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

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

Docket No. 17-1088
Issued: December 4, 2017

Case Submitted on the Record

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

JURISDICTION
On April 24, 2017 appellant filed a timely appeal from an April 10, 2017 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 the claim.
ISSUE
The issue is whether OWCP abused its discretion by denying appellant authorization for
cervical spine surgery.
FACTUAL HISTORY
On February 11, 2014 appellant, then a 54-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on that same date, he injured his neck and back when he
slipped on snow and ice while delivering mail. He indicated that he did not hit the ground, but
1

5 U.S.C. § 8101 et seq.

felt a pop. Appellant stopped work on the date of injury, but returned to regular duty on
February 14, 2014 and began treatment with Dr. Janmeet Sahota, a Board-certified osteopath
specializing in orthopedic surgery.
Following OWCP’s initial denial of the claim on November 26, 2014, appellant requested
reconsideration and submitted additional evidence. In a December 4, 2014 statement, he
described the claimed injury, stating that he was walking through a car sales lot when he slipped
on snow and ice, and jerked his body about while trying to keep from hitting the ground.
Appellant indicated that he felt a snap in his neck and back. He returned to the employing
establishment and reported the incident to his supervisor, and then visited a medical center for
treatment.
Appellant stopped work on January 15, 2015 and returned on January 20, 2015. On
February 4, 2015 he filed a notice of recurrence (Form CA-2a) indicating that on January 15,
2015, while lifting a large parcel, he had severe neck pain which continued.
By decision dated February 6, 2015, OWCP vacated the November 26, 2014 decision and
accepted appellant’s claim for sprain of neck and back, lumbar region.
Dr. Kenneth Breeden, an osteopath and associate of Dr. Sahota, followed appellant for
pain and medication management. On February 23, 2015 he noted a history that appellant first
injured his cervical region at home in October 2013 when two dogs jumped into his recliner and
threw it back, and that he reinjured his neck at work approximately one year prior when he
slipped on ice, but did not fall and jerked his head back. Dr. Breeden diagnosed chronic pain
syndrome, cervical disc disease with myelopathy, cervical spondylosis, cervical disc
displacement, and cervical sprain and strain. He saw appellant on an approximately monthly
basis. Cameron Ritchie, a physician assistant working with Dr. Sahota, also provided monthly
treatment notes.
Beginning in June 2015 Dr. Sahota requested authorization for cervical spine surgery. In
November 3, 2015 correspondence, OWCP notified appellant that the evidence of record was
insufficient to authorize the proposed surgery because it did not appear to be medically necessary
for the accepted sprain of neck and sprain of back, lumbar region. It informed him of the
medical evidence needed to support the authorization.
In an August 11, 2015 treatment note, Dr. Sahota noted appellant’s complaint of cervical
paraspinal muscle tenderness. He diagnosed cervical stenosis, cervical spondylosis, cervical disc
displacement, cervical disc disease with myelopathy, and degenerative disc disease of the
cervical spine. On November 2, 2015 Dr. Sahota advised that appellant was last seen by
Mr. Ritchie on October 6, 2015 regarding the February 11, 2014 work injury. He noted
appellant’s continued complaint of cervical pain, numbness, and tingling in his arms despite
conservative care, and advised that appellant wished to proceed with surgery. Dr. Sahota
recommended anterior cervical discectomy with fusion from C5 to C7. He maintained that
appellant’s daily symptoms were the result of a job injury and were consistent with the fall he
endured while delivering mail. On December 9, 2015 Dr. Sahota noted seeing appellant for over
a year. Examination confirmed left hand numbness, weakness, radiculopathy, and radiating pain.
Dr. Sahota opined that all of appellant’s symptoms were a result of cervical disc herniation with

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cervical stenosis, maintaining that appellant did not have any previous injury, and that the workrelated slip and fall onto ice caused the cervical disc herniation with cervical stenosis. He again
requested authorization for cervical spine surgery. In a December 10, 2015 treatment note,
Dr. Sahota reiterated his findings and conclusions.
In February 2016 OWCP referred appellant to Dr. S. Daniel Seltzer, a Board-certified
orthopedic surgeon, for a second opinion evaluation.
On a March 1, 2016 duty status report (Form CA-17), Dr. Sahota advised that appellant
could work full-time restricted duty. Appellant continued monthly treatment with Dr. Breeden
and Mr. Ritchie.
In a March 26, 2016 report, Dr. Seltzer noted his review of the statement of accepted
facts (SOAF), the medical evidence of record including imaging studies, and OWCP questions
for resolution. He noted that appellant continued to work full duty, but did not carry a mail
satchel. Dr. Seltzer indicated that appellant wanted to go forward with surgery due to his pain.
He reported that appellant’s injury at home in 2013 caused him to hit his head. Regarding the
February 11, 2014 work injury, Dr. Seltzer noted that appellant indicated that when he slipped on
ice, he jerked or stretched backwards and felt a pop in his neck. He advised that cervical spine
examination was limited by guarding and complaints of pain, but noted that appellant turned his
neck and head from side-to-side without difficulty when observed during history taking. Left
arm examination revealed subjective weakness with give way throughout the entire extremity
that did not conform to any specific dermatomal area. On sensory examination there was entire
loss of sensitivity to light touch and pinprick, again not conforming to any specific dermatomal
area. Hoffman’s test was completely negative with no sign of cervical radiculopathy. Cervical
spine range of motion was painful and diminished, and left arm range of motion was diminished.
Dr. Seltzer diagnosed cervical degenerative disc disease with left-sided cervical disc
protrusion, as shown on magnetic resonance imaging (MRI) scans. He advised that this was
preexisting and likely related to both the natural degenerative process and to appellant’s reported
injury at home in 2013. Dr. Seltzer further indicated that his examination confirmed evidence of
a probable left arm radiculopathy, but opined that this too represented the natural progression of
appellant’s cervical discogenic disease. He indicated that the mechanism of injury provided by
appellant made no sense from a biomechanical standpoint, and that his subjective complaints as
demonstrated in the history did not support worsening, other than his increase in symptoms.
Dr. Seltzer further advised that the February 11, 2014 employment injury caused sprains of the
neck and lumbar region, which had resolved. As to the requested surgery, he indicated that,
although appellant was a candidate for surgery, this was due to his underlying preexisting
condition and not to the employment injury.
By decision dated April 7, 2016, OWCP denied appellant’s request for authorization of
cervical spine surgery, finding that the weight of the medical evidence rested with the opinion of
Dr. Seltzer.
On May 26, 2016 appellant requested reconsideration, accompanied by additional
medical evidence. On March 1, 2016 Dr. Sahota advised that appellant’s cervical disc stenosis at
C4 to C7 with left upper extremity radiculopathy was a result of a work injury. He repeated this

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opinion on April 26, 2016. Dr. Sahota noted that he had reviewed Dr. Seltzer’s report and
disagreed with his findings, opining that the disc protrusion at C6-7 was an acute change related
to the employment and that this injury resulted in exacerbation of appellant’s baseline
degenerative disc disease. Mr. Ritchie reiterated this opinion on May 26, 2016 and ordered an
additional MRI scan and upper extremity electrodiagnostic testing. Dr. Breeden submitted
additional treatment notes describing pain management.
By merit decision dated June 13, 2016, OWCP denied modification of the April 7, 2016
decision. It noted that Dr. Breeden provided no opinion regarding the cause of any diagnosed
condition, and that Mr. Ritchie’s reports were of diminished probative value as a physician
assistant was not considered a physician under FECA. OWCP further found Dr. Sahota’s
opinion insufficient because he did not explain how the requested surgery was necessary to
address the effects of the February 11, 2014 employment injury.
Appellant again requested reconsideration on January 10, 2017.
Medical evidence received on reconsideration included monthly treatment notes from
Dr. Breeden who reiterated his diagnoses and continued to provide pain and medication
management. Dr. Breeden did not provide an opinion on the cause of his diagnoses. Mr. Ritchie
also furnished monthly treatment notes reiterating his findings and conclusions.2
On October 14, 2016 Dr. Donald Dicken, a Board-certified physiatrist, examined
appellant.
He noted previously performing a December 6, 2013 upper extremity
electromyogram/nerve conduction velocity (EMG/NCV) study that showed mild left carpal
tunnel syndrome. The study was normal on the right. Dr. Dicken advised that an October 14,
2016 EMG/NCV study showed possible mild left cervical radiculopathy, mild left carpal tunnel
syndrome with no significant changes from the prior study, and a normal study on the right.
On December 13, 2016 Dr. Sahota noted his review of the October 14, 2016 EMG/NCV
study. He advised that given the study’s findings, appellant had objective signs of cervical
radiculopathy, and opined that he would like to proceed with surgery. Dr. Sahota reiterated his
opinion that appellant’s cervical condition was employment related.
In February 2017 OWCP determined that a conflict in medical evidence had been created
between the opinions of Dr. Seltzer and Dr. Sahota regarding whether the accepted February 11,
2014 employment injury caused a new injury and/or exacerbation of appellant’s underlying
degenerative disc disease of the cervical spine. It referred appellant to Dr. Lowell Anderson, a
Board-certified orthopedic surgeon, for an impartial medical evaluation.
Dr. Breeden and Mr. Ritchie continued to treat appellant.
In a March 30, 2017 report, Dr. Anderson noted his review of the SOAF and the medical
evidence of record and noted appellant’s complaints of left hand numbness and aching pain
2

Appellant also submitted a February 14, 2017 treatment note and duty status report in which Michael Corey
Woolf, a second physician assistant with Dr. Sahota, noted findings and diagnoses as a result of a work injury, and
occipital neuralgia. Mr. Woolf advised that appellant could work eight hours a day with no satchel.

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down the left arm. He reported that on February 11, 2014 appellant slipped, but did not fall and
thereafter continued to work as a letter carrier, but no longer carried a satchel. Dr. Anderson
described a past medical history of cervical injuries in 2013 and 2014, and that appellant related
that in August 2017 he bumped his head and had a concussion, noting there was no medical
evidence regarding this injury. Physical examination demonstrated that during the history
portion, appellant appeared to move his neck and upper extremities comfortably without
symptoms. Active cervical motion was minimal, and gentle passive cervical motion was
resisted. Nonspecific pericervical soft tissue tenderness and mild left trapezius tenderness were
present. Gross sensory examination of the left upper extremity was considered nondiagnostic.
Dr. Anderson advised that appellant had no present lumbar condition. He diagnosed preexisting
cervical spondylosis, opining that appellant’s present condition was a natural progression of this
condition, noting that after full record review he was unable to document any evidence that
appellant’s left upper extremity complaints were due to the February 11, 2014 work injury which
did not cause a disc protrusion at C6-7 or accelerate the natural progression of appellant’s
preexisting degenerative condition. Dr. Anderson concluded that no employment-related
condition remained, and any surgical procedure was not indicated due to the accepted conditions.
In a merit decision dated April 10, 2017, OWCP denied modification of the prior
decisions, finding that the special weight of the medical evidence rested with the impartial
medical opinion of Dr. Anderson.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of monthly compensation.3
While OWCP is obligated to pay for treatment of employment-related conditions, the employee
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.4
In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness.5 Abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts. It is not enough to merely show that the evidence
could be construed so as to produce a contrary factual conclusion.6 To be entitled to
reimbursement of medical expenses, a claimant has the burden of proof to establish that the
expenditures were incurred for treatment of the effects of an employment-related injury or
condition. Proof of causal relationship in a case such as this must include supporting rationalized
3

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

4

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

5

See D.K., 59 ECAB 141 (2007).

6

Minnie B. Lewis, 53 ECAB 606 (2002).

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medical evidence.7 In order for a surgical procedure to be authorized, a claimant must submit
evidence to show that the surgery is for a condition causally related to an employment injury and
that it is medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.8
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.9 The implementing regulation
states 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.10 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.11
ANALYSIS
The Board finds that OWCP did not abuse its discretion by denying authorization for
cervical spine surgery. OWCP accepted neck and lumbar sprains caused by a February 11, 2014
employment injury in which appellant slipped on ice, but did not fall. Beginning in June 2015
Dr. Sahota, an attending orthopedic surgeon, requested authorization for cervical spine surgery.
OWCP determined that a conflict in medical opinion existed between Dr. Sahota and Dr. Seltzer,
OWCP’s referral physician, with regard to whether the accepted February 11, 2014 work injury
caused a new injury and/or exacerbation of appellant’s underlying degenerative disc disease of
the cervical spine. Consequently, it referred appellant to Dr. Anderson, a Board-certified
orthopedic surgeon, to resolve the conflict.
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. Anderson, the impartial medical specialist, who examined appellant, reviewed the medical
evidence, and found that no surgical procedure was recommended for the accepted conditions,
which had resolved. In his comprehensive March 30, 2017 report, Dr. Anderson noted his
review of the SOAF and medical record and discussed appellant’s complaints of left hand
numbness with aching pain down the left arm. After a thorough examination, he advised that
appellant had no present lumbar condition. Dr. Anderson diagnosed preexisting cervical
spondylosis, opining that appellant’s present condition was a natural progression of this
condition, noting that after full record review he was unable to document any evidence that
7

M.B., 58 ECAB 588 (2007).

8

R.C., 58 ECAB 238 (2006).

9

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

10

20 C.F.R. § 10.321.

11

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

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appellant’s left upper extremity complaints were due to the February 11, 2014 work injury which
did not cause a disc protrusion at C6-7 or accelerate the natural progression of appellant’s
preexisting degenerative condition. He concluded that no employment-related condition
remained, and a surgical procedure was not indicated for the accepted conditions.
In situations where the case is referred to an impartial medical specialist for the purpose
of resolving a medical conflict, the opinion of such specialist, if sufficiently well rationalized and
based upon a proper factual background, must be given special weight.12 The Board finds that
Dr. Anderson provided a well-rationalized opinion based on a complete background, his review
of the accepted facts, the medical record, and his examination findings. Dr. Anderson’s opinion
that the requested cervical spine procedure was not medically warranted for the accepted cervical
and lumbar sprains is entitled to special weight and represents the weight of the evidence.13
The only limitation on OWCP’s authority in approving or disapproving service under
FECA is one of reasonableness.14 In the instant case, OWCP obtained an impartial medical
examination by Dr. Anderson who clearly opined that the requested surgery was not warranted
for the accepted conditions. It, therefore, had sufficient evidence upon which it based its
decision to deny surgery and did not abuse its discretion.
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 did not abuse its discretion when it denied appellant’s
request for authorization of cervical spine surgery.

12

Id.

13

P.F., Docket No. 16-0693 (issued October 24, 2016).

14

D.K, supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the April 10, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 4, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
El Paso, TX, Employer
__________________________________________

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

Docket No. 17-1127
Issued: September 15, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 1, 2017 appellant filed a timely appeal from a March 20, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury in
the performance of duty on January 12, 2017, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its March 20, 2017 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision
and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

FACTUAL HISTORY
On January 30, 2017 appellant, then a 41-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that on January 12, 2017 he sustained a nose bleed. On the
reverse side of the form, the employing establishment checked the box marked “no” when asked
if he was injured in the performance of duty, explaining that his condition was due to a
preexisting medical condition. It further reported that appellant’s supervisor witnessed appellant
arrive with a nose bleed prior to the start of his work shift. Appellant stopped work on the date
of injury.3
By letter dated February 13, 2017, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised of the factual and medical evidence
needed and asked to respond within 30 days. OWCP informed him that the evidence was
insufficient to establish that he actually experienced the incident or employment factor alleged to
have caused injury, there was no diagnosis of any condition, nor was there a physician’s opinion
as to the cause of his injury. It provided a questionnaire for completion and requested he submit
a response in order to substantiate the factual basis of his claim. The questionnaire requested
that appellant describe what he was doing at the time the injury occurred, the immediate effects
of the injury and what he did thereafter, describe his condition between the date of injury and the
date he first received medical attention, whether he sustained any other injury, either on or off
duty, between the date of injury and the date it was first reported, the nature and frequency of
any home treatment, whether he was claiming an occupational disease or traumatic injury, and to
provide statements from any persons who witnessed his injury or had immediate knowledge of it.
Appellant was afforded 30 days to provide the requested information. He did not respond to the
questionnaire.
In a January 17, 2017 medical report, Dr. Bassam Al-Homsi, a treating physician,
reported that appellant had been experiencing nose bleeds for a couple of weeks, along with
headaches and high blood pressure. The physician noted that the nose bleeds were daily and
diagnosed epistaxis and essential hypertension. In a January 17, 2017 attending physician’s
report, Dr. Al-Homsi diagnosed epistaxis and checked the box marked “no” when asked if he
believed that the condition was caused or aggravated by the employment activity.
In a February 13, 2017 work capacity evaluation (OWCP-5c), Dr. Al-Homsi released
appellant to full duty without restrictions effective February 18, 2017.
By decision dated March 20, 2017, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that a January 12, 2017 employment incident occurred as
alleged. It noted that he failed to respond to the questionnaire that was sent with the
February 13, 2017 development letter.

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The record reflects that appellant has four prior traumatic injury claims with a date of injury ranging from
April 1, 2012 through July 28, 2016. The record before the Board contains no other information pertaining to
appellant’s prior claims.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his 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; that an injury was sustained while in the performance of duty as alleged; and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.6 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that he sustained an injury in the performance of duty he must
submit sufficient evidence to establish that he experienced a specific event, incident, or exposure
occurring at the time, place, and in the manner alleged. He must also establish that such event,
incident, or exposure caused an injury.7 Once an employee establishes that he sustained an
injury in the performance of duty, he has the burden of proof to establish that any subsequent
medical condition or disability for work, for which he claims compensation is causally related to
the accepted injury.8
To establish that, an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his subsequent course of action. In determining whether a case has been
established, such circumstances as late notification of injury, lack of confirmation of injury, and
failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on the
employee’s statements. The employee has not met his burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.9

4

Gary J. Watling, 52 ECAB 278 (2001).

5

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

6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
8

Supra note 4.

9

Betty J. Smith, 54 ECAB 174 (2002).

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ANALYSIS
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on January 12, 2017, as alleged.10
Appellant’s presentation of the facts is not supported by the evidence of record and does
not establish his allegation that a specific event occurred which caused him a nose bleed on the
date in question.11 He has not provided sufficient detail to establish that a traumatic incident
occurred as alleged.12 On his Form CA-1 appellant stated that he developed a nose bleed on
January 12, 2017 with no further details pertaining to his claim. His vague description of the
traumatic incident fails to provide any detail to determine how he sustained his injury.13
By letter dated February 13, 2017, OWCP requested appellant describe the factual
circumstances of his injury and provided him with a questionnaire for completion. Appellant did
not respond to the questionnaire and failed to provide a narrative statement detailing the
traumatic incident.14 The only explanation provided pertaining to the alleged January 12, 2017
traumatic incident was the vague statement noted in his Form CA-1. By failing to describe the
employment incident and circumstances surrounding his alleged injury, appellant has not
established that the traumatic injury occurred as alleged.15
Moreover, the employing establishment controverted the claim arguing that appellant’s
injury was the result of a preexisting condition, reporting that appellant’s supervisor witnessed
him arrive with a nose bleed prior to the start of his shift.
The medical evidence of record further casts serious doubt upon the validity of
appellant’s claim.16 In his January 17, 2017 report, Dr. Al-Homsi reported that appellant had
been experiencing nose bleeds for a couple of weeks. This report fails to provide support for a
traumatic injury having occurred from a single occurrence within a single workday as alleged by
appellant in this claim.17 Moreover, his January 17, 2017 attending physician’s report found that
appellant’s epistaxis condition was not caused or aggravated by his employment.18 Thus, the

10

J.L., Docket No. 16-1114 (issued October 25, 2016).

11

T.R., Docket No. 12-0012 (issued May 16, 2012).

12

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

13

See C.M., Docket No. 17-0627 (issued June 28, 2017).

14

See C.E., Docket No. 17-0106 (issued April 20, 2017).

15

P.T., Docket No. 14-0598 (issued August 5, 2014).

16

M.W., Docket No. 12-1013 (issued October 24, 2012); David J. McDonald, 50 ECAB 185 (1990).

17

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
18

B.S., Docket No. 13-0405 (issued July 18, 2013).

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Board finds that the record lacks factual evidence to support appellant’s allegation that he
sustained an injury in the performance of duty on January 12, 2017.19
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.20 An award of compensation may not
be based on surmise, conjecture, or speculation.
On appeal, appellant responded to OWCP questionnaire explaining why his injury was
work related and described the details surrounding the employment incident. As previously
noted, this evidence cannot be considered by the Board as it was not submitted prior to OWCP’s
March 20, 2017 decision.21
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a nose bleed in the performance of duty on January 12, 2017, as alleged.

19

David R. Clark, Docket No. 16-0083 (issued March 8, 2016).

20

Daniel O. Vasquez, 57 ECAB 559 (2006).

21

Supra note 2.

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ORDER
IT IS HEREBY ORDERED THAT the March 20, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 15, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, EMBACADERO
POSTAL CENTER, San Francisco, CA,
Employer
__________________________________________

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

Docket No. 14-415
Issued: November 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 17, 2013 appellant filed a timely appeal of an August 28, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Board also has
jurisdiction over a nonmerit decision dated December 5, 2013. 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 established that she has more than 18 percent
left lower extremity impairment or 8 percent right lower extremity impairment, for which she
received schedule awards; and (2) whether OWCP properly refused to reopen appellant’s case
for further review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 19, 1999 appellant, then a 44-year-old mail carrier, sustained injury to her
right calf when stepping down from a curb while delivering mail.2 OWCP accepted the claim for
right ankle sprain and right plantaris tendon rupture with consequential left ankle peroneal
tenosynovitis.3 It authorized left ankle peroneal tendon repair surgery which occurred on
February 11, 2002. On May 7, 2001 appellant accepted a modified job offer.
By decision dated April 27, 2007, OWCP granted appellant a schedule award for six
percent impairment to the right and left lower extremities. It noted that she had previously
received a schedule award under File No. xxxxxx607 for eight percent left leg impairment and
that the current award did not exceed the amount previously awarded.
By decision dated February 8, 2008, an OWCP hearing representative set aside the
April 27, 2007 schedule award decision and remanded for further development on the issue of
whether appellant was entitled to an additional schedule award for impairment to her lower
extremities.
By decision dated March 24, 2008, OWCP granted appellant an additional two percent
impairment for her right lower extremity for a total eight percent right lower extremity
impairment.
In a separate decision dated March 24, 2008, OWCP granted appellant an additional 10
percent impairment for her left lower extremity for a total 18 percent left lower extremity
impairment.
On July 28, 2012 appellant filed a claim for an additional schedule award.
In an October 27, 2012 letter, Dr. Jules P. Steimnitz, an attending Board-certified
physiatrist and pain medicine physician, responded to OWCP’s August 27, 2012 letter requesting
an impairment rating. Using Table 16-2, page 501, he concluded that appellant’s left ankle
condition was a class 2 or 14 percent lower extremity impairment.
2

This was assigned File No. xxxxxx765.

3

Under File No. xxxxxx607, OWCP accepted appellant’s occupational disease claim for left ankle sprain and
injury date of March 23, 1999. On July 8, 1999 it combined File No. xxxxxx607 with File No. xxxxxx765, with the
latter serving as the master file number. On September 23, 2003 OWCP granted appellant a schedule award for an
eight percent left lower extremity impairment under File No. xxxxxx607. On September 28, 2009 it combined File
Nos. xxxxxx706 and xxxxxx612 with File No. xxxxxx765, with the latter as the master file number. Under File No.
xxxxxx706, OWCP accepted that appellant sustained a left medial meniscus tear on January 2, 2008 when her knee
locked up and snapped while getting up from her desk. It approved a left medial meniscectomy, which occurred on
March 23, 1999. Under File No. xxxxxx612, OWCP accepted a left knee and leg sprain due to a May 10, 2008
traumatic injury. On April 23, 2013 it combined File Nos. xxxxxx966 and xxxxxx732 with File No. xxxxxx765 as
the master File No. Under File No. xxxxxx966, appellant filed a traumatic injury claim alleging that on August 12,
1991 she sprained her left ankle while delivering mail. OWCP accepted the claim for a left ankle sprain. Under File
No. xxxxxx732, appellant filed a traumatic injury claim alleging that on November 9, 1987 she sustained a swollen
right ankle when she slipped and fell while delivering mail. OWCP accepted the claim for a right ankle sprain.

2

In a June 29, 2013 report, Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon and
second opinion physician, reviewed the statement of accepted facts and medical evidence. On
physical examination he noted that appellant was being evaluated for a schedule award under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). Using Table 16-2, page 501, Dr. Hanley determined that she was
a class 1 for her left ankle based on mild motion deficit and falls. For grade modifiers he
assigned a 1 for functional history, 2 for physical examination and clinical studies. Dr. Hanley
found that this resulted in a grade E rating or seven percent lower extremity impairment. He
considered appellant’s left knee injury under Table 16-3, page 509. Dr. Hanley assigned a
class 1 based on her partial medial meniscectomy. Applying the grade modifiers, he found a
1 for functional history, clinical studies and physical examination. This resulted in a grade C
with a default impairment of two percent. Combining the impairment for appellant’s left knee
and ankle resulted in a total nine percent left lower extremity impairment. As to her right ankle
and knee, Dr. Hanley found that she was a class 0 for both right ankle sprain and right knee
arthralgia and, had no ratable impairment of her right ankle or knee.
On August 13, 2013 the medical adviser reviewed Dr. Hanley’s report and concurred
with the impairment rating. He noted that appellant’s prior impairment ratings under the fifth
edition of the A.M.A., Guides were higher than the current rating. Therefore, the medical
evidence did not warrant an additional schedule award.
By decision dated August 28, 2013, OWCP denied appellant’s claim for increased
schedule awards. It found that her current impairment rating was less than the rating she
received.
On August 30, 2013 appellant requested reconsideration. She submitted an October 3,
2013 report from Dr. Steimnitz, who related that appellant was diagnosed with rheumatoid
arthritis following development of increased pain in various joints. On physical examination the
ankles revealed no swelling, tenderness on palpitation, intact sensation and motor and slightly
antalgic gait. Dr. Steimnitz diagnosed diabetes mellitus, bilateral ankle sprain and new onset
rheumatoid arthritis. He advised that appellant had reached maximum medical improvement and
a disability retirement examination would be scheduled at a later date.
By decision dated December 5, 2013, OWCP denied reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Under section 8107 of FECA4 and section 10.404 of the implementing federal
regulations,5 schedule awards are payable for permanent impairment of specified body members,
functions or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

3

adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.6
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).7 Under the sixth edition, the evaluator identifies the impairment Class of
Diagnosis (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).9
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through the medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.10
ANALYSIS -- ISSUE 1
OWCP accepted the conditions of right ankle sprain, right plantaris tendon rupture, left
ankle peroneal tenosynovitis, left ankle sprain and left knee meniscal tear. Appellant received
schedule awards totaling an 18 percent left lower extremity impairment and an 8 percent right
lower extremity impairment. The Board finds that she has not established that she has greater
impairment of her left or right lower extremities.
On October 27, 2012 Dr. Steimnitz, an attending Board-certified physiatrist and pain
medicine physician, concluded that appellant had a 14 percent left lower extremity impairment
using Table 16-2, page 501 with a class 2.
In a June 29, 2013 report, Dr. Hanley, a second opinion Board-certified orthopedic
surgeon, concluded that appellant had no (zero percent) impairment of her right ankle and right
knee as she was at class 0. He determined that she had nine percent impairment for her left ankle
and left knee conditions. Dr. Hanley noted that, under Table 16-2, page 501, appellant’s mild
motion deficits and falls resulted in a default class C. He explained that the grade modifiers of 1
for functional history, 2 for physical examination and clinical studies resulted in a grade E rating
or seven percent impairment for the left ankle.

6

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, ICF: A Contemporary Model of Disablement.

8

Id. at 383-419.

9

Id. at 411.

10

See C.K., Docket No. 09-2371 (issued August 18, 2010); see Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(d) (January 2010). Frantz Ghassan,
57 ECAB 349 (2006).

4

Next Dr. Hanley considered appellant’s left knee injury under Table 16-3, page 509. He
assigned a class 1 based on her partial medial meniscectomy. Applying the grade modifiers,
Dr. Hanley found a 1 for functional history, clinical studies and physical examination, which
resulted in a grade C with a default impairment of two percent. Combining the impairment for
appellant’s left knee and ankle resulted in a total nine percent left lower extremity impairment.
On August 13, 2013 an OWCP medical adviser reviewed the medical evidence and
concurred with the impairment rating of Dr. Hanley. OWCP properly found that appellant was
not entitled to additional schedule awards. The medical evidence does not establish greater
impairment than that previously awarded. Under the sixth edition of the A.M.A., Guides,
appellant’s lower extremity impairment had not increased. Her treating physician, Dr. Steimnitz
found a 14 percent left lower extremity impairment. Dr. Hanley and the medical adviser
concluded that appellant had nine percent impairment of the left leg. None of the physicians
rated impairment for her right lower extremity. Appellant did not submit medical evidence
showing that she has additional impairment of her lower extremities. She has not shown that she
has more than an 18 percent left lower extremity impairment or an 8 percent right lower
extremity impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,11
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.12 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.13 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.14

11

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
12

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
13

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

14

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

5

ANALYSIS -- ISSUE 2
On August 28, 2013 OWCP denied appellant’s request for an additional schedule award
for her bilateral extremity impairments. Appellant requested reconsideration of this decision on
August 30, 2013. The issue presented is whether she 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 her
application for reconsideration, appellant did not contend that OWCP erroneously applied or
interpreted a specific point of law. She did not advance a new and relevant legal argument.
Appellant submitted an October 3, 2013 report from Dr. Steimnitz, who provided
physical findings for her ankle, diagnoses of bilateral ankle sprain, diabetes mellitus and
rheumatoid arthritis. Dr. Steimnitz stated that she had reached maximum medical improvement,
but provided no permanent impairment rating. His October 3, 2013 report is not relevant to the
issue of whether appellant has greater impairment to her right or left lower extremities.15
The Board finds that appellant did not meet 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.
CONCLUSION
The Board finds that appellant has no more than 18 percent left lower extremity
impairment and 8 percent right lower extremity impairment, for which she received schedule
awards. The Board further finds that OWCP properly denied her request for further review of
the merits pursuant to 5 U.S.C. § 8128(a).

15

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 5 and August 28, 2013 are affirmed.
Issued: November 20, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 09-1732
Issued: February 25, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 17, 2009 appellant filed a timely appeal from a December 19, 2008 merit
decision of the Office of Workers’ Compensation Programs affirming an August 26, 2008
decision that denied his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established an injury in the performance of duty on
July 14, 2008 causally related to his employment.
FACTUAL HISTORY
On July 18, 2008 appellant, a 51-year-old revenue agent, filed a traumatic injury claim
(Form CA-1) alleging that on July 14, 2008 he was involved in a motor vehicle accident while
driving to a taxpayer’s place of business. He alleges that the vehicle he was driving was struck
from behind and that he sustained back pain and discomfort.

In a May 4, 2006 report, Dr. Isaac Goodrich, a Board-certified neurologist, reported that
appellant was undergoing low back surgery on May 16, 2006. In a subsequent report, dated
October 11, 2006, he reported that appellant’s status was post removal of a herniated nucleus
pulposus at the L2-3 level.
Appellant submitted a police report, dated July 14, 2008, in which the officer noted that
appellant’s vehicle sustained minor damage to its bumper and that appellant was complaining of
back discomfort.
The Office received a July 24, 2008 form report, with an illegible signature, from Family
and Internal Medicine of Dixwell Avenue pertaining to appellant’s July 14, 2008 office visit.
This form report indicates that appellant was diagnosed with low back sprain.
Another July 24, 2008 report (Form CA-20) was received by Dr. Babu Kumar, a Boardcertified internist. He reported findings on examination and diagnosed low back sprain and
checked the box “no” in response to the question of whether appellant’s condition was caused or
aggravated by an employment activity.
By decision dated August 26, 2008, the Office accepted that appellant was involved in a
motor vehicle accident on July 14, 2008 but denied appellant’s claim because the evidence of
record did not establish that the accepted employment incident caused a medically-diagnosed
injury.
In a September 15, 2008 note, Dr. Kumar noted that appellant was involved in a motor
vehicle accident “on the way to work.” He also relates that appellant has a prior history of back
pain.
On September 17, 2008 requested review of the written record.
By decision dated December 19, 2008, the Office affirmed its August 26, 2008 decision
because the evidence of record did not demonstrate that the accepted employment incident
caused a medically diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,2
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3 As part of his burden, the employee must submit rationalized medical opinion evidence
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).

2

based on a complete factual and medical background showing causal relationship.4 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of the analysis manifested and the medical rationale expressed in support of the physician’s
opinion. 5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
ANALYSIS
The Office accepted that appellant was involved in a motor vehicle accident on
July 14, 2008. Appellant’s burden is to demonstrate the accepted employment incident caused a
diagnosed injury. Causal relationship is a medical issue that can only be proven by probative
rationalized medical opinion evidence. Appellant has not submitted sufficient medical evidence
and therefore has not met his burden of proof.
The medical evidence of record consists of reports and a note from Drs. Goodrich and
Kumar. The Board notes that Dr. Goodrich’s reports pertained to appellant’s back condition in
2006, two years prior to the accepted incident. These reports, while helpful in establishing
appellant’s medical history regarding his low back, are not probative in establishing that
appellant sustained an injury on July 14, 2008.
Dr. Kumar’s reports are also of limited probative value. In his initial report dated
July 24, 2008, he checked the box “no” indicating that appellant’s condition was not caused or
aggravated by an employment incident. After appellant discussed this report with him,
Dr. Kumar submitted a report dated September 15, 2008 wherein he stated that appellant had
been involved in a motor vehicle accident on his way to work and that appellant had a prior
history of back pain. His report is of insufficient value to establish even a prima facie claim for
compensation because it does not provide a rationalized medical opinion explaining how the
accepted motor vehicle accident caused a diagnosed medical condition. Dr. Kumar did not
medically link appellant’s back condition to the accepted incident.
Appellant failed to meet his burden of proof to establish a prima facie claim for
compensation. Although he submitted a statement which identified the factors of employment
4

G.T., id; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).

3

that he believed caused his condition, he failed to submit any probative medical evidence in
support of his claim. The Office informed appellant of the need to submit a physician’s opinion
which explained how the claimed condition was related to the implicated employment factors.
Appellant failed to submit any medical evidence sufficient to establish his claim. 8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.9 The fact that a condition manifests itself or worsens during a
period of employment10 or that work activities produce symptoms revelatory of an underlying
condition11 does not raise an inference of causal relationship between a claimed condition and
employment factors. Appellant has not submitted sufficient probative medical opinion evidence
and therefore has not satisfied his burden of proof.
CONCLUSION
The Board finds that appellant has not established he sustained an injury in the
performance of duty on July 14, 2008 causally related to his employment.

8

Donald W. Wenzel, 56 ECAB 390 (2005); Richard H. Weiss, 47 ECAB 182 (1995).

9

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

10

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

11

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155,157 (1960).

4

ORDER
IT IS HEREBY ORDERED THAT the December 19 and August 26, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: February 25, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


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

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

Docket No. 14-977
Issued: September 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 24, 2014 appellant filed a timely appeal from a December 12, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding an overpayment
of compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $43,891.85 overpayment of
compensation for the period November 18, 2009 through June 30, 2013, for which he was not at
fault; (2) whether the overpayment is subject to waiver of recovery; and (3) whether OWCP
properly withheld $3,400.00 from appellant’s continuing compensation payments beginning
December 15, 2013.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 15, 2007 appellant, then a 30-year-old mail handler, filed a traumatic injury
claim alleging that, while in the performance of duty that day he experienced pain in his right
shoulder while moving mail and sacks. OWCP accepted the claim for right shoulder sprain and
rotator cuff impingement/tear and paid all appropriate benefits, including a right shoulder
surgery on August 18, 2018.2 Appellant eventually returned to full-time limited-duty work with
restrictions. He stopped work on November 18, 2009 as the employing establishment could no
longer provide work within his restrictions. OWCP accepted a recurrence of disability
commencing November 18, 2009, which entitled appellant to a recurrent pay rate effective
November 18, 2009. Appellant returned to work on July 1, 2013. By decision dated
September 4, 2013, OWCP found his employment as a modified mail processing clerk effective
July 1, 2013 fairly and reasonably represented his wage-earning capacity and terminated his
entitlement to wage-loss compensation as there was no loss in earning capacity.
By decision dated October 4, 2013, OWCP issued a schedule award for 11 percent
impairment to the right upper extremity and 11 percent impairment to the left upper extremity.
The award runs from August 29, 2013 to December 22, 2014 for a period of 68.64 weeks of
compensation.3 Appellant receives $3,735.00 every four weeks.4
On October 2, 2013 OWCP made a preliminary determination that appellant received a
$43,891.85 overpayment for the period November 18, 2009 to June 30, 2013 because it had paid
him effective November 18, 2009 compensation based on an incorrectly calculated recurrent pay
rate of $1,469.42 per week [base $1,010.12 + Sunday ($404.00) + night differential ($55.30)]. It
stated that the pay rate was incorrect because the Sunday premium pay was input as $25.25
additional per hour rather than an additional 25 percent per hour. The correct weekly pay rate for
the date of recurrence was $1,166.43 [base $1,010.12 + Sunday ($101.01) + night differential
($55.30)]. For the period November 18, 2009 through June 30, 2013, OWCP found that
appellant received gross compensation $212,946.04 minus $12,338.08 health benefit insurance
cost minus $777.86 basic life insurance cost minus $458.53 optional life insurance cost or a net
of $199,371.57. However, entitlement at the corrected weekly pay rate of $1,166.43 per week
for the period November 18, 2009 through June 30, 2013 would yield a gross compensation of
$169,054.19 minus $12,338.08 health benefit insurance cost minus $777.86 basic life insurance
cost minus $458.53 optional life insurance cost or a net of $155,479.72. OWCP subtracted the
amount appellant was entitled to of $155,479.72 from the amount he received of $199,371.57
and found $43,891.85 overpayment. It also found that he was not at fault in the creation of the
overpayment and requested that he provide financial information.
On October 24, 2013 appellant requested a telephonic conference and requested waiver
as the overpayment occurred through no fault of his. He indicated that he was going to use the
schedule award funds to modify his home to accommodate the growing needs of his special
2

Appellant has an accepted claim for a left shoulder strain occurring January 17, 2004.

3

The total schedule award amount is $64,092.60.

4

Appellant has not contested either the September 4 or October 4, 2013 decisions on appeal.

2

needs daughter who was wheelchair bound and has the level of a one-year old. In an
overpayment recovery questionnaire, appellant indicated a total monthly income $4,000.00 and
that he supported a wife and three children, one being a special needs child who requires
expensive medicines. He listed total monthly expenses as $4,196.12, which included mortgage
$1,200.00, food $400.00, clothing $250.00, utilities $800.00 and other expenses $1,300.00.
Appellant indicated that he had $1,780.00 in funds, which included $75.00 cash, $205.00
checking account balance, $1,500.00 savings account balance.
In a November 5, 2013 report of telephone call, OWCP noted that appellant’s reported
total monthly income of $4,000.00 was strictly his net take home pay and did not include the
schedule award payment. Appellant agreed that his gross pay was approximately $5,160.18 per
month and approximately $1,000.00 per month was deducted for insurance premiums, taxes etc.
OWCP conducted a partial conference and noted that he requested waiver due to his special
needs daughter and he was planning to use the schedule award payments to modify their house to
suit that daughter’s needs. Appellant also stated that a majority of the $1,300.00 per month
expenses were due to the special needs daughter. OWCP requested that he provide financial
information on breakdown with supporting documents of $1,300.00 per month miscellaneous
expenses and $800.00 utilities. It also requested a professional estimate of the cost of the
modification appellant’s needs for his home.
On November 27, 2013 OWCP received a handwritten breakdown of the miscellaneous
expenses per month, which now totaled $1,418.56, along with a $16,293.34 estimate, which
included cost breakdown and supporting documentation, to modify the home to accommodate
the special needs daughter.
On December 3 and 5, 2013 OWCP conducted a preconference call with appellant. The
Conference Memorandum for the telephone conference calls conducted on December 3
and 5, 2013 noted that he was in receipt of schedule award benefits, that a waiver or partial
waiver could not be applied to the overpayment and that the overpayment must be paid in its
entirety by the time the schedule award ended.
By decision dated December 12, 2013, OWCP denied waiver of the $43,891.85
overpayment which arose during the period November 18, 2009 through June 30, 2013 and
found the sum of $3,400.00 could be withheld from appellant’s continuing compensation
payments beginning December 15, 2013. The claims examiner noted that appellant received
payments of $3,735.00 every 28 days on the periodic rolls for a schedule award, which will end
December 22, 2014, and that he had received a total of $14,406.43 through December 14, 2013.
It found the financial information received had not established a basis for granting waiver and
that he had not established that he relinquished a valuable right or changed his position for the
worse as he did not make a past expenditure of modifying his home.
On appeal, appellant disputed the denial of waiver as well as the $3,400.00 deduction
from future payments. He explained that he submitted evidence regarding his special needs
daughter’s disabilities and expenses involved in caring for her needs. Appellant noted that the
decision stated that the overpayment could not be waived based on planned future modification
to his home to accommodate his special needs daughter’s needs and argued, if that was the case,
why did the claims examiner request that he provide the estimates? He stated that due to his

3

work-related injuries, he cannot not provide the care his special needs daughter requires without
equipment and modifications that will keep him from having to lift her 104 pound frame.
Appellant indicated that in February 2013, his family relocated from a townhouse to a one level
home because they could not continue transporting her up and down stairs. He indicated that
OWCP compensation has supported all resources needed for ordinary and necessary living
expenses for his family and argued that recovery of the overpayment could cause hardship
because of the ongoing, ever increasing, needs of his family, especially in relation to his special
needs daughter.
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.5 Monetary compensation for total or partial
disability due to an employment injury is paid as a percentage of pay,6 meaning pay at the time
of injury or pay at the time disability begins or pay at the time compensable disability recurs if
the recurrence begins more than six months after the injured employee resumes regular full-time
employment with the United States, whichever is greater.7
Section 8129(a) of FECA provides that when an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.8
ANALYSIS -- ISSUE 1
Fact of overpayment is well established and not contested. The record reflects that
OWCP noted that it was paying the incorrect recurrence pay rate when it calculated appellant’s
schedule award. For the period November 18, 2009 to June 30, 2013, OWCP paid appellant
compensation based on an incorrectly calculated recurrent pay rate of $1,469.42 per week
[base $1,010.12 + Sunday ($404.00) + night differential ($55.30)] as the Sunday premium pay
was input as $25.25 additional per hour rather than an additional 25 percent per hour. The
correct weekly pay rate for the date of recurrence was $1,166.33 [Base $1,010.12 + Sunday
($101.01) + night differential ($55.30)]. For the period November 18, 2009 through
June 30, 2013, it found that appellant received gross compensation $212,946.04 minus
$12,338.08 health benefit insurance cost minus $777.86 basic life insurance cost minus $458.53
optional life insurance cost or a net of $199,371.57. However, entitlement at the corrected
weekly pay rate of $1,166.33 per week for the period November 18, 2009 through June 30, 2013
would yield a gross compensation $169,054.19 minus $12,338.08 health benefit insurance cost
minus $777.86 basic life insurance cost minus $458.53 optional life insurance cost or a net of
$155,479.72. As appellant was entitled to $155,479.72 but received $199,371.57, an
5

5 U.S.C. § 8102(a).

6

Id. at §§ 8105, 8106.

7

Id. at § 8101(4); John D. Williamson, 40 ECAB 1179 (1989).

8

Id. at § 8129(a).

4

overpayment of $43,891.85 exists. The Board finds that OWCP properly determined the fact
and the amount of overpayment as no other probative evidence has been presented.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
because of an error of fact of law, adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.9 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b).
Adjustment or recovery by the United States may not be made when incorrect payment
has been made to an individual who is without fault and when adjustment or recovery would
defeat the purpose of FECA or would be against equity and good conscience.
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment. 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 the implementing federal regulations.
Section 10.436 of the implementing regulations10 provide that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship to a currently or
formerly entitled beneficiary such that: (a) 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 (b) the beneficiary’s assets do not exceed the
resource base of $4,800.00 for an individual.11 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. In other words, the amount of
monthly funds available for debt repayment is the difference between current income and
adjusted living expenses ( i.e., ordinary and necessary living expenses plus $50.00).12
Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his position for the worse.13 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.14
9

Id.

10

20 C.F.R. § 10.436.

11

Id. at § 10.436; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6.a(1)(b) (October 2004).
12

Id.

13

Id. at § 10.437(b).

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.b(3) (October 2004).

5

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. This information will also be used to determine the
repayment schedule, if necessary.15
ANALYSIS -- ISSUE 2
OWCP found that appellant was not at fault in creating the overpayment of compensation
and thus considered whether he was entitled to waiver of recovery of the overpayment. Waiver
is only possible if recovery would defeat the purpose of FECA or would be against equity and
good conscience. In order to establish that repayment of the overpayment would defeat the
purpose of FECA, appellant must show that he requires substantially all of his income to meet
current ordinary and necessary living expenses and that his assets do not exceed the established
limit as determined by OWCP’s procedures.16
Appellant furnished OWCP with an overpayment recovery questionnaire and reported
monthly income of $4,000.00 and monthly expenses of $4,196.12 and $1,780.00 in savings and
checking accounts. The claims examiner determined, after teleconferences with appellant and
review of additional documentation, that his stated income did not include schedule award
payments, of which he had already received a total of $14,406.43. In the November 5, 2013
teleconference, OWCP’s hearing representative determined that appellant received income of
$2,639.00 every 28 days on his schedule award and had a gross monthly salary of $3,749.00,
totaling $6,608.00. Appellant agreed that his gross pay was approximately $5,160.18 per month
and approximately $1,000.00 per month was deducted for insurance premiums, taxes etc. He
also later claimed his monthly expenses originally listed at $4,196.12 were increased as due to
care for his special needs daughter, which he submitted supporting documentation. Appellant
did not submit any further supporting financial information. Based on his reported expenses and
income, his income exceeds his expenses by more than $50.00 per month. As appellant’s
income exceeds expenses by more than $50.00, the Board finds that OWCP properly found that
recovery of the overpayment would not defeat the purpose of FECA.
The evidence also does not demonstrate that repayment of the overpayment would be
against equity and good conscience. Appellant submitted no evidence that he had relied upon the
incorrect payments to his detriment or that he would experience severe financial hardship
attempting to repay the debt. While he planned to modify his home to accommodate his special
needs daughter’s disabilities, there is no evidence that he had made any expenditures.
Furthermore, appellant is in receipt of a schedule award which will total over $64,000.00 when it
ends December 22, 2014. He stated that he planned to use the schedule award money to modify
his home. An overpayment cannot be waived based on planned future modifications to the
home. Appellant argued on appeal that he moved from a townhouse in February 2013 to a one
level home to better suit the needs of his special needs daughter. However, he has not met his
burden in showing that he changed his position for the worse, since he has not shown that he
15

20 C.F.R. § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

16

Id. at § 10.436.

6

suffered any loss. Appellant’s move from a townhouse to a one level home is simply a
conversion of the money into a different form, which he derived some benefit. Conversion of a
liquid asset into real or personal property does not constitute a loss. While appellant may have
made the expenditure in reliance on the overpayment monies, he must also establish a financial
loss before it will be inequitable to recoup the overpayment.17 Consequently, OWCP properly
denied waiver of recovery of the overpayment.
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, the Board finds that he has failed
to show that OWCP abused its discretion by refusing to waive the $43,891.85 overpayment.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. Section
10.441(a) of the regulations provide:
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as soon as the
error is discovered or his or her attention is called to same. If no refund is made, [OWCP] shall
decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.18
ANALYSIS -- ISSUE 3
OWCP reduced appellant’s future compensation benefits by $3,400.00 per month.
OWCP’s procedure manual provides that, if a claimant is being paid compensation or is due
accrued benefits, the debt should be recovered as quickly as possible.19 OWCP’s hearing
representative noted that appellant was in receipt of compensation benefits of $3,735.00 every 28
days on the periodic roll for a schedule award, which will end December 22, 2014 and directed
recovery of $3,400.00 from his continuing benefits. The Board finds that OWCP did not abuse
its discretion in this matter. The hearing representative considered the evidence of record, as
well as the factors set forth in section 10.441 and found that this method of recovery would
minimize any resulting hardship on appellant.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $43,891.85 for the period November 18, 2009 through
17

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.b(3)(June 2009).
18

20 C.F.R. § 10.441.

19

See Frederick Arters, 53 ECAB 397 (2002), citing Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6. 200.4(c)(2) (September 2009).

7

June 30, 2013 for which he was not at fault, that he was not entitled to waiver of recovery of the
overpayment and that the overpayment should be recovered by withholding $3,400.00 per month
from his continuing compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the December 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2014
Washington, DC

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

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

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

8