United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 07-128
Issued: March 27, 2007

Case Submitted on the Record

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

JURISDICTION
On October 18, 2006 appellant timely appealed the May 5, 2006 merit decision of the
Office of Workers’ Compensation Programs which affirmed a schedule award for permanent
impairment of the left lower extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of the schedule award.
ISSUE
The issue is whether appellant has more than 11 percent permanent impairment of the left
lower extremity.
FACTUAL HISTORY
Appellant, a 40-year-old mail handler, has an accepted claim for lumbosacral sprain and
lumbar disc displacement (L5-S1), which arose on March 24, 2002. He underwent an Officeapproved microdiscectomy on May 31, 2002. Appellant resumed his full-time regular duties on
September 21, 2002. On May 9, 2003 he filed a claim for a schedule award.

In a February 25, 2003 report, Dr. David Weiss, a Board-certified orthopedist, found that
appellant had 16 percent permanent impairment of the left lower extremity. The overall rating
included separate components for pain (three percent), calf muscle atrophy (eight percent) and
muscle weakness (hip flexion five percent). Dr. Weiss indicated that appellant reached
maximum medical improvement on February 25, 2003.
The Office’s district medical adviser reviewed the record and on November 19, 2003 he
concluded that appellant had 11 percent permanent impairment of the left lower extremity. He
agreed with Dr. Weiss with respect to appellant’s impairment due to pain (three percent) and
decreased left hip flexion (five percent). Regarding calf muscle atrophy, the district medical
adviser disagreed with Dr. Weiss’ 8 percent rating and assigned only 3 percent impairment for a
combined left lower extremity impairment of 11 percent.
On November 25, 2003 the Office granted a schedule award for 11 percent impairment of
the right lower extremity.1 However, a hearing representative set aside the decision on
October 18, 2004 and remanded the case for the Office to obtain an explanation from the district
medical adviser for reducing the impairment for left calf muscle atrophy from eight to three
percent.2
In a February 17, 2005 report, the district medical adviser explained that Table 17-6 of
the American Medical Association, Guides to the Evaluation of Permanent Impairment 530,
provided a range of impairment of 3 to 8 percent, which corresponded to a difference in calf
circumference of 1 to 1.9 centimeters. Because Dr. Weiss reported only a one centimeter
difference between appellant’s left and right calf muscles which was on the low end of the range,
appellant had only three percent impairment. The district medical adviser further explained that,
if Dr. Weiss reported a 1.9 centimeters difference, then appellant would have been entitled to an
8 percent impairment rating under Table 17-6.
On February 24, 2005 the Office issued a decision finding that appellant was not entitled
to additional impairment for calf muscle atrophy. The Office hearing representative affirmed the
decision on May 5, 2006 finding that appellant did not have more than 11 percent impairment of
the left lower extremity.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.3 The Act, however, does not specify the manner by which the
1

The award covered the period February 25 to October 4, 2003. Although the decision indicated entitlement to
28.8 weeks’ compensation which corresponds to 10 percent impairment, the Office paid appellant for 31.68 weeks
(221.76 days).
2

The hearing representative also clarified that the schedule award was for impairment of the left lower extremity,
not the right lower extremity as indicated in the November 25, 2003 decision.
3

The Act provides that for a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’
compensation. 5 U.S.C. § 8107(c)(2) (2000).

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percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.4 Effective February 1, 2001,
schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).5
ANALYSIS
The district medical adviser and Dr. Weiss agreed that appellant had five percent
impairment for muscle weakness due to decreased left hip flexion (Grade 4) under Table 17-8,
A.M.A., Guides 532, but they differed on the extent of impairment attributable to the one
centimeter difference in circumference between appellant’s left and right calf muscles. Table 176, of the A.M.A., Guides 530, measures impairment due to unilateral leg muscle atrophy. With
respect to the calf muscle, a difference of 1 to 1.9 centimeters is considered a mild impairment
which corresponds to a lower extremity impairment range of 3 to 8 percent. Although appellant
had only a one centimeter difference, Dr. Weiss assessed the highest possible impairment rating
of eight percent. The district medical adviser assigned three percent impairment because this
rating was more consistent with a one centimeter difference in circumference. He explained that,
if Dr. Weiss had reported a 1.9 centimeters difference, then appellant would have been entitled to
an 8 percent impairment rating. The district medical adviser’s three percent impairment rating
for calf muscle atrophy is reasonable and it conforms to the A.M.A., Guides (5th ed. 2001). As
such, his finding regarding impairment due to calf muscle atrophy constitutes the weight of the
medical evidence.6
Dr. Weiss and the district medical adviser agreed that an additional three percent
impairment was justified due to pain. The A.M.A., Guides limit the circumstances under which
a pain-related impairment may be assessed under Chapter 18. If an impairment can be
adequately rated on the basis of the body and organ impairment systems given in other chapters
of the A.M.A., Guides, such as Chapters 13, 16 and 17, then pain-related impairments should not
be assessed using Chapter 18.7 The A.M.A., Guides provide for an incremental adjustment of up
to three percent for pain when the conventional rating system does not adequately encompass the
burden of the individuals condition. Where the pain-related impairment appears to increase the
burden of the individual’s condition “slightly,” the physician can increase the percentage found
under the conventional rating system by up to three percent.8
In this instance neither the district medical adviser nor Dr. Weiss explained why the
conventional impairment rating provided under Chapter 17 was ostensibly inadequate. In the
absence of a valid explanation for utilizing Chapter 18, the Office should not have awarded an
4

20 C.F.R. § 10.404 (2006).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

6

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

7

Section 18.3b, A.M.A., Guides 571.

8

Section 18.3d, A.M.A., Guides 573; Figure 18-1, A.M.A., Guides 574.

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additional three percent impairment for pain.9 On remand, the Office should obtain clarification
from either Dr. Weiss or the district medical adviser why the impairment ratings assigned under
Tables 17-6 and 17-8 do not adequately encompass the burden of appellant’s condition.
Accordingly, the May 5, 2006 decision is set aside and the case will be remanded to the Office
for further development of the medical evidence as appropriate. The Office should then issue a
de novo decision regarding appellant’s entitlement to a schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 5, 2006 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision.
Issued: March 27, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9

See Mark A. Holloway, 55 ECAB 321, 326 (2004); Philip A. Norulak, 55 ECAB 690, 696 (2004).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-1245
Issued: April 15, 2014

Case Submitted on the Record

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

On April 30, 2013 appellant, through counsel, filed an application for review of a
February 19, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The appeal was docketed as No. 13-1245.
The Board, having reviewed the case record submitted by OWCP, finds that the record is
incomplete, as it must be consolidated with another case file. This is the second appeal before
the Board. On March 1, 2009 appellant, a 50-year-old window clerk, filed a Form CA-2 claim
for benefits based on an occupational condition under case file number xxxxxx343, alleging that
she developed right hand, right wrist, right arm and neck conditions causally related to
employment factors. By decision dated June 3, 2009, OWCP denied the claim. By decision
dated September 15, 2009, an OWCP hearing representative set aside the June 3, 2009 decision
and remanded the case to the district Office for further development of the evidence. By
decisions dated December 9, 2009, November 2, 2010 and March 29, 2011, OWCP denied
modification of the June 3, 2009 decision. In a February 27, 2012 decision,1 the Board set aside
the March 29, 2011 decision. It found that there was a conflict in the medical evidence between
Dr. Jerry Murphy, Board-certified in emergency medicine and appellant’s treating physician, and
Dr. Noubar A. Didizian, Board-certified in orthopedic surgery and a second opinion physician,
1

Docket No. 11-1619 (issued February 27, 2012).

regarding whether appellant had sustained right hand, right wrist, right arm or cervical conditions
in the performance of duty. The Board remanded the case for referral of appellant to an
appropriate impartial medical specialist. The complete facts of this case are set forth in the
Board’s February 27, 2012 decision and herein incorporated by reference.
OWCP referred appellant for a referee examination with Dr. Stuart L. Trager, Boardcertified in orthopedic surgery. In a July 25, 2012 report, Dr. Trager found no clinical evidence
of ongoing carpal tunnel syndrome in her right wrist and hand; and insufficient clinical evidence
to support a finding that appellant’s right shoulder, right arm and neck symptoms directly
resulted from employment factors. He further stated:
“Additionally, absent an isolated episode of trauma occurring at the workplace,
and in the face of significant degenerative changes noted on the imaging of the
spine, I believe it is much more likely that this individual has developed
progressive symptoms as related to her underlying degenerative condition then to
specific work activities.”
By decision dated August 23, 2012, OWCP denied the claim, finding that appellant failed
to establish that her claimed right hand, right wrist, right arm and neck conditions were causally
related to factors of employment. It found that Dr. Trager’s July 25, 2012 report merited the
special weight of an impartial medical specialist and represented the weight of the medical
evidence. By decision dated February 19, 2013, an OWCP hearing representative affirmed the
August 23, 2012 decision.
In his appeal to the Board, appellant’s attorney argues that Dr. Trager’s report was not
sufficiently well rationalized and probative to represent the weight of the medical evidence. He
contends that the statement of accepted facts presented to Dr. Trager was deficient because it did
not include accepted facts pertaining to file number xxxxxx326; this pertained to a Form CA-1
traumatic injury claim appellant filed on May 21, 2007 for an incident which occurred on
May 19, 2007, which OWCP accepted for neck sprain, left hip sprain, sacrum sprain and left
elbow contusion. Counsel contends that this omission was critical given the fact that appellant
filed a claim for cervical and right arm conditions which she developed as a result of performing
her regular duties as a clerk.
The Board notes that medical evidence pertaining to appellant’s previously accepted
May 19, 2007 neck sprain, included in file number xxxxxx326, is not contained in the instant
record. This evidence is essential given the fact that the instant case is one based on a claimed
cervical condition; it is especially significant in light of Dr. Trager’s statement that he did not
consider appellant’s claimed cervical condition to be work related “absent an isolated episode of
trauma occurring at the workplace.” Thus the case record before the Board is incomplete.
Accordingly, the case file does not include much of the record pertaining to the history
and development of appellant’s claim, as is required for an informed adjudication of this case.
As all the records pertaining to appellant’s claim are necessary for complete consideration and
adjudication of the issue raised on appeal, the Board, therefore, finds that the appeal docketed as
No. 13-1245 is not in posture for a decision as the Board is unable to render an informed
adjudication of the case. The February 19, 2013 decision will be set aside and remanded for

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reconstruction and consolidation of the case records to include the entire case file pertaining to
claim numbers xxxxxx343 and xxxxxx326.2 After such further development as OWCP deems
necessary, it should issue an appropriate decision to protect appellant’s appeal rights. Once
OWCP obtains this information, clarifies the instant record and composes a new statement of
accepted facts, it should then refer the case to Dr. Trager, or a new impartial specialist, to
determine whether appellant sustained the claimed conditions in the performance of duty.
IT IS HEREBY ORDERED THAT this case be remanded for reconstruction and
consolidation of the case records.
Issued: April 15, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8
(February 2000). Under 2.400.8(c), cases should be doubled when correct adjudication of the issues depends on
frequent cross-reference between files, including: (1) a new injury case is reported for an employee who previously
filed an injury claim for a similar condition or the same part of the body. For instance, a claimant with an existing
case for a back strain submits a new claim for a herniated lumbar disc; (2) two or more separate injuries (not
recurrences) have occurred on the same date; and (3) adjudication or other processing will require frequent reference
to a case which does not involve a similar condition or the same part of the body. For instance, an employee with an
existing claim for carpal tunnel syndrome files a new claim for a mental condition which has overlapping periods of
disability. See also V.H., Docket No. 12-1523 (issued January 25, 2013).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
Whiskeytown, CA, Employer
__________________________________________

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

Docket No. 10-2232
Issued: July 25, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 1, 2010 appellant, through her attorney, filed a timely appeal from a
July 28, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
terminating her compensation. Pursuant to the Federal Employees’ Compensation Act1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
effective February 14, 2010 on the grounds that she had no further disability causally related to
her accepted employment injury; and (2) whether OWCP properly terminated authorization for
medical treatment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on June 1, 2008 appellant, then a 60-year-old motor vehicle
operator, sustained a back sprain in the performance of duty.2 It also accepted that she sustained
sprains of the shoulder and left arm at the acromioclavicular joint on April 25, 2008 and multiple
contusions, an ankle sprain, contusions of the right shoulder and upper arm and a lumbar sprain
on June 29, 2007 under separate file numbers. OWCP doubled her case record into a master file
number. Appellant stopped work on June 1, 2008 and received compensation for total disability.
In a progress report dated June 3, 2009, Dr. Leonard Soloniuk, an attending Boardcertified anesthesiologist, described appellant’s complaints of pain and spasm in her neck and
back. He diagnosed “[c]hronic multifactorial cervical and lumbar pain as previously
documented, with a severe myofascial flare through the distal thoracic/lumbar paramusculature.”
Dr. Soloniuk deferred an opinion on the extent of appellant’s disability pending physical therapy.
On August 5, 2009 OWCP referred appellant to Dr. Aubrey A. Swartz, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated September 4, 2009,
Dr. Swartz reviewed the history of injury and the medical reports of record. On examination he
found full range of motion in the shoulders, good upper extremity strength, tenderness of the
lumbosacral spine without spasm, equal sensation of the upper and lower extremities and three
centimeters of right upper arm atrophy compared with the left side. Dr. Swartz found decreased
internal rotation of the hips bilaterally and tightness in the hamstrings with straight-leg raise. He
stated:
“[Appellant] has pain in the low back and buttocks and pain radiating down the
groin and the lateral region of both lower extremities.
“There was an unremarkable examination of the cervical and lumbar spine, and
there were no neurologic findings. Basically the spinal examination was
unremarkable. [Appellant] had no complaints referable to her shoulders, and I
found that her shoulders were symmetrical and had a normal range and there was
no tenderness.
“With respect to my current diagnosis, I would find that [appellant] has chronic
major depression with an associated somatoform disorder, with chronic multiple
complaints of pain in the cervical spine and the shoulder girdles.”
Dr. Swartz opined that appellant’s subjective complaints outweighed the objective
findings and noted that a December 10, 2007 magnetic resonance imaging (MRI) scan study was
essentially normal with only L4-5 mild disc bulging. He concluded that the examination was
“basically unremarkable.” Dr. Swartz found that appellant’s complaints of back pain were not

2

Appellant initially filed a recurrence of disability claim on June 1, 2008 due to a June 29, 2007 employment
injury. OWCP found that it was a claim for a new injury as she attributed her condition to experiencing pain in her
back while cleaning shelves. In a decision dated September 8, 2008, it denied appellant’s claim for disability
compensation from June 5 to July 16, 2008 after finding that she was entitled to continuation of pay for this period.

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employment related. Regarding whether the diagnosed condition was connected to factors of
employment described in the statement of accepted facts, Dr. Swartz related:
“It appears there was initially a direct cause to her complaints. However, at this
time there are multiple complaints without any objective findings or imaging
studies to support these complaints and this injury has resolved. At this time we
are dealing with psychological issues, which appear to be driving these
complaints. There are also comorbidities that would also probably be of concern
to her that would be clouding this issue.”
Dr. Swartz advised that appellant required no further medical treatment as she had no
residuals of her musculoskeletal injuries to her back and upper and lower extremities. He
attributed her complaints to chronic major depression and opined that her disability due to her
August 1, 2008 injury ceased by November 1, 2008, her disability due to the April 25, 2008
injury ceased by July 25, 2008 and her injury due to her June 29, 2007 injury ceased by
September 29, 2007. Dr. Swartz found that appellant had no work restrictions due to any
employment-related condition but had restrictions due to her age.
On October 22, 2009 OWCP requested that Dr. Soloniuk review the opinion of
Dr. Swartz and address whether he agreed with his findings and explain whether appellant had
any objective findings supporting continued residuals of her work injury or employment-related
disability.
On October 28, 2009 Dr. Soloniuk listed findings on examination of generalized
tenderness through the lumbar paraspinal structures, limited range of motion of the cervical spine
and a positive Tinel’s sign of the right wrist. He indicated that an October 27, 2009
electromyogram and nerve conduction study showed an acute neuropathic process of the bilateral
lumbosacral paraspinous muscles with lower extremity weakness possibly due to cervical
stenosis. Dr. Soloniuk diagnosed unchanged chronic lumbar pathology. He reviewed the
findings of Dr. Swartz and related that the report contained “some manifestly inaccurate
statements.” In response to the questions posed by OWCP, Dr. Soloniuk stated, “The first
questions pertains to the length of expected total temporary disability which has already been
addressed by their physician, Dr. Swartz to which we agree.” He further agreed with the work
restriction evaluation completed by Dr. Swartz but found that appellant should squat, kneel or
climb only one hour per day and reach overhead no more than four hours per day. Regarding
whether there were objective findings of work restrictions, Dr. Soloniuk referred to his current
examination findings. In an accompanying work restriction evaluation of the same date, he
indicated that appellant could not perform her regular employment due to “age[-]related
reasons.” Dr. Soloniuk found that she could work eight hours per day with permanent
restrictions.
By letter dated December 9, 2009, OWCP advised appellant of its proposed termination
of her compensation and authorization for medical benefits on the grounds that she had no
further disability or need for medical treatment due to her accepted work injuries.
In a progress report dated December 1, 2009, Dr. Soloniuk listed findings on examination
and diagnosed neuropathic pain of the wrists and hands of uncertain etiology, possibly due to

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cervical stenosis. An MRI scan study of the cervical spine dated December 28, 2009 revealed
multilevel degenerative disc disease without cord compression or lesions.
By letter received January 11, 2010, appellant disagreed with the proposed termination of
her compensation. She described her pain and the limitations on daily activities. Appellant
related that Dr. Swartz evaluated her in under 20 minutes and did not perform sufficient
neurological tests. She noted that he attributed her complaints to somatoform disorder and
depression because she took medication for pain and due to her history of breast cancer.
Appellant noted that an October 27, 2009 EMG study found an acute neuropathic process of the
paraspinous muscles. She related that under state law she qualified for vocational rehabilitation.
By decision dated February 4, 2010, OWCP terminated appellant’s compensation
effective February 14, 2010 after finding that the weight of the medical evidence established that
she had no further employment-related disability or condition requiring medical treatment.
On February 10, 2010 appellant, through her attorney, requested a telephone hearing. On
February 25, 2010 she submitted the results of EMG and NCS studies, performed on February 2,
2010, which revealed mild-to-moderate carpal tunnel syndrome on the left side, no evidence of
bilateral upper radiculopathy and a possible mild peripheral neuropathy.
At the hearing, held on May 7, 2010, appellant related that she was not offered vocational
rehabilitation of a limited-duty position at the employing establishment. She related that she no
longer required treatment for her ankle or right shoulder but continued to require treatment for
her low back.
In a decision dated July 28, 2010, a hearing representative affirmed the February 4, 2010
decision. He found that the opinion of Dr. Swartz represented the weight of medical evidence
and established that appellant had no further work-related disability or condition.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained multiple contusions, a right ankle sprain, a right
upper extremity contusion and lumbar sprain due to a June 29, 2007 injury, a left shoulder and
upper arm sprain due to an April 25, 2008 work injury and lumbar sprain due to a June 1, 2008
injury. Appellant stopped work on June 1, 2008 and did not return.
3

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

4

Gewin C. Hawkins, 52 ECAB 242 (2001).

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The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits. In a progress report dated June 3, 2009, Dr. Soloniuk diagnosed chronic,
multifactorial cervical and lumbar pain. He indicated that he would address the extent of any
disability after physical therapy.
OWCP referred appellant to Dr. Swartz for a second opinion examination. On
September 4, 2009 Dr. Swartz reviewed the history of injury, the medical evidence of record,
and listed findings on examination of full range of motion in the shoulders, full strength and
sensation of the upper extremities, tenderness of the lumbosacral spine without spasm and full
sensation of the lower extremities. He measured three centimeters of right upper arm atrophy
and found reduced internal rotation of the hips bilaterally with hamstring tightness with straightleg raise. Dr. Swartz advised that his evaluation of appellant’s cervical and lumbar spine was
unremarkable with no neurological findings. He noted that she had no shoulder complaints and
asserted that her complaints of back pain were not employment related. Dr. Swartz diagnosed
major depression and somatoform disorder with complaints of cervical and shoulder pain. The
Board finds that his opinion has reliability, probative value and convincing quality with respect
to the conclusion reached regarding whether appellant had any further employment-related
disability. Dr. Swartz provided a thorough review of the factual and medical history. Moreover,
he provided a proper analysis of the factual and medical evidence and findings on examination
and reached conclusions regarding her condition.5 Dr. Swartz explained that appellant had no
further injury-related condition based on normal imaging studies and the lack of objective
examination findings but instead had psychological issues causing her complaints. He found that
she had no need of further medical treatment as she had no residuals due to her musculoskeletal
injuries to her back and upper and lower extremities. Dr. Swartz determined that appellant had
no restrictions due to any employment-related condition but had age-related limitations. He
further indicated that she had no further disability due to any employment injury after
November 1, 2008.
The remaining evidence submitted prior to OWCP’s termination of compensation is
insufficient to establish that appellant had any further disability due to her accepted work
injuries. OWCP requested that Dr. Soloniuk review Dr. Swartz’ opinion and address whether
appellant had any further disability or residuals of her accepted conditions. On October 28, 2009
Dr. Soloniuk found lumbar paraspinal tenderness, reduced cervical range of motion, a positive
Tinel’s sign and an acute paraspinal process possibly due to cervical stenosis. He diagnosed
unchanged chronic lumbar pathology. Dr. Soloniuk indicated that Dr. Swartz’ report contained
some inaccuracies but did not further explain his statement or specify which findings he believed
to be in error. He concurred with Dr. Swartz’ finding regarding the length of appellant’s
temporary total disability. Dr. Soloniuk listed work restrictions on an accompanying work
restriction evaluation but provided the reason that she could not perform her usual employment
as age related. Consequently, his opinion is insufficient to outweigh that of Dr. Swartz or to
create a conflict as he did not specifically find appellant had any further disability due to her
employment injuries. Appellant submitted diagnostic studies showing mild-to-moderate left
carpal tunnel syndrome and a possible mild peripheral neuropathy and an MRI scan study
showing cervical degenerative disc disease. The objective studies, however, do not address the
5

Pamela K. Guesford, 53 ECAB 726 (2002).

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relevant issue of whether she remained disabled due to an accepted injury. Accordingly, OWCP
met its burden of proof to terminate appellant’s compensation benefits.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.7
ANALYSIS -- ISSUE 2
OWCP met its burden of proof to terminate authorization for medical benefits through
the opinion of Dr. Swartz, the referral physician, who found that appellant had no need for
further medical treatment of her accepted conditions. Dr. Swartz explained that her subjective
complaints were not supported by objective findings based on the physical examination and the
diagnostic studies. While Dr. Soloniuk diagnosed lumbar pathology, he did not specifically find
it related to employment or explain why appellant required any further medical treatment for an
accepted condition. Consequently, Dr. Swartz’ opinion represents the weight of the medical
evidence and establishes that she has no further need for medical treatment.
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 properly terminated appellant’s compensation and
authorization for medical treatment effective February 14, 2010 on the grounds that she had no
further disability or residuals causally related to her accepted employment injury

6

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, id.

7

Id.

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ORDER
IT IS HEREBY ORDERED THAT the July 28, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southeastern, PA, Employer
__________________________________________

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

Docket No. 17-0288
Issued: May 23, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 21, 2016 appellant, through counsel, filed a timely appeal from an
October 13, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly rescinded its acceptance of appellant’s claim for
post-traumatic stress disorder (PTSD) as causally related to a July 11, 2012 employment injury.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 24, 2012 appellant, then a 59-year-old business solutions specialist, filed a
traumatic injury claim (Form CA-1) alleging that on July 11, 2012 he injured his back, shoulder,
and knee taking a laptop out of his vehicle. He stopped work on July 11, 2012 and did not
return. OWCP accepted the claim for a partial thickness tear of the infraspinatus tendon of the
right shoulder, moderate tendinosis of the long head of the right biceps tendon, lumbosacral
sprain, and a left knee contusion.3 It paid compensation for total disability from August 26, 2012
until June 28, 2013.
Dr. Vincent J. Morello, a clinical psychologist, performed psychological testing on
December 14, 2013. He noted that appellant received counseling from a social worker through
the Employee Assistance Program (EAP) at work in April 2012 after his supervisor failed to give
him credit for a large sale and required him to commute daily to Philadelphia, PA. Appellant’s
symptoms had decreased until the July 2012 work accident. Dr. Morello reviewed the medical
records and conducted psychological testing, noting that appellant had an extremely high score
for traumatic stress. He indicated that the July 2012 injury caused multiple stressors, including
pain from the injury. Dr. Morello related, “At this time, [appellant] shows clear symptoms of
[PTSD]. He ruminates on and is mentally preoccupied with his current physically debilitating
condition and displays considerable anger toward his former employer for various perceived
injustices.” Dr. Morello advised that many factors may have contributed to the PTSD, but that
the July 2012 injury “played the key role initiating a series of events that, combined, added to the
severity of the disorder.” He opined that appellant was disabled from employment.
On December 27, 2013 appellant, through counsel, requested expansion of his claim to
include a psychiatric condition. In a January 17, 2014 response, OWCP noted that it had not
received claims for compensation (Forms CA-7) since July 2013 and explained the medical
evidence required to establish a consequential condition.4
On December 4, 2014 OWCP informed appellant that it had expanded acceptance of his
claim to include PTSD.
OWCP, on January 12, 2015, referred appellant to Dr. Irving S. Wiesner, a Boardcertified internist and psychiatrist, for a second opinion evaluation regarding whether appellant
had sustained an emotional condition causally related to factors of employment set forth in the
statement of accepted facts (SOAF). The SOAF provided the history of the July 11, 2012 work
injury and noted the accepted conditions.
In a report dated February 9, 2015, Dr. Wiesner discussed the history of the July 11, 2012
employment injury and provided findings on examination. He diagnosed dysthymic disorder,
3

On September 13, 2012 OWCP had denied appellant’s claim as the medical evidence was insufficient to
establish a diagnosed condition causally related to the accepted work incident. In a decision dated April 15, 2013,
however, an OWCP hearing representative reversed the September 13, 2012 decision.
4

By letter dated August 7, 2014, OWCP advised that it was not able to expand the claim as appellant had not
submitted evidence from a licensed psychologist. In a response dated September 26, 2014, Dr. Morello noted that
he was a licensed clinical psychologist.

2

generalized anxiety disorder, adjustment disorder with anxiety and depression, attention deficit
disorder, and a mixed personality disorder with marked anger and denial. Dr. Wiesner related,
“It is my medical opinion that [appellant] is suffering from a severe personality disorder that has
long preceded what has happened. [Appellant] has been discontent with his work at the
[employing establishment] from the very beginning. His degree of anger is far beyond rational.”
He questioned the PTSD diagnosis given that it required a traumatic event that threatened death
or significant injury to the self or others. Dr. Wiesner observed, “This does not at all seem to fit
[appellant’s] clinical presentation or his history, in that the most significant part of his disability
is his intense anger as to how the [employing establishment] has been treating him. In my
medical opinion, this is not the grounds for diagnosis of [PTSD].” Dr. Wiesner opined that
employment did not cause appellant’s emotional condition, but that his condition was aggravated
“by his perceived mistreatment.”
OWCP, by letter dated March 20, 2015, notified appellant of its proposed rescission of
the accepted condition of PTSD and his entitlement to benefits due to that condition. It advised
him that Dr. Morello’s opinion was speculative in nature and that it had therefore referred him
for a second opinion examination. OWCP informed appellant that a conflict existed between his
attending physician and Dr. Wiesner regarding whether he had PTSD. It further noted that it had
not established as factual his allegations regarding his treatment by the employing establishment.
OWCP, on March 27, 2015, paid appellant compensation for total disability from
June 29, 2013 to January 11, 2014.5
In an April 27, 2015 letter, Dr. Morello disagreed with OWCP’s finding that his
December 14, 2013 report was speculative. He explained how he reached the diagnosis of PTSD
based on test results, his evaluation, history, and a review of the record.
On April 7, 2015 OWCP referred appellant to Dr. Gladys Fenichel, a Board-certified
psychiatrist, for an impartial medical examination. In a report dated June 30, 2015, Dr. Fenichel
noted that OWCP proposed rescinding its acceptance of PTSD. She reviewed the SOAF and the
medical evidence of record. Following an evaluation, Dr. Fenichel diagnosed persistent
depressive disorder, a generalized anxiety disorder, and a mixed personality disorder with intense
anger. She opined that appellant did not have PTSD causally related to events from the SOAF,
noting that he did not fulfil the necessary criteria of exposure to “actual threatened death, serious
injury, or sexual violence….” Dr. Fenichel found that he did not have “an emotional/psychiatric
condition that affects his ability to function in everyday activities.” She advised that appellant’s
mood was “consistent with the condition of a personality disorder. He does not have a disabling
condition of depression or anxiety. If he chooses to do so, [he] has the capacity to give or take
supervision, cooperate with others, and work under deadlines…. [Appellant] did not experience
an event in the workplace that would prevent him from returning to work from a psychiatric
perspective.”

5

On April 27, 2015 Dr. Joseph A. Calamia, an osteopath, advised that he had treated appellant for 25 years and
that he had a minimal psychiatric history until his injury. He discussed his difficulties obtaining workers’
compensation.

3

By decision dated July 2, 2015, OWCP rescinded acceptance of appellant’s claim for
PTSD effective that date. It found that Dr. Fenichel’s opinion represented the special weight of
the evidence and established that he did not have a psychiatric condition due to an employment
factor as set forth in the SOAF.
Appellant, through counsel, on July 10, 2015 requested a telephone hearing. At the
telephone hearing, held on February 29, 2016, he described his injury and related that he had not
worked since July 11, 2012.
By decision dated April 4, 2016, an OWCP hearing representative affirmed the July 2,
2015 decision. He found that the weight of the evidence supported OWCP’s rescission of its
acceptance of PTSD as due to the July 11, 2012 employment injury.
On July 27, 2016 appellant, through counsel, requested reconsideration. He submitted
the results of an April 11 and 18, 2016 psychological evaluation by Dr. Erica Avello, a
psychologist. Dr. Avello opined that appellant’s test results showed recurrent, severe major
depressive disorder with moderate-to-severe anxiety distress and other specified personality
disorder. She found that his depressive disorder resulted from “vocational events, physical
injuries and subsequent frustrations in dealing with related details.” Dr. Avello noted that
appellant related that he received disability but not compensation “for the damages he sustained”
after his injury. He asserted that he did “not qualify for a diagnosis of PTSD.”
By decision dated October 13, 2016, OWCP denied modification of its April 4, 2016
decision. It found that Dr. Avello determined that appellant did not have PTSD. Dr. Avello
further did not explain what aspect of the work injury caused emotional distress.
On appeal counsel generally asserts that the evidence is insufficient to support a
rescission.
LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or application.6 The Board has
upheld OWCP’s authority to set aside or modify a prior decision and issue a new decision under
section 8128 of FECA.7 The power to annul an award, however, is not an arbitrary one and an
award for compensation can only be set aside in the manner provided by the compensation
statute.8
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud.9 It is well
6

5 U.S.C. § 8128; see also M.E., 58 ECAB 694 (2007).

7

John W. Graves, 52 ECAB 160 (2000).

8

See 20 C.F.R. § 10.610; Cary S. Brenner, 55 ECAB 739 (2004); Stephen N. Elliott, 53 ECAB 659 (2002).

9

L.C., 58 ECAB 493 (2007).

4

established that, once OWCP accepts the claim, it has the burden of justifying the termination or
modification of compensation benefits.10 Its burden of justifying termination or modification of
compensation holds true where it later decides that it has erroneously accepted a claim of
compensation. In establishing that its prior acceptance was erroneous, OWCP is required to
provide a clear explanation of its rationale for rescission.11
ANALYSIS
OWCP accepted that on July 11, 2012 appellant sustained a partial thickness tear of the
infraspinatus tendon of the right shoulder, moderate tendinosis of the right biceps tendon,
lumbosacral sprain, and a left knee contusion. In a report dated December 14, 2013,
Dr. Morello, an attending physician, diagnosed PTSD due in part to the July 2012 employment
injury. On December 4, 2014 OWCP expanded acceptance of the claim to include PTSD.
On February 9, 2015 Dr. Wiesner, an OWCP referral physician, opined that appellant had
a preexisting personality disorder. He noted that a diagnosis of PTSD required the threat of
death or physical injury to the self or others, which varied from appellant’s history. Dr. Wiesner
opined that appellant did not have PTSD and that his employment did not cause his emotional
condition.
OWCP determined that a conflict arose between Dr. Morello and Dr. Wiesner regarding
whether appellant had PTSD. It referred him to Dr. Fenichel for an impartial medical
examination. Based upon her report, OWCP rescinded its acceptance of employment-related
PTSD.
The Board finds that OWCP provided sufficient rationale to justify the rescission of
acceptance of appellant’s claim for PTSD.12 Where there exists a conflict of medical opinion
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, is entitled to special weight.13
In a June 30, 2015 report, Dr. Fenichel reviewed appellant’s history and the medical
reports of record and the findings upon her evaluation. She diagnosed depressive disorder, a
generalized anxiety disorder, and a mixed personality disorder with significant anger.
Dr. Fenichel determined that appellant did not have PTSD due to events set forth in the SOAF as
he did not meet the exposure criteria of threatened death, serious injury, or sexual violence. She
opined that he did not have employment-related PTSD or any emotional condition causing
disability from employment. The Board finds that Dr. Fenichel accurately summarized the
relevant medical evidence, provided detailed findings on examination, and reached conclusions

10

Andrew Wolfgang-Masters, 56 ECAB 411 (2005).

11

See Amelia S. Jefferson, 57 ECAB 183 (2005); Delphia Y. Jackson, 55 ECAB 373 (2004).

12

See R.H., Docket No. 08-1961 (issued April 17, 2009).

13

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

5

about appellant’s condition which comported with her findings.14 Her opinion, which is wellrationalized and based upon a proper factual and medical background, is entitled to the special
weight of the evidence and establishes that appellant does not have PTSD due to his accepted
work injury.15
In a report dated April 18, 2016, Dr. Avello interpreted psychological testing as showing
recurrent, severe major depressive disorder with moderate to severe anxiety distress and other
specified personality disorder. She attributed appellant’s depressive disorder to physical injuries,
vocational issues, and frustration dealing with the events. Dr. Avello opined that he did not have
PTSD, and thus her opinion supports the rescission of acceptance of this condition.
On appeal counsel maintains that the evidence of record was insufficient to support a
rescission. However, OWCP provided a clear explanation of its rationale for rescission in
determining that Dr. Fenichel’s opinion as impartial medical examiner represented the special
weight of the evidence.16 The Board, consequently, finds that it met its burden of proof in
rescinding acceptance of PTSD.
CONCLUSION
The Board finds that OWCP properly rescinded its acceptance of appellant’s claim for
PTSD as causally related to a July 11, 2012 employment injury.

14

Manuel Gill, 52 ECAB 282 (2001).

15

See supra note 12.

16

See K.H., Docket No. 13-1723 (issued June 17, 2014); Amelia S. Jefferson, supra note 11.

6

ORDER
IT IS HEREBY ORDERED THAT the October 13, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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)

Docket No. 13-204
Issued: April 12, 2013

Case Submitted on the Record

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

On November 2, 2012 appellant, through counsel, filed an application for review of the
Office of Workers’ Compensation Programs’ (OWCP) June 6 and October 3, 2012 merit
decisions denying his traumatic injury claim. The appeal was docketed as No. 13-204. After
considering the evidence of record, the Board finds this case is not in posture for a decision.
Appellant’s August 7, 2008 occupational disease claim was accepted for bilateral medial
meniscal tears in File No. xxxxxx570. His July 27, 2009 claim was accepted under File No.
xxxxxx577 for traumatic arthropathy of both legs, bilateral medial and lateral meniscal tears.
Appellant’s October 5, 2010 claim for an occupational disease was accepted under File No.
xxxxxx710 for bilateral lower leg localized primary osteoarthritis and bilateral osteochondritis
dissecans. He returned to work in a limited-duty capacity on July 20, 2011 and worked on that
date and July 21, 2011.
This appeal involves appellant’s July 26, 2011 traumatic injury claim (File No.
xxxxxx849), in which he alleged an exacerbation of his bilateral knee injuries when he returned
to work on July 21 and 22, 2011. His claim was originally denied by decision dated
September 9, 2011 finding that he had failed to establish that his medical condition was causally
related to the accepted events. Appellant requested reconsideration.

In a decision dated June 6, 2012, OWCP denied modification of its September 9, 2011
decision. The claims examiner reviewed the medical evidence of record and referenced certain
medical evidence contained in File No. xxxxxx710, which included a functional capacity
examination and second opinion examination pertaining to appellant’s work capacity on the day
he returned to work. In an October 3, 2012 decision, OWCP, in denying modification of its
June 6, 2012 decision, discussed the history of appellant’s previously accepted injuries, as well
as the medical evidence of record in the instant case as it related to appellant’s knee condition
prior and subsequent to his return to work on July 21, 2011.
The Board finds that it is essential to review the medical evidence contained in File Nos.
xxxxxx570, xxxxxx577 and xxxxxx710 in order to render a full and fair adjudication of the
present appeal. Due to the overlapping nature of the claims, the evidence contained in those case
records will necessarily bear directly on appellant’s claim for compensation in File No.
xxxxxx849. Without reviewing the case records in File Nos. xxxxxx570, xxxxxx577 and
xxxxxx710, the Board is unable to determine whether OWCP properly considered all relevant
evidence in rendering its final decision. Accordingly, this case will be remanded for OWCP to
consolidate case File Nos. xxxxxx849, xxxxxx570, xxxxxx577 and xxxxxx710. Reconstruction
of the record will be followed by a de novo decision on the merits of the claim, in order to
protect appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 3 and June 6, 2012 decisions be set aside and the case remanded for further development
consistent with this order of the Board.
Issued: April 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________

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

Docket No. 14-561
Issued: June 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 14, 2014 appellant filed a timely appeal from a November 4, 2013 Office of
Workers’ Compensation Programs’ (OWCP) overpayment decision. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received a $1,112.74 overpayment of compensation
for the period September 11 to 21, 2013; and (2) whether OWCP abused its discretion in denying
waiver of the overpayment.
FACTUAL HISTORY
On October 19, 2011 appellant, then a 54-year-old mail processor, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome as a
1

5 U.S.C. § 8101 et seq.

result of her federal employment duties. OWCP accepted the claim for bilateral carpal tunnel
syndrome. On July 11, 2012 appellant stopped work and received wage-loss compensation for
total disability. She was placed on the periodic rolls.2
On September 11, 2013 appellant returned to light-duty full-time work as a modified mail
processor.
By letter dated September 25, 2013, OWCP informed appellant that her periodic
compensation payments were terminated effective September 11, 2013. It noted that a final 28day compensation payment that partially covered a period following her return to work had been
issued, resulting in an excess payment of compensation. Appellant would be advised of any
determination related to this payment by separate correspondence.
By letter dated October 4, 2013, OWCP made a preliminary determination that appellant
received an overpayment of compensation in the amount of $1,112.74 from September 11
through 21, 2013 because she received disability compensation after her return to full-time work
at her regular salary. It found that she was without fault in the creation of the overpayment.
OWCP noted that appellant was on periodic rolls and received net compensation every 28
calendar days in the amount of $2,832.42, which she received for the period August 25 to
September 21, 2013.
Appellant improperly received wage-loss compensation through
September 21, 2013 after she returned to full-duty work on September 11, 2013, a period of 11
calendar days. OWCP noted that appellant should have received $1,719.68 in wage-loss
compensation for the period August 25 to September 10, 2013. Appellant’s $2,832.42 net
compensation was divided by the 28-calendar day payment period totaling $101.15 a day. The
daily rate was multiplied by the 11 calendar days for which she was overpaid resulting in an
overpayment of $1,112.74. OWCP found that appellant received an overpayment of $1,112.74
from wage-loss compensation for total disability while working with no loss of wages.
As OWCP determined that appellant was without fault in the creation of the
overpayment, it requested she submit financial information pursuant to the enclosed
overpayment recovery questionnaire (OWCP-20) within 30 days if she sought waiver of the
overpayment. It noted that waiver would be denied if she failed to furnish the information
requested on the enclosed OWCP-20 form with supporting documentation within 30 days.
OWCP further informed appellant that she could submit additional evidence in writing or at a
prerecoupment hearing, but that a prerecoupment hearing must be requested within 30 days of
the date of the written notice of overpayment. Appellant did not contest the preliminary

2

The Board notes that on April 2, 2013 OWCP made a separate preliminary determination that appellant received
an overpayment of compensation in the amount of $1,291.64 for the period July 11, 2012 through March 9, 2013
because basic life insurance and optional life insurance was not deducted from her compensation benefits. OWCP
found that appellant was without fault in the creation of the overpayment. On April 30, 2012 appellant requested a
prerecoupment hearing, disagreed with the overpayment finding and requested a waiver of repayment due to
financial hardship. She submitted an OWCP recovery questionnaire (OWCP-20) in support of her appeal. A
hearing was held on September 23, 2013. By decision dated November 27, 2013, the Branch of Hearings and
Review finalized the overpayment in the amount of $1,291.64 for the period July 11, 2012 through March 9, 2013.
The hearing representative found that appellant was without fault in the creation of the overpayment and waived
recovery of the overpayment, finding that she substantially needed all of her income for expenses.

2

overpayment determination. She did not submit any financial information in response to the
preliminary overpayment notice.
By decision dated November 4, 2013, OWCP finalized the preliminary determination
finding that appellant was overpaid in the amount of $1,112.74 for the period September 11
through 21, 2013 because she received wage-loss compensation after her return to full-time work
at her regular salary. It found that she was without fault in the creation of the overpayment
because she was not aware that she was not entitled to the payment received. OWCP determined
that the overpayment was not subject to waiver because appellant did not contest the
overpayment finding or provided evidence in response to the preliminary determination. It found
that the entire amount was due as recovery of the overpayment would not defeat the purpose of
FECA or be against equity and good conscience.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3
Section 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.4 OWCP’s regulations state in pertinent part: Compensation for wage loss
due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.5 A claimant is not entitled to receive temporary total disability and actual earnings for the
same period. OWCP’s procedures provide that an overpayment in compensation is created when
a claimant returns to work but continues to receive wage-loss compensation.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $1,112.74 from September 11 through 21, 2013. On July 11, 2012 appellant was placed on
periodic rolls and received wage-loss compensation for total disability. The record establishes
that she returned to work full time, eight hours a day on September 11, 2013 at her regular
salary. Appellant continued to receive wage-loss compensation for total disability through
September 21, 2013. As noted above, she is not entitled to receive compensation for total

3

5 U.S.C. § 8102.

4

Id. at § 8116(a).

5

20 C.F.R. § 10.500.

6

B.H., Docket No. 09-292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).

3

disability after she has returned to work at her usual wages.7 Accordingly, the Board finds that
appellant received an overpayment of compensation.8
The record shows that appellant received net compensation every 28 calendar days in the
amount of $2,643.58, which she received for the period August 25 to September 21, 2013. From
September 11 to 21, 2013, appellant received $1,112.74 in total net disability compensation but
was not entitled to any compensation during this period. OWCP properly determined that
appellant’s 28-day net disability compensation amounted to $2,832.42, the equivalent of
receiving $101.15 daily. As appellant improperly received wage-loss compensation from
September 11 to 21, 2013, a period of 11 days, OWCP multiplied the daily compensation rate of
$101.15 by 11 calendar days to establish an overpayment of compensation in the amount of
$1,112.74.
OWCP properly determined how the overpayment occurred and provided this to
appellant with the preliminary notice of overpayment. There is no evidence that the
overpayment did not occur as found by OWCP. Appellant did not respond to the notice to
contest the fact or amount of the overpayment. The Board finds that OWCP properly determined
that she received an overpayment of compensation in the amount of $1,112.74 from
September 11 through 21, 2013 for working with no loss of wages.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA9 provides that, where an overpayment of compensation has
been made because of an error of fact or law, adjustments shall be made by decreasing later
payments to which an individual is entitled.10 The only exception to this requirement is found in
section 8129(b) of FECA, which provides that adjustments or recovery may not be made when
incorrect payments have been made to an individual who is without fault and when such
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.11
A finding that appellant was without fault is not sufficient, in and of itself, for OWCP to
waive the overpayment.12 OWCP must exercise its discretion to determine whether recovery of
the overpayment would defeat the purpose of FECA or would be against equity and good
conscience, pursuant to the guidelines provided in sections 10.434 to 10.437 of the implementing
federal regulations.13
7

Supra note 4 and 5. See also M.A., Docket No. 13-2137 (issued March 11, 2014).

8

R.W., Docket No. 13-1108 (issued September 10, 2013).

9

5 U.S.C. § 8129(a).

10

Id.

11

5 U.S.C. § 8129(b).

12

James Lloyd Otte, 48 ECAB 334, 338 (1997); see William J. Murphy, 40 ECAB 569, 571 (1989).

13

20 C.F.R. §§ 10.434-10.437.

4

Section 10.438 of FECA’s implementing 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.
Failure to submit the requested information within 30 days of the request shall result in the denial
of waiver and no further request for waiver shall be considered until the requested information is
furnished.14
As the only limitation on OWCP’s authority is reasonableness, abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment or
actions taken which are contrary to both logic and probable deductions from known facts.15
ANALYSIS -- ISSUE 2
In this case, appellant was found to be without fault in creation of the overpayment.
Accompanying the October 4, 2013 preliminary notice of overpayment, OWCP provided her an
overpayment recovery questionnaire to obtain information about her monthly income, assets and
expenses. Appellant did not respond to the notice or return the questionnaire or otherwise
provide any financial information. Under the implementing regulations, OWCP could not
determine whether recovery of the overpayment would defeat the purpose of FECA or be against
equity and good conscience.16 As appellant failed to submit the requested information, as
required by section 10.438 of its regulations, she is not entitled to waiver.17 The Board finds that
OWCP properly denied waiver of recovery of the $1,112.74 overpayment of compensation.18
On appeal, appellant argues that she did not submit the required financial documentation
because at the time of OWCP’s preliminary determination, she was employed full time and
intended on repaying the debt. She argued that her financial situation had since changed as she
was no longer employed full time because of a life-altering motor vehicle accident on
November 17, 2013. Appellant argued that she did not have the financial capability to repay the
debt and recovery would be against equity and good conscience because it would cause her
severe financial hardship.
While appellant has alleged that her financial circumstances have changed for the worse,
OWCP’s overpayment determination with respect to waiver was based on information and
documentation it received regarding her financial circumstances at the time of its November 4,
2013 decision. The Board’s consideration of this matter is limited to the sufficiency of OWCP’s
actions at the time it issued its November 4, 2013 decision. As appellant did not provide any
14

Id. at § 10.438; Linda Hilton, 52 ECAB 476 (2001).

15

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

16

C.B., Docket No. 12-1849 (issued January 13, 2014).

17

20 C.F.R. § 10.438(a) (in requesting waiver, the overpaid individual has the responsibility for providing
financial information). See also Linda Hilton, supra note 14.
18

M.S., Docket No. 11-96 (issued August 17, 2011).

5

financial information as requested, OWCP properly denied waiver of recovery of the
overpayment.19 The waiver issue is determined in accord with FECA, Board precedent and
regulatory authority and the Board finds the evidence submitted prior to OWCP’s decision
supported the denial of waiver.20
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $1,112.74 for the period September 11 through 21, 2013 because she received disability
compensation after she returned to full-time work at regular salary. The Board further finds that
she was without fault for the creation of the overpayment and that OWCP properly denied
waiver of recovery of the overpayment based on the evidence of record.
ORDER
IT IS HEREBY ORDERED THAT the November 4, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

19

With respect to the recovery of the overpayment, the Board’s jurisdiction is limited to those cases where
OWCP seeks recovery from continuing compensation benefits. D.R., 59 ECAB 148 (2007); Miguel A. Muniz, 54
ECAB 217 (2002). Therefore, the Board does not have jurisdiction over the method of recovery issue in this case.
Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.
20

M.O., Docket No. 12-1486 (issued January 2, 2013).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Richmond, CA, Employer
__________________________________________

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

Docket No. 19-1115
Issued: November 12, 2019

Case Submitted on the Record

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

JURISDICTION
On April 22, 2019 appellant, through counsel, filed a timely appeal from a February 21,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most
recent merit decision was a Board decision dated January 3, 2019, which became final after 30
days of issuance and is not subject to further review.2 As there was no merit decision issued by
OWCP within 180 days of the filing of this appeal, pursuant to the Federal Employees’

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

20 C.F.R. § 501.6(d); see P.S., Docket No. 18-0718 (issued October 26, 2018).

Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction
over the merits of this case.4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.5 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 14, 2010 appellant, then a 48-year-old claims authorizer, filed an occupational
disease claim (Form CA-2) alleging that she sustained right shoulder and arm strain causally
related to factors of her federal employment. OWCP accepted the claim for rotator cuff syndrome
and impingement syndrome of the right shoulder and dysthymic disorder. It assigned OWCP File
No. xxxxxx521.
OWCP had previously accepted that appellant sustained right shoulder strain on May 4,
2009 under OWCP File No. xxxxxx115 and left shoulder sprain, a partial infraspinatus tear,
tendinitis, and cervicalgia under OWCP File No. xxxxxx606. It combined the claims into OWCP
File No. xxxxxx521.
On April 30, 2012 appellant underwent a right shoulder acromioplasty with a distal clavicle
excision and labral repair. On February 24, 2014 she underwent a synovectomy, bursectomy,
ligament release, biceps tendon release, acromioplasty, debridement of the rotator cuff, and
removal of the anchor from the labrum. OWCP paid appellant wage-loss compensation for
intermittent periods of temporary total disability.
In an impairment evaluation dated February 18, 2015, Dr. Michael E. Hebrard, a Boardcertified physiatrist, found 26 percent permanent impairment of the right upper extremity and 14
percent permanent impairment of the left upper extremity due to a loss of shoulder motion pursuant
to Table 15-34 on page 477 of the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment, (A.M.A., Guides).6

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the February 21, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
5

Docket No. 18-1297 (issued January 3, 2019).

6

A.M.A., Guides (6th ed. 2009).

2

On April 28, 2017 appellant filed a schedule award claim (Form CA-7).
On June 7, 2017 OWCP referred appellant to Dr. Mohinder S. Nijjar, a Board-certified
orthopedic surgeon, for a second opinion examination regarding the extent of any permanent
impairment of the bilateral upper extremities. The accompanying statement of accepted facts
described only appellant’s right upper extremity condition and requested that Dr. Nijjar calculate
the extent of her permanent impairment of the right upper extremity.
In a July 26, 2017 impairment evaluation, Dr. Nijjar measured normal range of motion
(ROM) of the shoulder with some tenderness over the acromioclavicular (AC) joint, anterior
acromion process, and biceps tendon. He diagnosed right shoulder impingement syndrome and a
partial rotator cuff tear, degenerative arthritis of the AC joint after surgery, and a SLAP (superior
labral lesion from anterior to posterior) lesion status postsurgical debridement and subacromial
decompression of the right shoulder. Dr. Nijjar identified the diagnosis as AC joint disease after
a distal clavicle resection or AC separation using Table 15-5 on page 403 of the A.M.A, Guides,
which yielded a default impairment of 10 percent. He further found a default impairment rating
of three percent due to appellant’s SLAP lesion using Table 15-5 on page 404, which yielded four
percent permanent impairment after application of grade modifiers, for a total right upper
extremity permanent impairment of 14 percent.
On October 12, 2017 Dr. David H. Garelick, a Board-certified orthopedic surgeon and
OWCP district medical adviser (DMA), applied the A.M.A., Guides and FECA Bulletin No. 17067 to Dr. Nijjar’s findings. He noted that Dr. Nijjar had identified the ROM as normal.
Dr. Garelick concurred with Dr. Nijjar’s finding of 10 percent right upper extremity impairment
due to the distal clavicle resection using Table 15-5 on page 403. He found that appellant could
not receive an impairment rating for both the labral lesion and the distal clavicle resection as the
A.M.A., Guides indicated that shoulder impairments often occurred together and instructed the
evaluator to select the most significant diagnosis. Dr. Garelick used the impairment rating for the
distal clavicle resection and determined that appellant had 10 percent permanent impairment of the
right upper extremity. He opined that appellant had reached maximum medical improvement on
July 26, 2017.
By decision dated November 7, 2017, OWCP granted appellant a schedule award for 10
percent permanent impairment of the right arm. The period of the award ran for 31.2 weeks from
October 15, 2017 to a fraction of a day on May 21, 2018.8
On November 14, 2017 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative.
A telephonic hearing was held on April 2, 2018. Counsel questioned why OWCP had not
provided a left upper extremity rating. He further asserted that OWCP should consider the
impairment determination based on ROM from Dr. Hebrard.

7

FECA Bulletin No. 17-06 (issued May 8, 2017).

8
OWCP adjusted the beginning date of the schedule award to October 15, 2017 as appellant had received wageloss compensation for total disability through October 14, 2017.

3

By decision dated May 3, 2018, OWCP’s hearing representative affirmed the November 7,
2017 decision. He noted that OWCP should consider expanding the acceptance of appellant’s
claim to include a right shoulder labral tear based on Dr. Nijjar’s opinion. The hearing
representative also “recommend[ed]” that OWCP develop the issue of whether she had a
permanent impairment of the left upper extremity.
Appellant appealed to the Board. By decision dated January 3, 2019, the Board affirmed
the May 3, 2018 decision.9 The Board found that the opinion of the DMA constituted the weight
of the evidence and established that appellant had no more than 10 percent permanent impairment
of the right upper extremity. The Board found that Dr. Hebrard’s ROM findings were stale as
performed more than two years prior to Dr. Nijjar’s second opinion evaluation.
On February 12, 2019 appellant, through counsel, requested reconsideration. He
resubmitted the February 18, 2015 impairment evaluation from Dr. Hebrard. Counsel asserted that
OWCP had failed to adjudicate the extent of appellant’s left upper extremity impairment.
By decision dated February 21, 2019, OWCP denied appellant’s request for
reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.10
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.11
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.12 If it chooses to grant reconsideration, it reopens

9

Supra note 5.

10

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
11
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
12

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.

4

and reviews the case on its merits.13 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
By decision dated May 3, 2018, OWCP granted appellant a schedule award for 10 percent
permanent impairment of the right upper extremity. By decision dated January 3, 2019, the Board
affirmed the May 3, 2018 decision. On February 12, 2019 appellant filed a timely request for
reconsideration of the May 3, 2018 decision. Initially, the Board finds that OWCP properly
considered her correspondence as a request for reconsideration and not as claim for an increased
schedule award as she did not submit any evidence showing increased permanent impairment or
additional exposure.15 The underlying issue on reconsideration is whether the medical evidence
demonstrates a greater permanent impairment. Thus, the Board must determine whether appellant
has presented sufficient evidence or argument regarding the extent of permanent impairment to
warrant a merit review pursuant to 5 U.S.C. § 8128(a).16
The Board finds that appellant has not alleged or demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Moreover, appellant has not advanced a relevant
legal argument not previously considered. On reconsideration counsel contended that OWCP
erred in failing to determine whether appellant had a permanent impairment of the left upper
extremity.17 The sole and relevant issue before the Board, however, is the extent of her permanent
impairment of the right upper extremity. The Board has held that the submission of evidence that
does not address the particular issue involved does not constitute a basis for reopening a case.18
Thus, the Board finds that appellant has not advanced a relevant legal argument not previously
considered by OWCP.19 Consequently, appellant is not entitled to a review of the merits of her
claim based on the first and second above-noted requirements under section 10.606(b)(3).20
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered relevant to the issue of whether she is entitled to a greater
13

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

14

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

15

See A.A., Docket No. 19-0939 (issued August 8, 2019); B.W., Docket No. 18-1415 (issued March 8, 2019).

16

S.W., Docket No. 18-1261 (issued February 22, 2019).

17

The Board notes that OWCP’s hearing representative, in the May 3, 2018 decision, recommended that OWCP
further develop the issue of whether appellant has a permanent impairment of the left upper extremity.
18

L.C., Docket No. 18-0787 (issued September 26, 2019).

19

P.W., Docket No. 17-1911 (issued June 6, 2018).

20

C.B., Docket No. 18-1108 (issued January 22, 2019).

5

schedule award of the right upper extremity. Appellant resubmitted Dr. Hebrard’s February 18,
2015 impairment evaluation. However, the submission of evidence, which duplicates evidence
already in the case record, does not constitute a basis for reopening a case for further merit
review.21 As appellant did not provide relevant and pertinent new evidence, she is not entitled to
a merit review based on the third requirement under section 10.606(b)(3).22
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.23
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 12, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
21

T.W., Docket No. 19-0786 (issued September 18, 2019); M.C., Docket No. 18-0841 (issued September 13, 2019).

22

R.L., Docket No. 18-0175 (issued September 5, 2018).

23
See L.A., Docket No. 18-1226 (issue December 28, 2018) (when an application for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Washington, DC, Employer
__________________________________________

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Docket No. 13-1424
Issued: December 9, 2013

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

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 29, 2013 appellant timely appealed the February 5, 2013 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). The latest merit decision is dated
June 29, 2012, which is more than 180 days prior to the filing of the instant appeal. Pursuant to
the Federal Employees’ Compensation1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s December 20, 2012 request for
reconsideration under section 8128(a) of FECA.

1
2

5 U.S.C. §§ 8101-8193 (2006).

Appellant submitted additional medical evidence with her appeal. As this evidence was not part of the record at
the time OWCP issued its February 5, 2013 decision, the Board is precluded from considering it on appeal.
20 C.F.R. § 501.2(c)(1) (2012).

FACTUAL HISTORY
Appellant, a 62-year-old mail processor, has an accepted claim for bilateral carpal tunnel
syndrome and ganglion cysts, which arose on March 23, 1998. Since June 2002, OWCP paid her
wage-loss compensation for temporary total disability (TTD) on the periodic rolls. By decision
dated June 29, 2012, it terminated appellant’s TTD compensation effective July 1, 2012.3
OWCP based its decision on the April 27 and May 18, 2012 reports of Dr. James A. Maultsby, a
Board-certified orthopedic surgeon and OWCP-referral physician.4 Appellant subsequently
requested a review of the written record which the Branch of Hearings and Review denied on
August 27, 2012 as untimely.
Utilizing the appeal rights form accompanying the June 29, 2012 decision, on
December 20, 2012 appellant requested reconsideration. Since issuing its June 2012 decision,
OWCP had received several copies of an undated letter from appellant wherein she accused
Dr. Maultsby of being a liar and a racist.
In a February 5, 2013 decision, OWCP denied appellant’s December 20, 2012 request for
reconsideration and did not revisit the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.6 One such limitation is that the application for
reconsideration must be sent within one year of the date of the merit decision for which review is
sought.7
A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.8 When a timely application for reconsideration does not meet at least one

3

Appellant remained entitled to medical benefits for her accepted bilateral upper extremity conditions.

4

Dr. Maultsby believed that appellant was malingering and it was his impression that she was capable of
performing the duties of a mail processor without restriction. OWCP provided her a copy of his opinion along with
its May 24, 2012 notice of proposed termination.
5

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.607.

7

Id. at § 10.607(a).

8

Id. at § 10.606(b)(2).

2

of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.9
ANALYSIS
Appellant’s December 20, 2012 request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Moreover,
she did not advance a relevant legal argument not previously considered by OWCP. Appellant
submitted the appeal request form that accompanied OWCP’s June 29, 2012 merit decision. She
placed a checkmark on the appropriate line indicating reconsideration, but did not otherwise
elaborate. Consequently, appellant is not entitled to a review of the merits based on the first and
second requirements under section 10.606(b)(2).10
Appellant also failed to submit “relevant and pertinent new evidence” with her
December 20, 2012 request for reconsideration. OWCP previously received correspondence
from her criticizing Dr. Maultsby. However, appellant did not submit any medical evidence
contradicting his findings with respect to her ability to resume work as a mail processor.
Because she did not provide any new medical evidence that might arguably impact the prior
decision, she is not entitled to a review of the merits based on the third requirement under section
10.606(b)(2).11
CONCLUSION
The Board finds that OWCP properly denied merit review with respect to appellant’s
December 20, 2012 request for reconsideration.

9

Id. at § 10.608(b).

10

Id. at § 10.606(b)(2)(i) and (ii).

11

Id. at § 10.606(b)(2)(iii).

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ORDER
IT IS HEREBY ORDERED THAT the February 5, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4