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

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

Docket No. 17-0540
Issued: July 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 10, 2017 appellant, through counsel, filed a timely appeal from a
December 16, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from the last merit decision on the underlying issue,
dated October 8, 2015, to the filing of this appeal, pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks 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. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.
FACTUAL HISTORY
On December 10, 2002 appellant, then a 46-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on August 1, 2002 he first became aware of his bilateral
Achilles tendon condition. OWCP accepted the claim for bilateral calcaneous spurs. It also
accepted sprain of the right shoulder rotator cuff and upper arm. OWCP authorized resection of
the fractured bone and multiple bone fragments posterior of the left calcaneus, repair of Achilles
tendon of the left ankle, resection of the bone posterior right calcaneus and repair of Achilles
tendon of the right ankle with removal of a calcified bone. The procedures were performed on
July 16, 2003 and March 3, 2004 by Dr. Brad A. Katzman, a Board-certified podiatrist.
In a March 14, 2007 decision, OWCP granted appellant a schedule award for one percent
permanent impairment of the right arm and one percent permanent impairment of each leg.3
On subsequent dates, OWCP expanded the accepted conditions to include bilateral
Achilles tendinitis; crushing injury of the ankle and foot; multiple and unspecified open wound
of the leg without complications; and bilateral shoulder, upper arm, and rotator cuff sprain; and
bilateral shoulder impingement syndrome. It authorized right and left shoulder open subacromial
decompression with open rotator cuff repair performed on March 24, 2009 and October 26,
2010, respectively, by Dr. Scott Goldman, an attending Board-certified orthopedic surgeon.
On March 25, 2013 appellant returned to modified-duty work as a customer care agent.
He stopped work on July 18, 2013 and filed a recurrence claim (Form CA-2a) alleging that he
sustained right knee, left hip, and lower back injuries on that day due to his accepted workrelated injuries.4 Subsequently, appellant requested expansion of his claim to include conditions
of the right knee, lower back and left hip.
In a January 14, 2014 decision, OWCP denied expansion of appellant’s claim because the
medical evidence of record failed to demonstrate that the diagnosed conditions were caused by
the accepted work injuries.
On February 5, 2014 appellant requested a telephone hearing before an OWCP hearing
representative from the January 14, 2014 decision. This was held on August 12, 2014.
3

In a January 20, 2016 decision, OWCP granted appellant a schedule award for an additional 10 percent
permanent impairment of the right upper extremity for a total of 11 percent permanent impairment.
4

In a January 17, 2014 decision, OWCP denied appellant’s claim for a recurrence of disability commencing on
July 18, 2013. It found that the medical evidence of record was insufficient to establish that he was disabled due to
a material change or worsening of his accepted work-related conditions. That decision was affirmed on October 24,
2014 by an OWCP hearing representative.

2

Following the hearing, appellant submitted an August 15, 2014 report from Dr. Goldman.
Dr. Goldman noted that appellant had been under his care for treatment of a painful condition
affecting his bilateral shoulders and bilateral ankles (Achilles tendons). He related, however,
that due to an altered gait, appellant complained about low back, left hip, and right knee pain.
Dr. Goldman maintained that it was medically most probable that the injury to his left hip, low
back, and right knee was due to the altered gait (limp) that developed from his bilateral ankle
injuries. He noted that due to this limp, the left hip, low back, and right knee were
overcompensating which eventually caused pain in these areas. Dr. Goldman concluded that it
was medically most probable that appellant would benefit from conservative care. In a report
dated September 8, 2014, he noted a history of the accepted work injuries and appellant’s
medical treatment. Dr. Goldman reported findings on examination of the bilateral shoulders,
ankles, and upper and lower limbs. He diagnosed right shoulder impingement syndrome with
rotator cuff injury, left shoulder impingement syndrome that was doing well status postsurgery,
right Achilles tendinitis that was doing well, and left Achilles tendinitis that was inflamed and
thickened. Dr. Goldman addressed appellant’s treatment plan, which included a request for
authorization to evaluate and treat his right knee condition as it was a compensable consequence
secondary to overcompensating for his bilateral ankle (Achilles tendon) injuries.
By decision dated October 24, 2014, an OWCP hearing representative set aside the
January 14, 2014 decision and remanded the case to OWCP for further development of the
medical evidence as Dr. Goldman’s August 15 and September 8, 2014 reports provided an
uncontroverted inference of causal relationship between the accepted work injuries and the
claimed additional conditions. She directed OWCP to refer appellant to an OWCP district
medical adviser (DMA) to determine whether the claimed additional medical conditions resulted
from his accepted work injuries.
On October 4, 2015 an OWCP DMA reviewed the medical record and found that
appellant’s right knee, lower back, and left hip conditions were not causally related to the
accepted work conditions.
By decision dated October 8, 2015, OWCP again denied expansion of appellant’s claim.
It accorded the weight of the medical evidence to the DMA’s October 4, 2015 opinion.
Appellant submitted medical reports and diagnostic test results dated October 11, 2006 to
August 29, 2016 which addressed his bilateral ankle, foot, and shoulder conditions, permanent
impairment, work capacity and restrictions, and medical treatment. He also submitted a
February 9, 2016 report from Dr. Goldman who requested that OWCP expand the acceptance of
appellant’s claim. Dr. Goldman restated his prior opinion that it was most reasonably, medically
probable that appellant’s right knee condition was a compensable consequence caused by his
altered gait from his bilateral Achilles tendinitis. He suspected that he may have a meniscal right
knee injury and maintained that treatment was necessary because he currently had internal
derangement of the right knee. Dr. Goldman noted that once appellant was evaluated, he would
know whether a magnetic resonance imaging (MRI) scan would be beneficial. In a March 7,
2016 report, he reiterated his request for authorization to treat appellant’s right knee symptoms
and pain because he walked with an altered gait due to his bilateral Achilles tendons.

3

In a September 8, 2016 letter, appellant, through counsel, requested reconsideration of the
October 8, 2015 decision and resubmitted Dr. Goldman’s February 9, 2016 letter.
Appellant also submitted a September 1, 2016 progress note from his physical therapist
which noted a diagnosis of right shoulder impingement syndrome and addressed the treatment of
his right shoulder pain.
By decision dated December 16, 2016, OWCP denied reconsideration of the merits of
appellant’s claim. It found that the evidence submitted was duplicative and irrelevant.
LEGAL PRECEDENT
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.5 Section 10.608(b) of OWCP’s regulations provide that a timely
request for reconsideration may be granted if OWCP determines that the claimant has presented
evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).6 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.7 Section 10.608(b) provides that when a request for
reconsideration is timely, but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.8
ANALYSIS
On September 8, 2016 appellant requested reconsideration of OWCP’s October 8, 2015
decision which found he had failed to sustain right knee, left hip, and lower back conditions as a
consequence of his accepted bilateral calcaneous spurs, bilateral shoulder, upper arm, and rotator
sprain, bilateral Achilles tendinitis, crushing injury of the ankle and foot, multiple and
unspecified open wound of the leg without complications, and bilateral shoulder impingement
syndrome. It authorized July 16, 2003, March 3, 2004, March 24, 2009 and October 26, 2010
bilateral foot and ankle and shoulder surgeries. The underlying issue on reconsideration was
whether appellant established a causal relationship between his claimed additional conditions
and the accepted work conditions. That is a medical issue which must be addressed by relevant
and pertinent new medical evidence.9

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.608(a).

7

Id. at § 10.606(b)(3).

8

Id. at § 10.608(b).

9

See Bobbie F. Cowart, 55 ECAB 746 (2004); Jaja K. Asaramo, 55 ECAB 200 (2004).

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In his September 8, 2016 request for reconsideration, counsel did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered. Thus, appellant is not entitled to a review of the merits of
his claim based on the first and second above-noted requirements under section 10.606(b)(3).
The Board further finds that appellant has failed to submit relevant and pertinent new
evidence in support of reconsideration. Dr. Goldman’s February 9 and March 7, 2016 reports,
while new, essentially reiterated his prior opinion that appellant’s accepted claim should be
expanded to include a right knee condition and medical treatment should be authorized for this
condition as it was caused by appellant’s altered gait resulting from his accepted bilateral
Achilles tendinitis. Evidence or argument that repeats or duplicates evidence previously of
record has no evidentiary value and does not constitute a basis for reopening a case.10
The new progress note dated September 1, 2016 from appellant’s physical therapist is
insufficient to warrant merit review as a physical therapist is not considered a physician as
defined under FECA.11 The Board finds, therefore, that this evidence is not relevant to the
underlying medical issue on appeal and is insufficient to warrant further merit review of
appellant’s claim.
The Board accordingly finds that appellant failed to meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law. However,
as found, OWCP did not abuse its discretion in refusing to reopen his claim for a review on the
merits.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

10

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

11

See 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).

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ORDER
IT IS HEREBY ORDERED THAT the December 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 26, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF SAFETY & ENVIRONMENTAL
ENFORCEMENT, Washington, DC, Employer
__________________________________________

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Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1285
Issued: March 4, 2022

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 August 25, 2021 appellant, through counsel, filed a timely appeal from an August 13,
2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant

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

Counsel did not appeal from July 2 and 16, 2021 OWCP merit decisions. He identified only the August 13, 2021
nonmerit decision on the application for review (Form AB-1). As such, the July 2 and 16, 2021 merit decisions are
not properly before the Board on the current appeal. See 20 C.F.R. § 501.3; see also M.M., Docket No. 20-0523
(issued August 25, 2020).

to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 25, 2017 appellant, then a 63-year-old administrative specialist, filed a
traumatic injury claim (Form CA-1) alleging that on that date she injured her left foot when a
19-pound box fell on her foot while in the performance of duty. She stopped work on the date of
injury. OWCP accepted appellant’s claim for left ankle and foot arthropathies and left foot
fracture. It paid wage-loss compensation on the supplemental rolls beginning March 20, 2017 and
placed her on the periodic rolls, effective February 4, 2018.
On March 1, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a copy of the case record, and a series of questions, to Dr. Robert Smith, a Board-certified
orthopedic surgeon, for second opinion evaluation regarding the status of her accepted January 25,
2017 employment injury. In a March 15, 2018 report, Dr. Smith reviewed her history, including
the SOAF, and conducted a physical examination. In response to OWCP’s questions, he indicated
that appellant’s accepted left foot fracture and left foot and ankle arthropathies had resolved and
that the only remaining medical condition of concern was Complex Regional Pain Syndrome
(CPRS)/Reflex Sympathetic Dystrophy (RSD). Dr. Smith recommended a bone scan for the left
lower extremity.
On March 14, 2018 OWCP also referred appellant to Dr. Ira Kornbluth, a Board-certified
pain management and physical medicine and rehabilitation physician, for a second -opinion
examination. In an April 6, 2018 progress note, Dr. Kornbluth indicated that he had reviewed the
SOAF, and provided examination findings. In response to OWCP’s questions, he reported that
appellant had residuals of her left foot arthropathy condition. Dr. Kornbluth opined that she was
capable of working in “a light physical capacity level.” He completed a work capacity evaluation
form (Form OWCP-5c) which indicated that appellant could work full time with restrictions of
sitting up to 4 hours, walking, standing, bending/stooping, and operating a motor vehicle up to 1
hour, pushing, pulling, and lifting up to 10 pounds, and no squatting, kneeling, or climbing.
In a June 15, 2018 report, Dr. Lee Ann Rhodes, a Board-certified anesthesiologist and pain
medicine physician, recounted appellant’s complaints of left lower extremity pain since a
January 2017 work-related injury. She noted physical examination findings of slightly reduced
3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the August 13, 2021 decision, appellant submitted additional evidence to
OWCP. 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

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range of motion and strength on the left lower extremity. Dr. Rhodes assessed RSD and opined
that appellant’s left foot RSD/CPRS was a direct result of her work injury. She also reported that
there were no tests to confirm this diagnosis and that bone density tests were not diagnostic.
On August 31, 2018 the employing establishment offered appellant a full-time, modifiedduty position as an administrative specialist based on Dr. Kornbluth’s work restrictions. The
physical requirements of the position included sitting up to 4 hours, walking, standing, operating
a motorized scooter, twisting, bending, and stooping up to 1 hour, and pushing, pulling, and lifting
up to 10 pounds less than 1 hour.
In an October 18, 2018 supplemental report, Dr. Kornbluth noted appellant’s accepted left
foot arthropathy and left foot fracture conditions. He indicated that she was not disabled from
work and could work at the sedentary physical capacity level.
In a November 30, 2018 letter, Dr. Smith opined that appellant did not have RSD in her
left lower extremity causally related to the accepted January 25, 2017 employment incident. He
explained that physical examination on March 15, 2018 did not show dystrophic signs of any kind
in her left lower extremity.
In a February 1, 2019 addendum note, Dr. Rhodes provided examination findings and
assessed CRPS of the left lower extremity. She reported that appellant met the criteria on skin
color changes, sensory changes in the area of pain, and edema. Dr. Rhodes indicated that
appellant’s pain prohibited appellant from working until August 2019.
In a February 5, 2019 letter, a human resources specialist for the employing establishment,
advised that the August 31, 2018 job offer remained available. He also noted that appellant did
not respond to the August 31, 2018 job offer.
By notice dated February 12, 2019, OWCP advised appellant that it determined that she
refused or failed to report to the offered position as a modified administrative specialist. It
informed her that it had reviewed the offered position and found that it was suitable in accordance
with the medical limitations provided by Dr. Kornbluth in his October 18, 2018 report. Pursuant
to 5 U.S.C. § 8106(c)(2), OWCP afforded appellant 30 days to either accept the position or to
provide adequate reasons for refusal. It informed her that, if she failed to report to work or failed
to demonstrate that the failure was justified, her right to compensation for wage loss or a schedule
award would be terminated.
By notice dated March 19, 2019, OWCP notified appellant that her reasons for refusing the
August 31, 2018 job offer were not valid. It provided her 15 days to accept the position or have
her entitlement to wage-loss compensation benefits terminated. OWCP advised appellant that the
offered position remained available.

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On April 3, 2019 appellant returned to work, but stopped working after a few hours.5
By decision dated April 10, 2019, OWCP terminated appellant’s wage-loss compensation
and entitlement to a schedule award, effective April 10, 2019.
On April 9, 2020 appellant, through then-counsel, requested reconsideration. She asserted
that new medical documentation from appellant’s treating physician demonstrated that appellant
was justified in rejecting the August 31, 2018 job offer due to work restrictions resulting from the
January 25, 2017 employment injury.
Appellant submitted an April 24, 2019 functional capacity evaluation summary report,
which indicated that she was capable of working full-time modified light-duty work. OWCP also
received additional treatment notes, laboratory test result reports, and physical therapy notes dated
April 24 through November 4, 2019.
By decision dated July 6, 2020, OWCP denied modification of the April 10, 2019 decision.
On April 6, 2021 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP failed to meet its burden of proof to terminate appellant’s wage-loss compensation
because a conflict in medical evidence existed between Dr. Smith, OWCP’s second opinion
examiner, and Dr. Rhodes, appellant’s treating physician, regarding whether appellant had CPRS
of the left lower extremity as a result of the January 25, 2017 employment incident and the need
for further medical treatment. Counsel asserted that this issue should have been resolved before
OWCP terminated appellant’s wage-loss compensation and entitlement to schedule award benefits
based on her refusal of suitable work.
In a June 14, 2019 report, Dr. Rhodes reviewed appellant’s history and recounted
appellant’s complaints of low back pain radiating into the left buttock, thigh, and calf. She
provided examination findings and diagnosed CRPS of the left lower extremity. Dr. Rhodes
reported that appellant was 100 percent disabled and could not return to work in any capacity.
By decision dated July 2, 2021, OWCP denied modification of the July 6, 2020 decision.
On July 23, 2021 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP erroneously interpreted the law regarding a conflict in the medical evidence
requirement for a referee medical examination. He contended that a conflict in the medical opinion
evidence existed between Dr. Smith and Dr. Rhodes regarding whether appellant had CPRS
causally related to the accepted January 25, 2017 employment incident and whether appellant
required further medical treatment in order to return to work. Counsel asserted that OWCP erred
in terminating appellant’s wage-loss compensation benefits before a referee medical examiner
could resolve the conflict in medical evidence.

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Appellant subsequently filed a notice of recurrence of disability (Form CA-2a) claim alleging that on April 3,
2019 she sustained a recurrence of the accepted January 25, 2017 employment injury. In a May 12, 2020 decision,
OWCP denied the recurrence claim. The recurrence issue is currently not before the Board.

4

By decision dated August 13, 2021, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 9 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsidera tion without
reopening the case for review on the merits. 10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With appellant’s July 23, 2021 request for reconsideration, counsel submitted a statement
alleging that OWCP erroneously interpreted the law regarding a conflict in the medical evidence.
He argued that OWCP erred in terminating appellant’s wage-loss compensation benefits before an
impartial medical examiner could resolve the conflict in medical evidence between Dr. Smith and
Dr. Rhodes regarding whether appellant had CPRS causally related to the accepted January 25,
2017 employment incident and whether appellant required further medical treatment in order to
6

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
7

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
8

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
9

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

10

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

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return to work. Appellant’s reconsideration request does not advance a new legal argument not
previously considered nor show that OWCP erroneously applied or interpreted a specific point of
law. Her argument was substantially similar to that which was previously considered and
discussed in OWCP’s July 2, 2021 decision.11 Consequently, appellant is not entitled to further
review of the merits of her claim based on either the first or second above-noted requirements
under 20 C.F.R. § 10.606(b)(3). 12
Furthermore, the Board finds that appellant has not provided any relevant and pertinent
new evidence not previously considered. 13 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3).14
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

11

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued
October 9, 2020).
20 C.F.R. § 10.606(b)(3)(i) – (ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No. 181697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).
12

13

T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

14

20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535
(issued July 25, 2019).
15

S.M., Docket No. 21-0392 (issued August 12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R.,
Docket No. 16-1416 (issued April 10, 2017); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006)
(when a request for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

6

ORDER
IT IS HEREBY ORDERED THAT the August 13, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2022
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, OAKLAND PARK
BRANCH, Fort Lauderdale, FL, Employer
__________________________________________

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Appearances:
Joanne Wright, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1472
Issued: February 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 8, 2011 appellant, through his representative, filed a timely appeal from the
January 6, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied waiver of an overpayment. Pursuant to Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case.
ISSUES
The issues are:
(1) whether appellant received an $8,384.72 overpayment of
compensation; (2) whether OWCP properly denied waiver of recovery of the overpayment; and
(3) whether OWCP properly set the rate of recovery from continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On prior appeal,2 the Board found that prior to April 14, 2008 appellant worked four
hours a day and received compensation for four hours of injury-related disability.3 OWCP made
no deduction for health benefits, life insurance or alimony. Then, effective April 14, 2008, the
employing establishment withdrew the limited duty and OWCP paid compensation for total
disability. Because appellant was no longer receiving wages from which deductions could be
made, OWCP began deductions from compensation for his health benefits, life insurance and
alimony.
The Merit Systems Protection Board (MSPB) ultimately reversed the employing
establishment’s action and retroactively restored appellant to duty with back pay and benefits
with appropriate credits and deductions.
As the Board explained, the MSPB decision restored matters to the status quo ante, to
when OWCP paid gross compensation for only four hours of injury-related disability with no
deduction for health benefits, life insurance or alimony and the deductions were made retroacting
from his wages. When it calculated the amount of the overpayment, OWCP credited the $487.81
it had deducted for health benefits and life insurance during the period, but did not credit the
$4,954.89 it had deducted for alimony. As it did not adequately explain why it treated the
deductions differently, the Board set aside OWCP’s November 23, 2009 decision on the issue of
amount of the overpayment and remanded the case for further development. The facts of this
case as set forth in the Board’s prior decision are hereby incorporated by reference.
On January 6, 2011 OWCP issued a final decision. It found that appellant received an
$8,384.72 overpayment from April 14 to September 27, 2008. OWCP explained that it credited
health benefit and basic life insurance premiums to lower the amount of the overpayment
because the employing establishment retroactively deducted the premiums when it reinstated
wages. With respect to the alimony, OWCP explained as follows: “As the amount of alimony
paid [to the ex-wife] came out of the compensation paid to [appellant] and [he] would have
received the money if the court ordered alimony deduction did not exist, it will not be credited to
lower the amount of the overpayment of compensation for the period in question.”
OWCP found appellant not at fault for the overpayment. Considering the issue of waiver,
it accepted the figures provided on appellant’s overpayment recovery form, which showed
$2,302.00 in net monthly income and $2,143.00 in estimated monthly expenses. OWCP noted:
“[Appellant] does pay alimony to his ex-wife, however, the alimony is taken out of his pay and
the amount of the alimony is not reported as income above.” Because appellant did not need
substantially all of his current income to meet current ordinary and necessary living expenses,
OWCP denied waiver. OWCP found that the overpayment should be recouped by deducting
$150.00 from continuing compensation payments.
2

Docket No. 10-1027 (issued December 20, 2010).

3

On January 13, 1997 an unknown assailant attacked appellant in the course of his employment as a letter carrier.
OWCP accepted his workers’ compensation claim for contusions to the neck, back and lower ribs and for herniated
discs at L4-5 and L5-S1.

2

On appeal, appellant argued that his back pay was reduced by the amount of
compensation he received from OWCP. He argues that the overpayment of alimony payments
has not been addressed. Appellant also argues that he has once again been denied work as a
result of the National Reassessment Process, which has reduced his current net income to
$1,637.81 with expenses as previously listed at $2,143.00.
His requests waiver
and reimbursement for all monies deducted from his compensation payments.
LEGAL PRECEDENT -- ISSUE 1
FECA places limitations on the right to receive compensation: While an employee is
receiving compensation, he may not receive salary, pay or remuneration of any type from the
United States, with certain exceptions.4 It is, therefore, well established that an employee is not
entitled to compensation for temporary total disability after returning to work.5
ANALYSIS -- ISSUE 1
As the Board found, on the prior appeal, appellant received an overpayment. Appellant’s
reinstatement meant that he would receive wages and compensation for wage loss for the same
hours. The question was, specifically whether deductions for alimony payments should be
credited against the overpayment.
The Board finds that OWCP should credit deductions for alimony, just as it did for health
benefits and life insurance. The explanation OWCP provided on remand does not sufficiently
distinguish these deductions or justify their different treatment. Prior to April 14, 2008, all three
were deducted from payroll. Beginning April 14, 2008, all three were deducted from
compensation. When MSPB retroactively reinstated appellant’s pay and benefits with
appropriate credits and deductions, the employing establishment became responsible for making
all three deductions from reinstated pay. MSPB made no distinction between the deduction for
health benefits and basic life insurance and the deduction for alimony. All were the employing
establishment’s responsibility. Ultimately, appellant’s pay and all the deductions from that pay
were to come from the employing establishment’s budget, just as they did prior to
April 14, 2008.
If anyone is responsible for making the compensation fund whole for the alimony OWCP
paid during the period, it is the employing establishment. OWCP must recover from appellant, if
he is not entitled to waiver, the net compensation he received for the period. It must recover
from the employing establishment or from the Office of Personnel Management, the premiums
and alimony it paid from the compensation fund. OWCP may not attempt to recover from
appellant the alimony that the employing establishment was to deduct from reinstated wages.
Appellant owes no alimony to OWCP. Such a recovery would effectively double his alimony
4

5 U.S.C. § 8116(a).

5

E.g., Tammi L. Wright, 51 ECAB 463, 465 (2000) (where the record established that the employee returned to
work at the employing establishment for four hours per day from August 7, 1996 to January 8, 1997 but received
compensation for total disability for that same period, the Board found that the employee received an overpayment
of compensation).

3

payments for the period, leaving him to seek redress from the employing establishment. The
only thing appellant owes OWCP, assuming no waiver, is the net compensation he actually
received for the additional four hours of wage loss.
The Board finds, therefore, that appellant received an overpayment of $3,429.83 from
April 14 to September 27, 2008. This equals the $16,528.53 in total compensation he received,
minus the $7,656.00 in gross compensation he properly received for the first four hours of
injury-related disability, minus the $487.81 OWCP paid for health benefits and basic life
insurance, minus the $4,954.89 OWCP paid for alimony. The Board will affirm OWCP’s
January 6, 2011 decision on the issue of fact of overpayment and will modify the decision
accordingly on the issue of amount.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation has been
made 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.6
OWCP may consider waiving an overpayment only if the individual to whom it was made was
not at fault in accepting or creating the overpayment.7 If it finds that the recipient of an
overpayment was not at fault, repayment will still be required unless: (1) adjustment or recovery
of the overpayment would defeat the purpose of FECA; or (2) adjustment or recovery of the
overpayment would be against equity and good conscience.8
Recovery of an overpayment will defeat the purpose of FECA if such recovery would
cause hardship to a currently or formerly entitled beneficiary because: (a) the beneficiary from
whom OWCP seeks recovery needs substantially all of his current income (including
compensation benefits) to meet current ordinary and necessary living expenses; and (b) the
beneficiary’s assets do not exceed the resource base of $4,800.00 for an individual.9
An individual is deemed to need substantially all of his current income to meet current
ordinary and necessary living expenses if monthly income does not exceed monthly expenses by
more than $50.00. In other words, the amount of monthly funds available for debt repayment is
the difference between current income and adjusted living expenses (i.e., ordinary and necessary
living expenses plus $50.00).10
Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
6

5 U.S.C. § 8129(a).

7

20 C.F.R. § 10.433(a).

8

Id. at § 10.434.

9

Id. at § 10.436; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6.a(1)(b) (October 2004).
10

Supra note 9, Chapter 6.200.6.a(1)(b) (October 2004).

4

made, gives up a valuable right or changes her position for the worse.11 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate etc., from which the
claimant derived some benefit, is not to be considered a loss.12
ANALYSIS -- ISSUE 2
Appellant was not at fault in the overpayment, so he is eligible for consideration of
waiver. His monthly income, however, as reflected in his overpayment recovery questionnaire,
exceeds his monthly expenses by more than $50.00. Appellant is, therefore, deemed not to need
substantially all of his current income to meet current ordinary and necessary living expenses.
Thus, recovery of the overpayment will not defeat the purpose of FECA. Because the record
raises no issue of detrimental reliance, recovery is not considered to be against equity and good
conscience. The Board finds that OWCP properly denied waiver. The Board will affirm
OWCP’s January 6, 2011 decision on that issue.
LEGAL PRECEDENT -- ISSUE 3
Whenever an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as soon as the
error is discovered or his attention is called to same. If no refund is made, OWCP shall decrease
later payments of compensation, taking into account the probable extent of future payments, the
rate of compensation, the financial circumstances of the individual and any other relevant
factors, so as to minimize any hardship.13
ANALYSIS -- ISSUE 3
OWCP found that it should recoup the overpayment by deducting $150.00 from
appellant’s continuing compensation payments, but it did not give due regard to the relevant
factors noted above in its January 6, 2011 decision. Whether it considered these factors or how it
determined that recovering all but $9.00 of appellant’s excess monthly income would minimize
any resulting hardship, remains unclear. The Board finds, therefore, that OWCP abused its
discretion in setting the rate of recovery from continuing payments of compensation. The Board
will set aside OWCP’s January 6, 2011 decision on the issue of recovery.
Any issues that appellant has with the employing establishment’s reinstatement of pay are
not before this Board. The Board’s jurisdiction is limited to reviewing OWCP’s final decision
on the overpayment and the issues of fact, amount, waiver and recovery.14

11

20 C.F.R. §10.437(b).

12

Supra note 9, Chapter 6.200.6.b(3) (October 2004).

13

20 C.F.R. § 10.441(a).

14

Id. at § 10.438(b).

5

CONCLUSION
The Board finds that appellant received an overpayment of $3,429.83 from April 14 to
September 27, 2008. The Board finds that OWCP properly denied waiver of recovery of the
overpayment. The Board further finds that OWCP abused its discretion in setting the rate of
recovery.
ORDER
IT IS HEREBY ORDERED THAT the January 6, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed on the issue of fact of overpayment, is modified
on the issue of amount, is affirmed on the issue of waiver and is set aside and remanded on the
issue of recovery.
Issued: February 6, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, ATLANTA AIRPORT,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 08-2463
Issued: June 22, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 15, 2008 appellant filed a timely appeal from a nonmerit decision of the
Office of Workers’ Compensation Programs dated June 2, 2008 denying her untimely request for
reconsideration and finding that it failed to establish clear evidence of error. Because more than
one year has elapsed between the last merit decision dated March 2, 2006 and the filing of this
appeal on September 15, 2008, the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
FACTUAL HISTORY
This case has been before the Board on prior appeal. By decision dated March 2, 2006,
the Board affirmed the Office’s July 7, 2005 denial of appellant’s claim that she sustained an

emotional condition in the performance of duty.1 The Board found that the evidence of record
was insufficient to support appellant’s allegations of harassment and discrimination by
coworkers and her supervisor. The Board also found that the employing establishment did not
err or act abusively when it scheduled an April 28, 2005 meeting with appellant to discuss her
return to work. As appellant had not established a compensable factor of employment, the Board
affirmed the Office’s determination that she failed to meet her burden of proof in establishing
that she sustained an emotional condition in the performance of duty. The facts and the law
contained in that decision are incorporated herein by reference.2
On May 13, 2008 appellant requested reconsideration before the Office. In support of her
request, she submitted copies of documents from 2005 which were received and reviewed by the
Office. Appellant also submitted new factual and medical evidence including an April 10, 2008
disability note by Dr. Andrei I.F. Serbanescu, a treating Board-certified neurologist, copies of
pages from the drug encyclopedia, and an award notice for a clerk position. Dr. Serbanescu
noted he was treating appellant for her headaches which he stated would be managed better if she
did work the night shift. In her request for reconsideration, appellant detailed a list of factors and
allegations regarding harassment and retaliation by the employment establishment occurring in
2005 that were not mentioned in her original claim.
In a May 20, 2008 statement, appellant provided details of a meeting held on May 20,
2008 with management regarding a disciplinary action. She stated that she requested a Family
and Medical Leave Act form, which was not provided. Appellant alleged that the employing
establishment was harassing and retaliating against her for filing an Equal Employment
Opportunity claim.
In a decision dated July 15, 2008, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error.3
LEGAL PRECEDENT
The Federal Employees’ Compensation Act4 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
1

Docket No. 05-1556 (issued March 2, 2006).

2

On May 16, 2005 appellant, then a 35-year-old computerized mark-up clerk, filed a claim alleging that on
April 28, 2005 she first realized that her stress and anxiety were due to harassment by the employing establishment.
Specifically she attributed the condition to the employing establishment instructing her “to attend a meeting
regarding ‘transitioning back to work’” and that “[n]o one in the meeting was authorized to make a decision.”
Appellant also alleged that meeting was contrary to her physician’s work restrictions and recommendations.
3

The Board notes that, following the June 2, 2008 nonmerit decision, the Office received additional evidence.
However, the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); J.T., 59 ECAB ___
(Docket No. 07-1898, issued January 7, 2008); G.G., 58 ECAB ___ (Docket No. 06-1564, issued
February 27, 2007). Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

5 U.S.C. § 8101 et seq.

2

district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.5 To be entitled to a merit review of an Office decision denying
or terminating a benefit, a claimant must file his or her application for review within one year of
the date of that decision.6 The Board has found that the imposition of the one-year limitation
does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.7
Title 20 of the Code of Federal Regulations, section 10.607(b) provides that the Office
will consider an untimely application only if it demonstrates clear evidence of error by the Office
in its most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office. The evidence must be positive,
precise and explicit, and must manifest on its face that the Office committed an error. Evidence
which does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.8 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion. This entails a limited
review by the Office of how the evidence submitted with the reconsideration request bears on the
evidence previously of record and whether the new evidence demonstrates clear error on the part
of the Office. The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of the Office such that the Office abused its
discretion in denying merit review in the face of such evidence.9
ANALYSIS
The Board finds that the Office properly determined that appellant failed to file a timely
application for review. Its procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original Office decision.10 However a right
to reconsideration within one year also accompanies any subsequent merit decision on the
issues.11
The last merit decision in this case was the Board’s March 2, 2006 decision. The Board
found that the Office properly determined that appellant did not sustain an emotional condition in
the performance of duty as she failed to establish any compensable employment factors. As
appellant’s May 13, 2008 letter requesting reconsideration was made more than one year after
the Board’s March 2, 2006 merit decision, the Board finds that it was not timely filed.

5

20 C.F.R. § 10.605.

6

Id. at § 10.607(a).

7

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989)

8

See Alberta Dukes, 56 ECAB 247 (2005); see also Leon J. Modrowski, 55 ECAB 196 (2004).

9

See Alberta Dukes, supra note 8; see S.D., 58 ECAB ___ (Docket No. 07-1120, issued September 24, 2007).

10

20 C.F.R. § 10.607(a); see A.F., 59 ECAB ___ (Docket No. 08-977, issued September 12, 2008).

11

D.G., 59 ECAB ___ (Docket No. 08-137, issued April 14, 2008); Robert F. Stone, 57 ECAB 292 (2005).

3

The issue for purposes of establishing clear evidence of error in this case, is whether
appellant submitted evidence establishing that there was clear evidence of error in the Office’s
finding that she did not establish a compensable factor of employment. The Board finds that
appellant has not met her burden. Appellant did not submit the type of positive, precise and
explicit evidence or argument which manifests on its face that the Office committed an error.
In support of her request for reconsideration, appellant resubmitted medical evidence
from 2005, pages from a drug encyclopedia, an award notice of clerk position, an April 10, 2008
letter from Dr. Serbanescu regarding night-shift work and her statements dated May 13 and
20, 2008. None of this evidence addresses her original allegation regarding an event occurring
on April 28, 2005. In her original claim, appellant attributed her emotional condition to being
instructed to attend a meeting regarding her transitioning back to work, which she contended
violated her physician’s instructions. The factual evidence discusses events occurring prior to
April 28, 2005 and an event occurring on May 20, 2008. Dr. Serbanescu’s April 10, 2008 letter
diagnoses headaches and recommended she not work nights, but did not identify any
compensable factors of appellant’s employment as the cause of her emotional conditions. The
Office is not required to consider medical evidence in an emotional condition case where no
work factors have been established.12 For these reasons, the Board finds that Dr. Serbanescu’s
April 10, 2008 report and the factual evidence submitted by appellant do not raise a substantial
question concerning the correctness of the Office’s decision and therefore do not establish clear
evidence of error.
The evidence submitted by appellant on reconsideration is insufficient to establish clear
evidence of error on the part of the Office.
CONCLUSION
The Board finds that appellant’s May 13, 2008 request for reconsideration was untimely
filed and appellant has failed to submit evidence establishing clear error on the part of the Office.
Inasmuch as appellant’s reconsideration request was untimely filed and failed to establish clear
evidence of error, the Board finds that the Office properly denied further review on June 2, 2008.

12

See Richard Yadron, 57 ECAB 207 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 2, 2008 is affirmed.
Issued: June 22, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 17-1087
Issued: August 21, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 24, 2017 appellant filed a timely appeal from a March 14, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic
injury on January 9, 2017 in the performance of duty.
FACTUAL HISTORY
On January 18, 2017 appellant, then a 48-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 9, 2017 at 7:20 a.m. she injured both hands, wrists,
1

5 U.S.C. § 8101 et seq.

and elbows pushing a pumpkin into the employing establishment building when the double
doors were locked. Appellant’s supervisor indicated that appellant’s regular work hours were
from 7:00 a.m. until 3:30 p.m. with rotating days off. The employing establishment indicated
that appellant was injured in the performance of duty. Appellant sought medical treatment, but
did not provide documentation to the employing establishment.
In letter dated January 26, 2017, OWCP noted receiving appellant’s January 18, 2017
claim form for injury on January 9, 2017 due to pushing a pumpkin into a building when the
double doors were locked. It requested that she provide additional factual and medical
evidence in support of her claim and afforded her 30 days for a response. No response was
forthcoming.
By decision dated March 14, 2017, OWCP denied appellant’s traumatic injury claim
finding that she had failed to provide sufficient factual and medical evidence to establish either
that she was pushing a pumpkin in the performance of her job duties or that a diagnosed
medical condition resulted from this activity.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 the fact that the individual is an “employee of the United States” within the
meaning of FECA and that the claim was filed within the applicable time limitation.3 An
employee must also establish that he or she sustained an injury in the performance of duty as
alleged and that his or her disability from work, if any was causally related to the employment
injury.4
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness, or mishap that might
befall an employee contemporaneous or coincidental with his or her employment; liability does
not attach merely upon the existence of any employee/employing establishment relation.5 FECA
provides for the payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty.6 The term “in the performance of
duty” has been interpreted to be the equivalent of the commonly found prerequisite in workers’
compensation law, “arising out of and in the course of employment.”7 “In the course of

2

Id.

3

R.C., 59 ECAB 427 (2008).

4

Id., Elaine Pendleton, 40 ECAB 1142, 1145 (1989).

5

Christine Lawrence, 36 ECAB 422-24 (1985); Minnie N. Heubner (Robert A. Heubner), 2 ECAB 20, 24 (1948).

6

See supra note 1.

7

James E. Chadden, Sr., 40 ECAB 312, 314 (1988).

2

employment” deals with the work setting, the locale, and time of injury.8 In addressing this issue,
the Board has held:
“In the compensation field, to occur in the course of employment, in general, an
injury must occur; (1) at a time when the employee may reasonably be said to be
engaged in her master’s business; (2) at a place where he may reasonably be
expected to be in connection with the employment; and (3) while he was
reasonably fulfilling the duties of his employment or engaged in doing something
incidental thereto.”9
This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown, and this
encompasses not only the work setting, but also a causal concept, the requirement being that the
employment caused the injury in order for an injury to be considered as arising out of the
employment, the facts of the case must show some substantial employing establishment benefit is
derived or an employment requirement gave rise to the injury.10
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, series of events or incidents, [and] within a single workday or shift. Such
condition must be caused by external force, including stress, or strain, which is identifiable as
to time and place of occurrence and member or function of the body affected.”11 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether fact of injury has been established. First the employee must submit
sufficient evidence to establish that he and she actually experienced the employment incident at
the time, place, and in the manner alleged.12 Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury.13
With respect to the first component of fact of injury, the employee has the burden of
proof to establish the occurrence of an injury at the time, place, and in the manner alleged, by a
preponderance of the reliable, probative, and substantial evidence. An injury does not have to
be confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury
in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and her subsequent course of action. An employee has not
met his or her burden of proof to establish the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim. Such
8

Denis F. Rafferty, 16 ECAB 413-14 (1965).

9

Carmen B. Gutierrez, 7 ECAB 58-9 (1954).

10

See Eugene G. Chin, 39 ECAB 598, 602 (1988).

11

20 C.F.R. § 10.5(ee).

12

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

13

J.Z., 58 ECAB 529 (2007).

3

circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury and failure to obtain medical treatment
may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in
determining whether a prima facie case has been established. However, an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury on January 9, 2017 in the performance of duty.
On January 18, 2017 appellant filed a traumatic injury claim alleging on January 9,
2017 at 7:20 a.m. she injured both hands, wrists, and elbows pushing a pumpkin into the
employing establishment building in the performance of duty when the double doors were
locked. In its March 14, 2017 decision, OWCP accepted her assertion that she was pushing a
pumpkin on January 9, 2017, but noted that she had not provided any explanation of why she
was pushing the pumpkin, and that, absent an employment-related need, she had not established
that her activity was incidental to her employment and she had not established this incident
occurred in the performance of duty. It further noted that appellant failed to submit any
medical evidence containing a medical diagnosis in connection with the events of
January 9, 2017.
The Board finds that appellant has not established that her January 9, 2017 employment
incident occurred in the performance of duty. While the employing establishment agreed that
she was injured in the performance of duty, and her injury occurred during her normal work
hours near the employing establishment premises, there is no evidence in the record that some
substantial employing establishment benefit is derived or an employment requirement gave rise
to the injury. Due to the dearth of factual information contained in the record, the Board is
unable to conclude that appellant was required to move a pumpkin in January 9, 2017 by her
employment duties or what substantial employing establishment benefit was derived from her
actions.
The Board further finds that appellant has also not met her burden of proof to establish
an injury due to her federal employment as she has submitted no medical evidence in support of
her claim.15
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.
14

D.B., 58 ECAB 464, 466-67 (2007). Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury,
Chapter 2.803.3 (August 2012).
15

T.W., Docket No. 15-1135 (issued August 26, 2015); T.M., Docket No. 13-0577 (issued June 13, 2013)
(finding that the claimant failed to submit any medical evidence and therefore failed to prima facie establish her
claim for compensation as the result of a traumatic injury).

4

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a traumatic injury on January 9, 2017 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
PEACE CORPS, OFFICE OF MEDICAL
SERVICES, Washington, DC, Employer
__________________________________________

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

Docket No. 08-1085
Issued: March 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 4, 2008 appellant filed a timely appeal of a January 3, 2008 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $19,086.61 during the period September 7, 2004 through September 3, 2005 because
she received dual compensation benefits from the Office of Personnel Management (OPM) and
under the Federal Employees’ Compensation Act; and (2) whether the Office properly found that
appellant was at fault in the creation of the overpayment and, therefore, ineligible for waiver of
recovery of the overpayment.
FACTUAL HISTORY
On November 1, 2001 appellant, then a 57-year-old volunteer, filed a traumatic injury
claim alleging that on June 25, 2001 she sustained a severe head injury and injuries over her right

eye and to her right thumb and knee as a result of falling in the street while working in Otavalo,
Ecuador. She was separated from the employing establishment on October 31, 2001.
On November 9, 2001 appellant filed a claim for compensation (Form CA-7) for the
period November 1 through December 5, 2001. She answered “no” to the question whether she
had applied for or received payment under any federal retirement or disability law.
By letter dated December 7, 2001, the Office accepted the claim for a concussion, right
knee and thumb and thoracic sprains, right orbital contusion and postconcussion syndrome. On
February 15, 2002 it paid appellant compensation for temporary total disability for the period
November 1 through December 5, 2001.
On January 9, 2003 and January 5, 2004 appellant completed EN1032 forms which,
among other things, advised her to report OPM or other federal disability or retirement benefits.
In these forms, she noted under Part D (1), OPM benefits, that she received benefits from OPM
in file number CSA3301862, for disability retirement.
By letter dated November 15, 2004, OPM advised the Office that appellant had elected to
receive OPM retirement benefits effective January 28, 1990 instead of workers’ compensation
benefits.1 It stated that her workers’ compensation benefits should have been terminated but, it
appeared that dual payments had been made from January 1990 to the present. A copy of the
election form signed by appellant on September 7, 2004 was enclosed. Appellant acknowledged
that “I understand that I am not entitled to receive OWCP benefits and CSRS/FERS benefits
concurrently (except for a schedule award).”
On December 28, 2004 appellant completed an EN1032 form, indicating that she
continued to receive OPM disability retirement benefits.
By letter dated October 6, 2005, the Office terminated appellant’s compensation benefits
effective September 4, 2005 due to her receipt of an annuity from OPM while receiving workers’
compensation benefits. Appellant was advised that she could not receive both workers’
compensation benefits and OPM annuity benefits at the same time.
On November 22, 2005 the Office made a preliminary determination that appellant
received an overpayment in the amount of $71,736.84 due to her receipt of dual benefits from
OPM and under the Act during the period September 3 through November 1, 2005. It found that
she was at fault in the creation of the overpayment. The Office stated that appellant was aware
or should have reasonably been aware that she was receiving compensation that she was not
entitled to receive. Appellant was advised that she could request a telephone conference, a final
decision based on the written evidence only or a hearing within 30 days if she disagreed that the
overpayment occurred, with the amount of the overpayment or if she believed that recovery of
the overpayment should be waived. The Office requested that appellant complete an
accompanying overpayment recovery questionnaire (Form OWCP-20) and submit financial
documents in support thereof within 30 days.

1

Appellant was receiving retirement benefits from OPM due to a whiplash injury she sustained in 1990.

2

On December 12, 2005 the Office issued an amended preliminary overpayment
determination, noting that the correct period of the overpayment was November 1, 2001 through
September 3, 2005.
By letter dated January 9, 2006, appellant requested a prerecoupment hearing before an
Office hearing representative. She contended that repayment of the overpayment would cause
severe financial hardship as her monthly expenses exceeded her monthly income. In a January 9,
2006 OWCP-20 form, appellant stated that she did not have any of the incorrectly paid checks or
payments in her possession. She believed that she was entitled to the incorrect payments because
the employing establishment explained to her that, if she sustained an employment-related injury
and was unable to work, she would receive workers’ compensation benefits. Appellant stated
that an Office claims examiner advised her not to worry about questions from the Office
regarding her receipt of OPM benefits since her current work-related injury was different from
the injury she sustained while working at the U.S. Postal Service. She further stated that the
employing establishment was aware of her prior work-related injury during an interview for her
volunteer position and it determined that she would be able to perform the duties of the position.
Appellant contended that her OPM annuity was not enough to survive. She further contended
that the EN1032 forms she completed stated that the information she provided would be used to
decide whether she would continue to receive benefits. Since appellant continued to receive
compensation, she believed that she was entitled to it. She reported monthly income of
$1,996.38 which represented her OPM benefits and rent from a tenant. Appellant also reported
monthly expenses of $2,949.80 which included a monthly debt of $823.68. She had $8.50 in
cash. Appellant submitted supporting financial documents.
During the July 10, 2006 hearing, appellant contended that she was without fault in
creating the overpayment. She testified that despite being notified by OPM in September 2004
that she could not receive concurrent OPM and workers’ compensation benefits, unless she was
receiving a schedule award, she believed that she was receiving a schedule award. Appellant
reiterated her contention that repayment of the overpayment would cause financial hardship. She
owned a house in Harrison, Maine and a farm in Sweden, Maine. Appellant rented the house in
Harrison to a tenant and lived with her daughter to whom she paid rent. She did not receive any
rent for the farm in Sweden and owed more on it than it was worth. Appellant testified that
foreclosure notices had been issued on the two properties. She had a Jeep and a rowboat that
were not worth anything. With the exception of this information, appellant testified that her
financial situation remained the same as she reported to the Office in January 2006. She
submitted financial records which indicated that she had an outstanding home equity loan of
$30,944.62 on the Sweden farm which was worth $17,015.00.
Following the July 10, 2006 hearing, appellant reported that she had $6.00 in a savings
account and paid $390.00 in rent to her daughter. She stated that her monthly debt of $823.68
represented several loans issued by her credit union.
Appellant appealed to the Board. In a November 29, 2007 order, the Board dismissed
appellant’s appeal of an Office hearing representative’s December 18, 2006 decision, finding that
she was entitled to waiver of a $52,000.00 overpayment that occurred during the period
November 1, 2001 to September 6, 2004 and that, while she was at fault in creating an
overpayment for the period September 7, 2004 through September 3, 2005 because she knew or

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reasonably should have known that she was not entitled to receive workers’ compensation
following the effective date of her election of OPM retirement benefits, the case had to be
returned to the Office to calculate the amount of the overpayment and to decide upon the method
of recovery of the overpayment.2 The Board found that appellant’s case was in an interlocutory
posture with regard to the amount of the overpayment for the period September 7, 2004 through
September 3, 2005 and, thus, it did not have jurisdiction over the Office’s decision pursuant to
20 C.F.R. § 501.2(c).
Following the issuance of the Board’s November 29, 2007 order, the Office, by decision
dated January 3, 2008, determined that appellant received an overpayment in the amount of
$71,746.14 during the period November 1, 2001 through September 3, 2005. It recalculated the
prior $71,736.84 overpayment to reflect compensation received by appellant based on calendar
days rather than workdays. The Office found that she was not at fault in the creation of the
overpayment in the amount of $52,659.53 for the period November 1, 2001 through
September 6, 2004 and, thus, entitled to waiver of recovery of the overpayment. It, however,
found that appellant was at fault in the creation of the overpayment in the amount of $19,086.61
for the period September 7, 2004 through September 3, 2005 and ordered her to repay the
overpayment in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(a) of the Act states that, while an employee is receiving workers’
compensation, he or she may not receive salary, pay or remuneration of any type from the United
States, except in return for services actually performed or for certain payments related to service
in the Armed Forces, including benefits administered by the Department of Veterans Affairs
unless such benefits are payable for the same injury or the same death being compensated for
under the Act.3 The implementing regulations provide that a beneficiary may not receive wageloss compensation concurrently with a federal retirement or survivor annuity.4 The beneficiary
must elect the benefit that he or she wishes to receive.5
ANALYSIS -- ISSUE 1
On September 7, 2004 appellant elected to receive OPM disability retirement benefits in
lieu of wage-loss compensation she had been receiving under the Act. By letter dated
November 15, 2004, OPM notified the Office that appellant elected to receive OPM retirement
disability benefits effective January 28, 1990.
The record reflects that appellant received wage-loss compensation from the Office in the
amount of $19,086.61 for the period September 7, 2004 through September 3, 2005. Because
appellant elected to receive OPM disability retirement benefits effective January 28, 1990, any
2

Docket No. 07-1094 (issued November 29, 2007).

3

5 U.S.C. § 8116(a).

4

20 C.F.R. § 10.421(a).

5

Id.

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wage-loss compensation she received from the Office for a period beginning on or after
January 28, 1990 constitutes an overpayment of benefits. She is not eligible to receive wage-loss
compensation and disability retirement benefits from OPM for the same time period.6
Accordingly, the Board finds that appellant received an overpayment of compensation in the
amount of $19,086.61 for the period September 7, 2004 through September 3, 2005.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act7 provides that an overpayment of compensation shall be
recovered by the Office unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of the Act or would be against
equity and good conscience.8 Thus, the Office may not waive the overpayment of compensation
unless appellant was without fault.9 Adjustment or recovery must, therefore, be made when an
incorrect payment has been made to an individual who is with fault.10
On the issue of fault, section 10.433 of the Office regulations, provide that an individual
will be found at fault if he or she has done any of the following:
“(1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; (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 was incorrect.”11
With respect to whether an individual is without fault, section 10.433(b) of the Office
regulations provide in relevant part:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”12

6

20 C.F.R. § 10.421(a); see Franklin L. Bryan, 56 ECAB 310 (2005).

7

5 U.S.C. § 8129(b).

8

Michael H. Wacks, 45 ECAB 791, 795 (1994).

9

Norman F. Bligh, 41 ECAB 230 (1989).

10

Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994).

11

20 C.F.R. § 10.433(a).

12

Id. at § 10.433(b).

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ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. In order for the Office to establish that appellant was at fault in creating the
overpayment of compensation, it must establish that appellant accepted a payment that she knew
or should have known was incorrect.13
The Office found that appellant was at fault in the creation of the overpayment as she was
aware or should have been aware that she was not entitled to dual benefits following the effective
date of her election of OPM disability retirement benefits. The record establishes that on
September 7, 2004 appellant elected to receive OPM benefits in lieu of compensation benefits
under the Act effective January 28, 1990. The election form specifically advised her that she
was not entitled to receive workers’ compensation benefits and OPM retirement benefits
concurrently except for a schedule award. In signing the election form, appellant thereby
acknowledged that she was no longer entitled to compensation benefits under the Act as of
September 7, 2004. Once appellant made this election she knew or should have known that
acceptance of compensation benefits for periods after September 7, 2004 was incorrect. The fact
that the Office may have been negligent in continuing to issue appellant wage-loss checks after
she elected OPM benefits does not excuse her acceptance of such checks.14 As appellant
accepted compensation benefits from the Office which covered the period September 7, 2004
through September 3, 2005, the Board finds that she was at fault in the creation of the
overpayment and is not entitled to waiver.15
Appellant contended that the Office compensation benefits she received represented a
schedule award. However, the record does not indicate that the Office granted her a schedule
award on or after September 7, 2004. Therefore, the Board finds that appellant’s contention is
without merit.
With respect to the recovery of the overpayment in compensation, the Board’s
jurisdiction is limited to reviewing those cases where the Office seeks recovery from continuing
compensation benefits under the Act.16 As appellant is no longer receiving wage-loss
compensation, the Board does not have jurisdiction with respect to recovery of the overpayment
under the Debt Collection Act.17

13

Diana L. Booth, supra note 10; Lorenzo Rodriguez, 51 ECAB 295 (2000); Robin O. Porter, 40 ECAB
421 (1989).
14

Lorenzo Rodriguez, supra note 13.

15

Lawrence J. Dubuque, 55 ECAB 667, 673 (2004).

16

Terry A. Keister, 56 ECAB 559 (2005); see also Cheryl Thomas, 55 ECAB 610 (2004).

17

Cheryl Thomas, supra note 16.

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CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $19,086.61 during the period September 7, 2004 through September 3, 2005 because she
received dual compensation benefits from OPM and under the Federal Employees’
Compensation Act. The Board further finds that the Office properly found that appellant was at
fault in the creation of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the January 3, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF AGRICULTURE,
AGRICULTURAL RESEARCH SERVICE,
Wapato, WA, Employer
__________________________________________

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Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-609
Issued: July 23, 2007

Oral Argument June 20, 2007

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

JURISDICTION
On December 28, 2006 appellant filed an appeal of April 13 and November 29, 2006
decisions of the Office of Workers’ Compensation Programs denying her occupational disease
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the claim.
ISSUE
The issue is whether appellant has established that she sustained chronic pain syndrome,
chronic fatigue syndrome and fibromyalgia in the performance of duty.
FACTUAL HISTORY
This is the second appeal before the Board in this case. By decision dated December 18,
2001,1 the Board remanded the case to the Office to resolve a conflict of medical opinion
1

Docket No. 01-993.

between Dr. Larry Lefors, an attending osteopath and Dr. William Moore, a Board-certified
specialist in occupational medicine and second opinion physician. Dr. Lefors opined that
appellant sustained chronic fatigue syndrome and fibromyalgia on or before December 1, 1997
due to her assigned duties as a biological technician and a December 7, 1997 incident in which
appellant sustained a lumbar strain when closing a heavy gate. In contrast, Dr. Moore opined
that appellant’s chronic fatigue syndrome and fibromyalgia were not occupationally related. The
Board also directed that the Office ascertain whether appellant had filed a claim for a
December 7, 1997 traumatic incident in which she allegedly sustained a low back or hip strain
when closing a heavy metal gate. The Board stated that, if appellant had filed a claim for the
December 7, 1997 injury, the prior file should be combined with the occupational disease claim.
The law and the facts of the case as set forth in the Board’s prior decision and order are hereby
incorporated by reference.2
On remand of the case, the Office referred appellant, the medical record and a statement
of accepted facts to Dr. Michael Allison, a physician Board-certified in occupational medicine,
for an impartial medical examination. In a May 17, 2002 report, Dr. Allison diagnosed
nonoccupational chronic fatigue syndrome and fibromyalgia. The Office issued a June 28, 2002
decision denying appellant’s occupational disease claim. Appellant then requested a hearing.
By decision dated December 2, 2002, the Office hearing representative vacated the Office’s
June 28, 2002 decision on the grounds that Dr. Allison’s report was insufficiently rationalized
and required clarification. In a February 13, 2003 letter, Dr. Allison opined that appellant
showed no objective signs of chronic fatigue syndrome. By decision dated April 11, 2003, the
Office denied appellant’s claim on the grounds that causal relationship was not established.
Following an oral hearing, the Office issued an April 22, 2004 decision setting aside the
April 11, 2003 decision. The Office hearing representative found that Dr. Allison’s two reports
contained conflicting findings and conclusions. The hearing representative directed the
appointment of a second impartial medical examiner.
On October 20, 2004 the Office referred appellant, the medical record and a statement of
accepted facts to Dr. Dennis Stumpp, a physician Board-certified in occupational medicine, for
an impartial medical examination. The statement of accepted facts noted that in “December of
1997, [appellant] sustained a low back strain while closing a large gate at work. She developed
low back pain radiating down into her hip and leg.”
Dr. Stumpp submitted a November 12, 2004 report reviewing the medical record and
statement of accepted facts. He diagnosed nonoccupational hypertension, sleep apnea,
nonoccupational chronic fatigue syndrome possibly related to sleep apnea, “fibromyalgia
unrelated to workplace factors on a more probable than not basis,” and a history of a
December 1997 occupational left hip strain which became “manifest as a chronic pain
syndrome.” Dr. Stumpp explained that chronic fatigue syndrome and fibromyalgia were both
subjective syndromes unaffected by appellant’s federal employment.

2

During the pendency of the prior appeal, appellant submitted a February 15, 2001 report from Dr. Lefors, who
opined that appellant’s chronic fatigue syndrome was caused, in part, by job stress, “the hours her job demanded”
and handling chemicals at work. Dr. Lefors noted that appellant’s adrenal hormones were low.

2

By decision dated January 7, 2005 and issued April 13, 2006,3 the Office denied
appellant’s claim on the grounds that causal relationship was not established. The Office found
that the weight of the medical evidence rested with Dr. Stumpp.
In an April 28, 2006 letter, appellant requested an oral hearing, held October 3, 2006. At
the hearing, appellant asserted that she filed a traumatic injury claim for a December 7, 1997
lumbar strain. After the hearing, she submitted a statement criticizing Dr. Stumpp’s report and
the Office’s development of his findings.
By decision dated November 29, 2006, the Office hearing representative affirmed the
April 13, 2006 decision, finding that appellant failed to establish that she sustained chronic pain
syndrome, chronic fatigue syndrome or fibromyalgia causally related to factors of her federal
employment. The Office found that Dr. Stumpp’s report was sufficiently rationalized to
represent the weight of the medical evidence. The Office further found that his statement that
appellant had a chronic pain syndrome causally related to the December 7, 1997 traumatic work
injury was immaterial as appellant did not file a claim for this injury. The hearing representative
noted that the statement of accepted facts provided to Dr. Stumpp indicated that appellant
sustained a low back strain in a December 7, 1997 traumatic work incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.5 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the

3

In an April 13, 2006 letter, the Office stated that it did not send out the January 7, 2005 decision until
April 13, 2006. The Office stated that appellant should consider her “current receipt of the decision timely for
appeal rights as [she would] not have had the decision until this month.” The Office noted that no additional
evidence was received in appellant’s claim following Dr. Stumpp’s November 12, 2004 examination.
4

5 U.S.C. §§ 8101-8193.

5

Joe D. Cameron, 41 ECAB 153 (1989).

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

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employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medial certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7
ANALYSIS
Appellant claimed that she sustained chronic pain syndrome, chronic fatigue syndrome
and fibromyalgia due to work factors on or before December 7, 1997. She also asserted that she
filed a traumatic injury claim for a December 7, 1997 incident involving closing a heavy gate at
work. In the statement of accepted facts provided to Dr. Stumpp, a physician Board-certified in
occupational medicine and an impartial medical examiner, the Office stated that appellant
sustained a low back strain in December 1997 while closing a large gate at work. Dr. Stumpp
opined that the December 7, 1997 injury manifested as chronic pain syndrome. But the Office
denied the occupational disease claim in April 13 and November 29, 2006 decisions, asserting it
had not accepted a December 1997 injury. The Board finds that there is conflicting evidence as
to whether the Office accepted a December 1997 traumatic injury. The case will be remanded
for further development on this issue.
On remand of the case, the Office shall conduct appropriate development to determine if
it accepted a December 1997 traumatic injury. If the Office determines that it did accept the
injury, it shall ascertain the precise nature and duration of the accepted injury. The Office will
also determine whether the medical evidence establishes that appellant sustained consequential
chronic fatigue syndrome, chronic pain syndrome or fibromyalgia resulting from that injury. If
the Office determines that it did not accept the injury, the Office shall undertake appropriate
development to determine whether appellant filed a claim for a December 1997 traumatic injury.
This development shall include obtaining all applicable personnel and injury compensation
records from the employing establishment, federal records depository or other such custodian.
Following this development and any other action deemed necessary, the Office shall issue an
appropriate decision in the case.
CONCLUSION
The Board finds that the case is not in posture for a decision regarding whether appellant
sustained chronic fatigue syndrome, chronic pain syndrome and fibromyalgia in the performance
of duty. The case will be remanded for appropriate further development.

7

Solomon Polen, 51 ECAB 341 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 29 and April 13, 2006 are set and the case remanded
for further action consistent with this decision.
Issued: July 23, 2007
Washington, DC

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

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

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

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