and no twisting,
bending or stooping.
Appellant was treated in follow up by Dr. Andrew McKay, a Board-certified
anesthesiologist, on February 26 and June 18, 2019 for neck and low back pain. Dr. McKay noted
findings of diminished range of motion of the cervical and lumbar areas of the spine, positive
Spurling’s test, tenderness to palpation at C3-4 to C5-6 levels, weak upper and lower extremity
motor strength, and positive straight leg testing bilaterally. He diagnosed failed cervical and
lumbar spine surgery syndrome, status post lumbar and anterior cervical fusions, cervicalgia,
lumbago, chronic pain syndrome, and morbid obesity.
On July 19, 2019 the employing establishment offered appellant a modif ied distribution
window and markup clerk position. The salary for the position was the same as appellant’s current
PS 06/0 salary of $60,737.00. The job description listed that duties would be performed up to
eight hours a day and included assisting customers in the lobby that could be performed while
sitting up to eight hours. The physical requirements included: lifting up to 10 pounds; pushing
and pulling up to 20 pounds intermittently up to two hours each; walking, standing, and reaching
above the shoulder intermittently up to two hours each; and no twisting, bending, or stooping. The
available shift was from 9:00 a.m. to 6:30 p.m., Monday through Friday, with Sundays and
Wednesdays off.
In a letter dated August 19, 2019, OWCP advised appellant that the position offered was
suitable in accordance with the medical limitations provided by Dr. Williams on
February 18, 2019. It notified her that, if she failed to report to work or failed to demonstrate that
the failure was justified, pursuant to 5 U.S.C § 8106(c)(2), her wage-loss compensation and
entitlement to a schedule award would be terminated. OWCP afforded appellant 30 day s to
respond.
On September 17, 2019 appellant responded to the August 19, 2019 letter, asserting that
she was medically unable to accept the offered position as the duties of the assignment were
inconsistent with her medical restrictions and disabilities.
4

Appellant submitted an October 8, 2019 report from Dr. McKay, who noted findings on
examination of tenderness of the cervical spinous process at C3-4 and C5-6, positive Spurling’s
test on the right, and diminished motor strength of the upper extremities diminished on the left.
With regard to the lumbar spine he noted paraspinal muscle tenderness bilaterally, tenderness to
palpation of L3-4 and L5-S1, and weak motor strength of the lower extremities. He diagnosed
failed cervical and lumbar spine surgery; status post lumbar fusion and anterior cervical fusion;
cervicalgia, lumbago, chronic pain syndrome; and obesity. Dr. McKay noted that appellant was
totally disabled.
On October 9, 2019 appellant was treated by Dr. Shahid Syed, a Board-certified internist,
for low back and neck pain. Findings on examination revealed an obese female; tenderness to
palpation of the cervical spine; paraspinal neck and trapezius; and decreased range of motion of
the paralumbar, parathoracic, and buttocks. Dr. Syed noted a problem list of chronic back pain,
cervical herniation, lumbar herniation, lumbar and cervical post-laminectomy syndrome, sprain of
the ligaments of the cervical spine, muscle fascia and tendon at the neck, ligaments of the thoracic
spine, and muscle spasm of the back. He noted that appellant was off work for three months.
In a December 20, 2019 letter, OWCP found that the reasons appellant provided for
refusing the offered position were invalid. It afforded her 15 additional days to accept and report
to this position. OWCP noted that if appellant did not accept the position within 15 days of the
date of the letter, her wage-loss compensation and entitlement to a schedule award would be
terminated pursuant to 5 U.S.C. § 8106(c)(2). No additional response was received.
By decision dated April 13, 2020, OWCP terminated appellant’s wage-loss compensation
and entitlement to a schedule award, effective April 26, 2020, finding that she had refused an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
In a compensation termination worksheet dated June 3, 2020, OWCP indicated that
appellant’s compensation was terminated effective April 26, 2020; however, she continued to be
paid on the periodic rolls from April 26 through May 23, 2020. The overpayment amount was
$3,193.12. 2
On June 8, 2020 OWCP issued a preliminary overpayment determination that an
overpayment of compensation had been created in the amount of $3,193.12 as appellant continued
to receive payment on the periodic rolls through May 23, 2020, after her FECA wage-loss
compensation had been terminated on April 26, 2020. It determined that she was without fault in
the creation of the overpayment. OWCP requested that appellant submit a completed overpayment
recovery questionnaire (Form OWCP-20) to determine a reasonable payment method and advised
her that she could request waiver of recovery of the overpayment. It further requested that she
provide supporting financial documentation, including copies of income tax returns, bank account
statements, bills, and canceled checks, pay slips, and any other records, which support income and
expenses. Additionally, OWCP provided an overpayment action request form and further notified

2

The record reveals that payment was issued on May 23, 2020 via electronic funds transfer for the period April 26
through May 23, 2020.

5

appellant that, within 30 days of the date of the letter, she could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
On July 6, 2020 appellant completed a Form OWCP-20 and requested that OWCP render
a decision based on the written evidence. She disagreed with the fact and amount of the
overpayment, and requested waiver of recovery of the overpayment.
On a Form OWCP-20 completed on July 6, 2020 appellant reported that her total monthly
income included $123.00 from the Social Security Administration (SSA) and miscellaneous sales
of $180.00, resulting in total monthly income of $303.00. She reported expenses totaling
$2,365.00. Appellant indicated monthly expenses of $665.00 for rent, $600.00 for food, $100.00
for clothing, $800.00 for utilities, and $200.00 for other expenses. She reported: no cash on hand;
a checking account balance of $467.32; a savings account balance of zero; and no stocks, personal
property or other assets. Appellant indicated that she had been experiencing more expenses than
normal as her car had broken down and her home had flooded due to a broken washing machine.
She indicated that she provided a written explanation as to why she could not accept the offered
position on September 17, 2019. Appellant further asserted that she was entitled to compensation
benefits because she could no longer work due to the accepted employment injuries. With regard
to whether there was a change in circumstances affecting her monthly payment, she indicated that
there was not.
On October 1, 2020 appellant attended a telephonic prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review. She subsequently submitted financial
documentation including a monthly benefits statement from SSA noting a payment of $1,783.00.
Appellant noted: expenses of car insurance of $132.00 a month; natural gas of $20.00; water bill
of $69.49 a month; mortgage of $662.00 a month; telephone service for two lines at $71.83 and
$77.83 a month; and electric service of $131.45 a month. She provided documentation from the
Thrift Savings Plan (TSP) reflecting a balance of $68,251.01, savings account balance of $119.68,
and checking account balance of $16.39.
By decision dated November 10, 2020, OWCP’s hearing representative finalized the
preliminary overpayment determination, finding that appellant had received an overpayment of
compensation in the amount of $3,193.12 for the period April 26 through May 23, 2020, because
she continued to receive wage-loss compensation following the termination of her compensation.
OWCP further found that she was without fault in the creation of the overpayment, but denied
waiver of recovery because the evidence of record was insufficient to establish that recovery of
the overpayment would defeat the purpose of FECA or be against equity and good conscience. It
required recovery by payment of $100.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s compensation benefits. 3 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
3

See K.S., Docket No. 19-1650 (issued April 28, 2020); J.R., Docket No. 19-0206 (issued August 14, 2019); R.P.,
Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).

6

work is offered to, procured by, or secured for the employee is not entitled to compensation. 4 To
justify termination of compensation, OWCP must show that the work offered was suitable, that
the employee was informed of the consequences of refusal to accept such employment, and that
he or she was allowed a reasonable period to accept or reject the position or submit evidence to
provide reasons why the position is not suitable. 5 Section 8106(c) will be narrowly construed as
it serves as a penalty provision, which may bar an employee’s entitlement to compensation based
on a refusal to accept a suitable offer of employment. 6
In determining what constitutes suitable work for a particular disabled employee, OWCP
considers the employee’s current physical limitations, whether the work was available within the
employee’s demonstrated commuting area, the employee’s qualifications to perform such work,
and other relevant factors. 7 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. All impairments, whether work related or not, must be
considered in assessing the suitability of an offered position. 8
Section 8123(a) of FECA provides in pertinent part 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.9 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. 10 When there exist opposing medical reports of
virtually equal weight and rationale and the case is referred to an impartial medical examiner (IME)
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. 11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective April 26, 2020, for refusing an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

4

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

5

See R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000).

6

S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(c) (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
8

L.L., Docket No. 17-1247 (issued April 12, 2018); J.J., Docket No. 17-0410 (issued June 20, 2017); Gayle Harris,
52 ECAB 319 (2001).
9

5 U.S.C. § 8123(a).

10

20 C.F.R. § 10.321.

11

K.S., Docket No. 19-0082 (issued July 29, 2019).

7

OWCP properly found a conflict in the medical opinion evidence between Drs. Lee and
Sanders and referred appellant to Dr. Williams for an impartial medical examination. 12
In a January 31, 2019 report, Dr. Williams noted that appellant was obese and concomitant
of significant deconditioned state unrelated to the May 23, 2008 work injury. She noted that the
work-related injury was affected by the preexisting medical condition of obesity that placed
excessive load on the cervical and lumbar spine causing additional symptomology. Based on the
February 1, 2019 FCE, Dr. Williams opined that appellant was capable of performing sedentary
work on a full-time basis, sitting up to eight hours per day. She determined that appellant was
capable of walking and standing up to two hours per day; reaching above her shoulder up to two
hours per day; pushing and pulling no more than 20 pounds up to two hours per day ; lifting no
more than 10 pounds up to two hours per day; and no twisting, bending or stooping. The Board
finds that Dr. Williams’ opinion is entitled to the special weight of the medical evidence accorded
an IME because she based this opinion on a proper factual background, a review of the medical
record, and physical examination, and she provided a well-rationalized opinion that appellant was
capable of a sedentary level of modified-duty work.
On July 19, 2019 the employing establishment offered appellant a modified position of
distribution window and markup clerk. The job description listed that duties would be performed
up to eight hours a day and included assisting customers in the lobby that could be performed while
sitting up to eight hours. The physical requirements included: lifting up to 10 pounds, pushing
and pulling 20 pounds intermittently up to two hours each, walking, standing, and reaching above
the shoulder intermittently up to two hours each, no twisting, bending, or stooping. The Board
finds that the physical requirements of the offered position of distribution window and markup
clerk conformed to appellant’s work restrictions as provided by Dr. Williams. The special weight
of the medical evidence of record establishes that appellant was no longer totally disabled from
work and had the physical capacity to perform the duties listed in the July 19, 2019 job offer.
Thus, OWCP properly relied on Dr. Williams’ opinion in finding the distribution window and
markup clerk position suitable.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP advised
appellant on August 19, 2019 that it found the job offer of modified distribution window and
markup clerk to be suitable and afforded her an opportunity to provide reasons for refusing the
position within 30 days. Following appellant’s reply, it advised her, in a December 20, 2019 letter,
that her reasons for refusing were deficient and properly allowed 15 addition al days to accept the
offered position. The Board finds that OWCP followed the established procedures prior to the
termination of her wage-loss compensation pursuant to 5 U.S.C. § 8106(c)(2).
Subsequent to the August 19, 2019 letter from OWCP, appellant submitted an October 8,
2019 report from Dr. McKay who diagnosed failed cervical and lumbar spine surgery, status post
lumbar fusion and anterior cervical fusion, cervicalgia, lumbago, chronic pain syndrome and
morbid obesity. Dr. McKay noted that appellant was totally disabled. Similarly, on October 9,
2019 appellant was treated by Dr. Syed for low back and neck pain. He noted a problem list of
chronic back pain, cervical herniation, lumbar herniation, lumbar and cervical post-laminectomy
12

Id.

8

syndrome, sprain of the ligaments of the cervical spine, muscle fascia and tendon at the neck,
ligaments of the thoracic spine, and muscle spasm of the back and advised that appellant was off
work for three months. However, Drs. McKay and Syed’s reports are insufficient to establish that
the position offered appellant was unsuitable as the physicians did not provide a reasoned opinion
explaining how or why appellant’s diagnosed conditions prevented her from performing the
modified job duties at the time her compensation was terminated.13
The Board, therefore, finds that OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and entitlement to a schedule award based on h er refusal to accept the
offered position.
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty. 14 Section 8129(a) of FECA provides, in pertinent part: “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”15
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.16 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances. 17 OWCP’s regulations provide in pertinent part that compensation for wage
loss due to disability is available only for any periods during which the employee’s work-related
medical condition prevents her from earning the wages earned before the work -related injury.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,193.12 for the period April 26 through May 23, 2020 because
she continued to receive wage-loss compensation following the termination of her compensation
payments.

13

E.H., Docket No. 19-1352 (issued December 18, 2019); E.C., Docket No. 17-1645 (issued June 11, 2018).

14

Supra note 1 at § 8102(a).

15

Id. at § 8129(a).

16

Id. at § 8102.

17

Id. at § 8116(a).

18

20 C.F.R. § 10.500.

9

OWCP terminated appellant’s wage-loss compensation and entitlement to a schedule
award, effective April 26, 2020, finding that she had refused an offer of suitable work pursuant to
5 U.S.C. § 8106(c)(2). However, appellant continued to receive wage-loss compensation on the
supplemental rolls through May 23, 2020. Since OWCP had terminated her wage-loss
compensation benefits, effective April 26, 2020, appellant was not entitled to receive
compensation benefits after that date. As she received $3,193.12 in FECA wage-loss
compensation for the period April 26 through May 23, 2020, the Board finds that an overpayment
of compensation in that amount was created.
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP 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.19
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.20 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.21 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.22 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.23
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 in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that

19

5 U.S.C. § 8129.

20

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. 20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet
current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
Assets must not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse
or dependent plus $1,200.00 for each additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Final Overpayment Determinations, Chapter 6.400(2), (3) (September 2020).
21

Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
22

See id. at Chapter 6.400.4(a)(2) (September 2020).

23

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

10

such payments would be made, gives up a valuable right or changes his or her position for the
worse.24
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 25
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 26 It considered
appellant’s financial information, as reported in appellant’s Form OWCP-20, to determine if
recovery of the overpayment would defeat the purpose of FECA or if recovery would be against
equity and good conscience.
The Board finds that OWCP properly determined that appellant did not require
substantially all of her income to meet ordinary and necessary living expenses. Based upon the
information provided on the Form OWCP-20, and evidence received after the hearing, appellant
reported income totaling $1,963.00 and expenses of $662.00 for a mortgage, $600.00 for food,
$100.00 for clothing, $76.00 for water, $20.00 for natural gas, $78.00 for telephone, 27 $131.00 for
electric, and $132.00 for car insurance. Her expenses totaled $1,799.00. Appellant noted a
checking account balance of $16.39, savings account balance of $119.68, and TSP balance of
$68,251.01. As her monthly income exceeds her monthly expenses by $164.00, appellant does
not need substantially all of her monthly income to meet current and ordinary living expenses.
The Board further finds that appellant has not established that recovery of the overpayment
would be against equity and good conscience because it has not been shown, for the reasons noted
above, that she would experience severe financial hardship in attempting to repay the debt, or that
a valuable right had been relinquished, or that a position had been changed for the worse in reliance
on the payment, which created the overpayment. 28 Therefore, OWCP properly denied waiver of
recovery of the overpayment.

24

20 C.F.R. § 10.437(a)(b).

25

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

26

5 U.S.C. § 8129.

27

One telephone line is permitted as an ordinary and necessary expense.
6.400(4)(b)(2)(a)) (September 2020).
28

Supra note 20 at Chapter

L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

11

Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that OWCP has not
abused its discretion by denying waiver of recovery of the overpayment.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective April 26, 2020, for refusing an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2). The Board further finds that OWCP properly
determined that appellant received an overpayment of compensation in the amount of $ 3,193.12,
for which she was without fault, because she continued to receive wage-loss compensation
following the termination of her compensation for the period April 26 through May 23, 2020. The
Board also finds that OWCP properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 10, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

12


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

)
)
)
)
)
)
)
)

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

Docket No. 17-0915
Issued: August 29, 2017

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 March 9, 20171 appellant filed a timely appeal from a September 16, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation benefits effective, May 18, 2016; and (2) whether appellant met his
burden of proof to establish continuing employment-related disability after May 18, 2016.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from September 16, 2016, the date of OWCP’s last decision was
March 15, 2017. Since using March 20, 2017, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the
U.S. Postal Service postmark is March 9, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

On appeal appellant contends that, based on his medical conditions, he cannot return to
full duty as a rural carrier which requires him to lift up to 70 pounds.
FACTUAL HISTORY
On January 20, 2009 appellant, then a 42-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that he had spine and myofascial pain which his physician
attributed to his September 22, 2003 motor vehicle accident and subsequent work duties.2 He
became aware of his condition on September 22, 2003 and related it to factors of his federal
employment on September 24, 2009.
Appellant had filed a prior claim, File No. xxxxxx705, which OWCP accepted for a
cervical strain and concussion due to a September 22, 2003 motor vehicle accident. He stopped
work immediately following this employment-related incident and returned to work four hours a
day with no limitations on December 29, 2003.
In an April 5, 2010 decision, OWCP denied appellant’s occupational disease claim under
File No. xxxxxx689. On April 16, 2010 appellant requested an oral hearing before an OWCP
hearing representative. In a June 11, 2010 decision, an OWCP hearing representative set aside
the April 5, 2010 decision and remanded the case to OWCP for further development of the
medical evidence. OWCP’s hearing representative combined the two claims with File No.
xxxxxx689 serving as the master file. Following further development, on August 19, 2010
OWCP accepted the claim for aggravation of cervical and lumbar degenerative disc disease.
On September 27, 2010 appellant filed a claim for compensation (Form CA-7) for the
period August 28 to September 23, 2010. On November 9, 2010 OWCP denied the claim as the
medical evidence of record at that time did not establish total disability during the claimed period
due to his accepted work injuries. On December 9, 2010 appellant requested reconsideration. In
a January 20, 2011 decision, OWCP vacated the November 9, 2010 decision and approved
appellant’s claim for compensation. It paid wage-loss compensation benefits on the
supplemental rolls until it placed appellant on the periodic compensation rolls beginning
July 3, 2011.
In an October 14, 2015 medical report, Dr. T. Lynette Green-Mack, an attending Boardcertified physiatrist, examined appellant and diagnosed cervical disc derangement without
myelopathy, cervicogenic headaches, sacroiliitis, low back pain, sciatica of the left leg, and
postconcussion headaches/migraines. She opined that his conditions were caused by his
September 22, 2003 employment injuries. Dr. Green-Mack placed appellant on permanent
restrictions as provided by “Dr. Lee” in 2014 and reduced his work hours to three to four hours a
day. She noted that he was on chronic opioid therapy which could affect his ability to operate a
work-related vehicle in various climates. Dr. Green-Mack further noted that appellant’s job
required repetitive lifting and carrying which exacerbated his condition and caused him to stop
work as of 2010.

2

OWCP assigned File No. xxxxxx689.

2

On October 7, 2015 OWCP referred appellant to Dr. Larry R. Lett, a Board-certified
neurologist, for a second opinion to determine whether he continued to have residuals or
disability due to the accepted employment-related conditions.3 In a November 6, 2015 report,
Dr. Lett examined appellant and diagnosed cervicalgia and lumbago. He noted that appellant
had subjective complaints of pain that were not objectively validated. Dr. Lett advised that he
was physically capable of performing his date-of-injury position without limitations.
On February 4, 2016 OWCP determined that there was a conflict in the medical opinion
between Dr. Green-Mack and Dr. Lett as to whether appellant had any continuing residuals or
disability due to the accepted employment injuries.
On February 11, 2016 OWCP referred appellant, together with a statement of accepted
facts (SOAF),4 the medical record, and a list of questions, to Dr. Neil H. Levine, a Boardcertified orthopedic surgeon, for an impartial medical examination.
In a March 24, 2016 report, Dr. Levine noted appellant’s history, reviewed the SOAF,
and reviewed the medical record. On examination, appellant complained of neck, mid-back, and
low back pain, and migraine headaches. His affect was normal and he was able to sit up
continuously for 45 minutes during the interview part of the evaluation. There was slight
straightening of the cervical lordosis, but the lumbar lordosis was well maintained. Appellant
walked with a slightly antalgic gait favoring the left leg. He was able to toe walk, but again
favored the left leg. There was no gross deformity or obvious abnormality. Cervical spine range
of motion was limited to 5 degrees of flexion, 26 degrees of extension, 40 degrees of external
rotation to the left and right side, 30 degrees of lateral bending to the left, and 25 degrees on the
right. Each shoulder had 145 degrees of active abduction and flexion, 40 degrees of extension,
and 45 degrees of external rotation. Adduction, internal rotation, and excursion on the right were
to the T11 which was 1 centimeter (cm) less than on the left. Lumbar spine motion was limited
in all planes. Lateral bending to the right elicited pain in the midline and left lower back at
L5-S1. Pain was reported with lateral bending to the left in the midline and left lower back.
Extension was 18 degrees with pain in the midline and left lower back at L5-S1. With forward
flexion, the fingertips reached to only within 39 cm from the floor and he had pain in the midline
from L3 to S1 and in the left paraspinal area. There was tenderness to palpation in the midline of
the cervical spine from C4 through T3. He also had tenderness to palpation in the left
paraspinous muscles in the cervical spine from C3 to T3 and in the left upper trapezius muscle.
There was no palpable muscle spasm in the cervical, thoracic, or lumbar spine. There was
tenderness to palpation in the midline from L2 to S2 and in the area of the left paraspinous
muscles from L2 to L5, left sacroiliac joint, and left piriformis muscle. A cervical compression
was positive with appellant reporting pain radiating to the left shoulder. However, a Spurling’s
maneuver to the left and right side was negative. Shoulder examination revealed a negative full
3

On October 16, 2015 OWCP advised appellant that he was being referred for a second opinion because the case
record did not contain a 2014 report from Dr. Lee and it appeared that Dr. Green-Mack was referring to a 2011
report from a prior OWCP referral physician. The record contains an April 29, 2011 report from Dr. Albert C. Lee,
a neurosurgeon and an OWCP referral physician, who opined that appellant continued to have symptoms referable
to cervical strain, concussion, and cervical and lumbar degenerative disc disease and was not medically capable of
returning to his rural letter carrier position as he was restricted lifting more than 25 pounds on a long-term basis.
4

The SOAF noted the accepted injuries, appellant’s date-of-injury duties, and his medical treatment.

3

can and empty can test bilaterally and a negative impingement sign bilaterally. Adson’s test was
negative. During quadrant loading in extension to the left appellant reported pain just to the left
of the midline at L3-4. Patrick’s maneuver on the right produced pain in the midline while
during the same test on the left elicited pain in the midline and left lower back.
On neurological examination, there was decreased sensation in the left hand along the
median nerve distribution. There were no motor deficits in either arm. Deep tendon reflexes
biceps, triceps, and brachioradialis were 1+ and symmetrical. There was spotty decreased left
leg sensation not following any specific dermatomal pattern. There were no motor deficits and
all muscle groups in the legs were 5/5 except for the left quadriceps and hamstring muscles
which were 5-/5 with giving away. Sitting straight leg raising examination on the right was
negative and on the left appellant reported pain in the left lower back which was negative for
sciatic nerve irritation/lumbar radiculopathy. During supine straight leg raising he again reported
pain in the left lower back. Dr. Levine reported that a nonphysiologic examination revealed no
giving away with flexion and extension of the left knee against resistance which was a positive
Waddell sign. Spotty decreased sensation in the left leg and low back pain on axial rotation were
also positive Waddell signs.
Dr. Levine diagnosed cervical spondylosis with a right paracentral disc herniation at C4-5
resulting in mild central canal and moderate right foraminal stenosis, and a small central disc
herniation at C5-6 with minimal central canal and foraminal stenosis. He also diagnosed lumbar
spondylosis with broad-based disc bulge and facet arthropathy at L4-5 and L5-S1 resulting in
mild bilateral neuroforaminal narrowing and mild bilateral carpal tunnel syndrome by an
electromyogram (EMG) study without clinical findings.
Dr. Levine opined that the
September 22, 2003 work injury did not result in any permanent structural injury. Appellant did
not exhibit specific objective findings consistent with his subjective complaints of pain.
Dr. Levine opined that he could perform his pre-injury employment as a permanent route rural
mail carrier without restrictions. He recommended nonsteroidal anti-inflammatory drugs to treat
degenerative changes in the cervical and lumbar spines. Dr. Levine maintained that surgery or
injections were not indicated based on his objective findings.
On April 14, 2016 OWCP proposed to terminate wage-loss compensation benefits
because appellant no longer had disability causally related to the accepted September 22, 2003
employment injuries. It determined that the special weight of the medical evidence rested with
the March 24, 2016 impartial medical report of Dr. Levine. Appellant was afforded 30 days to
submit additional evidence or argument. He did not respond within the allotted time.
By decision dated May 17, 2016, OWCP terminated appellant’s wage-loss compensation,
effective May 18, 2016. It accorded special weight to Dr. Levine’s March 24, 2016 report.
OWCP did not terminate appellant’s medical benefits.
On June 20, 2016 appellant requested reconsideration and submitted medical evidence.
In an April 26, 2016 cervical spine magnetic resonance imaging (MRI) scan report, Dr. Mary E.
Below, a Board-certified radiologist, provided an impression of changes of spondylosis, mild or
mild-to-moderate central stenosis at C5-6 with a right paracentral protrusion/extrusion, mild
central stenosis at C4-5, foraminal narrowing, severe left foraminal narrowing at C3-4, severe
right foraminal narrowing at C4-5, and other changes of spondylosis as discussed above. She

4

also provided an impression of no compression fracture. In an April 26, 2016 lumbar spine MRI
scan report, Dr. Below provided an impression of no compression fractures, significant central
stenosis, or clear or direct nerve root impingement. In addition, she provided an impression of
mild lateral recess narrowing.
In a May 24, 2016 report, Dr. Green-Mack noted a history of the September 22, 2003
employment injuries and restated her diagnoses of cervical disc derangement without
myelopathy, cervicogenic headache, sacroiliitis, lumbar intervertebral disc displacement, and
postconcussion headache. She reviewed the April 26, 2016 cervical and lumbar MRI scan
results and reported the same examination findings as set forth in her October 14, 2015 report.
Dr. Green-Mack also reiterated her prior opinion that appellant’s conditions were caused by the
September 22, 2003 employment injuries and that she agreed with Dr. Lee’s permanent
restrictions. She concluded that he was disabled for any gainful employment.
In a December 16, 2015 report, appellant’s physical therapist noted a diagnosis of
occipital neuralgia sciatica and ordered a functional capacity evaluation (FCE).
By decision dated September 16, 2016, OWCP denied modification of the May 17, 2016
decision. It found that the medical evidence submitted did not provide a rationalized medical
opinion substantiating that appellant continued to be disabled due to the accepted employment
conditions.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his or her employment, OWCP may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.5 Its
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.6
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.7 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.8 In situations where there exist opposing medical reports of virtually
equal weight and rationale and the case is referred to an impartial medical specialist for the
5

Jason C. Armstrong, 40 ECAB 907 (1989).

6

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

5 U.S.C. § 8123(a).

8

20 C.F.R. § 10.321.

5

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.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits, effective May 18, 2016.
OWCP accepted that appellant sustained an aggravation of cervical and lumbar
degenerative disc disease while in the performance of duty and paid wage-loss compensation
benefits. It subsequently determined that a conflict in medical evidence had been created
between the opinions of Dr. Green-Mack, an attending Board-certified physiatrist, and Dr. Lett,
an OWCP referral Board-certified neurologist, regarding whether appellant had any continuing
residuals or disability causally related to the accepted employment injuries. OWCP then
properly referred him to Dr. Levine, a Board-certified orthopedic surgeon, for an impartial
evaluation.
The Board finds that Dr. Levine’s impartial medical opinion is entitled to special weight
and establishes that appellant no longer has any disability due to the accepted employment
injuries. In his March 24, 2016 report, Dr. Levine reviewed the SOAF and the medical file and
noted essentially normal findings on physical examination. He opined that while appellant
needed nonsteroidal anti-inflammatory drugs to treat degenerative changes in his cervical and
lumbar spine, appellant could perform his rural carrier position without restrictions. Dr. Levine
reasoned that there were no objective findings consistent with his subjective complaints.
The Board finds that Dr. Levine provided a comprehensive, well-rationalized opinion in
which he clearly found that appellant could return to his preinjury job. Dr. Levine had full
knowledge of the relevant facts and the course of appellant’s condition. His opinions were based
on proper factual and medical history and on the statement of accepted facts. Dr. Levine’s
reports contained a detailed summary of the history of the claim.10 Additionally, he addressed
the medical records, examined appellant, and reached a reasoned conclusion regarding
appellant’s conditions.11 Dr. Levine’s opinion is entitled to the special weight accorded an
impartial examiner and constitutes the weight of the medical evidence.12 OWCP, therefore,
properly terminated appellant’s wage-loss compensation benefits on May 18, 2016 based on
Dr. Levine’s opinion.13

9

See M.W., Docket No. 16-0959 (issued October 6, 2016); James P. Roberts, 31 ECAB 1010 (1980).

10

See R.G., Docket No. 16-0271 (issued May 18, 2017).

11

Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy and
completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested, and the
medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be given
to each individual report).
12

See Melvina Jackson, 38 ECAB 443 (1987).

13

Manuel Gill, 52 ECAB 282 (2001).

6

LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminates a claimant’s compensation benefits, the burden of proof
shifts to the claimant to establish that he has continuing disability after that date related to his
accepted injury.14 To establish causal relationship between the condition as well as any attendant
disability claimed and the employment injury, a claimant employee must submit rationalized
medical evidence based on a complete medical and factual background, supporting such a causal
relationship.15 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.16
ANALYSIS -- ISSUE 2
Following the termination of his wage-loss compensation benefits appellant submitted
Dr. Green-Mack’s May 24, 2016 report. In this report, Dr. Green-Mack reiterated the findings of
Dr. Below’s cervical and lumbar MRI scan results, examination findings, diagnoses of cervical
disc derangement without myelopathy, cervicogenic headache, sacroiliitis, lumbar intervertebral
disc displacement, and postconcussion headache, and opined that these conditions were causally
related to the accepted September 22, 2003 employment injuries as set forth in her prior report of
October 14, 2015. She also opined that appellant was disabled for any gainful employment.
However, Dr. Green-Mack failed to provide medical rationale explaining how appellant’s
residuals of the accepted employment injuries resulted in his continuing disability for work. The
Board has held that a medical opinion not fortified by rationale is of diminished probative
value.17 Moreover, the Board has long held that reports from a physician who was on one side of
a medical conflict that an impartial medical specialist resolved, are generally insufficient to
overcome the special weight accorded to the report of the impartial medical specialist, or to
create a new conflict.18 The Board finds that as Dr. Green-Mack was on one side of the conflict
resolved by Dr. Levine, Dr. Green-Mack’s additional report is of insufficient weight to overcome
the special weight accorded to Dr. Levine’s opinion or to create a new medical conflict.
Dr. Below’s April 26, 2016 cervical and lumbar MRI scan reports did not offer an
opinion on the relevant issue of whether appellant had employment-related disability due to the
accepted work-related conditions. The Board has found that medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.19 The Board finds that Dr. Below’s reports are insufficient to
establish continuing employment-related disability.
14

Id.

15

Id.

16

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

17

M.F., Docket No. 15-0081 (issued January 15, 2016); Franklin D. Haislah, 52 ECAB 457 (2001) (medical
reports not containing rationale on causal relationship are entitled to little probative value).
18

R.B., Docket No. 16-1481 (issued May 2, 2017); I.J., 59 ECAB 408 (2008).

19

C.B., Docket No. 09-2027 (issued May 12, 2010); K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006).

7

The December 16, 2015 report from appellant’s physical therapist addressed appellant’s
cervical condition and ordered an FCE. However, this report is of no probative medical value as
a physical therapist is not considered a physician as defined under FECA.20
Appellant has not provided a probative medical opinion to support that he was disabled
due to his accepted employment-related injuries. The Board therefore finds that appellant has
failed to meet his burden of proof to establish continuing disability after May 18, 2016.21
On appeal appellant contends that, based on his medical conditions, he cannot return to
full duty as a rural carrier which requires him to lift up to 70 pounds. However, his own opinion
on his ability to work would not be a substitute for probative medical evidence as lay persons are
not physicians under FECA and, thus, are not competent to render medical opinions.22 As found
above, the medical record does not demonstrate that appellant was disabled for work on and after
May 18, 2016 due to the accepted work injuries.
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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective, May 18, 2016. The Board further finds that appellant has failed
to meet his burden of proof to establish continuing employment-related disability after
May 18, 2016.

20

5 U.S.C. § 8101(2); Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapists). See also Gloria J.
McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal
relationship can only be resolved through the submission of probative medical evidence from a physician).
21

See G.G., Docket No. 15-0985 (issued August 21, 2015); Virginia Davis-Banks, 44 ECAB 389 (1993); Dorothy
Sidwell, 41 ECAB 857 (1990).
22

See L.L., Docket No. 16-0896 (issued September 23, 2016); James A. Long, 40 ECAB 538 (1989).

8

ORDER
IT IS HEREBY ORDERED THAT the September 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 29, 2017
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

9