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

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

Docket No. 12-424
Issued: August 21, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 1, 2011 appellant filed a timely appeal from an August 15, 2011 decision
of the Office of Workers’ Compensation (OWCP) Programs terminating his compensation
benefits for his accepted work injury. He also appealed an October 24, 2011 decision of OWCP
which denied his request for a review of the written record. 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 case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to justify termination of
appellant’s compensation benefits effective August 28, 2011; and (2) whether OWCP properly
denied appellant’s request for an oral hearing pursuant to 5 U.S.C. § 8124(b)(1).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 24, 2009 appellant, then a 38-year-old custom and border patrol officer, lifted a
metal box at work and injured his low back. OWCP accepted the claim for sprain of the back,
lumbar region and expanded his claim to include aggravation of displacement of lumbar
intervertebral disc. Appellant stopped work on July 23, 2009 and did not return.
After the work injury, appellant was treated for a lumbar sprain and found to be totally
disabled. An x-ray of the lumbar spine dated August 18, 2009 revealed mild posterior
degenerative changes. An August 28, 2009 lumbar spine magnetic resonance imaging (MRI)
scan showed posterior central disc bulge at L4-5 and L5-S1.
Appellant came under the treatment of Dr. Gerard Zavala, a Board-certified
neurosurgeon, from October 9, 2009 to February 22, 2010, for a work-related back injury.
Dr. Zavala diagnosed history of protruded disc at L5-S1, possible herniated disc in the cervical
and thoracic spine and left knee injury. He recommended additional testing and physical therapy
and opined that appellant was totally disabled. An MRI scan of the cervical spine dated
October 29, 2009 revealed muscle spasm and posterior central disc bulge at C5-6. An MRI scan
of the thoracic spine revealed posterior left, paracentral disc protrusion at T7-8 and posterior
central disc bulge at T5-6. An October 29, 2009 MRI scan of the left knee revealed mild
patellofemoral osteoarthrosis. A December 16, 2009 electromyogram (EMG) of the cervical and
thoracic spine revealed no abnormalities.
Appellant continued to be treated by Dr. Zavala for cervical and lumbar radiculopathy
and opined that appellant remained totally disabled. In a February 22, 2010 report, he noted pain
findings all over appellant’s body which prevented him from returning to his regular duties.
Dr. Zavala noted decreased range of motion, decreased strength and decreased sensation at
L5-S1. In an August 26, 2010 report, he noted that appellant presented with neck pain radiating
into his upper extremities with low back pain radiating into his lower extremity. Dr. Zavala
diagnosed cervical radiculopathy with bulging disc at L5-6, lumbar radiculopathy with
protruding disc at L5-S1, thoracic radiculopathy with protruded disc at T7-8 and rheumatoid
arthritis. He noted that appellant’s work injury with lumbosacral radiculopathy and a protruded
disc at L5-S1 was causally related to the July 23, 2009 work injury and compounded by
rheumatoid arthritis. Dr. Zavala opined that appellant was totally disabled. Appellant underwent
a functional capacity evaluation on April 29, 2010 which noted that he could work in a less than
sedentary position.

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In a letter dated October 19, 2010, OWCP notified appellant that his physician noted a
newly diagnosed condition in relation to his July 23, 2009 work injury and that his claim would
be further developed.2
On November 9, 2010 OWCP referred appellant to Dr. Charles D. Mitchell, a Boardcertified orthopedist, to determine if the newly diagnosed conditions were work related, whether
the accepted conditions had resolved and whether appellant could return to work. In a
December 16, 2010 report, Dr. Mitchell noted examining appellant on November 10, 2010. He
reviewed appellant’s history and noted findings. Appellant had muscle spasm in the cervical and
lumbar spine, restricted range of motion of the cervical and lumbar region, generalized weakness
in the left upper extremity, decreased sensation in the left leg and noted that appellant appeared
to be overreacting to the examination. Dr. Mitchell diagnosed marked obesity, cervical and
lumbar strain, bulging discs at L4-5 and L5-S1, cervical disc bulge at C5-6 and thoracic disc
protrusion at T5-6, T7-8. He opined that appellant had lumbar problems preventing him from
working but noted that there was some work that he could perform with restrictions.
Dr. Mitchell noted appellant’s lumbar condition was related to the July 23, 2009 injury.
However, the degenerative changes of the thoracic, cervical and lumbar spine were preexisting.
Dr. Mitchell noted that appellant had significant pain in the left arm and legs and noted an
aggravation of a lumbar condition that had not completely resolved. He recommended a work
reconditioning and pain management program. Dr. Mitchell noted that appellant could return to
work six hours per day with restrictions with the anticipation that appellant would increase his
hours.
On January 5, 2011 OWCP expanded appellant’s claim to include aggravation of
displacement of lumbar intervertebral disc.
On January 5, 2011 OWCP requested that Dr. Zavala review Dr. Mitchell’s report and
address whether appellant could return to work six hours per day with restrictions. In duty status
reports dated January 19 and March 10, 2011, Dr. Zavala diagnosed cervical, lumbar and
thoracic radiculopathy and noted that appellant was totally disabled.
OWCP found that a conflict of medical opinion existed between Dr. Zavala, who
indicated that appellant had residuals of his work-related injuries and was totally disabled, and
Dr. Mitchell, an OWCP referral physician who determined that appellant had residuals of his
accepted work condition but could work six hours per day with restrictions.
To resolve the conflict OWCP, on April 7, 2011, referred appellant to a referee physician,
Dr. Frank L. Barnes, a Board-certified orthopedist. In a May 3, 2011 report, Dr. Barnes noted
reviewing the record, including the history of appellant’s work injury, and examining appellant.
Examination of the cervical spine revealed normal curvature, no atrophy, no palpable spasm,
2

OWCP had previously referred appellant to Dr. Donald M. Mauldin, an orthopedic surgeon, who opined on
May 17, 2010, that appellant’s work-related lumbar spine condition had resolved. Thereafter, it referred appellant to
Dr. Grant McKeever, an orthopedic surgeon, for an impartial examination. Dr. McKeever, in July 29 and
September 15, 2010 reports, opined that appellant’s accepted lumbar condition had resolved but that nonworkrelated rheumatoid arthritis might limit his ability to work. Although OWCP, on August 11, 2010, proposed to
terminate benefits, it did not finalize this proposal.

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manual muscle testing showed no weakness in the upper extremity with tenderness in the
lumbar, thoracic spine to light touch and cervical tenderness to moderate touch. Dr. Barnes
noted examination of the lumbar spine revealed normal curvature, no rigidity or spasm, lumbar
tenderness to light touch, stocking like hypoesthesia in the left lower extremity with weakness in
the right knee, foot and ankle. He noted no swelling of the left knee, medial tenderness with no
instability and no swelling of the left elbow. Dr. Barnes diagnosed lumbar strain syndrome,
contracture left elbow and left knee, symptom magnification and depression of unknown cause.
He opined that appellant was able to return to his date-of-injury position based on lack of
objective findings of disability. Dr. Barnes opined that the work-related back and aggravated
conditions had resolved. In a work capacity evaluation, he opined that appellant could return to
his regular job without restrictions.
On May 18, 2011 OWCP requested clarification from Dr. Barnes asking that he address
whether he agreed with Dr. Zavala’s determination that appellant’s thoracic, cervical bulges,
head and low back pain, shoulder and left knee pain were related to the July 23, 2009 injury.
In a May 21, 2011 report, Dr. Barnes opined that the thoracic and cervical spine bulges
were degenerative in nature and not caused by the July 23, 2009 work injury but predated that
condition. With regard to head pain, he noted that appellant did not mention it and there was no
evidence that he sustained a head injury on July 23, 2009. Dr. Barnes further noted that the
record did not substantiate any connection between the July 23, 2009 injury and his current
shoulder complaints or left elbow pain. He indicated that the evidence indicated that appellant
may have strained his knee on July 23, 2009 but this would have been a soft tissue injury and
would have healed within two months.
On July 13, 2011 OWCP proposed to terminate all benefits finding that Dr. Barnes’s
May 3 and 21, 2011 reports established no continuing residuals of his work-related condition.
On July 25, 2011 appellant asserted that he was in considerable pain and could not return
to his date-of-injury position. He submitted an April 25, 2011 report from Dr. Hector Trevino, a
Board-certified neurologist, who tested appellant for sleep apnea and diagnosed hypersomnia
with moderate obstructive sleep apnea.
In a decision dated August 15, 2011, OWCP terminated appellant’s medical and wageloss compensation benefits effective August 28, 2011 finding that the medical evidence
established that he had no continuing residuals of his accepted conditions.
On October 1, 2011 appellant requested a review of the written record. He submitted an
MRI scan of the thoracic spine dated October 29, 2009, a January 5, 2011 acceptance letter from
OWCP and the May 21, 2011 report from Dr. Barnes, all previously of record. Also submitted
was a July 12, 2011 duty status report from Dr. Zavala who noted that appellant was disabled
from work. Appellant submitted a treatment note from Dr. Sergio Zamora, a psychiatrist, who
treated him for stress.
In a decision dated October 24, 2011, OWCP denied appellant’s request for a review of
the written record. It found that the request was not timely filed. Appellant was informed that
his case had been considered in relation to the issues involved, and that the request was further

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denied for the reason that the issues in this case could be addressed by requesting reconsideration
from OWCP and submitting evidence not previously considered.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability. To terminate authorization for medical treatment, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.5
ANALYSIS -- ISSUE 1
OWCP found a medical conflict between appellant’s attending physician, Dr. Zavala, a
Board-certified neurosurgeon, who determined that appellant still had residuals of the sprain of
the back, lumbar region and aggravation of displacement of lumbar intervertebral disc and was
totally disabled from work, and Dr. Mitchell, a referral physician, who indicated that appellant
had some residuals of his accepted conditions but could return to work six hours per day with
restrictions. Consequently, it referred appellant to Dr. Barnes to resolve the conflict of opinion
with respect to the extent of appellant’s work-related condition.
The Board finds that, under the circumstances of this case, the opinion of Dr. Barnes is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that disabling residuals of appellant’s work-related conditions
have ceased. Where there exists a conflict of medical opinion and the case is referred to an
impartial specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, is entitled to special
weight.6
In a May 3, 2011 report, Dr. Barnes reviewed appellant’s history and noted that appellant
had no objective complaints or findings due to the accepted conditions. He found no credible
objective evidence of ongoing condition due to appellant’s July 23, 2009 work injury and opined
that appellant could return to his preinjury position. In support of his opinion, Dr. Barnes noted
an essentially normal examination with normal curvature of the cervical and lumbar spine, no
atrophy, no palpable spasm, no weakness in the upper extremity with tenderness in the lumbar,
thoracic and cervical spine and lower extremity weakness in the right knee, foot and ankle. He
diagnosed lumbar strain syndrome, contracture left elbow and left knee, symptom magnification
3

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

4

Mary A. Lowe, 52 ECAB 223 (2001).

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Id.; Leonard M. Burger, 51 ECAB 369 (2000).

6

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a).

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and depression of unknown cause. In a work capacity evaluation, Dr. Barnes opined that
appellant could return to his regular job without restrictions. In a May 21, 2011 report, he
clarified his opinion noting that the thoracic and cervical spine bulges were degenerative in
nature and not caused by the July 23, 2009 work injury.7 With regard to head pain, shoulder
complaints and elbow pain, Dr. Barnes noted that there was no evidence that appellant sustained
a head, shoulder or elbow injury on July 23, 2009.8 He indicated that the evidence indicates that
appellant may have strained his knee on July 23, 2009 but this would have been a soft tissue
injury and would have healed within two months.
The Board finds Dr. Barnes had full knowledge of the relevant facts and evaluated the
course of appellant’s condition. Dr. Barnes is a specialist in the appropriate field. At the time
wage-loss and medical benefits were terminated he clearly opined that appellant had no workrelated reason for disability. Dr. Barnes’ opinion as set forth in his reports of May 3 and 21,
2011 are found to be probative evidence and reliable. The Board finds that Dr. Barnes’s opinion
constitutes the weight of the medical evidence and is sufficient to justify OWCP’s termination of
wage-loss and medical benefits for the accepted conditions.
On appeal, appellant asserted that he remained disabled and contended that Dr. Barnes’
opinion is insufficient to terminate his benefits. As explained, the weight of the medical
evidence establishes that disability due to the accepted conditions has ceased.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied
with a decision of the Secretary ... is entitled, on request made within 30 days after the date of
the issuance of the decision, to a hearing on his claim before a representative of the Secretary.”9
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provides that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.10 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
7

See Guiseppe Aversa, 55 ECAB 164 (2003) (where OWCP secures an opinion from an impartial medical
specialist for the purpose of resolving a conflict in the medical evidence and the opinion from such specialist
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental report from the specialist
for the purpose of correcting the defect in the original opinion).
8

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or
approved by OWCP was due to an employment injury, he or she bears the burden of proof to establish that the
condition is causally related to the employment injury).
9

5 U.S.C. § 8124(b)(1).

10

20 C.F.R. §§ 10.616, 10.617.

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reconsideration.11 Although there is no right to a review of the written record or an oral hearing
if not requested within the 30-day time period, OWCP may within its discretionary powers grant
or deny appellant’s request and must exercise its discretion.12 Its procedures require that it
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under 5 U.S.C. § 8128(a).13
ANALYSIS -- ISSUE 2
Appellant requested a review of the written record in an appeal request form dated
October 1, 2011 and postmarked October 2, 2011. As the request for a review of the written
record was made more than 30 days after issuance of the August 15, 2011 OWCP decision, his
appellant’s request for a review of the written record was untimely filed and he is not entitled to
a review of the written record as a matter of right.
OWCP also notified appellant that it had considered the matter in relation to the issue
involved and indicated that additional argument and evidence could be submitted with a request
for reconsideration. It has broad administrative discretion in choosing means to achieve its
general objective of ensuring that an employee recovers from his or her injury to the fullest
extent possible in the shortest amount of time. An abuse of discretion is generally shown
through proof of manifest error, a clearly unreasonable exercise of judgment, or actions taken
which are contrary to both logic and probable deductions from established facts.14 There is no
indication that OWCP abused its discretion in this case in finding that appellant could further
pursue the matter through the reconsideration process.
Consequently, OWCP properly denied appellant’s request for a review of the written
record.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate benefits effective
August 28, 2011. The Board further finds that OWCP properly denied appellant’s request for a
review of the written record pursuant to 5 U.S.C. § 8124(b)(1).

11

Id. at § 10.616(a).

12

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

13

See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).
14

Samuel R. Johnson, 51 ECAB 612 (2000).

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ORDER
IT IS HEREBY ORDERED THAT October 24 and August 15, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 21, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, NEW JERSEY
INTERNATIONAL & BULK MAIL CENTER,
Jersey City, NY, Employer
__________________________________________

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

Docket No. 08-740
Issued: October 3, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 15, 2008 appellant, through counsel, filed a timely appeal of a January 26,
2007 merit decision of the Office of Workers’ Compensation Programs’ hearing representative,
affirming the termination of her compensation for wage-loss and medical benefits effective
February 19, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this termination case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation for
wage-loss and medical benefits effective February 19, 2006 on the grounds that she no longer
had any residuals or disability causally related to her accepted employment-related injury; and
(2) whether she had any continuing employment-related residuals or disability after
February 19, 2006.

FACTUAL HISTORY
On May 18, 2003 appellant, then a 40-year-old mail handler, filed a traumatic injury
claim alleging that on that date she sustained a contusion of the right foot. Her foot was crushed
between a bulk mail carrier and the jeep she was driving as a result of getting hit by a forklift.
By letter dated August 17, 2003, the Office accepted the claim for right ankle sprain.
Appellant stopped work on July 3, 2003 based on the recommendation of Dr. Julius P.V.
Rao, an attending Board-certified orthopedic surgeon. She filed a claim for wage-loss
compensation for total disability for the period July 5 through August 4, 2003. Appellant
returned to work on August 6, 2003. She stopped work again on August 17, 2003.
In a September 3, 2003 letter, appellant stated that she stopped work effective August 17,
2003 due to increased pain. She filed a claim alleging that she sustained a recurrence of
disability on August 17, 2003. A September 3, 2003 disability certificate of Dr. Monica R.
Mehta, an attending Board-certified physiatrist, stated that appellant sustained an acute right
ankle sprain and that she was totally disabled. In an October 24, 2003 medical report, Dr. Mehta
reviewed a history of the May 18, 2003 employment injury. She noted appellant’s complaints of
severe pain in the right ankle, foot and knee and pain radiating to her right hip and lumbar spine.
Dr. Mehta reported her findings on physical examination and stated that appellant sustained right
ankle internal derangement, probable early stages of reflex sympathetic dystrophy (RSD),
peroneal neuritis, lumbosacral radiculopathy and right knee internal derangement. She opined
that these conditions were caused by the May 18, 2003 employment injury. Dr. Mehta further
opined that appellant could not work until further notice.
By letter dated March 24, 2004, the Office accepted that appellant sustained a recurrence
of disability on August 17, 2003 causally related to her May 18, 2003 employment injury.1 On
April 2, 2004 it paid wage-loss compensation for total disability during the period July 5 through
August 3, 2003.
By letter dated May 6, 2004, the Office referred appellant to a field nurse for intervention
to determine her treatment plan and assist her return to work.
On April 23, 2004 Dr. Howard Hirsch, a Board-certified radiologist, performed a
magnetic resonance imaging (MRI) scan of appellant’s right knee which demonstrated a
probable partial interstitial tear involving the anterior cruciate ligament (ACL). He found no
evidence of a meniscal tear.
On June 18, 2004 the nurse advised the Office that she was waiting for a medical report
from Dr. Ernesto A. Tolentino, a Board-certified orthopedic surgeon, regarding appellant’s right
knee condition.
In a May 28, 2004 report, Dr. Mehta stated that appellant sustained right ankle internal
derangement which caused acute lumbosacral radiculopathy due to the pelvic obliquely
1

In the March 24, 2004 letter, the Office also accepted that appellant sustained a recurrence of disability on
June 29, 2003 causally related to her accepted employment injury.

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emanating from the right ankle and right knee internal derangement. An MRI scan of the right
knee revealed a partial interstitial tear involving the ACL. Appellant was advised to refrain from
activities that required prolonged standing, kneeling, pushing, pulling and climbing until further
notice.
As the Office did not receive a report from Dr. Tolentino, it referred appellant to
Dr. Iris A. Drey, a Board-certified orthopedic surgeon, for a second opinion medical
examination.
In a June 30, 2004 report, Dr. Mehta stated that appellant could return to light-duty work
with restrictions as of June 7, 2004. In a July 15, 2004 disability certificate, she stated that
appellant sustained acute right ankle internal derangement and that she was disabled for work.
In a July 13, 2004 report, Dr. Tolentino reviewed a history of appellant’s May 18, 2003
employment injury and medical treatment. He noted her complaints of pain in the right lower
extremity from the foot to the thigh and right wrist. On physical examination, Dr. Tolentino
reported normal findings regarding appellant’s right lower extremity including the right knee,
and essentially normal findings regarding her right wrist. He noted the findings of the April 23,
2004 MRI scan but noted that on physical examination there was no evidence of any positive
Lachman test or positive Drawer sign to the right knee. Dr. Tolentino opined that appellant was
status post contusion and sprain of the right ankle and lower extremity. He stated that she may
benefit from a pain management program, as well as, a psychiatric evaluation.
In an August 6, 2004 report, Dr. Drey reviewed a history of appellant’s May 18, 2003
employment injury, employment, medical and social background. On physical examination, he
reported normal range of motion of appellant’s right and left shoulders, elbows, wrists, hips,
knees, feet and ankles, and cervical and thoracolumbar spines. Dr. Drey diagnosed right hip
bursitis and right knee meniscal symptoms and possible instability. He opined that the right hip
condition may be secondary to appellant’s right knee symptoms, the origin of which he was
unable to determine at that time. Dr. Drey further opined that she was unable to work at her
regular job as a mail handler. He recommended reevaluation following her completion of
physical therapy. Dr. Drey stated that appellant did not appear to have any continuing disability
of the employment-related right ankle condition. There was no diagnosis of right ankle
derangement and he was unable to state that this condition caused her acute lumbosacral
radiculopathy. Dr. Drey opined that appellant’s right ankle and knee symptoms were related to
the May 18, 2003 employment injury. Appellant appeared to have some decreased range of
motion of the lumbosacral spine which was possibly related to altered walking due to her right
knee injury and accepted employment-related right ankle condition. In an August 6, 2004 work
capacity evaluation, Dr. Drey stated that appellant could not perform her regular work duties, but
she could work four hours per day with restrictions.
The Office found a conflict in the medical opinion evidence between Dr. Mehta and
Dr. Drey as to whether appellant had any continuing employment-related residuals or disability.
By letter dated January 12, 2005, the Office referred appellant, together with a statement of
accepted facts, the case record and a list of questions to be addressed, to Dr. Paul A. Foddai, a
Board-certified orthopedic surgeon, for an impartial medical examination.

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In a February 9, 2005 report, Dr. Hirsch stated that an x-ray and an MRI scan of
appellant’s right ankle were negative.
In a February 17, 2005 report, Dr. Foddai reviewed a history of appellant’s May 18, 2003
employment injury and medical treatment. He noted her complaints of persistent back and right
knee, foot and ankle pain but reported an essentially normal physical examination of the
lumbosacral spine, right knee and right ankle. Dr. Foddai also reported that the neurovascular
examination was intact. He stated that an MRI scan of appellant’s ankle revealed no evidence of
bony or soft tissue abnormality or ligamentous tear. Dr. Foddai reviewed her case record
including, Dr. Rao’s medical records. He noted that appellant initially injured and contused her
foot and ankle. Dr. Foddai believed that appellant received excellent orthopedic care and that
routine x-rays of the foot and ankle and an MRI scan were negative. He opined:
“The clinical examination did not demonstrate any evidence of ankle instability
nor did it demonstrate any evidence of ankle swelling or reduced motion. Foot
examination was nonfocal. Examination of the knee did not show any evidence
of meniscal or ligamentous injury. I realize that the anterior cruciate ligament has
been felt to be compromised but this is not readily apparent on clinical
examination. Furthermore, the mechanism that [appellant] stated caused the knee
injury does not correspond to a mechanism that would have given a tear of the
cruciate ligament. If she had sustained a cruciate ligament injury at the time of
her initial evaluation, she would have had a tremendous amount of pain and
swelling in the knee itself. Dr. Rao does not mention this at all in any of his
notes. Consequently, although there is evidence of anterior cruciate ligament
insufficiency on MRI [scan] examination, it is not clinically apparent and does not
appear to me to have been accepted as a clinical problem in [appellant]. If it is
ever accepted as a clinical problem, then the history that [appellant] gave for
injuring does not fit the mechanism that would lead to a tear of the anterior
cruciate ligament. Let me explain once more. At the time of [appellant’s] initial
evaluation by Dr. Rao, shortly after her work[-]related event, she complained of
foot and ankle pain which he treated accordingly. If she had injured her anterior
cruciate ligament at the time of the initial injury, this injury is associated with
bleeding into the knee joint and caused a hemoarthrosis and is quite painful.
[Appellant] did not complain of knee pain according to Dr. Rao’s notes when he
treated her. Secondly, when she did develop knee pain at the time of her
recurrence of pain, the mechanism by which she describes first noting knee pain is
not consistent with the mechanism that would lead to a tear of the anterior
cruciate ligament. Consequently, [appellant] may indeed have a tear of the
cruciate ligament but it does not appear at this point in time to be related to the
work event. I feel that she has reached maxim[um] therapeutic benefit of
treatment. [Appellant] was quite adamant to me that she had severe and
unrelenting pain. I believe that her subjective complaints outweigh her objective

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clinical findings.2 I believe that she is capable of resuming work without
restrictions. I believe that a psychological evaluation would be in order as well.”
In a March 14, 2005 report, Dr. Mehta stated that appellant had limited range of motion
of her right knee, wrist, shoulder and ankle and lumbar spine. She opined that appellant’s back
and right knee symptoms were aggravated by her employment-related right ankle condition.
Dr. Mehta stated that special studies revealed a posterior subligamentous disc bulge at L4-5 and
L5-S1. An MRI scan of the right knee revealed a partial interstitial tear involving the ACL. In
reports dated March 25 and July 15, 2005, Dr. Mehta prescribed medication for pain radiating
from appellant’s back down to her lower extremities.
By letter dated September 9, 2005, the Office issued a notice of proposed termination of
compensation for wage-loss and medical benefits based on Dr. Foddai’s medical opinion. The
Office provided 30 days in which appellant could respond to this notice.
In a September 28, 2005 report, Dr. Mark A.P. Filippone, a Board-certified physiatrist,
opined that appellant sustained internal derangement of the right ankle and knee and low back
due to the May 18, 2003 employment injury. He stated that the knee pain resulted from twisting
and sheering the right knee at the time of the May 18, 2003 employment incident. Dr. Filippone
stated that he needed to see the results of electromyogram (EMG), MRI scan and x-ray studies
because he believed that there may be RSD given the severity and persistence of the described
pain. He opined that appellant remained totally disabled due to the May 18, 2003 employment
injury.
By decision dated February 15, 2006, the Office terminated appellant’s wage-loss and
medical benefits effective February 19, 2006.
On March 14, 2006 appellant requested an oral hearing before an Office hearing
representative.
In an April 5, 2006 report, Dr. Filippone requested authorization to perform EMG and
nerve conduction velocity (NCV) studies of appellant’s upper and lower extremities based on her
complaints of pain in the right knee and hip and low back, and his findings on physical
examination. He opined that she remained totally disabled.
On May 16, 2006 appellant filed a claim for an occupational disease. She alleged that on
April 29, 2005 she first became aware of her major depressive disorder and realized that this
condition was caused by the May 18, 2003 employment injury. In a May 17, 2006 attending
physician’s report, Dr. Devendra Kurani, a Board-certified psychiatrist, stated that appellant
sustained major depressive disorder causally related to her May 18, 2003 employment injury.
In a June 5, 2006 report, Dr. Filippone opined that appellant’s right knee and hip injuries
were caused by the May 18, 2003 employment injury. He stated that the history was consistent
2

The Board notes that it appears Dr. Foddai inadvertently stated that appellant’s subjective complaints
outweighed the objective clinical findings as he found no clinical evidence of any residuals or disability causally
related to the May 18, 2003 employment injury.

5

with the clinical presentation. Dr. Filippone further opined that appellant had continuing
residuals of her employment-related injury as she had right ankle symptoms. He opined that she
was totally disabled from performing her mail handler duties.
By letter dated June 21, 2006, the Office advised appellant that, since she claimed that
her emotional condition was caused by the May 18, 2003 employment-related foot condition, her
occupational disease claim would be adjudicated as a claim for a consequential injury.
In reports dated July 12, August 29 and October 26, 2006, Dr. Filippone noted appellant’s
complaints of pain in her left foot, lumbar and cervical spines and right ankle and knee. He
reiterated his prior opinion that she remained totally disabled. In a November 7, 2006 report, he
stated that his EMG/NCV studies revealed evidence of right L5-S1 radiculopathy and mild right
carpal tunnel syndrome. Dr. Filippone opined that these abnormalities were directly caused by
the May 18, 2003 employment injury.
By letter dated December 11, 2006, appellant, through counsel, requested that the Office
expand the acceptance of her claim to include right knee and low back conditions. Counsel
contended that appellant continued to have employment-related residuals. He also contended
that there was a conflict in the medical opinion evidence between Dr. Foddai and Dr. Drey,
Dr. Mehta and Dr. Filippone as to whether appellant’s right knee problems were related to the
accepted employment injury. Appellant submitted Dr. Mehta’s November 29, 2006 report.
Dr. Mehta opined that appellant’s right knee internal derangement, lumbosacral radiculopathy
and cervical radiculopathy on the left, right ankle and wrist sprain, RSD and ACL tear on the
right, posterior ligamental disc bulges at L4-5 and L5-S1 and mechanical imbalance of the pelvis
and resultant spine imbalance were caused by the May 18, 2003 employment injury. In a
November 15, 2006 report, she noted appellant’s complaints of right ankle and foot pain.
Dr. Mehta opined that appellant was totally disabled due to the May 18, 2003 employment
injury.
In a December 14, 2006 report, Dr. Filippone noted appellant’s complaints of pain in her
left lumbar and right knee, wrist and hand. He reiterated his prior opinion that she was totally
disabled for work.
By decision dated January 26, 2007, the hearing representative affirmed the February 15,
2006 decision. She found the evidence submitted by appellant insufficient to outweigh the
special weight accorded to Dr. Foddai’s February 17, 2005 medical opinion. The hearing
representative, however, found a conflict in the medical opinion evidence between Dr. Foddai,
Dr. Mehta and Dr. Filippone as to whether appellant sustained right knee, lumbar and cervical
conditions causally related to her May 18, 2003 employment injury. She remanded the case to
the Office for referral of appellant to an impartial medical specialist.3

3

The Board notes that the case record does not contain a final decision issued by the Office regarding appellant’s
claim that she sustained consequential right knee, lumbar, cervical and emotional conditions causally related to her
accepted May 18, 2003 employment injury. Therefore, the Board does not have jurisdiction over this issue. See 20
C.F.R. § 501.2(c) (the Board has jurisdiction to consider and decide appeals from final decisions).

6

LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.4
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability. To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition,
which requires further medical treatment.6
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.7
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that a conflict in the medical opinion
evidence arose between Dr. Mehta, an attending physician, and Dr. Drey, an Office referral
physician, as to whether appellant had any continuing residuals or disability causally related to
her accepted May 18, 2003 employment-related injury. Dr. Mehta opined that appellant suffered
from continuing employment-related residuals and total disability. Dr. Drey opined that
appellant’s employment-related right ankle sprain had resolved and she could return to part-time
work with restrictions.
The Office properly referred appellant to Dr. Foddai as the impartial medical specialist.
In a February 17, 2005 report, Dr. Foddai reviewed a history of appellant’s May 18, 2003
employment injury and medical treatment. He listed no objective findings of residuals relative to
the accepted May 18, 2003 employment-related right ankle sprain. Dr. Foddai noted appellant’s
complaints of back, right knee, ankle and foot pain. After reporting normal findings on physical
examination and reviewing appellant’s medical records, Dr. Foddai opined that her subjective
complaints did not outweigh his objective findings. He stated that the clinical examination of
appellant’s ankle did not demonstrate any evidence of instability, swelling or reduced motion.
Dr. Foddai noted that “the mechanism by which she describes first noting knee pain is not
consistent with the mechanism that would lead to a tear of the [ACL].” He concluded that, if
4

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

5

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

6

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Furman G. Peake, 41 ECAB 361,
364 (1990).
7

Gloria J. Godfrey, 52 ECAB 486 (2001).

7

appellant currently had a torn ACL, it was not employment related as she did not complain about
this when examined by Dr. Rao. Further, Dr. Foddai explained that this type of injury is
associated with bleeding into the knee joint and hemoarthrosis causing pain, which appellant did
not complain about on her initial examination. He further reported that appellant’s foot was
nonfocal. Dr. Foddai stated that appellant received excellent orthopedic care and that routine xrays and an MRI scan of her foot and ankle were negative. He stated that she had reached
maximum beneficial therapeutic treatment and that she could resume working without
restrictions.
The Board finds that Dr. Foddai’s February 17, 2005 opinion is based on a proper factual
and medical background and is entitled to special weight. Based on his review of the case
record, negative findings on objective examination and normal findings on physical examination,
Dr. Foddai found that appellant did not have any residuals or disability causally related to her
employment-related right ankle sprain. For this reason, his report constitutes the special weight
of the medical opinion evidence afforded an impartial medical specialist. The Board, therefore,
finds that the Office met its burden of proof to terminate appellant’s compensation benefits on
February 15, 2006.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to her accepted
injury.8 To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence, based on a complete factual and medical background, supporting such a causal
relationship.9 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.10 Rationalized medical evidence
is medical evidence which includes a physician’s rationalized medical opinion on the issue of
whether there is a causal relationship 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, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.11
ANALYSIS -- ISSUE 2
The Board finds that appellant did not establish that she had any continuing employmentrelated residuals or disability after February 19, 2006. The relevant medical evidence includes
Dr. Filippone’s June 5, August 29 and October 26, 2006 reports and Dr. Mehta’s November 15,
2006 report which stated that appellant had continuing symptoms of her employment-related
8

See Manuel Gill, 52 ECAB 282 (2001).

9

Id.

10

Elizabeth Stanislav, 49 ECAB 540 (1998).

11

Solomon Polen, 51 ECAB 341 (2000).

8

right ankle injury and that she remained totally disabled. However, neither Dr. Filippone nor
Dr. Mehta provided any medical rationale explaining how or why appellant’s residuals and
resultant disability were caused by the accepted employment injury.12 Further, they did not
identify any period of total disability due to appellant’s accepted employment-related injury.
The Board finds that appellant did not submit sufficient rationalized medical evidence to
substantiate that the claimed continuing right ankle residuals and disability on or after
February 19, 2006 were causally related to her accepted employment-related injury.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation for wageloss and medical benefits effective February 19, 2006 on the grounds that she no longer had any
residuals or disability causally related to her accepted employment-related injury. The Board
further finds that appellant has failed to establish that she had any continuing employmentrelated residuals or disability after February 19, 2006.
ORDER
IT IS HEREBY ORDERED THAT the January 26, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 3, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

12

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (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).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, MANASOTA
PROCESSING & DISTRIBUTION CENTER,
Manasota, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-798
Issued: November 16, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 29, 2010 appellant timely appealed the August 10, 2009 nonmerit decision of
the Office of Workers’ Compensation Programs.1 The last merit decision is dated July 16, 2008.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board’s jurisdiction encompasses only the
August 10, 2009 nonmerit decision.2
ISSUE
The issue is whether the Office properly determined that appellant’s July 26, 2009
request for reconsideration was untimely filed and did not establish clear evidence of error.
1

The record on appeal contains evidence received after the Office issued its August 10, 2009 decision. The
Board may not consider evidence that was not in the case record when the Office rendered its final decision. 20
C.F.R. § 501.2(c)(1) (2009).
2

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
Appellant, a 38-year-old mail handler, has an accepted claim for aggravation of cervical
degenerative disc disease, which arose on or about May 10, 2002. By decision dated May 25,
2004, the Office terminated appellant’s entitlement to monetary compensation. The employing
establishment had offered appellant a position as a modified mail handler, which the Office
determined was suitable to his work capabilities.3 Pursuant to 20 C.F.R. § 10.516, the Office
issued a 30-day notice on March 16, 2004, followed by a 15-day notice on April 29, 2004. When
appellant did not accept the limited-duty position within the allotted time frame, the Office
terminated compensation benefits effective June 13, 2004.4
Appellant subsequently filed eight requests for reconsideration with respect to the
Office’s May 25, 2004 suitable work termination. The Office denied reconsideration on July 1,
2004, and subsequently denied modification by decisions dated December 10, 2004, January 24
and July 22, 2005, January 24, 2006, May 11, 2007 and July 16, 2008.
Appellant’s most recent request for reconsideration was dated July 26, 2009. He argued
that the Office’s “August, 2008” decision did not address his July 8, 2008 letter.5 Appellant did
not submit any additional evidence with his July 26, 2009 reconsideration request or specifically
challenge either the factual or legal basis for terminating his compensation benefits effective
June 13, 2004. He did, however, express a willingness to submit “more information, documents
or any other evidence” if needed.
By decision dated August 10, 2009, the Office found that appellant’s July 26, 2009
request was untimely and he failed to present clear evidence of error.6

3

The December 17, 2003 part-time, limited-duty job offer was based on a November 13, 2003 work capacity
evaluation (Form OWCP-5c) provided by appellant’s treating physician, Dr. Steven Y. Chun, a Board-certified
anesthesiologist.
4

Appellant’s eligibility for continued medical benefits was not affected by the May 25, 2004 decision.

5

The employing establishment submitted a June 5, 2008 response to appellant’s May 5, 2008 request for
reconsideration. The Office forwarded a copy of the response to appellant and afforded him 20 days to reply. It
received his July 8, 2008 rebuttal letter on July 15, 2008. However, the July 16, 2008 decision incorrectly indicated
that the Office had not received any comments from appellant regarding the employing establishment’s June 5, 2008
response.
6

Although appellant did not submit additional evidence with his July 26, 2009 request, the Office considered
various medical reports received after the July 16, 2008 decision. The new evidence included: treatment notes from
Dr. Chun covering the period November 13, 2007 through July 14, 2009, a March 24, 2009 report from Linda K.
Erickson, a licensed clinical social worker, who indicated that appellant was suffering from severe clinical major
depression and May 19, June 16 and July 14, 2009 treatment notes from Dr. Donald L. Erb, a Board-certified
anesthesiologist specializing in pain medicine. The above-noted evidence documented appellant’s ongoing medical
treatment, but did not otherwise address any employment-related disability.

2

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act does not entitle a claimant
to a review of an Office decision as a matter of right.7 The Office has discretionary authority in
this regard and it has imposed certain limitations in exercising its authority.8 One such limitation
is that the application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.9 When a request for reconsideration is untimely, the Office
will undertake a limited review to determine whether the application presents “clear evidence of
error” on the part of the Office in its “most recent merit decision.”10
ANALYSIS
Appellant’s request for reconsideration was dated July 26, 2009, which is more than a
year after the Office’s July 16, 2008 merit decision. Because his request was untimely he must
demonstrate clear evidence of error on the part of the Office in terminating compensation for
failing to accept suitable work.11 The sole argument appellant raised in his July 26, 2009 request
for reconsideration was the Office’s failure to consider his July 8, 2008 rebuttal letter. The gist
of the July 8, 2008 letter was that the December 17, 2003 limited-duty position was essentially
the same position appellant held when he was injured, except that it was part time rather than a
full-time position. Appellant argued the same point in a prior May 5, 2008 request for
reconsideration. The employing establishment refuted this contention in its June 5, 2008
response and further noted that the December 17, 2003 limited-duty position was within the
restrictions provided by appellant’s physician.
Appellant’s July 8, 2008 rebuttal letter was largely a reiteration of his May 5, 2008
argument, which he had raised on numerous prior occasions. While the Office overlooked the
July 8, 2008 response, this oversight was essentially harmless given that appellant had already
raised the same argument in his May 5, 2008 request for reconsideration, as well as in prior
reconsideration requests dating back to October 30, 2005. However, this is not genuine to
establish clear error in the May 25, 2004 Office termination decision. Appellant has failed to
7

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a) (2006).
8

20 C.F.R. § 10.607.

9

Id. at § 10.607(a).

10

Id. at § 10.607(b).

11

Id. To establish clear evidence of error, a claimant must submit evidence relevant to the issue that was decided
by the Office. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise and explicit and it
must be apparent on its face that the Office committed an error. See Leona N. Travis, 43 ECAB 227 (1991). It is
not enough to merely show that the evidence could be construed to produce a contrary conclusion. Id. Evidence
that does not raise a substantial question concerning the correctness of the Office’s decision is insufficient to
establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence submitted must not
only be of sufficient probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant and
raise a substantial question as to the correctness of the Office decision. Thankamma Mathews, 44 ECAB 765,
770 (1993).

3

demonstrate clear evidence of error on the part of the Office in terminating his compensation on
May 25, 2004 for failing to accept suitable work.
A partially disabled employee who refuses or neglects to work after suitable work is
offered to, procured by, or secured for him is not entitled to compensation.12 An employee who
refuses or neglects to work after suitable work has been offered or secured for him has the
burden to show that this refusal or failure to work was reasonable or justified.13 Whether an
employee has the ability to perform an offered position is primarily a medical question that must
be resolved by the medical evidence.14 In evaluating the suitability of a particular position, the
Office must consider preexisting and subsequently acquired medical conditions.15
Appellant’s July 26, 2009 request for reconsideration did not establish any substantive or
procedural defects with the December 17, 2003 limited-duty job offer. The medical evidence
received after the July 16, 2008 merit decision did not address the issue of disability as it
pertained to the Office’s suitability determination. Appellant did not identify any procedural
defects with respect to the Office’s 30-day and 15-day notices. The Board finds that appellant
has not established clear evidence of error. As such, there is no justification for further merit
review. Accordingly, the Office properly declined to reopen appellant’s case under 5 U.S.C.
§ 8128(a).
CONCLUSION
The Board finds that appellant’s July 26, 2009 request for reconsideration was untimely
and he failed to demonstrate clear evidence of error.

12

5 U.S.C. § 8106(c)(2); 20 C.F.R. § 10.517.

13

Id.

14

Gayle Harris, 52 ECAB 319, 321 (2001).

15

Id.; Martha A. McConnell, 50 ECAB 129, 132 (1998).

4

ORDER
IT IS HEREBY ORDERED THAT the August 10, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 2010
Washington, DC

Colleen Duffy Kiko, 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
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Atlanta, GA, Employer
)
___________________________________________ )
M.M., Appellant

Docket No. 07-1986
Issued: February 4, 2008

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

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 24, 2007 appellant filed a timely appeal of the May 5, 2007 decision of the
Office of Workers’ Compensation Programs which denied her request for further merit review of
her claim and a January 5, 2007 decision denying her claim for disability. Pursuant to 20 C.F.R.
§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
was disabled on or after November 7, 2005 causally related to her December 31, 1999
employment injury; and (2) Whether the Office properly denied her request for a review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 4, 2000 appellant, then a 42-year-old mail processor, filed a traumatic injury
claim alleging that she was pulling a gate to close a container when it popped open and bruised
her left foot on December 31, 1999. She stopped work that day and returned to limited duty on

January 21, 2000. On February 23, 2000 the Office accepted the claim for left foot trauma and
fracture of the third metatarsal. The Office also accepted appellant’s claim for aggravation of
arthritis of the left foot.1
Appellant came under the treatment of Dr. R. Howard Pike, a Board-certified orthopedic
surgeon. In a March 17, 2004 report, Dr. Pike noted that appellant was seen for pain, soreness
and swelling in her foot. He indicated that she had continued pain and soreness in the foot with
dysesthesia sensations consistent with her previous work injury in the year 2000. Dr. Pike stated
that appellant had a prior nonwork-related fracture in the same area of the left foot in 1998. He
determined that she had ongoing symptoms in the lateral hind foot, “probably related to her
nonwork injury in 1998.” Dr. Pike completed a limited-duty report of the same date, with
permanent restrictions. On April 11, 2005 he determined that appellant had new symptoms of
metatarsalgia which were “unrelated.” Dr. Pike completed a status report of the same date and
noted that appellant’s metatarsalgia was “unrelated.”
In a November 7, 2005 report, Dr. Pike diagnosed substantial pes planovalgus and
forefoot pronation. He stated that appellant “has been here in the last couple of visits now for
things I think are unrelated to her work[ers’] comp[ensation] injury.” Dr. Pike advised that
appellant was getting “pressure from her substantial pronation and the foot throwing itself into
the lateral border of the shoe.” He advised that she needed customized inserts which would help
her be more comfortable in standing on her feet and working. Dr. Pike opined that “[t]hese
issues again I do not believe are related to [appellant’s] original work injury. They are a
preexisting underlying problem of a congenital nature.”
In a June 5, 2006 report, Dr. Pike diagnosed pes planovalgus. He opined that standing on
her feet for long periods of time was not compatible with “that kind of a poor foot mechanical
disadvantage” and noted that it was not directly related to her workers’ compensation injury.
Dr. Pike indicated that appellant should consider an “occupational job change or early retirement
if she cannot stand on her feet long enough to continue in her current job in an effective
manner.” Dr. Pike recommended the continued use of orthotics and shoe modifications. He
examined appellant again on October 30, 2006 and noted that she was seen for new problems
with pain in the area of the second metacarpophalangeal (MTP) joint. Dr. Pike determined that
appellant had a “Morton-type foot morphology with a short first ray” and tenderness in the area
of the second metatarsal head planetary and in the second MTP joint as well. He opined that
“[t]his new symptomatology is not related to her original injury, now seven years out. It is
simply metatarsalgia due to her underlying preexisting genetic risk, with the way that her foot
has grown, with a short first ray.”
In a November 9, 2006 report, Dr. Pike indicated that appellant was “still trying to help
me understand the relationship to her work[ers’] comp[ensation] injury and frankly, after
reviewing things with her again today and looking back through her six to eight-year history in
the chart. I do have to concur that her current symptoms in the mid foot are in the area of her
original injury.” Dr. Pike noted that it was a “three or four-year period of time where all of our
efforts were concentrated on the fourth and fifth tarsal metatarsal (TMT) joints from a previous
1

The record reflects that appellant reached maximum medical improvement on August 1, 2000 and received a
schedule award for an eight percent permanent partial impairment of the left leg.

2

injury and aggravation of some degenerative joint disease symptoms there which had me
confused. Looking back to [appellant’s] very earliest work[ers’] comp[ensation] injuries, it was
a direct blow to the dorsum of the foot.” Dr. Pike opined that “we would have to consider
[appellant’s] ongoing current symptoms possibly due to her work[ers’] comp[ensation] injury.”
He conducted an examination and noted that a bone scan of both feet was surprisingly
symmetric. Dr. Pike opined that appellant’s previous bony injuries and her previous fractures
from 1998 and the degenerative changes in her lateral two TMT joints were at a baseline
equivalent to her contralateral foot; despite her having no symptoms in the other foot. Dr. Pike
added that the “bone scan is an objective confirmation that [appellant’s] bones and joints see
similar stresses and strains in both feet.” He ordered a magnetic resonance imaging (MRI) scan
and noted that, “if that is indeed normal, [appellant] is at maximal medical improvement with
zero [disability] with regards to her baseline risk for degenerative changes, as she has now been
found to have such stresses and strains on the contralateral foot and therefore could only be rated
based on subjective sense of pain in the left foot.”
A November 30, 2006 MRI scan of the left foot, read by Dr. S. Boyd Eaton, a Boardcertified diagnostic radiologist, was reported as normal.
On December 3, 2006 appellant submitted a CA-7 claim requesting wage-loss
compensation for disability for the period October 30 to November 30, 2006.
By decision dated January 5, 2007, the Office denied the claim for compensation on and
after November 7, 2005. The Office found that, based on Dr. Pike’s reports, appellant’s current
bilateral foot condition was due to a degenerative congenital condition, congenital pes
planovalgus and not causally related to the December 31, 1999 work injury to her left foot. The
Office determined that appellant’s fracture of the left third metatarsal had healed.
In a December 18, 2006 report, Dr. Pike noted that the MRI scan revealed the absence of
soft tissue abnormalities and a bone scan which showed symmetric uptake in both feet and
degenerative changes. He opined that it was inevitable with appellant’s flat feet that she would
develop degenerative changes in both feet and that her injury on the left would have brought on
symptoms earlier that would have otherwise happened. Dr. Pike opined that appellant was at
maximum medical improvement and no further medical intervention was warranted.
On January 12, 2007 the Office received an undated statement from appellant in which
she indicated that she was sent home as there was no work for her from December 19 to
23, 2006. It also received a copy of Dr. Pike’s November 9, 2006 report, a CA-7 claiming
compensation for the period December 19 to 23, 2006 and a December 19, 2006 e-mail from the
employing establishment advising that her services were no longer needed.
On March 22, 2007 appellant requested reconsideration, noting continued pain and
swelling in her left foot which she believed was related to her accepted injury.
By decision dated May 4, 2007, the Office denied appellant’s request for reconsideration
without a review of the merits on the grounds that her request was insufficient to warrant review
of its prior decision.

3

LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Compensation Federal Employees' Compensation Act,2
the term “disability” means the incapacity, because of an employment injury, to earn the wages
that the employee was receiving at the time of injury.3 Disability is thus not synonymous with
physical impairment, which may or may not result in an incapacity to earn wages. An employee
who has a physical impairment causally related to a federal employment injury, but who
nevertheless has the capacity to earn the wages he or she was receiving at the time of injury, has
no disability as that term is used in the Act.4 Furthermore, whether a particular injury causes an
employee to be disabled for employment and the duration of that disability are medical issues
which must be proved by a preponderance of the reliable, probative and substantial medical
evidence.5 The medical evidence of record must directly address the particular period of
disability for which compensation is sought; to do otherwise would essentially allow employee’s
to self-certify their disability and entitlement to compensation.6
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed disability for the period on or after
November 7, 2005.7 The Board has held that the mere belief that a condition was caused or
aggravated by employment factors or incidents is insufficient to establish a causal relationship
between the two.8 The Board will not require the Office to pay compensation for disability in the
absence of medical evidence directly addressing the particular period of disability for which
compensation is claimed. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.9
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for left foot trauma, fracture of the third metatarsal
and aggravation of arthritis of the left foot. Appellant filed a claim for wage-loss compensation
for a period after November 7, 2005. It is her burden of proof to establish that her claimed
disability is due to her accepted December 31, 1999 employment injury. The Board finds that
2

5 U.S.C. §§ 8181-8193.

3

See Robert A. Flint, 57 ECAB ___ (Docket No. 05-1106, issued February 7, 2006); Prince E. Wallace, 52
ECAB 357 (2001).
4

Cheryl L. Decavitch, 50 ECAB 397 (1999).
5

See Carol A. Lyles, 57 ECAB ___ (Docket No. 05-1492, issued December 13, 2005); Fereidoon Kharabi, 52
ECAB 291 (2001).
6

Amelia S. Jefferson, 57 ECAB ___ (Docket No. 04-568, issued October 26, 2005); see also William A. Archer,
55 ECAB 674 (2004).
7

Sandra D. Pruitt, 57 ECAB _____ (Docket No. 05-739, issued October 12, 2005); Alfredo Rodriguez, 47 ECAB
437 (1996).
8

Alfredo Rodriguez, supra note 7.

9

Fereidoon Kharabi supra note 5.

4

appellant did not submit sufficient medical evidence to establish employment-related disability
for the period claimed due to her accepted injury.
Appellant’s treating physician, Dr. Pike, submitted several reports in which he opined
that appellant’s left foot condition was no longer work related. On November 7, 2005 he
diagnosed pes planovalgus and forefoot pronation and opined that he did not believe this was
related to her work injury. Dr. Pike advised that the condition represented a preexisting
underlying problem of a congenital nature. On June 5, 2006 he advised that standing on her feet
for long periods of time was not compatible with “that kind of a poor foot mechanical
disadvantage” and that appellant’s condition was not related to her workers’ compensation
injury. Dr. Pike examined appellant on October 30, 2006 and opined that “[t]his new
symptomatology is not related to [her] original injury, now seven years out. It is simply
metatarsalgia due to her underlying preexisting genetic risk, with the way that her foot has
grown, with a short first ray.”
The only report providing some support for appellant’s claim is Dr. Pike’s November 9,
2006 report. He noted that appellant was trying to help him understand the relationship of her
condition to her workers’ compensation injury. Dr. Pike reviewed appellant’s chart and opined
that he would have “to concur that her current symptoms in the mid foot are in the area of her
original injury.” He explained that there was a “three or four-year period of time where all of
our efforts were concentrated on the fourth and fifth TMT joints from a previous injury and
aggravation of some degenerative joint disease symptoms there which had me confused.
Looking back to appellant’s very earliest work[ers’] comp[ensation] injuries, it was a direct blow
to the dorsum of the foot.” Dr. Pike opined that “we would have to consider [appellant’s]
ongoing current symptoms possibly due to her work[ers’] comp[ensation] injury.” The Board
notes that this opinion is speculative.10 In the same report, Dr. Pike again indicated that
appellant symptoms were due to subjective complaints based on a preexisting condition. He
stated that he ordered an MRI scan which, if normal, would indicate that appellant was at
maximum improvement with no disability. The November 30, 2006 MRI scan was normal.
Dr. Pike’s November 9, 2006 report does not support that appellant has any employment-related
disability for the claimed period. Rather, her ongoing complaints are related to her preexisting
conditions.
No other medical reports attribute appellant’s disability for work commencing on or after
November 7, 2005 to her accepted employment injuries.
Although appellant alleged that her disability commencing after November 7, 2005 was
due to her accepted employment injury, the medical evidence of record does not establish that
her claimed disability during the timeframe was related to her accepted employment injuries.11
The Board finds that she has failed to submit rationalized medical evidence establishing that her
10

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
11

Appellant has also supported his position by noting that he was found disabled by the Social Security
Administration. However, the Board has held that a finding of disability under another federal statute does not
establish disability under the Act. John E. Cannon, 55 ECAB 585 (2004).

5

disability on or after November 7, 2005 was causally related to her accepted employment injury
and thus, she has not met her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,12 the Office may reopen a case for review on the merits
in accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, set forth arguments and
contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the Office;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”13
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.14
ANALYSIS -- ISSUE 2
Appellant disagreed with the Office’s January 5, 2007 decision which denied her request
for disability on or after November 7, 2005. The underlying issue on reconsideration was
whether she met her burden of proof in establishing that she was disabled on or after
November 7, 2005 due to her accepted employment injury. However, appellant did not provide
any relevant or pertinent new evidence to the issue of whether she was disabled on or after
November 7, 2005 due to her accepted employment injury.
In her October 6, 2005 request for reconsideration, appellant submitted additional
evidence. She submitted a December 18, 2006 report in which Dr. Pike noted that appellant was
at maximum medical improvement, discussed findings in an MRI scan and opined that it was
inevitable that appellant would develop degenerative changes in both feet, as she was flat footed
and that her injury on the left would have brought on symptoms earlier that would have
otherwise happened. The Board finds that this report is not relevant and pertinent new evidence,
as Dr. Pike had previously discussed her preexisting conditions and his report does not otherwise
support any work-related disability for the claimed period. Material which is cumulative or
duplicative of that already in the record has no evidentiary value in establishing the claim and
12

5 U.S.C. § 8128(a).

13

20 C.F.R. § 10.606(b).

14

20 C.F.R. § 10.608(b).

6

does not constitute a basis for reopening a case for further merit review.15 The submission of
evidence that does not address the particular issue involved does not constitute a basis for
reopening a case.16
Consequently, the evidence submitted by appellant on reconsideration does not satisfy the
third criterion noted above, for reopening a claim for merit review. Furthermore, appellant also
has not shown that the Office erroneously applied or interpreted a specific point of law or
advanced a relevant new argument not previously submitted. Therefore, the Office properly
denied her request for reconsideration.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
was disabled on or after November 7, 2005 causally related to her December 31, 1999
employment injury. The Board also finds that the Office properly denied appellant’s request for
a review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

15

Betty A. Butler, 56 ECAB ___ (Docket No. 04-2044, issued May 16, 2005); Daniel M. Dupor, 51 ECAB
482 (2000).
16

Robert P. Mitchell, 52 ECAB 116 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Alan G.
Williams, 52 ECAB 180 (2000).

7

ORDER
IT IS HEREBY ORDERED THAT the May 5 and January 5, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 4, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, 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
__________________________________________
T.S., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Norfolk, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Docket No. 08-1604
Issued: March 13, 2009

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

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 19, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 9, 2008, which found an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of
$36,285.11 for the period January 10, 1988 through February 16, 2008; (2) whether the Office
abused its discretion under section 8129(a) of the Federal Employees’ Compensation Act in
denying waiver of the recovery of the overpayment; and (3) whether the Office properly required
repayment at the rate of $92.31 every 28 days from continuing compensation payments.
FACTUAL HISTORY
On November 25, 1987 appellant, then a 43-year-old clerk typist, sustained injuries to her
back in the performance of duty. Her claim was accepted for low back strain and she was placed
on the periodic rolls.

In an August 2, 1989 preliminary determination, the Office found that an overpayment of
compensation in the amount of $1,135.44 had occurred, as health benefit premiums had not been
deducted from compensation payments from January 10, 1988 to July 29, 1989, due to a coding
error. It further advised appellant that she was found to be without fault in the creation of the
overpayment. However, the record does not contain any final overpayment decision or evidence
that the overpayment amount was repaid. An internal Office memorandum dated July 29, 1989
reflected that deductions would be made from appellant’s compensation payments to cover
health insurance premiums. However, the Office continued to make compensation payments to
appellant without making any deductions for health insurance premiums.
On February 13, 2008 the Office advised appellant that it had made a preliminary
determination that an overpayment of $36,285.11 had occurred, as health insurance premiums
had not been deducted from compensation payments from January 10, 1988 to
February 16, 2008. It further advised appellant that she was found to be without fault in the
creation of the overpayment. The Office advised appellant of actions available to her if she
believed that she should receive a waiver, including the ability to request a prerecoupment
hearing and to submit a completed overpayment recovery questionnaire and financial evidence.
The record does not contain information or evidence submitted by appellant in response to the
preliminary determination of overpayment.
Computer records reflect that appellant received compensation in the gross amount of
$246,254.54 for the period January 10, 1988 through January 19, 2008 and $1,192.00 from
January 20 through February 16, 2008, for a total of $247,446.54. However, the records indicate
that health benefit premiums were not deducted from her compensation for the period
January 10, 1988 through February 16, 2008. A worksheet dated January 23, 2008 reflects that
the cost of appellant’s health insurance benefits from January 10, 1988 through January 19, 2008
was $35,994.83. A worksheet dated February 16, 2008 reflects that the insurance cost from
January 20 through February 16, 2008 was $290.28 for a total insurance cost of $36,285.11. The
Office’s worksheet indicates that appellant should have received the amount of $210,259.71 for
the period January 10, 1988 through January 19, 2008 and $901.72 from January 20 through
February 16, 2008 or a total amount of $211,161.43.
In an April 9, 2008 decision, the Office finalized its determination that an overpayment of
compensation in the amount of $36,285.11 had occurred, due to the fact that health insurance
premiums had not been deducted from compensation payments from January 10, 1988 to
February 16, 2008. It further found that, although appellant was without fault in the creation of
the overpayment, she did not provide any basis for a waiver. The claims examiner concluded
that appellant did not have the present or prospective ability to pay the full amount of the claim
within a reasonable period of time and that her situation qualified her for a waiver of charges,
including interest and a mandatory compromise of the debt. The Office determined that full
settlement of the claim for recovery of the overpayment would be accepted in the amount of
$20,869.31, to be paid by deducting $92.31 from compensation every 28 days. An
accompanying compromise order and waiver of charges reflected that appellant’s net benefits
every 28 days after proper deductions for health benefits, was $866.82.
In an April 7, 2008 waiver of charges/compromise of principal worksheet, the Office
stated that interest charges “must be waived if [appellant] is without fault in the creation of the

2

overpayment and the application of charges will extend the period of indebtedness beyond the
debtor’s life expectancy.” It found that a compromise of accrued charges and principal must be
considered if the application of charges would increase the period of indebtedness by more than
35 percent. The Office calculated that, without charges, the debt would take 362.85 months to
repay. Therefore, the debt with charges would have to be repaid within 489.85 months (135
percent x 362.85). Noting that the monthly payment was less than the amount of interest
accruing each month, the Office concluded that accrued charges and principal would have to be
compromised in order to reduce the repayment period to 489.85 months. It determined that it
would compromise the accrued charges and principal by $15,415.80, accepting the amount of
$20,869.31 in full settlement of the overpayment. The Office’s calculations reflect that the
overpayment could thus be collected in 227 payments.
LEGAL PRECEDENT -- ISSUE 1
The Act1 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.2 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.
The regulations of the Office of Personnel Management, which administers the FEHB
program, provide guidelines for registration, enrollment and continuation of enrollment of
federal employees. In this connection, 5 C.F.R. § 890.502(a)(1) provides:
“[A]n employee or annuitant is responsible for payment of the employee or
annuitant share of the cost of enrollment for every pay period during which the
enrollment continues. An employee or annuitant incurs an indebtedness due the
United States in the amount of the proper employee or annuitant withholding
required for each pay period that health benefit withholdings or direct premium
payments are not made but during which the enrollment continues.3
In addition, 5 C.F.R. § 890.502(c) provides:
“An agency that withholds less than the proper health benefits contributions from
an individual’s pay, annuity or compensation must submit an amount equal to the
sum of the uncollected contributions and applicable agency contributions required
under section 8906 of Title 5 United States Code, to OPM for deposit in the
Employees’ Health Benefits Fund.4

1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8102(a).

3

5 C.F.R. § 890.502(a)(1).

4

Id. at § 890.502(c).

3

Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.5 An agency that withholds less than the proper
health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.6 The Board has recognized that, when an under withholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
the Office must pay the full premium to OPM when the error is discovered.7
ANALYSIS -- ISSUE 1
The Board notes that the Office failed to make deductions for health insurance benefits
from appellant’s compensation payments for more than 20 years. Appellant does not dispute the
fact that she received the benefits. The Board finds that the Office properly determined that
appellant received an overpayment of compensation in the amount of $36,285.11 for the period
January 10, 1988 through February 16, 2008.8
The record reflects that appellant received compensation for the period January 10, 1988
through February 16, 2008 in the amount of $247,446.54, with no deductions for health
insurance. The record further reflects that the cost of her health insurance during that period was
$36,285.11. As deductions should have been made from appellant’s compensation payments for
the health insurance premiums, she should have received the amount of $211,161.43, which
represents the amount she actually received minus the cost of health insurance premiums for the
designated period ($247,446.54 - $36,285.11 = $211,161.43). The Board finds that the Office
properly determined that appellant received an overpayment of compensation in the amount of
$36,285.11.9
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act10 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”
(Emphasis added.) Thus, a finding that appellant was without fault does not automatically result
in waiver of the overpayment. The Office must then exercise its discretion to determine whether

5

Id. at § 890.502(a)(1).

6

Supra note 5.

7

See Marie D. Sinnett, 40 ECAB 1009 (1989); John E. Rowland, 39 ECAB 1377 (1988); 5 C.F.R. § 890.502.

8

The Board notes that appellant does not contest the fact or amount of overpayment. On appeal, appellant asserts
that she should not be required to make repayment because the overpayment was not her fault.
9

The Board notes that the Office issued a compromise order and waiver of charges, wherein it accepted the
amount of $20,869.31 in full settlement of the overpayment. The compromise order is not subject to review by the
Board. See Federal (FECA) Procedure Manual, Part 6 -- Debt Liquidation, Initial Overpayment Actions, Chapter
6.0300.5(d) (May 2004).
10

5 U.S.C. § 8129.

4

recovery of the overpayment would defeat the purpose of the [Act] or would be against equity
and good conscience.11
Section 10.436 of the implementing federal regulations12 provides that recovery of an
overpayment will defeat the purpose of the Act if recovery would cause undue hardship by
depriving a presently or formerly entitled beneficiary of income and resources needed for
ordinary and necessary living expenses and outlines the specific financial circumstances under
which recovery may be considered to “defeat the purpose of the Act.”
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.13
Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses and assets as specified by the
Office, as this information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of the Act or be against equity and good conscience.14 This
information would also be used to determine the repayment schedule, if necessary. Section
10.438(b) provides that failure to submit the requested information within 30 days of the request
shall result in denial of waiver.15
ANALYSIS -- ISSUE 2
In its February 13, 2008 preliminary overpayment determination, the Office informed
appellant of actions available to her if she believed that she should receive a waiver. It advised
appellant to submit a completed overpayment recovery questionnaire as well as information and
evidence regarding her income and expenses.
Appellant did not submit a completed overpayment recovery questionnaire form nor did
she submit financial information outlining her income and expenses. As a result, there was no
evidence before the Office establishing that recovery of the overpayment would defeat the
purpose of the Act or would be against equity and good conscience.16 As appellant failed to
submit the requested information, as required by section 10.438 of its regulations, she was not

11

Wade Baker, 54 ECAB 198 (2002).

12

20 C.F.R. § 10.436.

13

Id. at § 10.437.

14

20 C.F.R. § 10.438(a).

15

Id. at § 10.438(b).

16

See 20 C.F.R. § 10.438(a) (in requesting waiver, the overpaid individual has the responsibility for providing
financial information).

5

entitled to a waiver.17 The Board finds that the Office properly denied waiver of recovery of the
overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 3
Office regulations provide that, when an overpayment has been made to an individual
who is entitled to further payments, the individual shall refund to the Office the amount of the
overpayment, as soon as the error is discovered or her attention is called to same. If no refund is
made, it 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
In cases where the claimant is being paid compensation on the periodic rolls and the
claimant does not respond to the preliminary overpayment decision, a final decision should be
issued without conducting a conference, and the debt should be recovered from such benefits as
quickly as possible.19
ANALYSIS -- ISSUE 3
The Board finds that the Office did not abuse its discretion by ordering the deduction of
$92.31 every four weeks from appellant’s continuing compensation payments.
Appellant did not respond to the preliminary overpayment decision. She failed to
complete an overpayment recovery questionnaire or to provide financial information to the
Office, as requested. Therefore, under its own procedures, it properly issued a final decision,
without conducting a hearing, in an attempt to collect the debt as quickly as possible.20
Section 10.441(a) of the Office’s regulations directs it to take certain matters into
consideration in establishing the repayment schedule, including 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.21 In this case, it was disadvantaged by
appellant’s failure to provide appropriate financial documentation. The Board notes that the
Office did consider the information available, including her age and monthly compensation
benefit, in setting its repayment schedule. Based upon those considerations, it compromised the
principal and charges, reducing the amount to be repaid from $36,285.11 to $20,869.31. The
Board finds that the Office gave due consideration to the relevant factors and properly imposed a
repayment schedule of $92.31 every 28 days from appellant’s continuing compensation.
17

Supra note 17.

18

20 C.F.R. § 10.441(a).

19

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(c)(2) (December 2004).
20

Id.

21

20 C.F.R. § 10.441(a).

6

CONCLUSION
The Board finds that appellant received an overpayment in the amount of $36,285.11 for
the period January 10, 1988 through February 16, 2008. The Board further finds that the Office
properly denied waiver and did not abuse its discretion in requiring repayment at the rate of
$92.31 every 28 days from continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the April 9, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 13, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7