United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
OFFICE OF CUSTOMER SERVICE,
Hayward, CA, Employer
__________________________________________

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

Docket No. 18-1206
Issued: March 24, 2021

Case Submitted on the Record

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

JURISDICTION
On May 29, 2018 appellant filed a timely appeal from an April 25, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $11,383.39 during the intermittent periods from
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 25, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

July 15, 2015 through June 20, 2016 because she received compensation for disability while either
working and or in a paid leave status; and (2) whether it properly determined that appellant was at
fault in the creation of the overpayment of compensation, thereby precluding waiver of recovery
of the overpayment.
FACTUAL HISTORY
On December 23, 2015 appellant, then a 41-year-old service representative, filed an
occupational disease claim (Form CA-2) alleging that she sustained an emotional condition due to
factors of her federal employment including harassment and discrimination by a supervisor, as
well as injuries to her hands due to typing on a computer. She stopped work on July 15, 2015.3
On June 10, 2016 OWCP accepted appellant’s claim for recurrent major depressive disorder
(moderate). In a letter of even date, it advised appellant that she was to immediately inform OWCP
upon her return to work to avoid an overpayment of compensation and that, if she worked during
any period covered by a compensation payment, she was required to return the payment to OWCP.
On June 10, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for
disability during the period July 15 through November 20, 2015. On July 13, 2016 she filed a
Form CA-7 for the period November 23, 2015 through June 20, 2016.
OWCP paid appellant wage-loss compensation for total disability for the periods July 15
through November 20, 2015, November 23, 2015 through March 31, 2016, and April 1 through
July 23, 2016.
In a memorandum of a telephone call (Form CA-110) dated September 25, 2017, an
employing establishment official informed an OWCP representative that appellant had worked and
was paid leave subsequent to July 14, 2015. The official advised that appellant’s first day of leave
without pay was September 1, 2015, but that she used leave again after that date.
In a letter dated November 28, 2017, OWCP requested that the employing establishment
provide a leave analysis in order to determine if there had been an overpayment for the period
July 15, 2015 through June 20, 2016. It noted that, based on the CA-7 forms that were provided,
it appeared there might be an overpayment of compensation, as the employing establishment
indicated that appellant had been paid leave during this period while in receipt of compensation
payments. OWCP noted that a claimant cannot receive paid leave and wage-loss compensation
for total disability concurrently.
On December 6, 2017 OWCP received documents from the employing establishment,
which showed the days or partial days between July 2015 and June 2016 that appellant was on
paid sick or annual leave, or received wages for actual work.
On January 11, 2018 OWCP issued a preliminary overpayment determination that an
overpayment of compensation in the amount of $11,383.39 had been created. It explained that the
overpayment occurred because appellant received total wage-loss compensation for the period
3
The case record contains evidence showing that appellant was terminated by the employing establishment on
June 27, 2016.

2

July 15, 2015 through June 20, 2016, but was also intermittently on paid leave and received wages
for work from the employing establishment during this period. OWCP found that appellant was
not entitled to compensation for the periods July 15 through August 30, 2015, November 19, 2015,
March 6 through June 5, and June 11 through 13, and 18 through 20, 2016. It also made a
preliminary determination that appellant was at fault in the creation of the overpayment as she
knowingly accepted a payment to which she was not entitled. OWCP requested that appellant
complete and submit an overpayment questionnaire (Form OWCP-20) and advised her of various
actions she could take with respect to the overpayment. It afforded her 30 days to respond. No
response was received.
By decision dated April 25, 2018, OWCP finalized its preliminary overpayment
determination, finding that appellant received an overpayment of compensation in the amount of
$11,383.39. It further found that she was at fault in the creation of the overpayment, because she
knowingly accepted a payment to which she was not entitled, thereby precluding waiver of
recovery of the overpayment. OWCP requested repayment of the full amount of the overpayment
within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 Section 8129(a) of FECA provides, in pertinent part, when an overpayment
has been made to an individual under this subchapter because of an error of fact or law, adjustment
shall be made under regulations prescribed by the Secretary of Labor by decreasing later payments
to which an individual is entitled.5
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.6 Section 10.500 of OWCP’s regulations provides that compensation for wage loss due
to disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.7 A
claimant is not entitled to receive temporary total disability benefits along with actual earnings or
paid leave for the same time period.8

4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 8102(a).

7

20 C.F.R. § 10.500(a).

8
Id. at 10.401(a); K.K., Docket No. 19-0978 (issued October 21, 2019); M.S., Docket No. 16-0289 (issued April 21,
2016); E.V., Docket No. 10-1284 (issued February 3, 2011); L.S., 59 ECAB 350, 352-53 (2008).

3

OWCP’s procedures provide that, once an overpayment is identified, it is responsible for
determining whether the claimant was with fault or without fault, issuing a preliminary finding,
and unless a hearing is requested, OWCP is responsible for issuing a final decision.9 These
procedures note that, if the claimant is determined to be at fault, preliminary overpayment
determination must be released along with a Form OWCP-20 within 30 days of the date the
overpayment is identified. Both the reason that the overpayment occurred and the reason for the
finding of whether appellant was at fault in its creation must be clearly stated. A preliminary
overpayment determination informs the claimant of the right to submit evidence and the right to a
prerecoupment hearing on the issues of: (a) fact and amount of overpayment; and (b) waiver of
recovery of the overpayment. Along with the preliminary overpayment determination, OWCP
should provide a clearly written statement explaining how the overpayment was created.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $11,383.39 during the period July 15, 2015
through June 20, 2016.
As noted, OWCP’s procedures provide that an overpayment of compensation is created
when a claimant receives paid leave or wages for work, but continues to receive wage-loss
compensation for temporary total disability.11 On December 6, 2017 OWCP received
documentation from the employing establishment, which showed the days or partial days between
July 2015 and June 2016 that appellant was on paid sick or annual leave, or received wages for
actual work, but continued to receive temporary total disability during this period. It was not until
January 11, 2018, however, that OWCP issued a preliminary determination, finding an
overpayment in the amount of $11,383.39 had been created during the period July 15, 2015
through June 20, 2016 because appellant received compensation for total disability to which she
was not entitled. By decision dated April 25, 2018, OWCP finalized the preliminary overpayment
determination, finding that appellant was at fault in the receipt of an overpayment of compensation
in the amount of $11,383.39 and was, thereby, precluded from waiver of recovery of the
overpayment. It required recovery by payment of $11,383.39 within 30 days.
The Board finds that OWCP failed to follow its procedures in issuing the April 25, 2018
overpayment decision. As noted, OWCP’s procedures provide that a preliminary overpayment
determination must be released along with a Form OWCP-20 within 30 days of the date the
overpayment is identified.12 In this case, OWCP first identified the overpayment of compensation

9
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(a)(1) (May 2004).
10

Id.; see also L.P., Docket No. 18-0095 (issued March 12, 2020); T.M., Docket No. 18-1763 (issued
October 10, 2019).
11

Id.

12

See supra note 8.

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on December 6, 2017, but it did not, however, issue a preliminary overpayment determination until
January 11, 2018, more than 30 days later.
The Board, thus, finds that OWCP failed to follow its established procedures in
determining that appellant received an overpayment of compensation in the amount of $11,383.39
during the period July 15, 2015 through June 20, 2016.13
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $11,383.39 during the period July 15, 2015
through June 20, 2016.
ORDER
IT IS HEREBY ORDERED THAT the April 25, 2018 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: March 24, 2021
Washington, DC

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

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

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

13

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________

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Appearances:
Caroline Kirk, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1068
Issued: December 8, 2017

Case Submitted on the Record

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

JURISDICTION
On April 17, 2017 appellant, through counsel, filed a timely appeal from a January 24,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an occupational
disease causally related to factors of his federal employment.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On July 18, 2014 appellant, then a 56-year-old custodian laborer, filed an occupational
disease claim (Form CA-2) alleging that he experienced severe neck, low back, bilateral
shoulder, bilateral wrist, and bilateral knee pain as a result of his federal employment duties. He
first became aware of his condition and realized that it resulted from factors of his federal
employment on December 23, 2013. Appellant stopped work on December 29, 2013. On the
reverse side of the claim form, the employing establishment noted that it was controverting the
claim based on fact of injury, causal relationship, and performance of duty.
In an August 14, 2014 statement, appellant explained that he had worked for the
employing establishment as a full-time custodian laborer for the past 20 years and worked a
minimum of 40 hours per week. He related that he had previously sustained injuries to his low
back, neck, bilateral shoulders, bilateral wrists, and bilateral knees while on military deployment
for nine years. Appellant alleged that, when he returned to work on November 3, 2013,
following his military deployment, he experienced an aggravation of his injuries, which made it
difficult to perform his job duties. He described his job duties and asserted that the repetitive
motion of prolonged standing, constant walking, stooping, reaching, twisting, and lifting had
aggravated his medical conditions. Appellant explained that he stopped work on December 23,
2013 because the pain became so severe that he was unable to fully perform his duties.
Appellant received medical treatment from Dr. Charles Willis, a Board-certified
anesthesiologist and pain management specialist. In progress and work status reports dated
January 15 to June 27, 2014, Dr. Willis indicated that appellant was totally disabled from
January 15 to June 30, 2014 based on his most recent functional capacity evaluation (FCE).
OWCP received an August 1, 2014 letter controverting appellant’s claim from G.N., a
health and resource management specialist for the employing establishment. G.N. noted that
appellant previously filed an occupational disease claim on January 21, 2014 for the same
conditions.4 She further related that he was on extended military leave from May 6, 2004 to
November 15, 2009 and from March 26, 2010 to November 2, 2013. G.N. noted that appellant
only worked from November 16, 2009 to March 25, 2010 and intermittently from November 3 to
December 30, 2013. She questioned how appellant was capable of performing his military duties
for many years, but now claimed an aggravation of his conditions after working a total of 32

3

Docket No. 15-1655 (issued December 18, 2015).

4

Under OWCP File No. xxxxxx743, appellant filed an occupational disease claim on January 27, 2014 alleging
an aggravation of his neck, low back, bilateral shoulder, bilateral wrist, and bilateral knee conditions due to his
federal employment. In a decision dated March 19, 2014, OWCP accepted his claim. By decision dated August 5,
2014, it rescinded the acceptance of appellant’s claim because he did not work at the employing establishment on
July 15, 2005, as stated in his claim. Appellant also has a previously accepted July 15, 2005 employment injury in
File No. xxxxxx634 for bilateral sprains of the knees, legs, shoulders, upper arms, and hands, as well displacement
of thoracic intervertebral disc without myelopathy.

2

days. G.N. contended that his condition was a result of his extended military duties and not his
federal employment.
In an August 28, 2014 report, Dr. Edward Wolski, a family practitioner, described
appellant’s work duties and reviewed appellant’s history. He provided physical examination
findings and diagnosed bilateral knee strain, thoracic strain, and lumbar strain. Dr. Wolski
opined that appellant sustained work-related injuries while in the performance of his duties as a
custodian for the employing establishment on December 23, 2013. He related that appellant’s
injury occurred while performing repetitive work duties and explained that the medical evidence
was supported by appellant’s subjective complaints of reported pain, difficulty performing work
duties, and objective examination findings.
OWCP denied appellant’s claim in a decision dated September 29, 2014. It accepted his
employment duties as a laborer-custodian. OWCP denied appellant’s claim because the medical
evidence of record was insufficient to establish that his diagnosed conditions were causally
related to factors of his federal employment.
On December 1, 2014 appellant, through counsel, requested reconsideration. He alleged
that medical documentation had been submitted to support an aggravation of his preexisting
injuries.
By decision dated February 27, 2015, OWCP denied modification of the September 29,
2014 decision. It found that the medical evidence of record failed to establish that appellant’s
job duties as a custodian laborer contributed to or aggravated his preexisting injuries.
On March 24, 2015 appellant, through counsel, again requested reconsideration.
Appellant submitted various diagnostic reports of his right knee, left wrist, left knee,
bilateral shoulder, and lumbar spine dated August 28, 2014 by Dr. Julian Crutchfield, a
chiropractor.
He also provided progress notes dated October 14, November 20, and
December 17, 2014 by Ryan Stepinoff, a physician assistant, for treatment of aggravation of a
preexisting injury.
An October 21, 2014 electromyography and nerve conduction velocity (EMG/NCV)
studies of appellant’s lower extremities by Dr. Robert Helsten, a family practitioner and pain
management specialist, showed evidence of mild-to-moderate, active, acute, and chronic right
L4-5 lumbar radiculopathy and moderate, chronic right L5-S1 lumbar radiculopathy, chronic
left-sided L5-S1 radiculopathy, and early length-dependent and axonal lower limbs peripheral
polyneuropathy.
In an April 13, 2015 decision, OWCP denied further merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128(a).
Appellant appealed to the Board.
By decision dated December 18, 2015, the Board affirmed the February 27, 2015
decision because appellant did not meet his burden of proof to establish his occupational disease
claim. The Board set aside OWCP’s April 13, 2015 decision finding that he had submitted new
3

medical evidence which was not reviewed by OWCP in the April 13, 2015 decision. The Board
remanded the case for OWCP for review of the additional medical evidence.5
On December 22, 2015 OWCP received a November 30, 2015 examination note, patient
pain form, and prescription note from Mr. Stepinoff. Mr. Stepinoff related appellant’s
complaints of moderate-to-severe neck and knee pain. He indicated that appellant sustained an
aggravation of preexisting back injury, bilateral knee sprain, and bilateral shoulder strain.
In a December 30, 2015 handwritten examination note, Mr. Stepinoff noted appellant’s
complaints of severe neck and knee pain. Upon physical examination, he indicated moderate
tenderness to appellant’s back. Mr. Stepinoff reported that appellant sustained an aggravation of
preexisting back injury, bilateral knee sprain, and bilateral shoulder strain. He also included a
patient pain form.
By decision dated January 21, 2016, OWCP denied modification of the February 27,
2015 decision.
In examination records dated January 27 to February 24, 2016, Mr. Stepinoff noted
appellant’s complaints of severe back, neck, and bilateral shoulder pain. He diagnosed
aggravation of back injury, bilateral knee, and shoulder sprains. Mr. Stepinoff included a patient
pain form and lab reports.
Appellant also submitted physical therapy reports dated April 5 to August 4, 2016 for
treatment for his cervical disc displacement, lumbar spine sprain, and cervical spine sprain.
On October 26, 2016 appellant, through counsel, requested reconsideration. She related
that new medical evidence was enclosed from Dr. John Barnett, a Board-certified
anesthesiologist, which established that appellant became aware that his conditions were related
to his federal job duties after he returned to his full-duty position with the employing
establishment. Counsel asserted that Dr. Barnett provided an extensive description of appellant’s
work duties and an explanation of how appellant’s new conditions and his previous conditions
were aggravated as a direct result of performing those duties. She noted that Dr. Barnett began
his report with a detailed and clear history of appellant’s conditions and distinguished between
the injuries appellant sustained in the military and the new injuries appellant sustained, as well as
old injuries which were aggravated when he returned to full-duty work. Counsel alleged that
appellant provided sufficient evidence to establish that his medical conditions were caused,
aggravated, accelerated, or precipitated as a direct result of performing his work duties over a
period of time as a laborer custodian for the employing establishment. She noted that under
FECA case law a medical opinion needed only to indicate that on a “more probable than not
basis” a claimant’s job contributed “in any way” to the disabling condition.
In an August 16, 2016 report, Dr. Barnett related appellant’s complaints of bilateral hand
symptoms and aggravation of preexisting injury of bilateral knees, the mid and low back, neck,
bilateral wrists, and bilateral shoulders. He noted that appellant had been on military deployment
for nine years and sustained injuries to his lower and mid back, neck, bilateral shoulders,
5

See supra note 3.

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bilateral wrists, and bilateral knees. Dr. Barnett related that on November 3, 2013 appellant
returned to work for the employing establishment and experienced an aggravation of his
previously sustained injuries and suffered new injuries. He explained that the aggravation
continued to bother appellant and progressively worsened to the point that on December 23,
2013 appellant was unable to perform his work duties. Dr. Barnett reported that appellant
sustained an occupational injury that occurred over time and was not a traumatic injury which
had occurred on a specific date. He noted that appellant worked as a full-time laborer custodian
and provided a detailed description of appellant’s employment duties. Dr. Barnett opined that
performing appellant’s repetitive duties in the course and scope of duty, over time, caused his
preexisting injuries to worsen and new injuries to develop.
Upon physical examination of appellant’s cervical spine, Dr. Barnett reported decreased
range of motion in all planes and hypertonicity and tenderness of the paraspinal muscles upon
palpation. Spurling and Adson’s signs were positive. Dr. Barnett indicated full range of motion
and tenderness and hypertonicity of the paraspinal muscles of appellant’s thoracic spine on
palpation. Evaluation of appellant’s lumbar spine showed decreased range of motion and
hypertonicity and tenderness bilaterally on palpation. Straight leg raise testing was positive
bilaterally. Dr. Barnett reported that evaluation of appellant’s bilateral shoulders revealed
decreased range of motion in all planes and tenderness of the anterior and posterior shoulder
girdle on palpation. Evaluation of appellant’s bilateral hands and wrists also showed decreased
range of motion with end range pain and tenderness. Dr. Barnett indicated that examination of
appellant’s bilateral knees revealed decreased range of motion in all planes with end range pain
and swelling and tenderness bilaterally, worse on the left. Anterior drawer test was positive on
the left and McMurray’s test was positive on the right. Dr. Barnett diagnosed aggravation of
cervical disc displacement, aggravation of thoracic sprain, aggravation of lumbar disc
displacement, aggravation of bilateral shoulder impingement, aggravation of bilateral rotator cuff
syndrome, bilateral shoulder bicipital tendinosis, right shoulder osteoarthritis, aggravation of
bilateral osteoarthritis, left wrist ganglion cyst, right wrist carpal tunnel, aggravation of bilateral
osteoarthritis, left knee tendinosis, medial meniscus tear of the right knee, anterior cruciate
ligament (ACL) tear of the left knee, right knee bone bruise, right hand sprain, and left hand
sprain.
Dr. Barnett opined that appellant’s diagnosed conditions were “caused or aggravated as a
direct result of his normal performance of his duties as a labor custodian.” He described
appellant’s job duties and noted that his duties required repetitive lifting and carrying 50-pound,
five-gallon buckets, pushing and pulling, bending, stooping, and maneuvering/moving chairs,
desks, and tables to clean. Dr. Barnett noted that appellant’s daily duties required repetitive wrist
flexion and extension, repetitive grasping, repetitive reaching, repetitive lifting, repetitive elbow
flexion and extension, repetitive bending, repetitive twisting, repetitive walking, and repetitive
standing for a minimum of 40 hours per week. He explained that these “physical duties cause[d]
excessive strain to the spine, whereby undergoing compressional and rotational forces, causing
aggravation to the preexisting injuries of the cervical, thoracic, and lumbar spine.” Dr. Barnett
reported that these duties also caused bilateral hand sprains and aggravation of the bilateral
shoulders and wrists directly causing sprains to the soft tissue. He further noted that prolonged
standing and walking on hard concrete floors and repetitive squatting also caused aggravation of
preexisting conditions to the bilateral knees.

5

Appellant continued to undergo physical therapy treatment and provide pain management
forms.
By decision dated January 24, 2017, OWCP denied modification of the January 21, 2016
decision. It found that the medical evidence of record failed to establish an aggravation of
appellant’s preexisting back, neck, bilateral shoulders, bilateral wrists, and bilateral knee
conditions causally related to factors of his federal employment. OWCP determined that
Dr. Barnett did not provide a well-rationalized medical opinion to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence7 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.8 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 The opinion of the
physician must be based on a complete factual and medical background of the employee, 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 employee.11
ANALYSIS
Appellant alleged that he developed an aggravation of his preexisting back, neck,
bilateral shoulders, bilateral wrists, and bilateral knee conditions and sustained new injuries to
his bilateral shoulders, wrists, and knees as a result of his duties as a custodian laborer. OWCP
accepted his federal employment factors, but it denied his claim due to insufficient medical

6

Supra note 2.

7

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

8

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
9

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

10

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

6

evidence in the record to establish causal relationship between his federal employment factors
and his diagnosed conditions. The Board finds that this case is not in posture for a decision.
Following the Board’s December 18, 2015 decision, appellant submitted an August 16,
2016 report from Dr. Barnett who noted that appellant had previously sustained injuries to his
lower and mid back, neck, bilateral shoulders, bilateral wrists, and bilateral knees during his
military service. Dr. Barnett related that, when appellant returned to work, he experienced an
aggravation of his previously sustained injuries and suffered new injuries. He provided a
discussion of appellant’s diagnostic reports and physical examination findings. Dr. Barnett
diagnosed aggravation of cervical disc displacement, aggravation of thoracic sprain, aggravation
of lumbar disc displacement, aggravation of bilateral shoulder impingement, aggravation of
bilateral rotator cuff syndrome, bilateral shoulder bicipital tendinosis, right shoulder
osteoarthritis, aggravation of bilateral osteoarthritis, left wrist ganglion cyst, right wrist carpal
tunnel, aggravation of bilateral osteoarthritis, left knee tendinosis, medial meniscus tear of the
right knee, ACL ligament tear of the left knee, right knee bone bruise, right hand sprain, and left
hand sprain.
Dr. Barnett opined that appellant’s diagnosed conditions were “caused or aggravated as a
direct result of his normal performance of his duties as a labor custodian.” He accurately
described appellant’s employment duties and indicated that appellant’s daily duties required
repetitive wrist flexion and extension, repetitive grasping, repetitive reaching, repetitive lifting,
repetitive elbow flexion and extension, repetitive bending, repetitive twisting, repetitive walking,
and repetitive standing for a minimum of 40 hours per week. Dr. Barnett explained that these
“physical duties cause[d] excessive strain to the spine, whereby undergoing compressional and
rotational forces, causing aggravation to the preexisting injuries of the cervical, thoracic, and
lumbar spine.” He reported that these duties also caused bilateral hand sprains and aggravation
of the bilateral shoulders, wrists directly causing sprains to the soft tissue. Dr. Barnett further
indicated that prolonged standing and walking on hard concrete floors and repetitive squatting
also caused aggravation of preexisting conditions to the bilateral knees.
Dr. Barnett provided an affirmative opinion on causal relationship and accurately
identified employment factors to which appellant claimed caused his condition, identified
findings upon examination, and explained how the requirements of the identified employment
factors caused or aggravated appellant’s medical conditions. The Board finds that Dr. Barnett’s
opinion, while not sufficiently rationalized to meet appellant’s burden of proof, is sufficient,
given the absence of any opposing medical evidence, to require further development of the
record.12
It is well established that proceedings under FECA are not adversarial in nature, and
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.13 OWCP has an obligation to see that justice
12

See A.F., Docket No. 15-1687 (issued June 9, 2016). See also John J. Carlone, 41 ECAB 354 (1989); Horace
Langhorne, 29 ECAB 820 (1978).
13

See, e.g., Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael Gallo, 29 ECAB 159, 161 (1978);
William N. Saathoff, 8 ECAB 769, 770-71; Dorothy L. Sidwell, 36 ECAB 699, 707 (1985).

7

is done.14 The Board notes that it is unnecessary for an employee to prove a significant
contribution of employment factors to a condition for the purpose of establishing causal
relationship.15 Rather, if the medical evidence reveals that factors of federal employment
contributed in any way to the disabling condition, such condition is considered employment
related for the purpose of compensation under FECA.16
The case will be remanded to OWCP for further action consistent with this decision.
After such further development of the case record as OWCP deems necessary, it shall issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the January 24, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for additional
development consistent with this decision.
Issued: December 8, 2017
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
14

William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).

15

D.J., Docket No. 16-0288 (issued May 25, 2016).

16

See Glenn C. Chasteen, 42 ECAB 493 (1991); Beth P. Chaput, 37 ECAB 158 (1985).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southfield, MI, Employer
__________________________________________

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)

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

Docket No. 07-1996
Issued: January 16, 2008

Case Submitted on the Record

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

JURISDICTION
On July 25, 2007 appellant, through counsel, filed a timely appeal of a June 25, 2007
nonmerit decision denying her request for reconsideration. Because more than one year has
elapsed between the most recent merit decision dated July 13, 2006 and the filing of this appeal,
the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for a merit review of
her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 11, 2006 appellant, then a 33-year-old city carrier, filed a claim for an
occupational disease. On December 14, 2005 she first became aware of a bulging disc in her
neck and first realized that this condition was caused by lifting, pushing and pulling at work.
Appellant submitted treatment notes which covered intermittent dates from February 24 through

March 28, 2006 and medical reports dated February 14 and 24 and March 28, 2006 from
Dr. Steven E. Newman, a Board-certified neurologist, which found that she sustained workrelated traumatic right C6 radiculopathy, functional impairment of the dominant right upper
extremity with demonstrable atrophy on circumferential measurements and weakness and
functional impairment as determined by objective testing. Treatment notes covering intermittent
dates during the period February 15 through April 14, 2006 from appellant’s physical therapist
addressed her neck problems. A patient history questionnaire was completed by appellant on
February 14, 2006.
By letter dated May 4, 2006, the Office advised appellant that the evidence submitted was
insufficient to establish her claim. It requested that she submit additional factual and medical
evidence within 30 days. Appellant did not respond within the allotted time period.
In a decision dated July 13, 2006, the Office denied appellant’s claim. It found the
evidence of record insufficient to establish that she sustained an injury while in the performance
of duty.
By letter dated June 10, 2007, appellant, through counsel, requested reconsideration. She
submitted a January 23, 2006 report of Dr. Douglas D.W. Lee, a Board-certified physiatrist, who
reviewed a history that appellant experienced pain in the medial scapula and the right shoulder
initially and later experienced pain in the base of her neck with pain radiating into the medial
scapula and then the right upper extremity as a result of performing her work duties on
December 14, 2005. Dr. Lee also reviewed her medical and family background. He reported his
essentially normal findings on physical examination. Dr. Lee opined that appellant presented
with a five-week history of right shoulder pain with radiating pain into her right upper extremity
“relative to a work-related injury sustained on or around December 14, 2005.” He wished to rule
out cervical radiculopathy and a herniated cervical disc, especially C7 nerve roots on the right.
Dr. Lee stated that appellant had possible carpal tunnel syndrome but related that this was
unlikely based on his examination. Dr. Lee recommended a magnetic resonance imaging (MRI)
scan of the cervical spine, an electromyogram examination for cervical radiculopathy versus
carpal tunnel syndrome and continuation of appellant’s physical therapy and restrictions. A
February 6, 2006 report of Dr. Stephen D. Daly, a family practitioner, found that appellant had
cervical radiculopathy. In a February 10, 2006 report, he stated that he had been treating
appellant since December 17, 2005. Dr. Daly reported a history that appellant’s right upper
extremity had been increasingly painful from continuous pushing, pulling and lifting at work.
He stated that an MRI scan of the cervical spine demonstrated a bulging disc with a small right
paracentral disc protrusion at C6-7 which produced mild spinal stenosis and mild foraminal
encroachment. Dr. Daly stated that this lesion correlated with appellant’s area of pain. He
opined that “this condition was caused or aggravated by her work.” In a December 17, 2005
report, William Rogers, a physician’s assistant, noted appellant’s complaint of a shoulder injury
sustained on December 14, 2005. He reported his normal findings on physical and neurological
examination. In a December 23, 2005 report, Elizabeth A. Wineka, a physical therapist, opined
that appellant’s examination was consistent with possible carpal tunnel syndrome and cervical
radiculopathy and lateral epicondylitis.

2

By decision dated June 25, 2007, the Office denied appellant’s request for
reconsideration on the grounds that it did not include relevant evidence and, thus, it was
insufficient to warrant a merit review of the Office’s prior decision.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,1 the Office’s regulation provide that a claimant must: (1) show
that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant
legal argument not previously considered by the Office; or (3) constitute relevant and pertinent
new evidence not previously considered by the Office.2 To be entitled to a merit review of an
Office decision denying or terminating a benefit, a claimant also must file his or her application
for review within one year of the date of that decision.3 When a claimant fails to meet one of the
above standards, the Office will deny the application for reconsideration without reopening the
case for review of the merits.
ANALYSIS
In a July 13, 2006 decision, the Office found that appellant did not sustain an injury while
in the performance of duty because the medical evidence of record did not establish that the
claimed neck injury was causally related to factors of her federal employment. In a letter dated
June 10, 2007, appellant disagreed with this decision and requested reconsideration. The
relevant issue in this case is whether appellant’s neck injury was causally related to factors of her
employment. The Board notes that this issue is medical in nature.
Dr. Daly’s February 6, 2006 report found that appellant had cervical radiculopathy. This
evidence, however, is not relevant to the issue of whether appellant sustained a neck injury
causally related to factors of her employment. The Board has held that the submission of
evidence which does not address the particular issue involved does not constitute a basis for
reopening a case.4 Dr. Daly did not opine that appellant’s cervical radiculopathy was causally
related to her employment factors. Thus, his report is insufficient to warrant reopening
appellant’s claim for further merit review.
The December 17, 2005 report of Mr. Rogers, a physician’s assistant, and December 23,
2005 report of Ms. Wineka, a physical therapist, do not constitute probative medical evidence

1

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
2

20 C.F.R. § 10.606(b)(1)-(2).

3

Id. at § 10.607(a).

4

See Patricia G. Aiken, 57 ECAB ___ (Docket No. 06-75, issued February 17, 2006).

3

inasmuch as neither a physician’s assistant nor a physical therapist are considered a physician
under the Act.5
Dr. Lee’s January 23, 2006 report found that appellant had a five-week history of right
shoulder pain with radiating pain into her right upper extremity relative to a work-related injury
sustained on or around December 14, 2005. Dr. Daly’s February 10, 2006 report provided a
history of the alleged employment injury. He opined that appellant’s bulging disc with a small
right paracentral disc protrusion at C6-7 which produced mild spinal stenosis and mild foraminal
encroachment was caused or aggravated by her work. The Board finds that Dr. Lee’s and
Dr. Daly’s reports constitute pertinent new and relevant medical evidence not previously
considered by the Office which constitute a basis for reopening appellant’s claim for merit
review.6
Since appellant submitted evidence in support of her request for reconsideration which
meets the third standard for obtaining a merit review of her case, the Board finds that the Office
should have reopened the case for a review on the merits. Accordingly, the Board will remand
the case to the Office for a review on the merits.
CONCLUSION
The Board finds that the Office improperly denied appellant’s request for a merit review
of her claim pursuant to 5 U.S.C. § 8128(a).

5

5 U.S.C. § 8102(2). This subsection defines the term physician; see Roy L. Humphrey, 57 ECAB ___ (Docket
No. 05-1928, issued November 23, 2005). (Medical opinion, in general, can only be given by a qualified physician);
see also David P. Sawchuk, 57 ECAB ___ (Docket No. 05-1635, issued January 13, 2006) (Lay individuals such as
physician’s assistants, nurses and physical therapists are not competent to render a medical opinion under the Act.)
6

The requirement of reopening a claim for merit review does not include the requirement that a claimant shall
submit all evidence necessary to discharge the burden of proof. The requirement pertaining to the submission of
evidence specifies only that the evidence be relevant and pertinent and not previously considered by the Office.
Sydney W. Anderson, 53 ECAB 347 (2002).

4

ORDER
IT IS HEREBY ORDERED THAT the June 25, 2007 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further action
consistent with this decision.
Issued: January 16, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Joshua Tree, CA, Employer
__________________________________________

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

Docket No. 17-1840
Issued: December 20, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 29, 2017 appellant, through counsel, timely appealed from a July 27, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

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

5 U.S.C. § 810 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left shoulder
condition causally related to the accepted June 13, 2016 employment incident.
FACTUAL HISTORY
On June 13, 2016 appellant, then a 59 year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on that date she injured her left shoulder when she pushed a postal container
while in the performance of duty. She explained that it kept getting caught on the left and right
side where workers had blocked one half of the door. Appellant did not initially stop work. The
employing establishment responded, “no” with regard to whether their knowledge of the facts of
this injury agreed with the statements of the employee and/or witness. The employing
establishment responded that appellant complained of shoulder pain in the past. Additionally, it
was noted that “a reenactment of the incident does not make sense as to how the left shoulder
would have been injured.”
Appellant provided a separate statement dated June 14, 2016 in which she noted that she
was not currently seeking medical attention for the incident of June 13, 2016, when she injured
her left shoulder.
OWCP received a report of accident/incident from EHS. The report noted that appellant
indicated that she “was trying to push a wire lobster cage outside back door, it kept getting caught
on the left and right side where workers had blocked one half of door.”
A June 20, 2016 left shoulder x-ray read by Dr. Michael Allen, a Board-certified internist,
was normal. Dr. Allen noted that appellant was pushing a huge basket when she bumped into the
door and hurt her left shoulder. He advised that it was work related and noted that she had blunt
trauma and contusions or hematomas on the left shoulder.
In a report, initially received on June 29, 2016, Dr. Robert Evans, an internist, noted that
appellant indicated that she was trying to push a postal container through an outer doorway that
was blocked on one side. He indicated that her subjective complaints included pain in the left
shoulder. Dr. Evans diagnosed left shoulder sprain. OWCP received an undated duty status report
(Form CA-17) from Dr. Evans, who advised no regular work. In a June 20, 2016 duty status report,
Dr. Evans noted her history of injury and noted she had pain on the left shoulder. In June 27, 2016
reports, he advised that appellant still had pain from the left shoulder. Dr. Evans completed a duty
status report including work restrictions. In a July 4, 2016 progress report, he noted that
appellant’s shoulder felt better from pain and diagnosed shoulder strain. Dr. Evans advised
continuing modified work with limited use of the left arm. He continued to treat appellant and
provided reports on July 11, 15, 18, and August 1, 9, 2016. In July 11 and August 15, 2016
disability certificates, Dr. Evans advised returning to work with restrictions.
OWCP also received a series of physical therapy reports from August 2016. In an
August 2, 2016 physical therapy report, the physical therapist noted that appellant presented with
a left shoulder strain following an incident at work on June 13, 2016. He noted that the x-ray was
unremarkable. The physical therapist related that appellant claimed that the same incident had

2

occurred in December 2015, but that she did not file an incident report at work. He noted that
appellant explained that her son, an orthopedic surgeon, explained that she “probably tore
something and needs surgery.” In an August 31, 2016 discharge report, the therapist diagnosed
strain of other muscles, fascia, and tendons at the shoulder and upper arm level, unspecified arm
and pain in the left shoulder. He advised that appellant was discharged as she had completed
treatment.
By development letter dated September 23, 2016, OWCP advised appellant of the
deficiencies in the evidence received. It requested that she complete a questionnaire and respond
to factual questions regarding the prior injury in December 2015 and her son’s suggestion of
surgery. OWCP also requested a narrative medical report from appellant’s physician, which
should include: dates of examination and treatment; history and date of injury given by appellant
to the physician; description of findings; results of x-rays and tests; a diagnosis and clinical course
of treatment followed; and the physician’s opinion supported by a medical explanation as to how
the reported work incident caused or aggravated a medical condition. OWCP afforded her 30 days
to provide the requested evidence.
OWCP received new evidence as well as copies of previously submitted reports.
In a September 13, 2016 duty status report, Dr. Evans repeated his description of how the
incident occurred and diagnosed left shoulder strain. He noted that appellant was advised to
resume modified work on September 13, 2016.
A September 21, 2016 magnetic resonance imaging (MRI) scan of the left shoulder read
by Dr. John F. Feller, a diagnostic radiologist, revealed no evidence of full-thickness rotator cuff
tear. Other findings included, but were not limited to a history of clinical syndrome of
impingement including mild osteoarthritis involving the acromioclavicular joint; mild subacromial
bursitis; and severe tendinosis throughout the supraspinatus tendon extending as moderate
tendinosis along the articular surface of the infraspinatus tendon. Dr. Feller noted that the
supraspinatus and the infraspinatus tendon pathology in part or in whole may be traumatic in
etiology.
In an October 16, 2016 response to the questionnaire, appellant explained that her prior
injury occurred on approximately December 20, 2015. She explained that the injury occurred
when she was distributing packages to carrier routes. Appellant noted that she scanned the
packages with her right hand while throwing them with her left. She explained that she threw one
to route two’s hamper and felt a sharp pain in her left shoulder. Appellant assumed that she had
strained a muscle and kept working. She noted that she did not receive medical treatment, but she
did tell the postmaster about the incident when she arrived. Appellant also informed her son, an
orthopedic surgeon, of this incident. She responded that, with regard to her son advising her that
she needed surgery, he was in town on December 19, 2015 for the holidays and he examined her
shoulder. Appellant advised that he recommended a left shoulder MRI scan as it was possible that
she may have a rotator cuff tear and could possibly need surgery.
In an October 14, 2016 report, Dr. Evans noted that appellant was seen in his office for
multiple visits from June 20 to September 13, 2016. He confirmed the history of injury and
provided findings which included that appellant was tender and had pain when her arm was

3

elevated above 90 degrees. Dr. Evans found her ligaments were intact. He reviewed the MRI scan
findings from September 21, 2016 and concluded that appellant had shoulder pain, which was a
result of the injury at the workplace.
By decision dated October 27, 2016, OWCP denied appellant’s claim. It found that the
evidence of record was insufficient to establish that the claimed medical condition was causally
related to the accepted work event(s).
Following its decision OWCP received copies of prior reports.
On April 28 and May 1, 2017 appellant requested reconsideration. She noted that she was
providing two letters one from Dr. Evans and one from her son. Appellant explained that
Dr. Evans had been treating her since the injury of June 13, 2016. She indicated that she believed
that her claim was unfairly denied because both injuries to her shoulder happened at work.
Appellant denied any prior shoulder problems. She also explained why she never filed for the first
injury. Appellant noted that, when she injured her left shoulder on June 13, 2016, it was more
painful, so she filed a claim.
In an undated report, Dr. Randall Roy, an orthopedic sports specialist, and appellant’s son,
noted that on December 19, 2015 he examined her shoulder at her home due to an injury sustained
at work earlier that week. He noted that he found weakness in her left shoulder, and recommended
that she get a left shoulder MRI scan, as he suspected a rotator cuff injury. Dr. Roy explained that,
to his knowledge, appellant had not received treatment for this problem and continued to have
pain.
In a March 30, 2017 report, Dr. Evans noted that appellant’s left shoulder pain was not
improving. He repeated the history of injury of June 13, 2016. Dr. Evans opined that this was a
work injury. He recommended an orthopedic evaluation.
By decision dated July 27, 2017, OWCP denied modification of the October 27, 2016
decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.3
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that

3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

allegedly occurred.4 The second component is whether the employment incident caused a personal
injury.5 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted June 13, 2016 employment incident.
In support of her claim, appellant submitted a series of medical reports from Dr. Evans, an
internist. Dr. Evans reported that appellant had indicated that she was trying to push a postal
container through an outer doorway that was blocked on one side by workers. He indicated that
her subjective complaints included pain in the left shoulder. Dr. Evans initially diagnosed left
shoulder sprain. He reviewed the MRI scan findings from September 21, 2016 and concluded that
appellant had shoulder pain, which was a result of the injury at the workplace. Dr. Evans opined
that he believed that her condition was the result of a work injury. He recommended an orthopedic
evaluation. The Board finds that the medical records of Dr. Evans are insufficient to establish
appellant’s claim. While he diagnosed a left shoulder sprain he failed to provide medical reasoning
as to how and why the accepted employment incident would result in such a condition. The mere
recitation of patient history does not suffice for purposes of establishing causal relationship

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

Robert G. Morris, 48 ECAB 238 (1996).

8

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Id.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

5

between a diagnosed condition and the employment incident.11
Without explaining
physiologically how the accepted employment incident caused or contributed to the diagnosed
conditions, the physician’s reports are of limited probative value.12 Thus, the reports of Dr. Evans
are insufficient to establish a left shoulder condition causally related to the accepted June 13, 2016
employment incident.
Appellant also submitted a medical report Dr. Allen, a Board-certified internist, who noted
the history of injury. Dr. Allen noted that she had contusions or hematomas on her left shoulder
and noted they were work related. A medical opinion should reflect a correct history and offer a
medically sound explanation by the physician of how the specific employment incident
physiologically caused or aggravated the diagnosed conditions.13 As Dr. Allen merely noted that
the condition was work related, without any explanation for his opinion, this report is insufficient
to establish appellant’s claim.
In an undated report, Dr. Roy, an orthopedic sports specialist, noted that on December 19,
2015 he had examined her shoulder at her home due to an injury sustained at work earlier that
week. He noted that he found weakness in her left shoulder, and recommended an MRI scan, as
he suspected a rotator cuff injury. The Board has held that medical evidence that does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.14 This report is, therefore, insufficient to establish appellant’s claim.
Appellant also submitted MRI scan reports and numerous reports from physical therapists
who provided treatment. Diagnostic studies, such as MRI scan reports, are of limited probative
value as they do not address whether the employment incident caused any of the diagnosed
conditions.15 As to the physical therapy notes, these documents do not constitute competent
medical evidence because a physical therapist is not considered a “physician” as defined under
FECA.16 As such, this evidence is also insufficient to meet appellant’s burden of proof.
An award of compensation may not be based on surmise, conjecture, speculation, or
appellant’s belief of causal relationship.17 Appellant’s honest belief that the June 13, 2016

11

See J.G., Docket No. 17-1382 (issued October 18, 2017).

12

See A.B., Docket No. 16-1163 (issued September 8, 2017).

13

See J.M., Docket No. 17-1002 (issued August 22, 2017).

14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

15

See J.S., Docket No. 17-1039 (issued October 6, 2017).

16
See M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018);
David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by state law).
17

John D. Jackson, 55 ECAB 465 (2004); William Nimitz¸ 30 ECAB 57 (1979).

6

employment incident caused her medical conditions, however sincerely held, does not constitute
the medical evidence necessary to establish causal relationship.18
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted June 13, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 27, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 20, 2018
Washington, DC

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

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

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

18
See D.A., Docket No. 18-0783 (issued November 8, 2018); H.H., Docket No. 16-0897 (issued
September 21, 2016).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 16-0225
Issued: May 4, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On November 17, 2015 appellant, through counsel, filed a timely appeal from an
October 23, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Board assigned Docket No. 16-0225.
On October 3, 2014 appellant, then a 51-year-old labor custodian, filed an occupational
disease claim (Form CA-2) alleging that she developed a right shoulder “flare-up” as a result of
her federal employment. She had previously filed a claim for occupational disease under File
No. xxxxxx153, which was accepted for sprain and strain of an unspecified site of shoulder and
upper arm. Appellant filed a notice of recurrence of this accepted injury on September 5, 2014.
OWCP denied appellant’s recurrence claim, noting that the evidence of record suggested a new
injury. It denied her October 3, 2014 occupational disease claim on February 2, 2015.
A brief filed with the Board on appeal from counsel argues that OWCP improperly
instructed appellant that she was required to file a new claim. Counsel argued that appellant’s
accepted right shoulder condition never resolved, and her current condition was not due to a new
injury. His brief references medical evidence regarding her right shoulder, as well as
correspondence between OWCP and appellant regarding the issue of whether to characterize her
current right shoulder condition as a recurrence or a new injury, which do not appear under the
current file number, but which apparently do appear under File No. xxxxxx153. Counsel
concluded that it was improper for OWCP to deny a recurrence claim under a guise that
appellant had established a new injury, and then deny her application for new injury, as she had
not established a new injury.

As such, File No. xxxxxx153 contains evidence pertinent to the present claim under File
No. xxxxxx869. Appellant’s claim for a right shoulder condition was denied because she had
not submitted medical evidence containing a rationalized physician’s opinion on the causal
relationship between her federal employment and the current condition. OWCP had already
accepted a prior claim for the same bodily member under File No. xxxxxx153, and apparently
had determined upon viewing the medical evidence that her present claim was actually for a new
injury, rather than a recurrence.
As appellant’s claim for a new injury deals with the same bodily member accepted under
File No. xxxxxx153, and as she is arguing on appeal that OWCP made an error in characterizing
her condition as a new injury rather than as a recurrence, medical evidence relating to the earlier
accepted occupational disease under File No. xxxxxx153 would be necessary to the adjudication
of the present claim. The Board, therefore, finds that the appeal docketed as No. 16-225 is
currently not in posture for decision.
OWCP procedures require that cases should be combined where proper adjudication
depends on cross-referencing evidence between files, such as when “a new injury case is
reported for an employee who previously filed an injury claim for a similar condition or the same
part of the body. For instance, a claimant with an existing case for a back strain submits a new
claim for a herniated lumbar disc.”1 The case is remanded to OWCP for reconstruction and
proper assemblage of the case record, to be followed by the issuance of an appropriate decision.
IT IS HEREBY ORDERED THAT the October 23, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)(1)
(February 2000). See also J.M., Docket No. 13-1111 (issued July 15, 2013).

2

Issued: May 4, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, USAF
MEDICAL CENTER, TRAVIS AIR FORCE
BASE, CA, Employer
__________________________________________

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

Docket No. 20-1018
Issued: December 3, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On April 1, 2020 appellant filed a timely appeal from a January 17, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, it was asserted that oral argument should be granted because the finding
of an overpayment of compensation was improper. The Board, in exercising its discretion, denies appellant ’s request
for oral argument because the matter raised requires an evaluation of the evidence presented. As such, the arguments
on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal
would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request
is denied and this decision is based on the case record as submitted to the Board.

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $966.19 because she was overpaid for mileage
reimbursements for the period May 26, 2015 through January 11, 2016; and (2) whether OWCP
properly found appellant at fault in the creation of the overpayment, thereby precluding waiver of
recovery of the overpayment.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances of the case
as set forth in the Board’s prior decisions and orders are incorporated herein by reference. The
relevant facts are as follows.
On July 31, 1992 appellant, then a 40-year-old food service worker, filed an occupational
disease claim (Form CA-2) alleging that she sustained an emotional condition in the performance
of duty causally related to factors of her federal employment. After extensive development,
OWCP accepted the claim for dysthymic disorder on May 30, 1997. Appellant elected to receive
retirement benefits from the Office of Personnel Management (OPM) in lieu of FECA
compensation and her annuity commenced on March 15, 2008.
By decision dated December 7, 2016, a hearing representative with OWCP’s Branch of
Hearings and Review finalized a preliminary overpayment determination that appellant received
an overpayment of compensation in the amount of $3,168.84 because appellant had received
improper reimbursement payments related to travel to medical appointments from January 6, 2014
through December 7, 2015 due to receiving duplicate payments or payments based on exaggerated
mileage. He also found her at fault in the creation of the overpayment, thereby precluding waiver
of recovery of the overpayment.
Appellant filed an appeal with the Board and, by decision dated December 27, 2017,5 the
Board set aside the December 17, 2016 OWCP decision, finding that the case was not in posture
for decision because the record did not contain sufficient documentation to verify that she had
submitted duplicate requests for reimbursement and/or requested that she be paid for incorrect
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the January 17, 2020 decision, OWCP received additional evidence. Appellant
also submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s
review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision.
Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1).
Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.
4

Docket No. 95-0332 (issued April 3, 1997); Docket No. 17-1041 (issued December 27, 2017); Docket No.
19-0261 (issued July 3, 2019), petition for recon. denied, Docket No. 19-0261 (issued December 3, 2020).
5

Id.

2

mileage. The Board remanded the case for reconstruction of the record, to include any travel
reimbursement forms (Form OWCP-957) appellant had submitted for claimed periods.
OWCP subsequently placed additional documentation into the record, including OWCP957 forms, all signed by appellant on May 29, 2015, and a listing of the Form OWCP-957 receipt
dates and dates paid. A chronological pay history from January 6, 2014 through January 11, 2016
noted duplicate payments. Remittance vouchers for July 2 and December 24, 2015 described
payments for travel reimbursement of $1,200.23 and $2,260.80, respectively. Copies of cancelled
checks in those amounts are found in the record, as well as cancelled checks dated January 28 and
March 3, 2016 for $929.88 and $559.38, respectively.
By decision dated October 26, 2018, an OWCP hearing representative finalized a
March 13, 2018 preliminary overpayment determination that appellant received an overpayment
of compensation in the amount of $3,205.14. She found that the overpayment occurred because
appellant was overpaid for mileage reimbursement related to travel to medical appointments from
January 6, 2014 through December 7, 2015. She further found appellant at fault in the creation of
the overpayment because she knowingly claimed and accepted compensation to which she was not
entitled.
Appellant timely filed an appeal with the Board and, by decision dated July 3, 2019,6 the
Board found that she received overpayment of compensation in the amount of $2,238.95 for the
period January 6, 2014 through May 26, 2015 because she received reimbursement for duplicate
and excessive travel reimbursement requests. 7 The Board further found, however, that the case
was not in posture for decision regarding whether an overpayment of compensation for the period
June 1, 2015 through January 11, 2016 was created. It remanded the case to OWCP to obtain the
completed OWCP-957 forms for that period.
Subsequent to the Board’s decision, OWCP received additional OWCP-957 forms. These
were signed by appellant on May 29 and December 1, 2015 and were for travel between her home
in Vallejo, California, and the office of Dr. Brandes in Napa, California. For 21 days covering the
period June 1 through December 7, 2015, appellant claimed 77 miles of travel. For the period
May 26, 2015 through January 11, 2016, she filed forms for 25 days, claiming 38.8 miles. On
these forms, appellant certified with her signature that the information she provided in connection
with the travel refund request was true and correct, and that she was aware that any
misrepresentation to obtain reimbursement was subject to penalties. Each of the forms submitted
was also signed by Dr. Brandes.
Additional evidence received included a listing of receipt dates for OWCP-957 forms and
dates paid. A chronological pay history from January 6, 2014 through January 11, 2016 noted
duplicate payments. Remittance vouchers for July 2 and December 24, 2015 described payments
for travel reimbursement of $1,200.23 and $2,260.80, respectively. Copies of cancelled checks in
those amounts are found in the record, as well as cancelled checks dated January 28 and March 3,
6

Supra note 4.

7

The Board, inter alia, affirmed OWCP’s finding that appellant received an overpayment of compensation in the
amount of $22.43 on May 26, 2015.

3

2016 for $929.88 and $559.38, respectively. All cancelled checks were endorsed by appellant.
An overpayment worksheet indicates that on January 28, 2016 she was paid $44.28 for 77 miles
of travel on 21 separate occasions when she should have been paid $21.85 for each 38-mile trip,
which yielded a daily overpayment of $22.43, or a total overpayment of $471.03 for this period.
A second worksheet indicates that on March 3, 2016 appellant received duplicate daily payments
of $22.43 for 22 days for the period May 26 through December 7, 2015, and was also overpaid for
claimed excessive mileage on OWCP-957 forms of $0.58 for December 14 and 21, 2015, and
$0.54 for January 11, 2016, which yielded an overpayment of $495.16 for the period May 26, 2015
through January 11, 2016.
On August 19, 2019 OWCP issued a preliminary overpayment determination that an
overpayment of compensation in the amount of $966.19 had occurred because appellant was paid
for duplicative mileage reimbursement requests that she submitted for specific dates d uring the
period May 26, 2015 through January 11, 2016. It found her at fault in the creation of the
overpayment because she knowingly claimed and accepted compensation to which she was not
entitled. The preliminary overpayment decision listed the specific dates in which duplicate or
triplicate claims and/or excessive mileage claims were made. A listing of receipt dates for OWCP957 forms and dates paid was attached, along with an overpayment action request and overpayment
recovery questionnaire (OWCP-20). OWCP afforded appellant 30 days to respond.
In correspondence postmarked September 7, 2019, appellant requested a hearing before a
representative of OWCP’s Branch of Hearings and Review. She contested the fact and amount of
the overpayment, as well as the finding of fault.
During the hearing held on December 4, 2019, appellant disputed the fact of the
overpayment. The hearing representative advised her to complete an overpayment recovery
questionnaire and held the record open for 30 days.
On December 16, 2019 appellant submitted an overpayment recovery questionnaire in
which she listed monthly income of $1,927.00 and monthly expenses of $1,975.33. No additional
evidence was received.
By decision dated January 17, 2020, OWCP’s hearing representative finalized the
August 19, 2019 preliminary overpayment determination. He identified the amount of the
overpayment for the period May 26, 2015 through January 11, 2016 as $966.19. The hearing
representative found that the overpayment occurred for the period May 26, 2015 through
January 11, 2016 because appellant was overpaid for mileage reimbursement related to travel to
medical appointments, noting that she claimed the same dates on multiple forms and exaggerated
the distance that she traveled. He also found her at fault in the creation of the overpayment because
she knew or should have known that an overpayment would be created by submitting multiple
requests for travel reimbursement on the same dates and by submitting requests for incorrect
distances travelled. The hearing representative found that, therefore, the overpayment was not
subject to waiver. He noted that appellant did not submit financial documentation to support her
claimed monthly income and expenses, and found that the overpayment should be recovered in
full.

4

LEGAL PRECEDENT -- ISSUE 1
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability, or aid in lessening the amount of monthly compensation. 8
With respect to travel expenses for medical treatment, OWCP’s regulations provide:
“(a) The employee is entitled to reimbursement of reasonable and necessary
expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what a reasonable distance to travel is, OWCP
will consider the availability of services, the employee’s condition, and the means
of transportation. Generally, a roundtrip distance of up to 100 miles is considered
a reasonable distance to travel. Travel taken by the shortest route, and if practical,
by public conveyance. If the medical evidence shows that the employee is unable
to use these means of transportation, OWCP may authorize travel by taxi or special
conveyance.”9
In interpreting section 8103(a) of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under FECA. 10 The only limitation on OWCP’s
authority is that of reasonableness. 11 OWCP may authorize medical treatment, but determine that
the travel expense incurred for such authorized treatment was unreasonable or unnecessary. 12
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$943.76 during the period May 27, 2015 through January 11, 2016.
The Board previously found in its July 3, 2019 decision that appellant received an
overpayment of compensation in the amount of $2,238.95 for the period January 6, 2014 through
May 26, 2015 because she received reimbursement for duplicate and excessive travel
reimbursement requests. 13 The Board has held that findings made in prior Board decisions are

8

5 U.S.C. § 8103.

9

20 C.F.R. § 10.315(a); S.M., Docket No. 19-0989 (issued May 20, 2020).

10

G.C., Docket No. 19-0238 (issued June 24, 2019).

11

M.G., Docket No. 19-1791 (issued August 13, 2020); B.H., Docket No. 17-0479 (issued March 19, 2019).

12

J.S., Docket No. 19-1246 (issued June 8, 2021).

13

The total overpayment amount included an overpayment of $22.43 for May 26, 2015.

5

res judicata and cannot be considered absent further review by OWCP under section 8128 of
FECA.14
On remand, additional evidence was received, including additional OWCP-957 forms in
which she claimed either duplicate compensation for the same date or claimed excessive mileage.
By decision dated January 17, 2020, OWCP’s hearing representative finalized the
August 19, 2019 preliminary overpayment determination, finding that appellant received an
overpayment of compensation for the period May 26, 2015 through January 11, 2016.
Pay records for the period May 26, 2015 through January 11, 2016 substantiate that OWCP
made duplicate or improper payments during this period, and the record also contains cancelled
checks dated January 28 and March 3, 2016 for $929.88 and $559.38, respectively, which were
signed by appellant. Accordingly, the Board finds that fact of overpayment has been established.
Overpayment worksheets support that on January 28, 2016 she was overpaid $471.03 for
21 dates when she claimed excessive mileage, and on March 3, 2016 she was overpaid $493.46
for 22 dates when she claimed duplicate payments, plus $1.70 when she was paid fo r incorrect
mileage for travel on December 14 and 21, 2015 and January 11, 2016. Thus, by adding $471.03,
$493.46 and $1.70, OWCP properly found an overpayment of compensation in the amount of
$966.19 for the period May 26, 2015 through January 11, 2016. However, as noted above, the
overpayment of $22.43 for May 26, 2015 may not be considered in the current appeal as it was
previously considered in the overpayment affirmed by the Board in its July 3, 2019 decision and
is therefore res judicata. Subtraction of the $22.43 overpayment created on May 26, 2015 from
the $966.19 overpayment created during the period May 26, 2015 through January 11, 2016 yields
a total overpayment for the period May 27, 2015 through January 11, 2016 in the amount $943.76.
The Board will, therefore, modify OWCP’s January 17, 2020 decision to reflect that appellant
received an overpayment of compensation in the amount of $943.76 for the period May 27, 2015
through January 11, 2016.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”15 No waiver of payment is possible if appellant is at fault in helping to create
the overpayment. 16

14

C.M., Docket No. 19-1211 (issued August 5, 2020); C.D., Docket No. 19-1973 (issued May 21, 2020); M.D.,
Docket No. 20-0007 (issued May 13, 2020).
15

5 U.S.C. § 8129; see R.W., Docket No. 19-0334 (issued August 7, 2020); S.M., Docket No. 18-1525 (issued
April 12, 2019).
16

See R.W., id.

6

Section 10.433(a) of OWCP’s regulations provides that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must show
good faith and exercise a high degree of care in reporting events which may affect
entitlement to or the amount of benefits. A recipient who has done any of the
following will be found to be at fault in creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).”17
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid. 18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly found appellant at fault in the creation of the
overpayment in the amount of $943.76 for the period May 27, 2015 through January 11, 2016,
thereby precluding waiver of recovery of the overpayment.
The Board finds that appellant made an incorrect statement as to a material fact, which she
knew or should have known to be incorrect. The record establishes that on May 29 and
December 1, 2015 she signed OWCP-957 forms for reimbursement for round trip travel from her
home to Dr. Brandes’ office for the period May 27, 2015 through January 11, 2016. On these
forms appellant claimed duplicate reimbursement and/or claimed excessive mileage.
Each form signed by appellant included a certification clause in which, by signing, she
acknowledged that the information given by her and in connection with the form was true and
correct to the best of her knowledge, and noted that any person who knowingly made a false
statement or misrepresentation to obtain reimbursement to OWCP was subject to civil penalties
and/or criminal prosecution.

17

20 C.F.R. § 10.433(a); see R.W., id.; C.Y., Docket No. 18-0263 (issued September 14, 2018); see also 20 C.F.R.
§ 10.430.
18

Id. at § 10.433(b); see M.J., Docket No. 19-1665 (issued July 29, 2020).

7

The record supports that appellant signed each of these forms with duplicate and/or
excessive mileage requests on the same date. Under the circumstances of this case, the Board finds
that she misrepresented a material fact in order to obtain reimbursement from OWCP. Appellant
is, therefore, at fault in the creation of the overpayment and precluded from waiver of recovery of
the overpayment. 19
With respect to recovery of the overpayment, the Board’s jurisdiction is limited to
reviewing those cases where OWCP seeks recovery from continuing compensation benefits under
FECA.20 As appellant is not receiving wage-loss compensation, the Board does not have
jurisdiction with respect to the recovery of the overpayment under the Debt Collection Act. 21
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$943.76 during the period May 27, 2015 through January 11, 2016. The Board further finds that
OWCP properly found her at fault in the creation of the overpayment in the amount of $943.76 for
the period May 27, 2015 through January 11, 2016, thereby precluding waiver of recovery of the
overpayment.

19

See E.K., Docket No. 18-0599 (issued February 26, 2020); W.A., Docket No. 14-350 (issued October 28, 2014).

20

E.F., Docket No. 18-1320 (issued March 13, 2019).

21

Id.

8

ORDER
IT IS HEREBY ORDERED THAT the January 17, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: December 3, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Memphis, TN,
Employer
__________________________________________

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

Docket No. 14-618
Issued: August 19, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 24, 2014 appellant filed a timely appeal of a December 19, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his claim as untimely filed.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant’s claim for compensation was filed within the applicable
time limitation provisions of FECA.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 9, 20132 appellant, then a 72-year-old retired deckhand leaderman, filed an
occupational disease claim alleging that on June 15, 1975 he first became aware of his hearing
loss, but was not aware of its connection to his employment until September 15, 1977. The
employing establishment noted that he stopped work on June 15, 1975 and has not worked for
them since that date.3
The employing establishment controverted the claim on November 4, 2013, stating that
appellant’s personnel records did not provide any evidence of a hearing loss and that there was
no record of appellant having participated in a hearing conservation program. It noted that he
filed his claim 36 years after the date of awareness of his hearing loss and its relationship to his
federal employment.
By letter dated November 4, 2013, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised as to the medical and factual
evidence required to establish his claim and given 30 days to provide such information. OWCP
informed him that the evidence submitted was insufficient to establish that he had timely filed
his claim.
OWCP received audiogram records listing results from audiological tests from “M/V
Mississippi” for the period February 20, 1997 to May 11, 2006. It also received medical records
from the U.S. Public Health Service and factual evidence, including statements describing
appellant’s exposure to noise at work. Appellant stated on November 19, 2013 that his right ear
gave him trouble in 1973 while working in the reel room with no ear protection from 1969 to
1974. He also noted that he assisted in cleaning up the engine room two hours per day with no
ear protection from 1976 until 1985. In an October 28, 2013 statement, appellant noted that he
began wearing earplugs in 1980 or 1981 but that his hearing was already bad. He also noted that
his hearing was tested every year beginning in 1985 or 1986 at “MV Mississippi.”
A May 11, 2006 Department of the Army Medical Surveillance report by a physician
whose signature is illegible listed that appellant had high frequency hearing loss. Appellant also
submitted audiometric results for annual testing from August 12, 1976 to August 23, 1979 and
April 17, 1990 to March 4, 1996 and intermittently from August 10, 1983 to June 2, 1988. An
undated audiogram also accompanied these documents.
By decision dated December 19, 2013, OWCP denied appellant’s hearing loss claim as
untimely filed.

2

The original date on the form was September 19, 2013.

3

Appellant stated he retired effective December 31, 2006.

2

LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.4 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death.5 Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”6
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between his or her condition and his or her employment. Such awareness is competent to start
the limitation period even though the employee does not know the precise nature of the
impairment or whether the ultimate result of such affect would be temporary or permanent.7
Where the employee continues in the same employment after he or she reasonably should have
been aware that he or she has a condition which has been adversely affected by factors of federal
employment, the time limitation begins to run on the date of the last exposure to the implicated
factors.8 Section 8122(b) of FECA provides that the time for filing in latent disability cases does
not begin to run until the claimant is aware or by the exercise of reasonable diligence should
have been aware, of the causal relationship between the employment and the compensable
disability.9 The requirement to file a claim within three years is the claimant’s burden and not
that of the employing establishment.10

4

C.D., 58 ECAB 146 (2006); David R. Morey, 55 ECAB 642 (2004); Mitchell Murray, 53 ECAB 601 (2002).

5

W.L., 59 ECAB 362 (2008); Gerald A. Preston, 57 ECAB 270 (2005); Laura L. Harrison, 52 ECAB
515 (2001).
6

5 U.S.C. § 8122(a). See J.M., Docket No. 09-1563 (issued February 26, 2010); J.P., 59 ECAB 178 (2007);
Cory W. Davis, 57 ECAB 674 (2006).
7

Larry E. Young, 52 ECAB 264 (2001).

8

Id.

9

5 U.S.C. § 8122(b).

10

Gerald A. Preston, 57 ECAB 270 (2005); Debra Young Bruce, 52 ECAB 315 (2001).

3

ANALYSIS
On October 9, 2013 appellant filed an occupational disease claim alleging that his hearing
loss was a result of noise exposure in his federal employment. He first realized that he had a
hearing loss on June 15, 1975, but did not realize that it was caused or aggravated by his
employment until September 15, 1977. The employing establishment contested the claim on the
grounds that appellant failed to timely file his claim. On the back of appellant’s claim form, it
noted that he had not worked since June 15, 1975, although he stated that he retired from the
employing establishment on December 31, 2006.
As the time limitation for filing an occupational disease claim began to run on the date of
his last exposure to the implicated factors, appellant had three years from the date of his last
exposure, whether it is June 15, 1975, the date the employing establishment indicated was the
last day he worked for them or December 31, 2006, the date he claimed he retired from the
employing establishment, to file his claim. His October 19, 2013 claim is thus untimely under
either date as he had until June 15, 1978, based on the June 15, 1975 date noted by the
employing establishment or December 31, 2009, based on the December 31, 2006 date appellant
stated that he retired from the employing establishment, to timely file his occupational disease
claim. Thus, the Board finds that appellant did not timely file his occupational disease claim
within the three-year period of limitation.
However, there is evidence of record suggesting that appellant’s immediate supervisor
had actual knowledge of the injury within 30 days of the injury. The Board has held that a
program of annual audiometric examinations conducted by an employing establishment may
constructively establish actual knowledge of a hearing loss such as to put the immediate
supervisor on notice of an on-the-job injury.11
Appellant submitted audiogram records for the periods August 12, 1976 to
August 23, 1979, April 17, 1990 to March 4, 1996, intermittently from August 10, 1983 to
June 2, 1998, February 20, 1997 to May 11, 2006 from August 12, 1976 to August 23, 1979.
The record contains a May 11, 2006 Department of the Army Medical Surveillance report by a
physician, whose signature is illegible, diagnosing a high-frequency hearing loss. Appellant
submitted materials which indicate that he worked through 1986 and underwent hearing testing
by his employing establishment. The Board finds that his materials were not forwarded to the
employing establishment for review as to any hearing conservation program. The case will be
remanded for further development of this aspect of the case.
The Board will set aside the December 19, 2013 OWCP decision and remand the case for
further development as to whether appellant’s claim was timely filed. After such development as
necessary, OWCP shall issue a de novo decision.

11

Roger D. Dicus, 56 ECAB 290 (2005); Jose Salaz, 41 ECAB 743 (1990); Kathryn A. Bernal, 38 ECAB
470 (1987).

4

CONCLUSION
The Board finds that the case is not in posture for decision
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this decision.
Issued: August 19, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5