United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Asheville, NC, Employer
__________________________________________

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

Docket No. 13-1706
Issued: January 23, 2014

Case Submitted on the Record

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

JURISDICTION
On July 10, 2013 appellant filed a timely appeal of a March 21, 2013 merit decision and a
May 30, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s medical and
compensation benefits effective March 21, 2013; and (2) whether it properly denied appellant’s
request for an oral hearing before an OWCP hearing representative as untimely filed.
On appeal appellant argues that OWCP failed to meet its burden to terminate her
compensation benefits.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On October 11, 2012 the Board affirmed
a July 20, 2011 OWCP hearing representative’s decision, which had affirmed a January 7, 2011
OWCP decision suspending her compensation benefits in accordance with 5 U.S.C. § 8123 on
the grounds that she refused to cooperate with a scheduled medical examination.2 The facts and
circumstances of the case as set forth in the Board’s prior decisions are incorporated herein by
reference.3
In a December 18, 2012 report, Dr. Jay H. Warrick reported seeing appellant for her
fibromyalgia condition. Diagnoses included lumbago, hypertension, fibromyalgia, depression
and anxiety disorder due to general medical condition. A physical examination revealed
musculoskeletal trigger point pain and positive trigger points on the supraspinatus, gluteus and
trapezius muscles.
On December 12, 2012 OWCP informed appellant that she was being referred for a
second opinion evaluation to determine the nature of her condition, the extent of her disability
and appropriate medical treatment.
In a January 11, 2013 report, Dr. Carl S. Carlson, Jr., a second opinion Board-certified
orthopedic surgeon, noted appellant’s medical and employment injury history and noted that
OWCP accepted the conditions of lumbago, lumbosacral joint sprain and myalgia and myositis.
A physical examination revealed a slow and steady gait, no palpable back muscle spasm, 20
degrees lateral flexion, 0 degrees extension and 25 degrees lateral rotation. A review of an
October 5, 2007 magnetic resonance imaging scan showed no evidence of significant stenotic or
nerve root change and mild L5-S1 degenerative changes. Dr. Carlson stated that there were no
objective findings on examination supporting any spinal condition. He noted an inaccurate range
of motion due to noncompliance and resistance by appellant. Dr. Carlson concluded that
appellant’s July 6, 1988 employment injury had resolved and that he thought she suffered a
contusion and perhaps spinal sprain. He related that appellant’s problems were due to her
subjective complaints of neurologic changes, pain with atrophy, range of motion, reflex changes
and positive Waddell signs for functional behavior. In response to a question regarding whether
appellant’s work-related conditions of lumbago, myalgia/myositis, myofascial pain syndrome
and lumbosacral sprain had resolved, he stated that he did “not think this has anything to do with
beginning of myalgia, myositis or myofascial pain syndrome.” In concluding, Dr. Carlson
2

Docket No. 12-409 (issued October 11, 2012). As noted, in its October 11, 2012 decision, the Board found that
OWCP properly suspended appellant’s compensation benefits effective January 16, 2011 as she failed to attend the
scheduled medical examination without showing good cause for her refusal. Decisions and orders of the Board are
final upon expiration of 30 days from the date of issuance. 20 C.F.R. § 501.6(d). While an appellant may file a
petition for reconsideration with the Board within 30 days of the date of issuance of a Board decision (20 C.F.R.
§ 501.7(a)), she did not file a petition for reconsideration with the Board of its October 11, 2012 decision. As such,
this decision is res judicata and is not subject to further review by this Board on the current appeal as no further
review of this issue was conducted by OWCP. See Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
3

On July 6, 1988 appellant, then a 34-year-old secretary/medical clerk, filed a traumatic injury claim alleging that
on that day she injured her neck and back when she slipped and fell on a wet floor. OWCP accepted the claim for
chronic low back pain, chronic low back strain myalgia and myositis, lumbago and low back strain myofascial pain
syndrome. By letter dated October 16, 1991, it placed appellant on the periodic rolls effective September 12, 1988.

2

opined that appellant had no residuals from her employment injury and her subjective complaints
outweighed any objective findings.
On February 13, 2013 OWCP issued a notice proposing to terminate appellant’s
compensation benefits based upon the report of Dr. Carlson.
On February 14, 2013 OWCP received a January 8, 2013 attending physician’s report
from Dr. Richard H. Mays, appellant’s attending Board-certified family practitioner, who
diagnosed fibromyalgia, lumbago and myofascial pain syndrome which he attributed to the
accepted July 6, 1988 employment injury. Dr. Mays indicated that appellant remained currently
disabled from working.
By decision dated March 21, 2013, OWCP finalized the termination of appellant’s
compensation benefits effective that day. It found that the opinion of Dr. Carlson constituted the
weight of the evidence.
On April 30, 20134 OWCP received appellant’s April 20, 2013 request for an oral hearing
before an OWCP hearing representative.
By decision dated May 30, 2013, OWCP denied appellant’s request for an oral hearing
before an OWCP hearing representative as untimely.
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.5 The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.6 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition, which would require further medical treatment.7
ANALYSIS -- ISSUE 1
OWCP accepted the claim for chronic low back pain, chronic low back strain myalgia
and myositis, lumbago and low back strain myofascial pain syndrome. By decision dated
March 21, 2013, it terminated appellant’s compensation benefits based on Dr. Carlson’s opinion
that she no longer had any residuals due to her accepted employment injuries. The issue on
appeal is whether OWCP met its burden of proof to terminate appellant’s wage-loss

4

This was the date stamped on the document as received by OWCP. A postmark on an attached envelope shows
that the request was mailed by appellant on April 27, 2013.
5

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

6

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
7

B.K., Docket No. 08-2002 (issued June 16, 2009); Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB
660 (2003).

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compensation and medical benefits effective March 21, 2013. The Board finds that OWCP
failed to meet its burden of proof.
OWCP referred appellant for a second opinion evaluation with Dr. Carlson to determine
the nature and extent of her employment-related disability. In his January 11, 2013 report,
Dr. Carlson concluded that appellant no longer had any residuals due to the accepted July 6,
1988 employment injury, which he opined caused a contusion and perhaps spinal sprain. He
concluded that appellant’s complaints were subjective without any supporting objective
evidence. However, the Board notes that Dr. Carlson, in addressing causal relationship, provided
no medical rationale to support his conclusory opinion regarding whether appellant’s accepted
condition had resolved. Dr. Carlson did not explain how his examination supported the
conclusion.
In addition, Dr. Carlson’s opinion does not appear to be based on the statement of
accepted facts. In response to a question as to whether appellant’s conditions had resolved and
she no longer had any residuals, Dr. Carlson related that he did “not think this has anything to do
with beginning of myalgia, myositis or myofascial pain syndrome.” As noted above, he
concluded that the July 6, 1988 employment injury caused a contusion and possibly a spinal
sprain. While Dr. Carlson noted that the conditions of lumbago, lumbosacral joint sprain and
myalgia and myositis had been accepted as employment related by OWCP, he appears to
conclude that the July 6, 1988 employment injury resulted in only a contusion and perhaps spinal
sprain. OWCP procedures provide that accepted conditions must be included in a statement of
accepted facts and further provide that, when a second opinion specialist renders a medical
opinion based on a statement of accepted facts which is incomplete or inaccurate or does not use
the statement of accepted facts as the framework in forming his or her opinion, the probative
value of the opinion is diminished.8
Dr. Carlson did not fully address whether the accepted conditions of lumbago,
lumbosacral joint sprain and myalgia and myositis had resolved and disputes that these
conditions were employment related. The Board notes that, when OWCP referred the medical
record to Dr. Carlson, it specifically requested that he provide an opinion on appellant’s
condition, the extent of her employment-related disability and appropriate medical treatment.
The Board finds that his opinion is outside the framework of the statement of accepted facts and
of reduced probative value.9 For these reasons, his opinion is insufficient to support OWCP’s
determination that appellant had no further condition or disability causally related to the accepted
conditions.

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
9

Willa M. Frazier, 55 ECAB 379 (2004).

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CONCLUSION
The Board finds that OWCP failed to meet its burden of proof in terminating appellant’s
wage-loss compensation and medical benefits effective March 21, 2013.10
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 30 and March 21, 2013 are reversed.
Issued: January 23, 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

10

In light of the disposition of the first issue, the second issue of whether OWCP properly denied appellant’s
request for an oral hearing is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.Y., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Oberlin, OH, Employer
__________________________________________

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

Docket No. 12-393
Issued: August 3, 2012

Case Submitted on the Record

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

JURISDICTION
On December 14, 2011 appellant, through his representative, filed a timely appeal from
the November 16, 2011 merit decision of the Office of Workers’ Compensation Programs
(OWCP) denying his recurrence claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUE
The issue is whether appellant established that he sustained a recurrence of disability or
recurrence of a medical condition due to the accepted April 1, 2003 employment injury

1
2

5 U.S.C. § 8101 et seq.

Prior claims include a November 6, 1993 emotional condition claim (xxxxxx091) (denied) and a July 30, 1998
emotional disease claim that was accepted for a stress-related condition (xxxxxx227).

FACTUAL HISTORY
On April 1, 2003 appellant, then a 52-year-old air traffic control specialist, sustained
injuries to his neck and left arm when he fell down eight steps in the performance of duty.
OWCP accepted his traumatic injury claim for cervical strain and aggravation of cervical
stenosis with cervical disc surgery. Appellant made no claim for wage loss at the time of his
surgery, which occurred on December 3, 2004.
Appellant was treated by Dr. Iain Kalfas, a Board-certified neurological surgeon. In
January 13, 2005 progress notes, Dr. Kalfas diagnosed cervical spondylosis with myelopathy.
He stated that appellant was doing well, though he still had some neck pain and numbness in his
hands and feet. Left deltoid weakness was unchanged. X-rays appeared normal.
The record contains physical therapy notes dated February 3, 2005, signed by Shelly
DeLamatre, a physical therapist. Notes reflected that shoulder range of motion was improved,
but remained limited. Notes dated February 21, 2005 reflected that appellant was involved in a
motor vehicle accident, resulting in soreness in the right cervical region.
On March 29, 2005 Dr. Kalfas stated that appellant was “doing well” until February 11,
2005 when he was involved in a motor vehicle accident in which he was hit from behind. A few
days after the accident, appellant developed neck pain and increased numbness in his hands.
In a letter dated May 20, 2005, OWCP requested additional information and evidence
from appellant regarding the February 11, 2005 motor vehicle accident referenced in Dr. Kalfas’
March 29, 2005 report, which was the most recent medical report of record. It indicated that the
requested information was necessary to determine whether appellant’s current medical condition
was due to his accepted 2003 injury or to an intervening event, namely the February 11, 2005
accident. Appellant was asked to submit a medical report containing a description of the effects
of the February 11, 2005 incident and an opinion as to whether the conditions suffered as a result
of the accident were distinct and separate from any conditions which preexisted that date, or if
the accident further aggravated that which already existed.
Appellant submitted August 7, 2008 reports from Dr. Brendan Bauer, a Board-certified
neurologist, who diagnosed multiple mechanical trauma, cervical spinal stenosis and cervical and
lumbar radiculopathy. Dr. Bauer opined that appellant was capable of working with restrictions,
including pushing, pulling and lifting a maximum of five pounds and kneeling, climbing,
walking, standing and reaching a maximum of four hours a day.
Appellant filed an undated claim for compensation (Form CA-7) requesting wage-loss
benefits effective “April 1.”3 In a letter dated August 15, 2008, appellant’s representative
requested that appellant be awarded a schedule award.

3

The undated CA-7, which was received by OWCP on August 18, 2008, did not indicate the year for which
compensation was claimed.

2

In an April 9, 2009 report, Dr. Jeffrey Wirebaugh, Board-certified in family medicine,
opined that appellant had a 21 percent permanent impairment of his right lower extremity
resulting from his accepted conditions of cervical strain, left arm contusion and aggravation of
cervical stenosis.4 He noted that appellant had sustained his injuries on April 1, 2003 when he
fell down stairs at work. Immediately after the injury appellant began to experience severe neck
with muscle spasm and motion loss. Over the next year or so, his symptoms progressed,
resulting in diagnoses of disc herniations at two levels and severe spinal canal stenosis.
Appellant reportedly developed right-sided weakness affecting his lower extremity, including a
significant right foot drop. On examination there was some atrophy of the right calf musculature
and marked weakness of resisted right ankle dorsiflexion. Examination of the cervical region
revealed tenderness over the cervical paraspinous muscles with spasm on the right. Cervical
range of motion was 25 degrees of flexion, 20 degrees of extension, 15 degrees of right lateral
flexion, 20 degrees of left lateral flexion, 40 degrees of right rotation and 45 degrees of left
rotation.
In an October 6, 2010 report, Dr. William N. Grant, a Board-certified internist, diagnosed
neck sprain, contusions of the left arm and shoulder and aggravation of cervical spinal stenosis.
He opined that appellant had a 43 percent permanent impairment of his right upper extremity and
a 43 percent impairment of his left upper extremity under the sixth edition of the A.M.A.,
Guides.
In a letter dated January 27, 2011, OWCP reiterated its request for information necessary
to determine whether his current condition was causally related to his accepted 2003 injury. It
informed him that it would not proceed to review his schedule award request until it received the
requested factual and medical information.
In a letter dated April 14, 2011, appellant’s representative contended that OWCP should
obtain an expert medical opinion if it did not accept that appellant’s current condition was work
related.
By decision dated May 18, 2011, OWCP denied appellant’s claim for a recurrence as of
February 11, 2005, finding that he had failed to establish that he had a condition or disability that
was causally related to the accepted April 1, 2003 injury. Noting that the evidence submitted
was incomplete and suggested that appellant had experienced an intervening injury, the claims
examiner denied appellant’s claim for recurrence and all claims subsequent to
February 11, 2005.
On May 24, 2011 appellant’s representative requested a telephonic hearing. During the
September 14, 2011 hearing, counsel stated that the February 11, 2005 motor vehicle accident
was a minor event that resulted in no real change in appellant’s condition. He informed the
hearing representative that appellant would be submitting medical evidence to support his
statement.

4

Dr. Wirebaugh based his impairment rating on the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment.

3

By decision dated November 16, 2011, an OWCP hearing representative affirmed the
May 18, 2011 decision, noting that appellant had failed to submit the requested information to
resolve the noted discrepancies in the record.5
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.6
OWCP procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change, demonstrated by objective findings, in the medical condition
that resulted from a previous injury or occupational illness without an intervening injury or new
exposure to factors causing the original illness. It does not include a condition that results from a
new injury, even if it involves the same part of the body previously injured.7
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the evidence.8 For each period of disability
claimed, the employee has the burden of establishing that he was disabled for work as a result of
the accepted employment injury.9 Whether a particular injury causes an employee to become
disabled for work, and the duration of that disability, are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.10 The Board will not require
OWCP to pay compensation for disability in the absence of medical evidence directly addressing
the specific dates of disability for which compensation is claimed. To do so, would essentially
allow an employee to self-certify their disability and entitlement to compensation.11
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.12 Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
5

The hearing representative noted that appellant had not submitted a properly completed CA-7 requesting a
schedule award and that the medical reports provided were inconsistent.
6

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008); see 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).
Kenneth R. Love, 50 ECAB 193, 199 (1998).
8

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
9

See Amelia S. Jefferson, supra note 8; see also David H. Goss, 32 ECAB 24 (1980).

10

See Edward H. Horton, 41 ECAB 301 (1989).

11

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

12

See Viola Stanko, claiming as widow of Charles Stanko, 56 ECAB 4362 (2005); see also Naomi A. Lilly, 10
ECAB 560, 572-73 (1959).

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between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant,13 must be one of reasonable medical certainty,14 and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.15
In order to establish a recurrence of a medical condition, a claimant must furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the claimed condition is causally related to the employment injury and
supports that conclusion with sound medical rationale.16 Where no such rationale is present, the
medical evidence is of diminished probative value.17
OWCP regulations define a recurrence of medical condition as the documented need for
further medical treatment after release from treatment of the accepted condition when there is no
work stoppage. Continued treatment for the original condition is not considered a renewed need
for medical care, nor is examination without treatment.18
OWCP’s procedure manual provides that, after 90 days of release from medical care
(based on the physician’s statement or instruction to return as needed (PRN), or computed by the
claims examiner from the date of last examination), a claimant is responsible for submitting an
attending physician’s report which contains a description of the objective findings and supports
causal relationship between the claimant’s current condition and the previously accepted work
injury.19
ANALYSIS
OWCP found that appellant sustained a traumatic injury on April 1, 2003 and accepted
his claim for left arm contusion, cervical strain and aggravation of cervical stenosis. Appellant
underwent cervical disc surgery on December 3, 2004, but did not make a claim for lost wages at
the time of the surgery. He submitted a Form CA-7 seeking wage-loss compensation, which
OWCP developed as a recurrence claim. The medical evidence of record, however, is
insufficient to establish that he sustained either a recurrence of disability or a recurrence of a
13

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

14

See Morris Scanlon, 11 ECAB 384, 385 (1960).

15

See William E. Enright, 31 ECAB 426, 430 (1980).

16

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

17

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

18

20 C.F.R. § 10.5(y).

19

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

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medical condition as a result of his accepted injury. Therefore, he has failed to meet his burden
of proof.
The record reflects that appellant underwent approved surgery on December 3, 2004.
January 13, 2005 progress notes from Dr. Kalfas reflected that he was doing well following his
surgery, though he still had some neck pain and numbness in his hands and feet. The record
contains a March 29, 2005 report from Dr. Kalfas which stated that appellant was “doing well”
until February 11, 2005 when he was involved in a motor vehicle accident in which he was hit
from behind. There is no evidence of record establishing that appellant received medical
treatment for his accepted condition between March 29, 2005 and August 7, 2008, when he was
examined by Dr. Bauer. As computed from the date of the last examination by Dr. Kalfas on
March 29, 2005, the treatment on August 7, 2008 was rendered more than 90 days after
appellant’s release from medical care. Therefore, appellant was responsible for submitting an
attending physician’s report containing a description of the objective findings and supporting
causal relationship between his current condition and the previously accepted work injury.20 He
had the burden of submitting sufficient medical evidence to document the need for further
medical treatment.21 Appellant did not submit the evidence required and thus failed to establish
a need for continuing medical treatment.22
In an August 7, 2008 report, Dr. Bauer diagnosed multiple mechanical trauma, cervical
spinal stenosis and cervical and lumbar radiculopathy and opined that appellant was capable of
working with restrictions. He did not, however, provide an opinion that appellant’s current
condition was related to the original April 1, 2003 injury. Medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.23
In an April 9, 2009 report, Dr. Wirebaugh provided examination findings and opined that
appellant had a 21 percent permanent impairment of his right lower extremity resulting from his
accepted conditions. He noted that appellant had sustained injuries on April 1, 2003 when he fell
down stairs at work. Dr. Wirebaugh stated that after experiencing initial symptoms of neck pain,
muscle spasm and motion loss, appellant developed right-sided weakness affecting his lower
extremity, including a significant right foot drop, disc herniations at two levels and severe spinal
canal stenosis. He did not, however, provide a definitive opinion, based upon a complete factual
and medical background, that appellant’s current diagnosed conditions were causally related to
the accepted 2003 injury.24 Moreover, he did not explain how the initial injury, which affected
appellant’s neck and right upper extremity, could have been competent to have caused

20

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

21

20 C.F.R. § 10.5(y).

22

See J.F., 58 ECAB 124 (2006).

23

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

24

The Board notes that Dr. Wirebaugh’s report did not reflect his awareness that appellant was involved in a
February 11, 2005 motor vehicle accident that may have aggravated his cervical condition.

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appellant’s current conditions, which included a right foot drop. A medical opinion that is not
fortified by rationale is of diminished probative value.25
Dr. Grant’s October 6, 2010 report contained diagnoses and an impairment rating. It did
not, however, contain an opinion on the cause of appellant’s diagnosed conditions. Therefore, it
is of limited probative value and is insufficient to establish a recurrence of a medical condition.26
The evidence of record is also insufficient to establish a recurrence of disability.
Appellant has not provided any medical evidence noting a spontaneous worsening of his cervical
strain and aggravation of cervical stenosis. Rather, Dr. Kalfas’ March 29, 2005 report reflected
that appellant was “doing well” until February 11, 2005 when appellant was involved in a motor
vehicle accident in which he was hit from behind, and that a few days after the accident,
appellant developed neck pain and increased numbness in his hands. The February 11, 2005
accident constituted an intervening event, rather than a spontaneous worsening. The Board notes
that, on repeated occasions, OWCP requested information and evidence regarding the
intervening 2005 incident in order to determine whether appellant’s current condition was
causally related to his accepted injury. Appellant failed to provide a response to its requests.
Additionally, appellant did not allege or submit medical evidence establishing that he was
totally disabled on any specific date due to residuals of his accepted injury. As noted, the Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so,
would essentially allow an employee to self-certify their disability and entitlement to
compensation.27
Appellant has failed to establish that he was unable to work due to a spontaneous change
in his medical condition which resulted from his accepted injury, rather than from sustained a
recurrence of disability due to his accepted employment injury, the Board finds that he has not
met his burden of proof in that regard.
The Board notes that the November 16, 2011 decision did not constitute a formal denial
of appellant’s request for a schedule award. OWCP did not develop the medical evidence to
determine whether appellant was entitled to a schedule award. The Board notes that the file was
not routed to the district medical adviser, as required by OWCP procedures.28 Additionally,
neither the claims examiner nor the hearing representative analyzed the medical evidence under
the appropriate edition of the A.M.A., Guides. The Board finds that the case is not in posture for
a decision on the schedule award issue, as the matter is in an interlocutory state.
25

Cecilia M. Corley, 56 ECAB 662 (2005).

26

Michael E. Smith, supra note 23.

27

See supra note 11.

28

OWCP procedures provide that, after obtaining all necessary medical evidence, the file should be routed to an
OWCP medical adviser for an opinion concerning the nature and percentage of any impairment in accordance with
the A.M.A., Guides. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent
Disability Claims, Chapter 2.808.6(d) (August 2002).

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a recurrence disability
or a recurrence of medical condition due to his accepted April 1, 2003 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 3, 2012
Washington, DC

Richard J. Daschbach, 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF LAND MANAGEMENT, Idaho Falls, ID,
Employer
__________________________________________

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

Docket No. 10-2284
Issued: June 16, 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 13, 2010 appellant filed an appeal from an August 30, 2010 decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for authorization for a
30-day remote electrocardiogram study and further medical treatment and compensation.
On appeal appellant asserts that his physician ordered the study and will not let him
return to regular duty until it is completed.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 21, 2010 appellant, then a 31-year-old range technician (fire), sustained an
irregular heartbeat and palpitations while running on a track for employment-related physical
training. He was seen in the emergency room where he was treated with intravenous fluids. In
reports dated June 21, 2010, Dr. Eric Maughan, Board-certified in emergency medicine, noted a
history of a near syncopal event that occurred during heavy exertion while running. He reviewed
tests and studies,2 noted that appellant’s symptoms had resolved and diagnosed near syncope and
benign palpitations. Dr. Maughan referred appellant to cardiology for follow-up. The claim was
accepted for palpitations.
On June 29, 2010 Dr. Andrew J. Carter, Board-certified in internal medicine and
cardiovascular disease, noted the history of injury. He noted that, when appellant arrived at the
emergency room, his symptoms had resolved. Dr. Carter reported that appellant had observed
some palpitations with moderate to strenuous exercise since the June 21, 2010 event. He
diagnosed near syncopal event, probably due to underlying cardiac rhythm disturbance, likely
paroxysmal supraventricular tachycardia (PSVT). Dr. Carter recommended limited activity, an
echo-doppler study, an exercise thallium study, and a two-week mobile outpatient cardiac
telemetry study. He advised that appellant could return to work on June 29, 2010 with no fire
activity. A July 15, 2010 exercise myocardial perfusion study reported average exercise capacity
for age, normal electrocardiographic response to stress, normal stress and redistribution thallium
tomographic images without evidence of ischemia or infarction and normal resting left
ventricular ejection fraction.
By letter dated July 29, 2010, OWCP informed appellant that authorization for the remote
30-day cardiac study could not be approved because the June 29, 2010 report advised that his
symptoms had resolved when he arrived at the emergency room on June 21, 2010. Appellant
was afforded 30 days to submit medical evidence showing that the requested procedure and his
current medical condition were causally related to the June 21, 2010 work incident.
In an August 4, 2010 report, Dr. Carter noted that appellant had no further episodes of
palpitations, lightheadedness, dizziness or shortness of breath and that he continued to work
limited duty. He reviewed the July 15, 2010 exercise study and noted that a July 15, 2010
transthoracic echo-doppler study revealed mild left atrial enlargement, normal left ventricular
dimensions, normal valve morphology and function and normal estimated pulmonary artery
systolic pressure. Dr. Carter diagnosed near syncopal event, presumed secondary to PSVT,
without clinical recurrence. He recommended continued limited duty pending further evaluation,
advised that appellant could resume limited exercise and that he should complete a two-week
mobile outpatient cardiac telemetry or other form of cardiac monitoring study.
By decision dated August 30, 2010, OWCP stated:
“This is to inform you that pursuant to the [July 29, 2010] OWCP letter, the above
claim is closed effective the date of this letter. The request for authorization of
the July 26, 2010 [r]emote 30[-][d]ay ECG REV/[r]eport is denied. Further
2

Chest x-ray and electrocardiogram were normal.

2

OWCP medical treatment or compensation related to this claim is not authorized.
If you disagree with this decision, you should carefully review the enclosed
appeal rights and pursue whichever avenue is appropriate to your situation.”
Appeal rights and a copy of the July 29, 2010 letter were enclosed.
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 the monthly
compensation.3 Section 10.310(a) of the implementing regulations provide that an employee is
entitled to receive all medical services, appliances or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work-related
injury.4
Section 8124(a) of FECA provides: “The Secretary of Labor shall determine and make a
finding of fact and make an award for or against payment of compensation….”5 Section 10.126
of Title 20 of the Code of Federal Regulations provide: “The decision shall contain findings of
fact and a statement of reasons.”6 OWCP’s procedures specify certain requirements for a final
decision denying a claim for benefits. The procedures state that OWCP should identify and
discuss all evidence which bears on the issue at hand, including any unsuccessful attempts to
obtain significant evidence, and should summarize the relevant facts and medical opinions. The
procedures note that the reasoning should be clear enough for the reader to understand the
precise defect of the claim and the kind of evidence which would overcome it. The procedures
provide that a finding that claimant failed to meet the burden of proof is properly made from the
evidence, or lack of it, and not simply because the claimant did not respond to a request for
information from OWCP.7
ANALYSIS
The Board finds this case is not in posture for decision. The Board has reviewed the
August 30, 2010 OWCP decision and finds that this decision does not comport with FECA,
OWCP regulations and procedures, or Board case law. As noted, OWCP regulations provide
that a decision shall contain findings of fact and a statement of reasons,8 and OWCP’s
3

5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003).

4

20 C.F.R. § 10.310(a).

5

5 U.S.C. § 8124(a).

6

20 C.F.R. § 10.126; see Laurie S. Swanson, 53 ECAB 517 (2002).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (March 1997); see
Avalon C. Bailey, 56 ECAB 223 (2004).
8

Supra note 6.

3

procedures specify certain requirements for a final decision denying a claim for benefits,
including that OWCP should identify and discuss all evidence that bears on the issue at hand,
The procedures further state that the reasoning behind the evaluation should be clear enough for
the reader to understand the precise defect of the claim and the kind of evidence which would
overcome it.9
In the August 30, 2010 decision, OWCP informed appellant that his claim was closed,
and that authorization for the 30-day cardiac study and further medical treatment or
compensation were not authorized. While its obligation to pay for medical treatment under
section 8103 extends only to treatment of employment-related conditions and appellant has the
burden of establishing that the requested treatment is for the effects of an employment-related
condition,10 in the August 30, 2010 decision, OWCP did not address whether it had weighed the
evidence and found it insufficient to meet appellant’s burden of proof or provide any explanation
regarding the deficiencies of his claim.
The Board finds that this case is not in posture for a decision as the August 30, 2010
decision does not include an explanatory provision or memorandum such that the Board can
conduct an informed adjudication of the case on this issue. The case will be remanded for a de
novo decision on the merits of the claim that comports with FECA, decisions of the Board, and
OWCP regulations and procedures.
CONCLUSION
The Board finds this case is not in posture for decision.

9

Supra note 7.

10

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

4

ORDER
IT IS HEREBY ORDERED THAT the August 30, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: June 16, 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

5


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

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

Docket No. 13-833
Issued: June 5, 2013

Case Submitted on the Record

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

JURISDICTION
On or about November 5, 2012 appellant, through her attorney, filed a timely appeal from
the July 23, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied a schedule award. 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.
ISSUE
The issue is whether appellant’s April 18, 1989 employment injury caused any permanent
impairment to her right lower extremity.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In the prior appeal,2 the Board found that appellant’s case was not in posture for decision
on whether she had more than an eight percent impairment of her right lower extremity causally
related to her April 18, 1989 employment injury. Appellant, a 46-year-old mail handler, injured
her right hip and low back in the performance of duty when she stepped on something, lifted her
foot and fell to the ground. OWCP accepted her claim for a right hip contusion and lumbosacral
strain.
A conflict in medical opinion had arisen on the extent of impairment to appellant’s right
lower extremity. Under 5 U.S.C. § 8123(a), OWCP referred appellant to Dr. E. Michael Okin, a
Board-certified orthopedic surgeon, to resolve the conflict. The Board found, however, that
clarification was warranted. Although OWCP had accepted appellant’s claim for right hip
contusion and lumbosacral strain, Dr. Okin did not examine her right hip or low back. Appellant
had advised him that she was there only for an evaluation of her right knee. The Board carefully
reviewed the record and found no evidence, prior to 1993, that appellant had any medical
condition in her right knee. “This was four years after the incident, and to date, no physician has
explained the lack of bridging evidence or provided a sound medical basis for attributing any
right knee condition to what happened on April 18, 1989.”
The Board instructed OWCP to ask Dr. Okin whether any reliable findings were causally
related to the 1989 right hip contusion or lumbosacral strain, and if so, whether these findings
showed a ratable impairment of the right lower extremity. The facts of this case, as set forth in
the Board’s prior decision, are hereby incorporated by reference.
As Dr. Okin had closed his practice, OWCP referred appellant to Dr. Bong S. Lee, a
Board-certified orthopedic surgeon, to resolve the extent of her permanent impairment. Dr. Lee
related that the history that appellant gave to him. Pointing to her right knee joint area, appellant
complained of swelling and occasion pain in the right lower extremity. Dr. Lee examined her
and found full range of low back motion with no complaints of pain. He also found full range of
hip motion with no complaints of pain and no local tenderness on palpation, including the greater
trochanteric area. Both knees were slightly tender to patellar palpation and mild crepitus could
be heard on compression of the patella against the femoral condyle. Dr. Lee reviewed
appellant’s medical record.
Based on the statement of accepted facts and on his comprehensive orthopedic
examination, Dr. Lee found that appellant had fully recovered from the accepted medical
conditions with no residuals. He found no permanent impairment. Dr. Lee explained that
appellant’s present condition was one of mild degenerative joint disease of the right knee, but
this was not a result of her April 18, 1989 employment injury, as he made clear in a supplemental
report. Rather, he explained, this represented a more recent onset of the normal progression of
aging. Dr. Lee added that these changes were much less than the average of her contemporaries.
OWCP’s medical adviser reviewed Dr. Lee’s evaluation and agreed that appellant had no
impairment of her right lower extremity as a result of her employment injury.
2

Docket No. 10-1417 (issued January 24, 2011).

2

On September 14, 2011 OWCP denied appellant’s claim for a schedule award. On
December 7, 2011, however, OWCP’s hearing representative found that it did not follow the
Board’s instructions to ask the impartial medical specialist whether any reliable findings were
causally related to the 1989 right hip contusion or lumbosacral strain, and if so, whether these
findings showed a ratable impairment of the right lower extremity. The hearing representative
remanded the case for clarification.
Dr. Lee made clear that at the time of his examination appellant had no permanent
impairment as a result of her April 18, 1989 right hip contusion and lumbosacral strain.
On February 9, 2012 OWCP denied a schedule award.3
Dr. David Weiss, an osteopath, updated his evaluation of impairment based on his 2004
findings and knee x-rays taken in 2011. The history he provided was that appellant injured her
right knee when she slipped and fell in 1987. Dr. Weiss found a 1 percent impairment of the
right lower extremity due to right hip trochanteric bursitis and a 16 percent impairment due to
primary knee joint arthritis. He found that appellant reached maximum medical improvement in
2004, when he last examined her.
In a July 23, 2012 decision, OWCP’s hearing representative affirmed the February 9,
2012 decision. The hearing representative found that the weight of the medical evidence rested
with the thorough and well-rationalized opinion of Dr. Lee, the impartial medical specialist. The
hearing representative also found that Dr. Weiss’ report was insufficient to shift the weight of the
evidence.
Appellant’s representative argues that Dr. Lee’s opinion cannot carry the weight of the
medical evidence: he did not have the benefit of the 2011 knee x-rays; he made no reference to
impairment guidelines; and he did not give a knee impairment rating due to the degenerative
condition. Further, he argues that Dr. Lee gave no explanation for his conclusion, and OWCP
did not refer Dr. Lee’s report to OWCP’s medical adviser. The representative notes that
appellant’s right knee condition dates back to 1993, and a diagnostic study in 1997 showed
degenerative changes and a meniscal tear.
LEGAL PRECEDENT
A claimant seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence,4 including that he or she sustained an injury in the performance of duty and that his or
her disability, if any, was causally related to the employment injury.5
3

Although Dr. Lee found no permanent impairment of the right lower extremity causally related to the 1989
employment injury, OWCP did not declare an overpayment for the eight percent impairment rating previously
awarded. This was consistent with its procedures. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.7.b(4) (January 2010).
4

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

5

Elaine Pendleton, 40 ECAB 1143 (1989); see Daniel R. Hickman, 34 ECAB 1220 (1983).

3

If there is permanent disability involving the loss or loss of use of a scheduled member or
function of the body, the claimant is entitled to a schedule award for permanent impairment.6 It
is thus the claimant’s burden to establish that his or her employment injury caused permanent
impairment to a scheduled member or function.7
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.8 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.9
ANALYSIS
The Board has, on more than one occasion, carefully reviewed appellant’s record and
found no evidence, until 1993, that she had any kind of right knee condition. OWCP accepted
her claim for right hip contusion and lumbosacral strain. Although the record shows that it
would later accept a right knee sprain, there was no suggestion from 1989 to 1993 that appellant
might have injured her right knee. An imaging study in 1993 showed an abnormal signal in the
posterior horn of the lateral and medial meniscus (not extending to the articular surface), most
likely related to degenerative changes. No physician has tried to account for the lack of bridging
evidence, nor has a physician offered a sound medical basis for attributing any right knee
condition to what happened on April 18, 1989.
As appellant’s representative notes, the right knee condition dates back to 1993, but this
does not mean that the abnormal meniscal signals were in any way related to her 1989 fall at
work. The fact that abnormal signals were seen four years later does not raise an inference of
causal relationship10 and the record contains no rationalized medical opinion to establish this
element. Moreover, there is no evidence that appellant had any preexisting impairment of her
right lower extremity.
It should also be noted that OWCP has never expanded appellant’s claim to include any
kind of degenerative condition or primary knee arthritis. Having later accepted a mere sprain of
the right knee, it is appellant’s burden to establish that this sprain or hip contusion or
lumbosacral strain caused permanent physical impairment to her right lower extremity.

6

5 U.S.C. § 8107(a).

7

See Raymond E. Gwynn, 35 ECAB 247 (1983); Philip N.G. Barr, 33 ECAB 948 (1982) (FECA provides that a
schedule award be payable for a permanent impairment resulting from an employment injury).
8

5 U.S.C. § 8123(a).

9

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

10

Thomas D. Petrylak, 39 ECAB 276 (1987).

4

OWCP properly referred appellant to Dr. Lee, a Board-certified orthopedic surgeon and
impartial medical specialist, to resolve the extent of any permanent impairment. It provided
Dr. Lee a statement of accepted facts and appellant’s medical record so he could base his opinion
on a proper factual and medical history.
Consistent with his findings on physical examination, Dr. Lee found that appellant had
fully recovered from her accepted medical conditions with no residuals, and therefore no
permanent impairment. Appellant did exhibit mild degenerative joint disease in the right knee,
which was not an accepted medical condition and which was not, in his opinion, a result of her
April 18, 1989 fall at work. Dr. Lee explained that this was a more recent onset of the normal
progression of aging, and in fact, her degenerative changes were much milder than average for
her age.
The Board finds that Dr. Lee based his opinion on a proper factual and medical
background. The Board further finds that his opinion is sufficiently well rationalized that it must
be accorded special weight in resolving the extent of any permanent impairment. As the weight
of the medical opinion evidence establishes no permanent impairment of the right lower
extremity resulting from the April 18, 1989 fall at work, the Board finds that appellant has not
met her burden to establish that she is entitled to a schedule award. Accordingly, the Board will
affirm OWCP’s July 23, 2012 decision.
Dr. Weiss offered a combined impairment rating of 17 percent based on right hip
trochanteric bursitis and primary knee joint arthritis. However, neither of these were accepted
medical conditions. Further, Dr. Weiss’ findings in 2004 were dated. Dr. Lee examined
appellant seven years later and found full range of hip motion with no complaints of pain and no
local tenderness on palpation, including the greater trochanteric area. As Dr. Weiss did not
establish that she had any impairment causally related to what happened on April 18, 1989, his
opinion on permanent impairment carries no probative weight.
OWCP did not accept appellant’s claim for arthritis, and there is no evidence that
appellant had any preexisting permanent impairment of her right lower extremity. Dr. Lee did
not refer to impairment guidelines because there was no need. The accepted medical conditions
had resolved without residuals. Any current impairment due to knee arthritis alone would not
entitle appellant to a schedule award.
Dr. Lee did support his conclusion with medical rationale. His knowledge of the
mechanism of injury and the accepted medical conditions, together with his findings on physical
examination and his review of the medical record, led him to conclude that the accepted
conditions had resolved without residuals, and that appellant’s current right knee condition was
simply the natural progression of aging, unrelated to what happened in 1989. This opinion
represents the special weight of the medical evidence.
OWCP did refer Dr. Lee’s evaluation to its medical adviser. When it later asked him to
clarify his opinion in light of a corrected date of injury, he did so without altering his opinion in
the least. Accordingly, there was nothing further for the medical adviser to review.

5

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.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award. Appellant has not met
her burden to establish that her April 18, 1989 employment injury caused any permanent
impairment to her right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the July 23, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 5, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

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

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

2

IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, NORTH TEXAS
PROCESSING & DISTRIBUTION CENTER,
Coppell, TX, Employer
__________________________________________

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

Docket No. 20-0448
Issued: March 4, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 23, 2019 appellant filed a timely appeal from a December 3, 2019 merit
decision of the Office of Workers’ Compensation Programs. 1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3

1
Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated November 18,
2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket
No. 20-0448 (issued November 18, 2020).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 3, 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.

ISSUES
The issues are: (1) whether OWCP appellant received an overpayment of compensation in
the amount of $6,905.83 for the period October 12, 2018 through January 5, 2019 because she
continued to receive disability compensation following her return to work; (2) whether it properly
found that appellant was at fault in the creation of the overpayment and, therefore, precluded from
waiver of recovery; and (3) whether OWCP properly determined that appellant abandoned her
request for a prerecoupment hearing.
FACTUAL HISTORY
On August 1, 2017 appellant, then a 24-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on July 17, 2017 she sustained a left knee injury when her foot hit the bottom
of a trailer and her knee buckled back while in the performance of duty. She stopped work on
July 31, 2017. OWCP initially accepted the claim for left knee contusion, sprain, effusion, and
later expanded the acceptance of the claim to include a left knee lateral meniscus tear. It paid
appellant wage-loss compensation on the supplemental rolls as of September 17, 2017 and on the
periodic rolls as of November 12, 2017.
OWCP advised appellant on September 28, 2017 that she was expected to return to work
as soon as she was able, and it was her responsibility to advise the employing establishment once
her physician found her capable of returning to work. It also advised appellant that once she
returned to work she should notify OWCP and return payment for any period worked to prevent
an overpayment of compensation. OWCP advised appellant that, if she worked during any portion
of the covered period and compensation payments were received via either paper check or for
payments sent by electronic funds transfer (EFT), she was to return the payment to OWCP even if
she had already advised OWCP that she was working.
The employing establishment offered appellant a full-time modified assignment (limited
duty) as a mail processing clerk on October 4, 2018, which appellant accepted on
October 10, 2018.
In an e-mail to OWCP dated January 23, 2019, a health and resource management
specialist at the employing establishment noted that appellant had returned to work on
October 12, 2018.
In an automated compensation payment system (ACPS) worksheet dated January 28, 2019,
OWCP calculated that appellant’s overpayment amount for the period October 12, 2018 through
January 5, 2019 was $6,905.83. It noted that appellant was paid $158.86 for the period October 12
through 13, 2018 and $2,248.99 for each subsequent 28 -calendar-day period through
January 5, 2019.
In a preliminary overpayment determination dated July 8, 2019, OWCP advised appellant
that an overpayment of compensation in the amount of $6,905.83 had been created because she
returned to work full time on October 12, 2018, but continued to receive wage-loss compensation
through January 5, 2019. Appellant’s 28-day net compensation payment for September 16
through October 13, 2018 was $2,224.07, while her 28-day net compensation payment for the three

2

subsequent 28-day periods through January 5, 2019 was $2,248.99. OWCP provided its
computation of the amount of the overpayment for this period, dividing her 28-day compensation
during the relevant periods by 28 to arrive at a daily rate, then multiplying the daily rate by the
number of days appellant was overpaid. It made the preliminary finding that appellant was at fault
in the creation of the overpayment, as she accepted payments she knew or should have known to
be incorrect. OWCP advised appellant that she received a paper compensation check with the
printed period of payment and the amount paid and she should have rea sonably known that the
payment was incorrect because the dates overlapped with the period she worked ; therefore, she
accepted a payment she knew or reasonably should have known was incorrect. It afforded
appellant 30 days to submit additional evidence and argument and to request a hearing.
On August 2, 2019 appellant requested a prerecoupment hearing on an overpayment action
request form and contested the fact of the overpayment, the amount of the overpayment, and the
preliminary finding of fault, requesting a waiver. She completed an overpayment recovery
questionnaire (Form OWCP-20) and explained that she had reported her return to full-time work
in October 2018. Appellant noted that it took so long to “get my checks started” she believed the
checks were money she was due.
In a letter dated October 2, 2019, OWCP’s hearing representative notified appellant that a
telephonic hearing was scheduled for Tuesday, November 19, 2019 at 2:30 p.m. Eastern Standard
Time (EST). The notice provided the appropriate toll-free number and passcode for the hearing.
OWCP’s hearing representative mailed the notice to appellant’s last known address of record.
Appellant did not appear for the hearing.
By decision dated December 3, 2019, OWCP determined that appellant had abandoned her
request for a prerecoupment hearing. It indicated that appellant had received 30 days advanced
written notice of the hearing scheduled for November 19, 2019, but that she failed to appear.
OWCP further noted that there was no indication in the record that appellant had contacted it either
prior to, or within 10 days after the hearing to request a postponement or provide an explanation
to OWCP for her failure to appear at the hearing. Consequently, appellant was deemed to have
abandoned her request for an oral hearing.
OWCP also finalized the preliminary overpayment determination that an overpayment of
compensation in the amount of $6,905.83 for the period October 12, 2018 through January 5, 2019
was created. It found that appellant was at fault in the creation of the overpayment and required
recovery in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA4 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty. 5 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8102(a).

3

law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled. 6
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period. 7 OWCP regulations provide that 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.8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$6,905.83 for the period October 12, 2018 through January 5, 2019 because she continued to
receive disability compensation following her return to work.
OWCP paid appellant wage-loss compensation for disability on the periodic rolls. The
evidence reflects that appellant returned to work, full time, on October 12, 2018. Appellant
continued to receive wage-loss compensation through January 5, 2019. A claimant is not entitled
to receive temporary total disability benefits and actual earnings for the same time period. 9
Accordingly, the Board finds that appellant received an overpayment of compensation.10
The record shows that OWCP calculated that, from October 12, 2018 through January 5,
2019, appellant received $6,905.83 in total net compensation, but was not entitled to any
compensation during this time period. OWCP explained that appellant was paid $158.86 for the
period October 12 through 13, 2018 and $2,248.99 for each subsequent 28 -calendar day period
through January 5, 2019.11 The Board finds that OWCP properly determined that appellant
received an overpayment of compensation in the amount of $6,905.83 for the period October 12,
2018 through January 5, 2019.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that 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 this subchapter or would be against

6

Id. at § 8129(a).

7

See M.S., Docket No. 16-0289 (issued April 21, 2016); D.B., Docket No. 15-0258 (issued February 1, 2016).

8

See C.V., Docket No. 16-0986 (issued September 1, 2016); 20 C.F.R. § 10.500.

9

Supra note 7.

10

J.M., Docket No. 17-1574 (issued February 8, 2018).

11

The daily rate for the period September 16 through October 13, 2018 was $79.43. The daily rate for the periods
during October 14, 2018 through January 5, 2019 was $80.32.

4

equity and good conscience.12 No waiver of an overpayment is possible if the claimant is at fault
in creating the overpayment.13
On the issue of fault 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect. 14
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid. 15
Even if an overpayment resulted from negligence by OWCP, this does not excuse the
employee from accepting payment, which the employee knew or should have been expected to
know she was not entitled. 16
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision.
In order for it to establish that appellant was at fault in the creation of the overpayment of
compensation, OWCP must establish that, at the time appellant received the compensation check
in question, she knew or should have known that the payment was incorrect. 17
The Board has explained that when a claimant returns to work and subsequently receives
a compensation check in the mail covering a period of employment, if he or she knows or should
have known that they were not entitled to such compensation, but decides nonetheless to cash or
deposit the check, the cashing or depositing of the check establishes fault.18
On September 28, 2017 OWCP advised appellant that she was to immediately inform it of
any return to work. It also advised appellant that if she continued to receive wage-loss
12

5 U.S.C. § 8129(b).

13

Gregg B. Manston, 45 ECAB 344, 354 (1994).

14

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116, 118 (1999).

15

Id. at § 10.433(b).

16

Diana L. Booth, 52 ECAB 370 (2001).

17

J.H., Docket No. 17-0592 (issued May 1, 2018); Linda E. Padilla, 45 ECAB 768, 772 (1994).

18

See J.H., id.; William F. Salmonson, 54 ECAB 152 (2002).

5

compensation by check, but had worked during any period covered by a check, she had to return
the check, even if she had reported her return to work to OWCP. Thus, appellant should have
known that she could not receive wage-loss compensation by check after her return to work.
The Board finds that as the checks in question do not appear in the record, it is unable to
verify that the checks identified the period for which compensation was paid and , therefore, that
appellant should have known that the checks were compensation payments for the period following
which she had returned to work.
Accordingly, the Board finds that the case must be remanded to OWCP. OWCP shall scan
copies of the checks issued to appellant for the period October 12, 2018 through January 5, 2019
into to the case record. OWCP shall thereafter determine whether appellant knew or should have
known that she received an overpayment of compensation. OWCP shall then issue a new
preliminary overpayment determination regarding the issue of fault, with an overpayment action
request form, a Form OWCP-20 instructions for appellant to provide supporting financial
documentation. Following this and other such further development as deemed necessary, OWCP
shall issue a de novo decision.19
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $6,905.83 from October 12, 2018 through January 5, 2019. The
Board further finds, however, that this case is not in posture for decision as to whether appellant
was at fault in the creation of the overpayment.

19

In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the December 3, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: March 4, 2022
Washington, DC

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

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

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

7