United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Great Falls, MT, Employer
__________________________________________

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

Docket No. 11-1197
Issued: January 6, 2012

Case Submitted on the Record

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

JURISDICTION
On April 19, 2011 appellant filed a timely appeal from the February 15, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review this nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s February 3, 2011 request for
reconsideration as untimely filed and failing to establish clear evidence of error.
FACTUAL HISTORY
On April 2, 1997 appellant, a 35-year-old carrier, sustained left ankle injury in the
performance of duty when he got in and out of his truck and walked relays. OWCP accepted his

1

5 U.S.C. § 8101 et seq.

claim for left ankle strain and approved surgery, including a tendo-Achilles lengthening, left.
Appellant received a schedule award for an 11 percent impairment of his left lower extremity.
On January 24, 2003 the employing establishment offered appellant a position as a
modified clerk. The position required lifting and carrying one to four hours a day. Appellant’s
physician’s reviewed the position and rejected it. He limited appellant to lifting and carrying one
to one and a half hours a day. The employing establishment advised OWCP that the January 24,
2003 offer was within appellant’s restrictions and requested a suitability determination.
On August 29, 2003 OWCP notified appellant that the position offered on January 24,
2003 was suitable to his work capabilities and remained available. It gave him 30 days to accept
the position or provide an explanation for refusing it, and informed him of the consequences for
refusing suitable work.
On October 7, 2003 the employing establishment extended appellant a new offer of
limited duty. Appellant accepted this offer on October 14, 2003.
In a decision dated October 9, 2003, after the employing establishment confirmed that the
position was still available and that appellant had not returned to work, OWCP terminated wageloss compensation and schedule award benefits under 5 U.S.C. § 8106(c)(2). OWCP observed
that appellant did not respond to the 30-day notice. Appeal rights attached to the decision
notified appellant that he had one calendar year to request reconsideration.
Appellant requested reconsideration on February 3, 2011. He informed OWCP that he
had accepted a modified assignment on October 14, 2003 and did not receive OWCP’s decision
terminating compensation until after the acceptance. Appellant took the language of section
8106(c)(2) to mean that he did not need to reply to OWCP because he accepted the work
assignment and did not stop work. He believed his acceptance of the modified assignment
nullified all previous correspondence.
In a decision dated February 15, 2011, OWCP denied appellant’s request for
reconsideration. It found that his request was untimely and did not present clear evidence of
error. OWCP noted that appellant’s acceptance of a modified position on October 14, 2003
came after its October 9, 2003 termination decision.
On appeal, appellant submitted timekeeping records to show that he was continuously
employed from December 14, 2002 through December 12, 2003, either working in a full-time
status or on approved leave.2 He stated that at no time did he leave or abandon the position he
was working during that time. Appellant adds that the information upon which OWCP based its
original decision was faulty.

2

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).

2

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
application for reconsideration must be sent within one year of the date of OWCP’s decision for
which review is sought. OWCP will consider an untimely application only if the application
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The
application must establish, on its face, that such decision was erroneous.4
The term “clear evidence of error” is intended to represent a difficult standard.5 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.6
ANALYSIS
Appellant had one calendar year from OWCP’s October 9, 2003 decision, or until
October 9, 2004, to request reconsideration. His February 3, 2011 request is therefore untimely.
The question for determination is whether this request shows clear evidence of error in OWCP’s
October 9, 2003 decision to terminate compensation under 5 U.S.C. § 8106(c)(2).
Appellant explained in his request for reconsideration that he had accepted a modified job
offer on October 14, 2003, something he believed nullified all previous correspondence. The
Board notes that on October 7, 2003 two days before OWCP terminated his compensation for
refusing the January 24, 2003 job offer, the employing establishment extended appellant a new
offer. This new offer superseded the first job offer and with it came new due process rights and
new procedural requirements. OWCP did not learn of the new offer until after it terminated

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.c (January 2004).

6

Id. at Chapter 2.1602.3.d(1).

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compensation, but the effect of that termination was to deny appellant the protections set forth by
Board case law and OWCP regulations as they related to the new offer.7
The situation is similar to that of S.G., Docket No. 06-706 (issued August 14, 2006).
There, OWCP terminated the claimant’s compensation under 5 U.S.C. § 8106(c)(2) on the
grounds that she refused a December 19, 2003 offer of suitable employment. Before it issued its
decision on December 29, 2004; however, the employing establishment extended a new job offer
to the claimant on July 8, 2004. The Board found that OWCP did not meet its burden of proof to
terminate compensation because it failed to follow established procedures with respect to the
new offer.
The Board finds that appellant’s February 3, 2011 request for reconsideration showed
clear evidence of error in OWCP’s October 9, 2003 decision terminating compensation. The
employing establishment had recently replaced the offer upon which OWCP based its decision
with a new offer, one that afforded appellant new due process rights, and one that he accepted, as
he explained. Accordingly, the Board will reverse OWCP’s February 15, 2011 decision denying
appellant’s request for reconsideration and will remand the case for a merit review.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s February 3, 2011 request for
reconsideration. The request shows clear evidence of error in OWCP’s October 9, 2003
decision. Appellant is entitled to a merit review of his case.

7

Juan A. Dejesus, 54 ECAB 721 (2003) (essential due process principles require that a claimant have notice and
an opportunity to respond prior to termination under section 8106(c)); 20 C.F.R. § 10.516.

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ORDER
IT IS HEREBY ORDERED THAT the February 15, 2011 decision of the Office of
Workers’ Compensation Programs is reversed and the case remanded for further action
consistent with this opinion.
Issued: January 6, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, Ogden, UT, Employer
__________________________________________

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Appearances:
Theodore E. Kanell, Esq., for the appellant
No appearance, for the Director

Docket No. 10-259
Issued: November 30, 2010

Oral Argument September 15, 2010

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

JURISDICTION
On November 4, 2009 appellant filed a timely appeal from a June 3, 2009 decision of the
Office of Workers’ Compensation Programs reducing her wage-loss compensation. 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 the Office properly reduced appellant’s compensation under
5 U.S.C. §§ 8106 and 8115 based on her ability to perform the selected position of customer
service representative.
On appeal, counsel contends that the opinion of an impartial medical examiner,
Dr. Robert Hansen, a Board-certified orthopedic surgeon, was insufficiently rationalized to
represent the weight of the medical evidence.

FACTUAL HISTORY
This case was previously before the Board. In a decision dated September 28, 1994,1 the
Board reversed a March 12, 1993 decision terminating appellant’s compensation benefits on the
grounds her accepted injuries had resolved without residuals.2 The Board also reversed a
June 30, 1993 decision denying her hearing request. The law and facts of the case as set forth in
the Board’s decision and order are incorporated by reference.
On remand, in December 1994, the Office found a conflict of medical opinion between
Dr. Charles P. Bean, an attending Board-certified orthopedic surgeon, and Dr. John Joshua, a
second opinion physician. To resolve the conflict, the Office selected Dr. Albert F. Martin, a
Board-certified orthopedic surgeon, who attributed appellant’s back pain to an extra lumbar
vertebra.
Dr. Bean submitted periodic reports from August 31, 1998 to August 2001, diagnosing
herniated L4-5 and L5-S1 discs with degenerative disc disease attributable to the 1987 injury.
Appellant also had neck pain with radiculopathy.
On February 2, 2001 Dr. Lynn Stromberg, an attending Board-certified orthopedic
surgeon, performed an L5-S1 fusion, decompressive laminectomy and foraminotomies,
authorized by the Office. He submitted reports through 2002 noting lower extremity
radiculopathy and persistent postsurgical urinary retention requiring home catheterization.
In reports from December 2001 through January 2008, Dr. Bean noted progressive
bladder problems requiring daily catheterizations,3 chronic neurologic problems in both legs and
chronic neck and back pain.4 He found appellant disabled for work.
On May 3, 2004 the Office obtained a second opinion from Dr. Dewey C. McKay, III, a
Board-certified orthopedic surgeon. He opined that the January 7, 1987 injuries caused or
aggravated degenerative cervical and lumbar disc disease and hypotonic bladder. Dr. McKay
found appellant totally disabled for work.

1

Docket No. 93-2108 (issued September 28, 1994).

2

The Office accepted that on January 7, 1987 appellant, then a 32-year-old parachute inspector, sustained a
lumbar muscle spasm, thoracic strain and L2 and L4 subluxations when she slipped and fell on an icy dock then fell
from the dock. It later accepted herniated lumbar discs at L4-5 and L5-S1.
3

In a February 28, 2002 report, Dr. Richard F. Labasky, an attending Board-certified urologist, opined that
appellant’s urinary retention in 2001 was related to the lumbar fusion necessitated by the accepted 1987 injury. The
Board notes that the Office did not accept a consequential neurologic bladder condition.
4

Dr. Bean ordered periodic imaging studies. June 28, 2004 x-rays showed six lumbar vertebrae, postoperative
changes from L6 to S1, degenerative disc disease at C5-6 and C6-7 and L2-3, degenerative facet changes at C6-7
and minimal retrolisthesis at C2-3 and C3-4. A January 5, 2006 magnetic resonance imaging scan showed
degenerative disc disease at C5-6, C6-7 with mild canal stenosis, a broad-based disc herniation at L5-S1 with
moderate canal stenosis and fixation hardware from L6-S2. A January 21, 2008 electromyography study showed
nerve root irritation at L4-5 and S1 on the right.

2

On April 26, 2008 the Office obtained a second opinion from Dr. Allan R. Wilson, a
Board-certified orthopedic surgeon, who noted that appellant self-catheterized as she was unable
to void since the 2001 lumbar surgery. On examination, Dr. Wilson noted point tenderness over
the superior iliac crests and no palpable fixation hardware. He diagnosed chronic neck and low
back pain. Dr. Wilson found appellant able to work eight hours a day with restrictions.
The Office found a conflict of opinion between Dr. Bean, for appellant, and Dr. Wilson,
for the government, regarding which of appellant’s conditions were work related, the presence of
ongoing residuals and whether appellant remained disabled for work. To resolve this conflict, it
referred her to Dr. Hansen. The Office provided Dr. Hansen with a statement of accepted facts
and copies of medical records on which to base his opinion. It requested that he provide medical
rationale explaining whether appellant had continuing residuals of the accepted injuries, and how
any residuals affected her work capacity. The Office also requested that Dr. Hansen explain if
appellant’s bladder and cervical spine conditions were work related.
Dr. Hansen provided a July 3, 2008 report of his June 19, 2008 examination. He
reviewed four imaging studies from the medical record. Dr. Hansen noted that appellant had to
self-catheterize since lumbar fixation. On examination, he observed limited cervical and lumbar
motion and diffuse paraspinal tenderness. Dr. Hansen diagnosed chronic low back pain
syndrome, status post L5-S1 discectomy and fusion and chronic cervical degenerative disc
disease unrelated to the accepted injury. He stated that appellant had “complaints of pain and
does have objective findings of decreased range of motion of her lumbar spine as residuals of her
original injury.” Dr. Hansen found appellant able to work eight hours a day with pulling and
pushing limited to 10 pounds, lifting limited to 5 pounds, sitting limited to two to three hours
intermittently, twisting, bending, stooping, standing and walking limited to one hour, and no
squatting, kneeling or climbing.
In a July 11, 2008 letter, the Office noted that Dr. Hansen’s restrictions would not allow
full-time employment. It requested that he change the restrictions to conform to the
requirements of an eight-hour workday. Dr. Hansen modified appellant’s restrictions on June 19,
2008, finding that she could sit for six hours a day, walk for one hour a day and stand for one
hour a day. He did not provide any additional medical opinion.
On July 31, 2008 the Office referred appellant to a vocational rehabilitation counselor to
assist her in finding a job within Dr. Hansen’s restrictions. In an August 19, 2008 job analysis,
the counselor identified the position of customer service representative, Department of Labor,
Dictionary of Occupational Titles (DOT #239.362-014), a sedentary clerical position requiring
six to eight hours of sitting each day. The counselor found the position appropriate for
appellant’s prior work experience as a secretary, general clerk, sewing machine operator,
parachute rigger and key punch operator. A labor market survey showed that entry level
customer service representative positions were readily available in appellant’s commuting area at
an average weekly wage of $452.40.
By notice dated April 20, 2009, the Office proposed to reduce appellant’s compensation
as the medical and factual evidence established she was no longer totally disabled for work due
to the January 7, 1987 injuries. It found that she had the capacity to earn $452.40 a week as a
customer service representative. The Office calculated a 37 percent loss of wage-earning

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capacity.5 In response, appellant submitted a May 18, 2009 report from Dr. Bean noting a T7
fracture in 2006. She continued to have severe cervical and lumbar pain with radiculopathy into
all extremities.
By decision dated June 3, 2009, the Office reduced appellant’s compensation effective
June 7, 2009 under 5 U.S.C. §§ 8106 and 8115 based on her ability to earn $452.40 a week as a
customer service representative. It found that Dr. Bean’s reports indicated she could perform the
position, which was also within Dr. Hansen’s restrictions.
LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction of benefits.6 Under section 8115(a), wage-earning capacity is determined
by the actual wages received by an employee if the earnings fairly and reasonably represent his
or her wage-earning capacity. If the actual earnings do not fairly and reasonably represent his or
her wage-earning capacity, or if the employee has no actual earnings, his or her wage-earning
capacity is determined with due regard to the nature of the injury, the degree of physical
impairment, his or her usual employment, age, qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect wageearning capacity in his or her disabled condition.7
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, DOT or otherwise available in the open
market, that fits the employee’s capabilities with regard to his or her physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the labor market should be made through contact with the state employment
service or other applicable service. Finally, application of the principles set forth in Albert C.
Shadrick,8 will result in the percentage of the employee’s loss of wage-earning capacity.9
Section 8123 of the Federal Employees’ Compensation Act provides that, if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician, who shall make an
examination.10 In situations where there exist opposing medical reports of virtually equal weight
5

On March 24, 2009 the Office obtained wage information from the employing establishment. Appellant’s date
and step on the date of injury was WG-05-03, with wages of $9.55 an hour. As of January 9, 2009, a WG-05-03
would earn $18.02 an hour.
6

David W. Green, 43 ECAB 883 (1992).

7

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

8

5 ECAB 376 (1953).

9

James A. Birt, 51 ECAB 291 (2000); Francisco Bermudez, 51 ECAB 506 (2000).

10

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

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and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.11 However, in a situation
where the Office secures an opinion from an impartial medical examiner for the purpose of
resolving a conflict in the medical evidence and the opinion from such examiner requires
clarification or elaboration, the Office has the responsibility to secure a supplemental report from
the examiner for the purpose of correcting the defect in the original opinion.12
ANALYSIS
The Office accepted that appellant sustained herniated L4-5 and L5-1 discs requiring
lumbar fusion and cage fixation, subluxations at L2 and L4, lumbar muscle spasm and a thoracic
strain. Dr. Bean, an attending Board-certified orthopedic surgeon, found appellant disabled for
work due to residuals of the accepted lumbar injuries from 1998 through January 2008. He
opined that appellant’s cervical disc disease and neurogenic bladder were also caused by the
accepted injuries. In April 2008, the Office obtained a second opinion from Dr. Wilson, a
Board-certified orthopedic surgeon, who found appellant able to perform full-time limited duty.
He opined that the cervical disc disease was idiopathic. The Office found a conflict of medical
opinion between Dr. Bean and Dr. Wilson regarding the presence of continuing residuals, the
relationship of chronic conditions to the accepted injuries and whether appellant remained
disabled for work. Dr. Hansen, a Board-certified orthopedic surgeon, was appointed to resolve
this conflict.
Dr. Hansen provided brief comments about residuals of the accepted injuries, noting
restricted lumbar motion and back pain. He did not render a detailed description of these
impairments. Although instructed to do so, Dr. Hansen did not explain whether appellant’s
bladder dysfunction was related to the accepted injuries or lumbar fusion. He noted that
appellant had to self-catheterize since the 2001 lumbar fusion but did not address if this was
related to the surgery. Similarly, Dr. Hansen stated that appellant’s cervical degenerative disc
disease was unrelated to the accepted injuries but did not adequately explain the basis for his
conclusion. The absence of medical rationale on these critical issues diminishes the probative
value of his opinion.13
Dr. Hansen’s opinion regarding appellant’s work capacity is also problematic. Based on
his clinical examination, he found appellant able to work eight hours a day limited duty, with
sitting limited to two to three hours intermittently and standing and walking limited to one hour.
The Office then requested that Dr. Hansen change these restrictions to qualify her for full-time
employment. Dr. Hansen complied, increasing appellant’s sitting tolerance to six hours a day.
He did not set forth any medical basis for this change. The Office relied on the revised
restrictions in finding the selected customer service position medically suitable. The Board finds
that Dr. Hansen’s revised restrictions are of diminished probative value as they are unsupported
11

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

12

Margaret M. Gilmore, 47 ECAB 718 (1996).

13

Jacqueline Brasch (Ronald Brasch), supra note 11.

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by medical reasoning.14 The speculative nature of these restrictions casts substantial doubt as to
whether the selected position is medically suitable.15
The Board finds that Dr. Hansen did not provide thorough answers to the Office’s
questions. He did not adequately discuss the accepted conditions and their effect on appellant’s
ability to work, nor explain if the bladder and cervical spine conditions were causally related to
the accepted injuries. Dr. Hansen also provided conflicting work restrictions. Thus, his opinion
is of insufficient weight to resolve the conflict between Dr. Bean and Dr. Wilson. The Office’s
June 3, 2009 decision reducing appellant’s compensation will be reversed.
On appeal, counsel contends that Dr. Hansen’s opinion was insufficient to resolve the
conflict of medical opinion. The Board concurs that Dr. Hansen’s opinion is insufficiently
rationalized to represent the weight of medical evidence. The Office’s June 3, 2009 decision will
be reversed.
CONCLUSION
The Board finds that the Office improperly reduced appellant’s compensation benefits.
The June 3, 2009 decision will be reversed and the case returned to the Office for payment of all
appropriate compensation from June 7, 2009 onward.

14

Deborah L. Beatty, 54 ECAB 340 (2003).

15

Anna M. Delaney, 53 ECAB 384 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 3, 2009 is reversed.
Issued: November 30, 2010
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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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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

Docket No. 15-1917
Issued: January 29, 2016

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 September 18, 2015 appellant filed a timely appeal from a March 23, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received a
$34,594.18 overpayment of compensation; (2) whether it properly determined that appellant was
1
2

5 U.S.C. § 8101 et seq.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from March 23, 2015, the date of OWCP’s last decision, was
September 19, 2015. Since using September 22, 2015, the date the appeal was received by the Clerk of the
Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing.
The date of the U.S. Postal Service postmark is September 18, 2015, rendering the appeal timely filed. See 20
C.F.R. § 501.3(f)(1).

at fault in the creation of the overpayment of compensation, thereby precluding waiver of
recovery of the overpayment; and (3) whether OWCP properly required repayment of the
overpayment by deducting $445.05 from appellant’s compensation payments every 28 days.
FACTUAL HISTORY
OWCP accepted that on April 9, 1998 appellant, then a 51-year-old production foreman,
sustained a low back sprain due to lifting heavy boxes. Appellant received disability
compensation on the periodic rolls beginning June 16, 2002 and continuing. Effective
February 1, 2009, he began to receive Social Security Administration (SSA) benefits in addition
to FECA compensation.
OWCP periodically required appellant to complete EN1032 forms which posed various
questions regarding his income, employment and volunteer activities, and earnings. Each Form
EN1032 covered the 15-month period prior to the completion of the form and asked appellant to
certify that the information he provided was correct.3 The EN1032 forms specifically requested
that appellant report any benefits received from SSA as part of an annuity under the Federal
Employees’ Retirement System (FERS), but not any benefits received from SSA received due to
employment in the private sector. The forms posed the questions, “Do you receive benefits from
SSA as part of an annuity for federal service?” On EN1032 forms completed on March 1, 2010,
February 9, 2011, February 8, 2012, January 31, 2013, and February 10, 2014, appellant
responded “no” in response to this question about whether he received benefits from SSA as part
of an annuity for federal service. On a Form EN1032 completed on March 5, 2015, appellant
responded “yes” in response to this question and listed the benefits received from SSA as part of
an annuity for federal service as being $2,069.00 per month.
On October 30, 2014 SSA confirmed that appellant received SSA retirement benefits
which included benefits based upon his federal service for the periods February 1, 2009 to
December 31, 2011 and January 1, 2013 to October 18, 2014. The documents detailed the
portion of SSA retirement benefits based upon appellant’s federal service that should have been
offset against FECA compensation. OWCP failed to offset FECA compensation for the periods
February 1, 2009 to December 31, 2011 and January 1, 2013 to October 18, 2014 to reflect this
receipt of SSA benefits based on federal service.
In a December 3, 2014 notice, OWCP advised appellant of its preliminary determination
that he had received an overpayment of compensation in the amount of $34,594.18 for the
periods February 1, 2009 to December 31, 2011 and January 1, 2013 to October 18, 2014. It
noted that the overpayment was created because SSA benefits attributable to federal service had
not been offset as required against appellant’s FECA compensation for these periods.4 OWCP
also made a preliminary determination that appellant was at fault in the creation of the
3

Appellant was advised that he might be subject to criminal prosecution if he made a false statement or
misrepresentation of a material fact in claiming a payment of benefits under FECA or fraudulently concealed or
failed to report income or other information which could have an effect on benefits.
4

In its December 3, 2014 notice, OWCP provided an extensive discussion of how the overpayment was created
during the periods February 1, 2009 to December 31, 2011 and January 1, 2013 to October 18, 2014 due to the
failure to offset the portion of SSA benefits attributable to federal service. The record contains several worksheets
and payment records supporting these calculations.

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overpayment because he made incorrect statements as to material facts on EN1032 forms which
he knew or should have known to be incorrect. OWCP indicated that on EN1032 forms
completed on March 1, 2010, February 9, 2011, February 8, 2012, January 31, 2013, and
February 10, 2014, appellant responded “no” in response to a question about whether he received
benefits from SSA as part of an annuity for federal service despite the fact that he received such
SSA benefits for the periods covered by the forms.
In its December 3, 2014 notice, OWCP further advised appellant that he could submit
evidence challenging the fact, amount, or finding of fault and request waiver of the recovery of
overpayment. It informed appellant that he could submit additional evidence in writing or at
prerecoupment hearing, but that a prerecoupment hearing must be requested within 30 days of
the date of the written notice of overpayment. OWCP requested that appellant complete and
return an enclosed financial information questionnaire (Form OWCP-20) within 30 days even if
he was not requesting waiver of the recovery of overpayment. Appellant did not respond to
OWCP’s December 3, 2014 notice within the allotted period.
In a March 23, 2015 decision, OWCP finalized the overpayment of compensation in the
amount of $34,594.18 for the periods February 1, 2009 to December 31, 2011 and January 1,
2013 to October 18, 2014. It found that appellant was at fault in the creation of the overpayment,
thereby precluding waiver of recovery of the overpayment. OWCP required repayment of the
overpayment by deducting $445.05 from appellant’s continuing compensation payments every
28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.5 Section 8116 limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.6 Section 10.421 of the implementing
regulations provide that an employee may not receive compensation for total disability
concurrently with separation pay.7 FECA Bulletin No. 97-9 states that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.8 When OWCP discovers concurrent
receipt of benefits, it must declare an overpayment of compensation and give the usual due
process rights.9

5

5 U.S.C. § 8102(a).

6

Id. at § 8116(a).

7

20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007).

8

FECA Bulletin No. 97-9 (issued February 3, 1997).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.17.d(4) (April 1996).

3

ANALYSIS -- ISSUE 1
The record supports that appellant received ongoing FECA wage-loss compensation
commencing June 16, 2002 and continuing and that he received SSA benefits commencing
February 1, 2009. The portion of SSA benefits appellant earned as a federal employee was part
of his FERS retirement package, and the receipt of benefits under FECA and federal retirement
benefits concurrently is a prohibited dual benefit.10 Appellant’s FECA compensation was not
offset until October 19, 2014. SSA notified OWCP of the applicable SSA rates for appellant and
their effective dates. Based on these rates, OWCP was able to calculate the dual benefits
appellant received during the periods February 1, 2009 to December 31, 2011 and January 1,
2013 to October 18, 2014 which yielded an overpayment of compensation in the amount of
$34,594.18. The record includes overpayment worksheets explaining the overpayment
calculation. Therefore, OWCP properly determined that appellant received a $34,594.18
overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.11 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”12 No waiver of recover of payment
is possible if the claimant is not “without fault” in helping to create the overpayment.13
In determining whether an individual is not “without fault” or alternatively “at fault” in
the creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations
provide in relevant part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or
she knew or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should
have known to be material; or

10

FECA Bulletin No. 97-9, supra note 8.

11

5 U.S.C. § 8129(a).

12

Id. at § 8129(b).

13

L.J., 59 ECAB 264 (2007).

4

(3) Accepted a payment which he or she knew or should have
known to be incorrect….”14
Section 10.433(b) of OWCP’s regulations provide:
“Whether or not OWCP determines that an individual was at fault with respect to
the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”15
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the $34,594.18
overpayment of compensation for the periods February 1, 2009 to December 31, 2011 and
January 1, 2013 to October 18, 2014 because he made incorrect statements as to material facts
regarding SSA benefits on EN1032 forms which he knew or should have known to be incorrect.
It found that, due to this finding of fault, waiver of recovery of the overpayment was precluded.
The Board finds that the evidence of record supports a finding of fault for the portion of
the overpayment created during the periods February 1, 2009 to December 31, 2011 and
January 1, 2013 to February 10, 2014. On EN1032 forms completed on March 1, 2010,
February 9, 2011, February 8, 2012, January 31, 2013, and February 10, 2014, appellant
responded “no” in response to a question about whether he received benefits from SSA as part of
an annuity for federal service. However, he had in fact received such SSA benefits for
February 1, 2009 to December 31, 2011 and January 1, 2013 to February 10, 2014. The EN1032
forms advised appellant of the materiality of correctly reporting income and benefits information
and the Board finds that he was aware or should have been aware of the need to report SSA
retirement benefits attributable to his federal employment.16
Because OWCP properly found appellant at fault for the portion of the overpayment
created during the periods February 1, 2009 to December 31, 2011 and January 1, 2013 to
February 10, 2014, waiver of recovery of the portion of the overpayment created during these
periods is precluded.17
The Board further finds that the evidence of record does not support a finding of fault for
the portion of the overpayment created during the period February 11 to October 18, 2014. On a
Form EN1032 completed on March 5, 2015, appellant responded “yes” in response to this
question and listed the benefits received from SSA as part of an annuity for federal service as

14

20 C.F.R. § 10.433(a).

15

Id. at § 10.433(b).

16

On appeal appellant asserted that he was not at fault in the creation of the overpayment of compensation, but he
did not adequately explain the basis for this assertion with respect to the periods February 1, 2009 to December 31,
2011 and January 1, 2013 to February 10, 2014.
17

See supra notes 13 and 14.

5

being $2,069.00 per month. Therefore, OWCP improperly found that appellant was at fault for
the portion of the overpayment created during the period February 11 to October 18, 2014.
Under 20 C.F.R. § 10.434, when a claimant is without fault in the creation of the
overpayment for a given period, OWCP may only recover the overpayment, in accordance with
section 8129(b) of FECA,18 if a determination has been made that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.19
Therefore, the case shall be remanded to OWCP for further development with respect to whether
appellant is entitled to waiver of the recovery of overpayment under these standards for the
period February 11 to October 18, 2014.20
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $34,594.18 and that he was at fault in the creation of the overpayment for the periods
February 1, 2009 to December 31, 2011 and January 1, 2013 to February 10, 2014, thereby
precluding waiver of recovery of the portion of the overpayment created during these periods.
The Board further finds that appellant was not at fault in the creation of the overpayment for the
period February 11 to October 18, 2014 and, therefore, the case is remanded to OWCP for
further development regarding waiver of recovery of the overpayment for the portion of the
overpayment created during the period February 11 to October 18, 2014.

18

5 U.S.C. § 8129(b).

19

The guidelines for determining whether recovery of an overpayment would defeat the purpose of FECA or
would be against equity and good conscience are set forth in 20 C.F.R. §§ 10.436 and 10.437.
20

Given the Board’s disposition of the fault and waiver issues of this case, it is premature to consider whether
OWCP properly required repayment of the overpayment by deducting $445.05 from appellant’s compensation
payments every 28 days.

6

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed with respect to the fact and amount of the
overpayment and it is affirmed in part with respect to fault in the creation of the overpayment.
The case is remanded to OWCP for proceedings consistent with this decision of the Board.
Issued: January 29, 2016
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

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

Docket No. 10-468
Issued: September 22, 2010

Case Submitted on the Record

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

JURISDICTION
On December 8, 2009 appellant filed a timely appeal from the October 21, 2009 merit
decision of the Office of Workers’ Compensation Programs, which found her at fault in an
overpayment of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant was at fault in creating a $28,424.00 overpayment of
compensation from April 13, 2008 to February 14, 2009.
FACTUAL HISTORY
In March 2000 appellant, a 27-year-old clerk, filed a claim alleging that she developed a
left hand injury in the performance of duty. Her left hand had been tingling and going numb and
it was painful for her to type. The Office accepted her claim for left wrist enthesopathy and

organic writer’s cramp.1 She received compensation for temporary total disability on the
periodic rolls. In September 2007 appellant elected to receive disability retirement benefits in
lieu of workers’ compensation. She cancelled her direct deposit.
On March 6, 2008 the Office issued a schedule award for a 31 percent impairment of
appellant’s left upper extremity. It informed her that the award would run through October 28,
2009 with regular payments each 28 days. The Office advised that she could instead receive a
lump-sum payment of $48,717.23 as of April 13, 2008. “Any lump[-]sum payment will
represent full and final compensation payment for the period of the award.” Appellant agreed to
accept a lump-sum settlement. She indicated her understanding that “no further monetary
compensation benefits will be extended to me for the duration of the schedule award.”
The Office paid appellant the lump sum for her schedule award; however, it mistakenly
continued to send her schedule award payments of $2,584.00 every 28 days until
February 14, 2009.
The Office made a preliminary determination that appellant received a $28,424.00
overpayment of compensation from April 13, 2008 to February 14, 2009 because she received
dual payments: both a lump-sum settlement and periodic payments covering the same period. It
found her at fault because she accepted payments that she new or reasonably should have known
were incorrect.
Appellant requested a prerecoupment hearing. She explained that a claims examiner told
her the payments were for an increase in the award she received for her right upper extremity in
another case. Given her geographical location, the issue involved in her case and the number of
hearing requests in her area, the Office determined that appellant’s oral hearing would be
conducted by telephone conference. At the oral hearing, appellant testified that she did not have
the payments in her possession because she spent them on past bills and medications.
In a decision dated October 21, 2009, the Office finalized its preliminary determination.
It found appellant at fault in creating a $28,424.00 overpayment of compensation from April 13,
2008 to February 14, 2009. The Office found that she was at fault because the settlement
agreement put her reasonably on notice that once she received the lump-sum settlement she
could not receive further schedule award payments. The hearing representatives found no
evidence documenting appellant’s contention that she was told the payments were for her right
upper extremity under another claim. Because appellant was at fault, the hearing representative
denied waiver.
Appellant maintains on appeal that the money she received was for her right upper
extremity. She argues detrimental reliance. Appellant also noted that she requested an oral
hearing, not a telephone conference.

1

The Office combined appellant’s case file with OWCP File No. xxxxxx228 (master file), which related to a
traumatic injury on February 27, 1997 that the Office accepted for right wrist sprain, contusion and injury to the
median nerve.

2

LEGAL PRECEDENT
Section 8129(a) of the Federal Employees’ Compensation Act 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. Section 8129(b) describes the only exception to the Office’s
obligation to adjust later payments:
“Adjustment or recovery by the United States may not be made when incorrect
payment had 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.”2
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments she received
from the Office are proper. The recipient must show good faith and exercise a high degree of
care in reporting events which may affect entitlement to or the amount of benefits. A recipient
who has done any of the following will be found to be at fault with respect to creating an
overpayment: (1) Made an incorrect statement as to a material fact which she knew or should
have known to be incorrect; or (2) Failed to provide information which she knew or should have
known to be material; or (3) Accepted a payment which she knew or should have known to be
incorrect (this provision applies only to the overpaid individual).3
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 she is being overpaid.4
The fact that the Office may have erred in making the overpayment does not by itself
relieve the individual who received the overpayment from liability for repayment if the
individual was also at fault in accepting the overpayment.5 However, the Office may find that
the individual was not at fault if failure to report an event affecting compensation benefits, or
acceptance of an incorrect payment, occurred because:
(1) the individual relied on
misinformation given in writing by the Office (or by another government agency which she had
reason to believe was connected with the administration of benefits) as to the interpretation of a
pertinent provision of the Act or its regulations; or (2) the Office erred in calculating cost-of-

2

5 U.S.C. § 8129(b).

3

20 C.F.R. § 10.433(a).

4

Id. at § 10.433(b).

5

Id. at § 10.433(a).

3

living increases, schedule award length or percentage of impairment, or loss of wage-earning
capacity.6
At the discretion of the hearing representative, an oral hearing may be conducted by
telephone or teleconference.7
ANALYSIS
An overpayment arose when the Office paid appellant a lump sum to settle her March 6,
2008 schedule award but neglected to stop her regular schedule award payments. So in addition
to receiving a lump sum of $48,717.23 for the period April 13, 2008 to October 28, 2009,
appellant received 11 additional payments of $2,584.00 each from April 13, 2008 through
February 14, 2009. These additional payments total $28,424.00 and constitute a dual payment of
compensation to which she was not entitled The Board will therefore affirm the Office’s
October 21, 2009 decision on the issues of fact and amount of overpayment.
The Office found that appellant was at fault in the matter because she accepted payments
that she knew or should have known were incorrect. Appellant testified at the oral hearing that
she spent the money and her case record shows that none of the 11 compensation checks in
question was ever canceled. So acceptance is established. The question is whether appellant
knew or should have known that these continuing payments were incorrect.
The lump-sum settlement agreement put appellant on notice that she would receive no
further monetary compensation for the duration of the schedule award, or from April 13, 2008
through October 28, 2009. As she was entitled to no other compensation at the time, she should
have questioned why the Office sent her a $2,584.00 check dated May 10, 2008 for the period
April 13 to May 10, 2008.8 Under the circumstances, she should have known that she would
receive no further payment of compensation through October 28, 2009 and that the May 10,
2008 payment was incorrect but she accepted that payment and the next 10 incorrect payments of
$2,584.00 and she spent the money.
The Board finds that appellant was at fault in creating the overpayment because she
accepted payments that she knew or should have known were incorrect. The Board will
therefore affirm the Office’s October 21, 2009 decision on the issue of fault.
Appellant argues that the claims examiner in her other case told her the payments were
issued for her right upper extremity. The Board has reviewed the other case record, which the
Office has doubled with this one, and can find no evidence to support appellant’s assertion.
None of the incoming or outgoing correspondence or telephone calls mentions the matter. The
record shows that appellant received a schedule award for her right upper extremity from
January 12, 1998 to March 24, 1999. She filed a claim for an increased schedule award on
September 1, 2007 for her right upper extremity, but the Office has issued no decision on her
6

Id. at § 10.435.

7

Id. at §§ 10.439, 10.615.

8

Check No. 39323879.

4

claim. Without a schedule award decision notifying appellant that the Office accepted a specific
percentage increase in her right upper extremity impairment, she had no reasonable basis to
contend that the checks she received after April 13, 2008 were for her right upper extremity. The
Board finds that appellant did not establish any misinformation given in writing by the Office.
Because appellant is at fault in creating this overpayment, she is not eligible for
consideration of waiver. She argued detrimental reliance on appeal, but neither that nor her
monthly income and expenses matter. The Office must recover the debt.
Appellant takes exception to the telephone conference she received from the Office
hearing representative, but whether to conduct a telephone conference in lieu of an in-person oral
hearing is left by regulation to the discretion of the hearing representative. The form of the
hearing should have been no impediment to any witness willing to give testimony.
CONCLUSION
The Board finds that appellant was at fault in creating a $28,424.00 overpayment of
compensation from April 13, 2008 to February 14, 2009; therefore, waiver of the recovery of the
overpayment was not warranted.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 22, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Williston, VT, Employer
__________________________________________

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

Docket No. 13-1616
Issued: November 14, 2013

Case Submitted on the Record

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

JURISDICTION
On June 27, 2013 appellant filed a timely appeal from the February 27, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on June 8, 2012.

1
2

5 U.S.C. §§ 8101-8193.

Appellant submitted additional evidence after OWCP’s February 27, 2013 decision, but the Board cannot consider
such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On June 12, 2012 appellant, then a 57-year-old law enforcement specialist, filed a
traumatic injury claim alleging that she sustained a left foot sprain when she tripped on uneven
pavement in the back parking lot of her work premises.3 She stopped work on June 8, 2012 and
returned on June 12, 2012.
In support of her claim, appellant submitted June 8, 2012 x-rays of her left foot,
containing an impression of “no fracture identified” and a recitation of “foot pain” under signs
and symptoms.4 She also submitted June 8, 2012 treatment notes from attending physician’s
assistants, Deborah Governale and Richard Dooley; June 19, 2012 treatment notes from an
attending advanced practical nurse, Patricia Towle; September 7, October 10 and December 12,
2012 treatment notes from an attending nurse practitioner, Carol Blattspieler; and physical
therapy notes dated between September 10 and October 13, 2012.
In a January 23, 2013 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of her claim. Appellant was advised regarding the need to submit
medical evidence from a physician under FECA.
Appellant resubmitted a copy of the December 12, 2012 notes of Ms. Blattspieler.
In a February 27, 2013, OWCP denied appellant’s claim for a June 8, 2012 work injury
on the grounds that she did not submit sufficient probative medical evidence to support the
occurrence of such an injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained 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 compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6

3

On the same form, appellant’s supervisor checked a box indicating that the claimed injury occurred in the
performance of duty. Appellant submitted the statement of a coworker who witnessed the claimed injury.
4

The x-ray findings were signed by an attending physician and contained a history of the June 8, 2012 work
incident.
5

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990). A traumatic
injury refers to injury caused by a specific event or incident or series of incidents occurring within a single workday or
work shift whereas an occupational disease refers to an injury produced by employment factors which occur or are
present over a period longer than a single workday or work shift. 20 C.F.R. § 10.5 (q), (ee); Brady L. Fowler, 44
ECAB 343, 351 (1992).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
Under FECA, the reports of nonphysicians, such nurses and physician’s assistants, do not
constitute probative medical evidence.10 Physical therapists also are not physicians under FECA
and are not qualified to provide the necessary medical evidence to meet a claimant’s burden of
proof.11
ANALYSIS
On June 12, 2012 appellant filed a traumatic injury claim alleging that she sustained a left
foot sprain when she tripped on uneven pavement. The Board finds that, although she
established the factual aspect of her claim, she did not submit sufficient probative medical
evidence to support that she sustained a medical condition due to the accepted incident.
In support of her claim, appellant submitted June 8, 2012 x-rays of her left foot,
containing an impression of “no fracture identified” and a recitation of “foot pain” under signs
and symptoms. Although the document was signed by a physician and contains a history of the
June 8, 2012 work incident, it would not support appellant’s claim because it does not contain a
diagnosis or an opinion on the cause of any observed condition. The phrase “foot pain” merely
refers to appellant’s reported symptoms rather than a diagnosis.
Appellant also submitted June 8, 2012 treatment notes from attending physician’s
assistants; June 19, 2012 treatment notes from an attending advanced practical nurse;
September 7, October 10 and December 12, 2012 treatment notes from an attending nurse
7

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
8

John J. Carlone, 41 ECAB 354, 356-57 (1989); see Federal (FECA) Procedure Manual, id.

9

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

10

See L.L., Docket No. 13-829 (issued August 20, 2013); Bertha L. Arnold, 38 ECAB 282, 285 (1986); 5 U.S.C.
§ 8101(2).
11

Jane A. White, 34 ECAB 515, 518-19 (1983).

3

practitioner; and physical therapy notes dated between September 10 and October 13, 2012.
However, these reports were all produced by nonphysicians under FECA and would not
constitute probative medical evidence on the main issue of this case.12 For these reasons,
appellant did not meet her burden of proof to establish that she sustained a work-related injury on
June 8, 2012.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on June 8, 2012.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

12

See supra notes 9 and 10.

4