United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. CAPITOL POLICE, PATROL DIVISION,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0710
Issued: November 2, 2016

Case Submitted on the Record

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

JURISDICTION
On February 26, 2016 appellant filed a timely appeal from a September 4, 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.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for subpoenas;
(2) whether OWCP properly found a $64,497.04 overpayment of compensation for the period
April 20, 2002 through February 8, 2014; (3) whether OWCP properly found appellant at fault in
the creation of the overpayment and, therefore, not entitled to waiver of recovery; and
(4) whether OWCP properly directed recovery of the overpayment by withholding $270.00 every
28 days from appellant’s continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that she was not at fault in creating the overpayment of
compensation and argues that recovery of the overpayment would be against equity and good
conscience.
FACTUAL HISTORY
On July 10, 1997 appellant, then a 37-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that on that date she sustained injuries during a driver’s training
exercise, when she struck her nose on the vehicle door frame. She stopped work on the date of
injury and has not returned. OWCP accepted the claim for an abrasion of the nose, forehead
contusion, nasal fracture, cervical strain, concussion, and cerebrospinal rhinorrhea. Appellant
has concurrent medical conditions of headaches, generalized anxiety disorder, and depression.
Since 1998, appellant has received compensation for total disability on the periodic rolls.
She received compensation at the augmented rate based on a dependent son, born June 29, 1982.
In all EN1032 forms, appellant was advised that, if the status of any dependent changed, she was
to notify OWCP. The EN1032 forms clearly advised at Part C, that compensation at the
augmented rate would be paid for an eligible dependent. The form advised that augmented
compensation could be claimed for an unmarried child, who lived with the claimant and was
under the age of 18; an unmarried child who was over the age of 18 but who could not support
himself or herself because of mental or physical disability; or an unmarried child between the
ages of 18 and 23 who was a full-time student and had not completed four years of school
beyond the high school level.
In an April 4, 2002 letter, OWCP advised appellant that it required additional information
to determine eligibility for her claimed dependent beyond his 18th birthday. Appellant was asked
to provide a statement and certification of school enrollment using attached forms to verify her
son’s student status. OWCP afforded appellant 30 days to submit additional evidence.
On April 10, 2002 appellant completed a Form EN1032. She claimed her son, born
June 29, 1982, as a dependent. On April 10, 2002 appellant also completed Form EN1617 and
advised that her son was enrolled full time in a course of study at Baltimore International
College. She indicated that he began attendance at the college on April 4, 2000 and that his
recent term ended April 19, 2002. A May 1, 2002 signature from the registrar of the college
accompanied the form.
On January 20, 2004 appellant completed a Form EN1032 and claimed her son as a
dependent. In 2004, she also relocated from Maryland to Washington State and informed OWCP
of her new address.
On February 14, 2005 appellant requested a change in her health plan from a family
health plan, to self-only coverage. Although OWCP issued a refund of oversubscribed health
insurance premiums for the period beginning November 28, 2004, it continued to pay augmented
compensation. In a December 31, 2005 Form EN1032, appellant claimed her son as an eligible
dependent.
On February 6, 2006 OWCP received a three-page letter from appellant, which indicated
that her compensation payments were wrong due to improper deductions. Appellant noted that
2

her son had turned 22 in 2004 and OWCP should not have continued to deduct for family health
insurance premiums.
On January 19, 2007 appellant advised on a Form EN1032 that her son was over the age
of 23 as of June 29, 2006 and was no longer a dependent. On her January 9, 2008 EN1032 form,
she reported that her son was not attending college and was no longer a dependent.
In a February 12, 2007 letter, appellant advised OWCP of her continued difficulties in
changing to a West Coast insurance plan and requested that her premium oversubscription be
corrected.
In her January 19, 2010 Form EN1032, appellant reported that her son stopped being a
dependent in March 2005 when he no longer attended school. In her January 30, 2011 Form
EN1032, appellant reported that her son was no longer a dependent as he was over the maximum
age for dependency, but she still supported him and that he provided care for her. In her
December 7, 2011 and January 4, 2013 Forms EN1032, appellant stated that her son stopped
being a dependent when he turned 23 years old. In her January 28, 2013 and December 17, 2014
Form EN1032, appellant advised that her son stopped being a dependent after college.
OWCP reduced appellant’s compensation to the basic statutory rate of 66 2/3 effective
February 9, 2014.
By letters dated February 21 and December 17, 2014, OWCP advised appellant that it
required additional information to determine eligibility for her dependent beyond his 18th
birthday, which occurred on June 29, 2000. It requested verification of his student status or
medical evidence establishing that he was incapable of self-support. Appellant was asked to
provide a statement and certification of school enrollment using attached forms. OWCP afforded
her 30 days to submit the requested evidence.
On January 21, 2015 OWCP received a written response from appellant. Appellant
indicated that her son completed high school in 2000 and that he stopped attending college in
2002. She indicated that she paid for his college expenses but she was having difficulty securing
a transcript. Appellant acknowledged that she continued to receive augmented compensation
even after she telephoned OWCP and reported that her son had finished school in Maryland. She
noted that she also filled out the yearly forms indicating the same. Appellant indicated that she
still supported her son since he cared for her following her injury. A copy of the transcript from
Baltimore International College indicated that appellant’s son withdrew from all classes after the
spring session of 2002, which ended April 19, 2002. During a January 27, 2015 call to OWCP,
appellant reported that she tried to enroll her son in college in Washington and that she had paid
something, but he did not attend.
In ACPS Manual/Fiscal Payment Worksheet and supporting documentation, OWCP
indicated that appellant’s son turned 18 years old on June 29, 2000. Appellant claimed him as a
dependent until the EN1032 dated January 19, 2007. There is no verification that appellant’s son
continued to attend college full time beyond April 19, 2002, the end of the spring 2002 term.
However appellant’s compensation rate was not adjusted until the periodic rolls payment
beginning February 9, 2014. OWCP indicated that for the period April 20, 2002 through

3

February 8, 2004, appellant received $578,119.83 in augmented compensation, but was only
entitled to $513,622.79 at the basic rate. This resulted in an overpayment of compensation in the
amount of $64,497.04.
On February 11, 2015 OWCP advised appellant that it had made a preliminary
overpayment determination in the amount of $64,497.04 for the period April 20, 2002 through
February 8, 2014, as she had received compensation at the augmented compensation rate when
she was entitled to the basic rate. It found that she was at fault in the creation of the
overpayment because she was aware or should have been reasonably aware that she was
accepting payments that exceeded her actual entitlement.
On March 10, 2015 OWCP received appellant’s request for a prerecoupment hearing
before an OWCP hearing representative. Appellant completed a Form OWCP-20 Overpayment
Recovery Questionnaire and included some supporting financial information. She reported a net
monthly income of $5,265.23 with monthly expenses of $5,221.02. Appellant claimed her adult
son, daughter-in-law, two cats, two dogs, and a parrot as dependents. No income from her son or
daughter-in-law was reported. Appellant denied responsibility for the overpayment and
requested a waiver. She argued that she would not have taken out several loans, if she knew of
the debt. Appellant also noted that her car payment was large as she had selected a short-term
loan.
Evidence submitted with the Form OWCP-20 Overpayment Recovery Questionnaire
included leave records from 1998 and 1999, a credit union bank statement and a Chase Bank
checking statement. A mortgage payment of $1,688.00 was documented. A car note of
$1,075.00 was documented, along with $79.00 in property taxes for a six-month period. Another
car payment was documented, but the debtor was not indicated. An electric bill of $211.00 was
submitted, as well as a semi-annual insurance payment for four vehicles of $531.00. A bill from
a homeowner’s association was in her son’s name. A minimum Capital One care payment of
$35.00 was noted, but the account holder was not identified. Television and Internet services
were in her son’s name, with monthly invoicing of $90.00. Taxes on the second lot of her
residence of $13.00. A Walmart card carried a $25.00 minimum payment. Propane bills were in
her son’s name. There was a January 2014 statement from a dentist. Annual dues for appellant’s
police lodge in Washington, DC were $50.00. Lowe’s and Home Depot lines of credit were
reported but not documented and no minimum payment was identified. The annual automobile
insurance premium on a Harley-Davidson was $52.50. Hardware and grocery bills were also
submitted, showing payment with cash or debit card.
In a March 31, 2015 letter, appellant requested a hearing before an OWCP hearing
representative in Washington, DC as her witnesses and family lived in that vicinity. She
requested that the Branch of Hearings and Review subpoena a specific individual from the
employing establishment’s Human Resources office, so that she could challenge her salary and
the individual could testify to her difficulties with communication and speech. Appellant also
asked to subpoena OWCP telephone records from 2002 to show that she had advised OWCP that
she no longer had a dependent. She requested subpoenas of all the Form EN1032’s which she
had completed, along with her entire case file, and transcripts from a federal court case which
was unrelated to OWCP. Appellant argued that, since she had reported the change in
dependency, any resultant overpayment was not her fault.

4

On July 16, 2015 the prerecoupment hearing was held. Appellant represented herself at
the hearing and was assisted by her son. She challenged the accuracy of her salary from 1998
onward and argued that she had asked for her pay scale, but it was not been provided.2 Appellant
also testified that she had correctly completed the forms in 2007. The human resource specialist
for the employing establishment also testified. She indicated that she had to repeat herself with
appellant and that appellant appeared confused when discussing her claim. Appellant indicated
that her mother helped her complete her tax returns, and the EN1032 forms. Her son testified
that appellant was on a lot of medication and had frontal lobe damage. Appellant indicated that
she was unable to find a doctor near her new home and continued to see her doctor in Maryland
until 2007. At that time, she stopped all medications, including narcotics.
Appellant testified as to her income and expenses. She indicated that she received
OWCP benefits, as well as Social Security Administration (SSA) income of $1,735.00 monthly.
For expenses, appellant reported a mortgage and two cell phone bills, propane and electricity
expenses, cable television and Internet services, homeowner association dues, and veterinary
bills. Appellant noted credit cards and that she had two car notes with an outstanding balance of
$54,000.00, as well as a second car loan for a vehicle she gave to her son. She noted that she
also owned an old pickup and another car, which belonged to her son. Propane usage was
around $800.00 annually, as they used a wood stove. Appellant reported a plumbing bill of
$600.00 for April. She advised that she had transferred most of her assets to her son after her
injury. Appellant noted that she owned investment property in Arizona, from which she pays
$265.00 monthly. She briefly discussed an overpayment proceeding caused by a reimbursement
for pharmacy expenses many years ago.3
Appellant testified that she had attempted to work after her injury, but could not complete
paperwork and therefore stopped work. Her physicians could not identify any pathology, but she
reported difficulty reading. Appellant also testified as to the seriousness of her injuries, and that
she lost her job and her life was significantly changed by the event.
Appellant noted that in 2002 she telephoned her examiner to report that her son finished
college, but no change in payment status followed. She expressed confusion with how to
complete paperwork, and indicated that calling OWCP did not help. Appellant’s son testified
that he did not work, but his wife occasionally walked dogs or painted houses in addition to
being a life coach. He reported earnings of between $8,000.00 and $10,000.00 annually.
Following the hearing, appellant submitted copies of letters from 2003 and 2005, which
noted difficulty with travel reimbursement and provided bank account information. No
argument or evidence was submitted which challenged the period or calculation of the
overpayment. No additional financial information was submitted.
Appellant provided a copy of the hearing transcript, with handwritten annotations. She
also provided a two-page handwritten argument. Appellant referenced, but did not submit, a
2

Appellant was advised that the pay rate was set on February 4, 1998 at $51,501.00.

3

The hearing representative requested that appellant provide at least two recent billing cycles of each income and
expenses she wished OWCP to consider.

5

credit statement. She stated that in 2006, she was admitted for voluntary psychiatric observation.
Appellant reiterated that she had notified OWCP when her son finished college. She indicated
that her son’s father stopped paying child support after her injury and that he took advantage of
her cognitive problems.
In a March 3, 2002 report, Dr. Michael S. Diamond, an internist, indicated that he had
followed appellant for a year for anxiety and mood disorder due to head trauma. Examination
findings revealed no evidence of cognitive impairment. Dr. Diamond noted that appellant
recently had some of her poetry published. In a September 23, 2002 report, he noted that her
concentration was poor and that she reported being variably forgetful, but reported that overall
cognitive status had improved.
In a May 5, 2003 letter, Dr. Robert D. Gerwin, a Board-certified psychiatrist, indicated
that appellant told him that she could not fill out the travel vouchers required for reimbursement.
He noted that she had suffered a head injury, which had resulted in cognitive dysfunction, so it
had been difficult, if not impossible, for her to fill out forms and carry out a complex sequence of
events that are seemingly simple for others. Dr. Gerwin opined that this was a permanent
impairment. In a November 1, 1999 note, he noted that appellant had “difficulty with thinking.”
By decision dated September 4, 2015, an OWCP hearing representative denied
appellant’s request for subpoenas. He denied the subpoena request for copies of documents in
appellant’s case file, including the EN1032 forms, as they had been provided to appellant on
April 7 and 16, 2015 and were also available from OWCP electronically. As appellant failed to
offer any argument as to how the records she requested from an unspecified federal court case
would be relevant or controlling in the instant case, that subpoena request was also denied. As
she had requested the attendance of a specified human resource specialist at the hearing and the
specialist indicated her desire to participate and had participated at the hearing, no subpoena was
warranted.
The hearing representative affirmed that an overpayment of compensation in the amount
of $64,497.04 occurred during the period April 20, 2002 through February 8, 2014, for which
appellant was with fault. He found no medical evidence on file diagnosing appellant with a
cognitive deficit and that appellant should have been reasonably aware that she had accepted
compensation at a rate to which she was not entitled. The hearing representative also found that
while appellant provided incomplete documentation of income and expenses, she had a monthly
income of $5,562.00 and monthly expenses of $5,221.00.4 As the difference was more than the
required $50.00, the hearing representative found that a repayment of $270.00 from each
periodic rolls check could be recovered.
LEGAL PRECEDENT -- ISSUE 1
Section 8126 of FECA provides that the Secretary of Labor, on any matter within his
jurisdiction under the subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.5 The implementing regulations provide that a claimant
4

This figure was based on all expenses as reported.

5

5 U.S.C. § 8126(1).

6

may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers, or other documents.
Subpoenas are issued for documents only if they are relevant and cannot be obtained by other
means and for witnesses only where oral testimony is the best way to ascertain the facts.6 In
requesting a subpoena, a claimant must explain why the testimony is relevant to the issues in the
case and why a subpoena is the best method or opportunity to obtain such evidence because there
is no other means by which the testimony could have been obtained.7
To request a subpoena, the requestor must submit the request in writing and send it to the
hearing representative as early as possible, but no later than 60 days (as evidenced by postmark,
electronic market or other objective date mark) after the date of the original hearing request.8
Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment or actions taken which are clearly contrary to logic and probable deduction
from established facts.9
ANALYSIS -- ISSUE 1
Appellant requested that OWCP subpoena documents in her case file, including the
EN1032 forms, records from an unspecified federal court case, and the attendance of a human
resource specialist at her hearing. The hearing representative denied appellant’s requests for
subpoenas in the above matter.
The Board finds that the hearing representative acted within his discretion in denying the
request for subpoenas. Copies of documents in appellant’s case file, including the EN1032
forms, had been provided to appellant prior to the hearing and were also available from OWCP
electronically. While appellant requested that the records from an unspecified federal court case
be subpoenaed, she did not establish the necessity of those documents, and how the federal case
was applicable to her case. Finally, the Board notes that the human resource specialist from the
employing establishment did participate in the hearing. Accordingly, the Board finds that the
hearing representative properly denied appellant’s subpoena request.
LEGAL PRECEDENT -- ISSUE 2
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from a personal injury sustained while in the performance of duty.10 If
the disability is total, the United States shall pay the employee during the period of total
disability the basic compensation rate of 66 2/3 percent of his or her monthly pay. A disabled
6

20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001).

7

Id.

8

Id. at § 10.619(a)(1).

9

See R.H., Docket No. 14-220 (issued May 2, 2014). Claudio Vazquez, 52 ECAB 496 (2001).

10

5 U.S.C. § 8102(a).

7

employee is entitled to an augmented compensation rate of 75 percent of his or her monthly pay
if he or she has one or more dependents.11
A dependent includes an unmarried child who, while living with the employee or
receiving regular contributions from the employee toward his or her support, is either under 18
years of age or over 18 years of age and incapable of self-support due to physical or mental
disability.12 A child is also considered a dependent if he or she is an unmarried student under 23
years of age who has not completed four years of education beyond the high school level and is
currently pursuing a full-time course of study at a qualifying college, university, or training
program.13
If a claimant received compensation at the augmented rate during a period when he or she
did not have an eligible dependent, the difference between the compensation that was disbursed
at the 75 percent augmented rate and the compensation that should have been disbursed at the
66 2/3 percent basic rate constitutes an overpayment of compensation.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $64,497.04 for the period April 20, 2002 through February 8,
2014, as she received compensation at the augmented rate when she did not have any eligible
dependents.
Appellant was paid augmented compensation for her dependent son, born June 29, 1982,
until February 8, 2014. Although her son had reached age 18 on June 29, 2000, she continued to
receive augmented compensation through February 8, 2014. OWCP asked appellant to provide
documentation that her son was either in school full time or disabled due to a mental or physical
condition, and she verified his eligibility as a qualified dependent up to April 19, 2002, when his
college spring 2002 term ended. The evidence of record does not establish that appellant’s son
was pursuing a full-time course of study as defined under FECA during the period of the
overpayment. The Board finds that after April 19, 2002 appellant was no longer entitled to
augmented compensation, as there is no evidence to support that her son was a qualified
dependent as of April 20, 2002.
Payroll records establish that OWCP continued to pay appellant compensation at the
augmented rate from April 20, 2002 through February 8, 2014, which amounted to a total of
$578,119.83. Appellant, however, was only entitled to receive $513,622.79 in compensation at
the basic rate, resulting in an overpayment of compensation in the amount of $64,497.04.
Accordingly, the Board finds that OWCP properly determined an overpayment of compensation
in the amount of $64,497.04.
11

See O.R., 59 ECAB 432, 436 (2008). See also 5 U.S.C. §§ 8105(a) and 8110(b).

12

5 U.S.C. § 8110(a).

13

See E.G., 59 ECAB 599, 603 n.10 (2008).

14

See Ralph P. Beachum, Sr., 55 ECAB 442, 445 (2004).

8

LEGAL PRECEDENT -- ISSUE 3
According to section 8129(a) of FECA, adjustment or recovery shall be made under
regulations prescribed by the Secretary of Labor when an overpayment of compensation was
made because of an error of fact or law.15 The only exception is if the individual is without fault
in the creation of the overpayment and when adjustment or recovery would defeat the purpose of
FECA or would be against equity and good conscience.16 Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
receives from OWCP are proper.17 A recipient is at fault in the creation or acceptance of an
overpayment if he has done any of the following: (1) made an incorrect statement as to a
material fact which he knew or should have known to be incorrect; (2) failed to provide
information which he knew or should have known to be material; or (3) accepted a payment
which he knew or should have known to be incorrect.18
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of FECA or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.19
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly found appellant at fault in the creation of the
overpayment and, therefore, not entitled to waiver of recovery.
When appellant was placed on the periodic rolls she was advised of her augmented
compensation rate. The EN1032 forms appellant submitted up to January 19, 2007 clearly
advised at Part C, that compensation at the augmented rate would be paid for an unmarried child
between 18 and 23 who is a full-time student. Appellant provided verification of her son’s
student status up to April 19, 2002, but at no time thereafter, although she continued to claim him
as a dependent until January 19, 2007.
Therefore, the Board finds that appellant accepted payments that she knew or should have
known were incorrect. She was responsible for taking all reasonable measures to ensure that
payments she received from OWCP were proper. Although appellant was advised by OWCP on
April 4, 2002 that she had to verify her son’s eligibility for dependent status beyond his 18th
birthday, and she provided verification up to April 2002, appellant thereafter accepted
compensation payments that were clearly based on having one or more dependents. She
15

Id. at § 8129(a).

16

Id. at § 8129(b).

17

20 C.F.R. § 10.433(a). See K.C., Docket No. 11-1307 (issued January 10, 2012).

18

Id. See B.H., Docket No. 09-292 (issued September 1, 2009).

19

Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

9

accepted payments that she knew or should have known were incorrect. For this reason, the
Board finds that appellant was at fault in creating the overpayment. The Board will affirm
OWCP’s decision regarding fault.20
While appellant had offered argument that she was of diminished mental capacity or had
difficulty with speech and communication, there is no reasoned medical report of record which
either diagnosed a cognitive deficit or supports her argument. Dr. Gerwin indicated that
appellant suffered a head injury which resulted in cognitive dysfunction in his May 5, 2003
report, but he offered no studies or objective evidence to support such contention. While he
noted in his November 1, 1999 report, that appellant had difficulty with thinking, he again
offered no diagnosis or evidence to support this statement. Dr. Diamond, in his reports from
2002, failed to find any evidence of cognitive impairment. The Board thus finds appellant at
fault under the third standard, as she accepted compensation which she knew she was not entitled
to receive21 and, as such, recovery of the overpayment of compensation in the amount of
$64,497.04 may not be waived.
LEGAL PRECEDENT -- ISSUE 4
Section 8129(a) of FECA provides, in pertinent part, that when an overpayment has been
made to an individual under this subchapter because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which an individual is entitled.22 OWCP’s implementing regulations provide that, if an
overpayment of compensation has been made to an individual entitled to further payments and
no refund is made, it shall decrease later payments of compensation, taking into account the
probable extent of future payments, the rate of compensation, the financial circumstances of the
individual and any other relevant factors, so as to minimize any hardship.23
ANALYSIS -- ISSUE 4
The Board finds that OWCP properly directed recovery of the overpayment by
withholding $270.00 every 28 days from appellant’s continuing compensation payments.
Appellant has provided incomplete documentation of income and expenses. In an
overpayment recovery questionnaire (Form OWCP-20) dated February 20, 2015, appellant
reported a monthly income of $5,265.23 with monthly expenses of $5,221.02. The hearing
representative found income was partially established based on FECA wage-loss payments of
$3,532.62 every 28 days and the reported social security benefits of $1,735.00. The Board notes
that the sums total $5,267.62.24 Appellant also reported monthly expenses of $5,486.02. The
20

See S.F., Docket No. 08-1972 (issued March 18, 2009).

21

5 U.S.C. § 8129(b).

22

Id. at § 8129.

23

20 C.F.R. § 10.441(a).

24

The hearing representative, however, found appellant’s total reported income to be $5,562.00 monthly, but did
not account for the $30.00 difference between partially established amount. The Board finds that this is harmless
error.

10

hearing representative found that the following expenses were established: the mortgage
payment at $1,688.00; a 2013 care note payment at $1,075.00; taxes on the second lot of her
residence $13.00; the Walmart minimum account payment $25.00; monthly police union
membership $4.00; $400.00 monthly expenses for food and $25.00 for clothing; or a total of
$2,805.00. The hearing representative found that all other claimed expenses were either
undocumented, too old to be considered an expense, or reflected ownership by appellant’s adult
son.25 He found utilities expenses of $932.48 and other expenses of $240.00 to be
undocumented. The hearing representative noted that appellant’s son and daughter-in-law were
not dependents, and therefore their expenses relative to the household also could not be
considered.
The hearing representative found that even allowing all expenses as reported, but poorly
documented, the monthly expenses of $5,221.00 against the income of $5,562.00 equaled
$292.00 available funds for debt repayment.26 He converted this to a 28-day cycle and found
$270.00 was reasonable to recover from appellant’s continuing compensation payments.
In light of the fact that appellant’s income is only partially established and her expenses
are only partially documented, the Board finds that it was reasonable for the hearing
representative to recover $270.00 from appellant’s continuing compensation payments based on
monthly expenses of $5,221.00 against the income of $5,562.00.
OWCP procedures provide that, if a claimant is being paid compensation or is due
accrued benefits, the debt should be recovered from such benefits as quickly as possible.27
Accordingly, the Board finds that OWCP reasonably concluded that a repayment schedule of
$270.00 every 28 days would minimize any resulting hardship while effecting recovery of the
overpayment. The Board finds that this was reasonable in the absence of the limited financial
documentation proving otherwise.

25

This included the car loan for appellant’s son’s car. The electric bill was in the son’s name and the dental bill
was too old to be considered a current expense.
26

The correct calculation amounts to $291.00 in available funds for debt repayment.

27

See Frederick Arters, 53 ECAB 397 (2002).

11

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for subpoenas. The
Board further finds that OWCP properly determined that appellant received an overpayment of
compensation in the amount of $64,497.04 for the period April 20, 2002 through February 8,
2014, as she received augmented compensation without having any dependents. The Board also
finds that OWCP properly found her at fault in the creation of the overpayment and therefore not
entitled to waiver of recovery. The Board further finds that OWCP properly directed recovery of
the overpayment by withholding $270.00 every 28 days from appellant’s continuing
compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the September 4, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2016
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Loma Linda, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-975
Issued: April 9, 2010

Case Submitted on the Record

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

JURISDICTION
On March 3, 2009 appellant, through counsel, filed a timely appeal from decisions dated
March 27 and December 1, 2008 by the Office of Workers’ Compensation Programs that
terminated monetary compensation based on her refusal of suitable work. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that her refusal of suitable work was justified.
On appeal, she contends that she refused the offered position based on the effects of her
prescription narcotic medication.
FACTUAL HISTORY
This case was previously before the Board. In a May 8, 2007 decision, the Board
affirmed the Office’s July 26, 2006 decision terminating appellant’s compensation under 5

U.S.C. § 8106(c) on the grounds that she refused an offer of suitable work.1 The Board found
that the modified position of registered nurse assistant coordinator offered by the employing
establishment conformed with the restrictions recommended by Dr. Keola Chun, an attending
Board-certified orthopedic surgeon, and Dr. Bunsri T. Sophon, a second opinion Board-certified
orthopedic surgeon. The facts of the case as set forth in the Board’s prior decision are
incorporated by reference.2
On December 20, 2007 appellant, through her attorney, requested reconsideration before
the Office contending that the offered position was not suitable. She contended that the duties of
the offered position were not fully described and that the employing establishment did not
consider the effect of her medication on her ability to perform the modified duties of a nurse
assistant coordinator.
In an August 3, 2006 treatment note, Dr. Chun advised that appellant’s pain medication
would be refilled and that she remained at a permanent and stationary status with regard to work.
A progress note advised that appellant had restricted lumbar range of motion with paraspinal
tenderness along the area of her healed lumbar incision. Dr. Chun noted that appellant had been
offered a position as a nurse assistant coordinator. He stated: “While she has no difficulty with
the physical demands of the position, she does not feel able to perform the requisite duties
because of the sedative properties of the narcotic medications. This is a justifiable concern and a
reasonable explanation for not taking the position.” However, in a September 15, 2006 work
capacity evaluation form, Dr. Chun advised that there was no reason appellant could not work
eight hours a day. He listed physical restrictions based on the fusion of L4-L5. On November 2,
2006 Dr. Chun advised that appellant was cleared for a seven-hour workday. He noted that
appellant could take her pain medications during nonoffice hours and Tylenol or Motrin during
office hours. Dr. Chun provided work restrictions for a seven-hour workday. In a December 14,
2006 progress report, he noted that appellant had not been accepted back at work because of less
than full-time work restrictions and narcotic medication usage.
On January 15, 2007 Dr. Chun noted that appellant had not been accepted back at work.
He reiterated that she had restricted lumbar range of motion with tenderness to palpation without
evidence of lumbar radiculopathy. Dr. Chun advised that appellant had become symptomatic of
her retained spinal hardware and requested authorization for surgery to remove the hardware and
explore the fusion mass. On February 8, 2007 the Office authorized the surgery. Appellant
underwent surgery on August 16, 2007 by Dr. Gail E. Hopkins, an orthopedic surgeon and
associate of Dr. Chun.3
1

Docket No. 07-143 (issued May 8, 2007). On August 19, 2002 appellant injured her right arm and buttock when
she slipped and fell. The Office accepted the claim for contusion of the buttock, lumbosacral strain, lumbar disc
herniation, aggravation of trochanteric bursitis and lumbosacral radiculopathy. It authorized lumbar surgery which
was performed on May 17, 2004. An L5 laminectomy with bilateral facectomy and right iliac crest bone graft was
performed on August 3, 2004. The Office placed appellant on the periodic rolls in receipt of compensation for total
disability as of May 16, 2004.
2

On April 28, 2006 the employing establishment offered appellant modified duty full-time position. Appellant
rejected the position, contending she was unable to drive to work due to the effects of her medication.
3

During the interim, Dr. Chun submitted a report supporting appellant’s application for a disability retirement.

2

On October 9, 2007 Dr. Hopkins advised that appellant was diagnosed with failed back
syndrome with retained hardware. Following surgery, appellant complained of pain she rated as
10 on a scale of 1 to 10 with weakness to both legs. On examination, Dr. Hopkins noted full
muscle strength for all groups of the lower extremities, moderate tenderness to palpation, intact
sensation in all dermatomes and no pathologic reflexes. She advised that appellant’s lumbar
range of motion was unchanged. X-rays obtained of the lumbar spine were reported as showing
a stable fusion. Dr. Hopkins found that appellant was at maximum medical improvement and
was medically retired.
In a March 27, 2008 decision, the Office denied modification of the July 26, 2006
decision terminating appellant’s compensation under 5 U.S.C. § 8106. It found that the medical
evidence did not support appellant’s contention that the effects of her medication disabled her
from accepting the offered position.
On August 26, 2008 appellant, through her attorney, requested reconsideration
contending that the offered position was not suitable.
In a July 22, 2008 report, Dr. John B. Dorsey, a Board-certified orthopedic surgeon,
reviewed appellant’s history of injury and medical treatment. He related that, following her
spinal fusion surgery, appellant experienced severe pain requiring the use of large doses of
narcotics. Following surgery for removal of the hardware on August 16, 2007, appellant had
been totally disabled. Dr. Dorsey noted that she stopped work on April 29, 2004 due to pain and
her inability to function due to narcotic use. He listed appellant’s current complaint of pain as 10
on a scale of 0 to 10, with radiation into both lower extremities. On physical examination, he
noted that appellant walked with an antalgic gait, was able to heel and toe gait without evidence
of weakness or complaint of pain. Appellant’s posture was normal, without evidence of
scoliosis, kyphosis, lordosis or listing her leg lengths were equal. She complained of pain to
palpation of the parathoracic and paralumbar musculature with no palpable back spasm.
Dr. Dorsey set forth findings on range of motion of the spine and advised that straight leg raising
was positive on the left at 30 degrees and on the right at 60 degrees. He noted appellant’s
complaint of decreased sensation in the posterior calves and noted evidence of atrophy in the left
thigh. Dr. Dorsey also reviewed a statement by appellant, describing her situation and inability
to work.
Dr. Dorsey stated that he reviewed appellant’s medical records and diagnosed failed back
syndrome. He advised that, at this point, she was not able to engage in gainful employment due
to chronic pain and her dependence on narcotics. Dr. Dorsey recommended that appellant be
placed in a program to wean her off narcotics before rejoining the work force. He stated that, as
long as she took narcotics, they would impair her ability to make decisions and she would pose a
danger to herself and others. Dr. Dorsey concluded that appellant was unable to return to her
nursing profession since 2005 due to her drug addiction.
In a December 1, 2008 decision, the Office denied modification of its prior decision
terminating appellant’s compensation under 5 U.S.C. § 8106. It found the medical evidence
insufficient to support appellant’s contention that the April 2006 job offer was unsuitable due to
her medication.

3

LEGAL PRECEDENT
As the Office met its burden of proof to terminate compensation, the burden of proof
shifted to appellant to show that her refusal to work in the offered position was justified.4 An
employee who refuses or neglects to work after suitable work has been offered or secured for her
has the burden of establishing that such refusal or failure to work was justified.5
ANALYSIS
The Office accepted that appellant sustained a contusion to the buttocks, lumbosacral
strain, lumbar disc herniation, aggravation of trochanteric bursitis and lumbosacral
radiculopathy. It authorized lumbar surgery that was performed on August 3, 2004 for an L5
laminectomy with bilateral facectomy and right iliac crest bone graft, which was performed on
August 3, 2004. The Office terminated appellant’s wage-loss benefits compensation on July 26,
2006 after she refused an offer of suitable work. In the prior decision, the Board affirmed the
Office’s determination that appellant refused an offer of suitable work without sufficient reason.
With regard to her contention that her medications made her drowsy and unable to drive to work,
the Board noted that the reports of Dr. Chun and Dr. Sophon did not establish that appellant was
disabled from accepting the offered position due to any impairment based on the effect of her
medication. At the time of the termination of benefits, the medical evidence from Dr. Chun had
noted appellant’s medications for back pain but did not list any impairment due to the effects of
her medication. As of January 19, 2006, Dr. Chun listed appellant’s examination as stable,
refilled her medication and advised that she would be seen in follow-up in six months. On
February 13, 2006 Dr. Sophon reviewed the medications taken by appellant and noted that she
was alert, well oriented with good memory function with no communication disorder during the
examination. He also found that appellant sat comfortably during the examination and was able
to ambulate and rise without difficulty.
Because the Office met its burden of proof to terminate appellant’s compensation
effective July 26, 2006 for refusing an offer of suitable work, it is appellant’s burden to establish
that her refusal to accept employment was justified at the time offered.6 The Board finds that the
medical evidence is not sufficient to establish that appellant was disabled in July 2006 from
accepting the offered position due to the effects of her medication.
The treatment notes from Dr. Chun do not establish that appellant was unable to accept
the offered position due to the effects of her medications. On August 3, 2006 Dr. Chun reiterated
that appellant was at a permanent and stationary status and that she had been offered the nurse
assistant coordinator position. He noted appellant’s belief that she was unable to perform the
duties of the position due to the sedative properties of her medication stating: “This is a
justifiable concern and a reasonable explanation for not taking the position.” This sole statement
4

See M.S., 58 ECAB 328 (2007); Ronald M. Jones, 52 ECAB 190 (2000).

5

Gloria J. Godfrey, 52 ECAB 486 (2001); Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R.
§ 10.517(a).
6

Supra note 5.

4

is not a well-rationalized medical opinion on the issue. There was no discussion by Dr. Chun of
the medications taken by appellant, the doses of medications he prescribed or that she took, or
how the medications impacted appellant’s ability to concentrate or otherwise impaired her from
performing the duties of the offered position. Rather, it appears that Dr. Chun based his
statement largely on appellant’s stated belief that she could not return to work. Moreover, the
subsequent reports from Dr. Chun are inconsistent with the opinion that appellant’s concern for
her medications was a reasonable basis for not accepting the position. On September 15, 2006
Dr. Chun advised that there were no reasons appellant could not work an eight-hour day. On
November 2, 2006 he cleared appellant for a return to work for seven hours a day, advising that
she could take Tylenol or Motrin during work hours and her prescription medications when she
was not working. This medical evidence is not sufficient to establish that the effects of
appellant’s medications prevented her from accepting the April 28, 2006 job offer.
On July 22, 2008 Dr. Dorsey examined appellant and stated that she had been addicted to
narcotic pain medication since 2005. He based his opinion on a history that appellant had
experienced severe pain following surgery in 2004 which required large doses of narcotic
medication. Dr. Dorsey noted that she was disabled after surgery on August 16, 2007 and
remained totally disabled. He noted that appellant had stopped work on April 29, 2004 due to
pain and her inability to function to due narcotic use. Although Dr. Dorsey stated that he had
reviewed appellant’s medical records, he did not specifically address the reports or findings of
Dr. Chun or Dr. Sophon contemporaneous to the April 2006 job offer. He did not explain the
specific dosages of medication appellant was taking at that time or explain how the medication
prescribed by Dr. Chun was otherwise being abused. Rather, it appears that he relied extensively
on appellant’s own history of having been impaired due to her medications. There is no
explanation as to the treatment appellant received in 2006 or why Dr. Chun or Dr. Sophon failed
to remark on any such impairment. As noted, the contemporaneous medical records of
Drs. Chun and Sophon do not support appellant’s disability due to her medication.7 This is
important, as Dr. Dorsey’s report is dated some two years following the job offer and
termination. For these reasons, the Board finds that appellant has not established that she was
justified in rejecting the April 28, 2006 job offer.
CONCLUSION
The Board finds that appellant has failed to establish that her rejection of the April 28,
2006 job offer was justified.

7

The Board has held that contemporaneous evidence is entitled to greater probative value than later evidence.
See Conard Hightower, 54 ECAB 796 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the December 1, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: April 9, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Seattle, WA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1392
Issued: November 7, 2016

Case Submitted on the Record

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

JURISDICTION
On June 23, 2016 appellant, through counsel, filed a timely appeal of an April 18, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), which denied
reconsideration. The Board assigned Docket No. 16-1392.
OWCP accepted that appellant sustained a cervical strain, cervical and thoracic
subluxations, and permanent aggravation of preexisting cervical spondylosis without myelopathy
while in the performance of duty on June 3, 2011. Appellant was receiving wage-loss
compensation. By decision dated October 30, 2014, OWCP terminated wage-loss compensation
and medical benefits effective October 30, 2014.
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.

On October 26, 2015 appellant, through counsel, requested reconsideration of the
termination of her benefits. By decision dated November 25, 2015, OWCP denied modification.
On December 30, 2015 it received appellant’s counsel’s request for reconsideration dated that
day. OWCP did not issue its nonmerit decision on appellant’s request for reconsideration until
April 18, 2016, approximately four months after the request was made. Its procedures provide:
“When a reconsideration decision is delayed beyond 90 days, and the delay
jeopardizes the claimant’s right to review of the merits of the case by the Board,
OWCP should conduct a merit review. That is, the basis of the original decision
and any new evidence should be considered and, if there is no basis to change the
original decision, an order denying modification (rather than denying the
application for review) should be prepared. There is no obligation to conduct a
merit review on insufficient evidence if the maximum 180-day time limit for
requesting review by the Board will have expired within the 90-day period
following OWCP’s receipt of the claimant’s reconsideration request.”2
The Board, having duly considered the matter, finds that OWCP’s delay of more than
four months in issuing a decision on appellant’s reconsideration request effectively precluded her
from appealing OWCP’s most recent merit decision to the Board.3 Had OWCP acted upon her
request within 90 days, she would have been able to seek review of the most recent merit
decision dated November 25, 2015.4
Accordingly, the case will be remanded to OWCP to issue an appropriate decision on the
merits of the claim in order to preserve appellant’s appeal rights.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(a) (October 2011).

3

See 20 C.F.R. §§ 501.2(c) and 501.3. For final adverse OWCP decisions issued on or after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).
4

See Geoma R. Munn, 50 ECAB 242 (1999); Debra E. Stoler, 43 ECAB 561 (1992) (remanding cases for merit
review where OWCP delayed issuance of reconsideration decisions).

2

IT IS HEREBY ORDERED THAT the April 18, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with the above opinion.
Issued: November 7, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.M., Appellant
and
GENERAL SERVICES ADMINISTRATION,
CHIEF FINANCE OFFICE, Kansas City, MO,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1898
Issued: October 23, 2020

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 September 13, 2019 appellant filed a timely appeal from a June 14, 2019 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

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met her burden of proof to establish that she filed a
timely claim for compensation pursuant to 5 U.S.C. § 8122(a).
FACTUAL HISTORY
On May 15, 2018 appellant, then a 66-year-old accounting technician, filed an occupational
disease claim (Form CA-2) alleging that she developed “cancer (all) acute lymphoblastic
leukemia” due to factors of her federal employment, including exposure to various hazardous
chemicals. She noted that she first became aware of her condition in “early 2000” and
“April 2004” and first realized its relation to her federal employment on November 3, 2014.
Appellant did not stop work. On the reverse side of the claim form, the employing establishment
controverted her claim on the basis that it was untimely filed.
Appellant submitted medical evidence in support of her claim. On November 3, 2014 she
was admitted to the hospital after multiple episodes of vomiting and associated weight loss.
Appellant underwent a biopsy and was diagnosed with acute B-cell lymphoblastic leukemia. She
was treated with chemotherapy and subsequently discharged on December 1, 2014.
In a development letter dated June 21, 2018, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. It advised her of the type of medical and factual
evidence necessary to support her claim and provided a questionnaire for her completion regarding
whether her claim was timely filed. The questionnaire advised that appellant must submit evidence
which establishes that her claim was filed within three years of the date she became aware of a
relationship between her condition and her employment. By separate development letter of even
date, OWCP requested additional information from the employing establishment, including
comments from a knowledgeable supervisor on the accuracy of all statements provided by
appellant relative to this claim. It afforded both parties 30 days to respond.
Appellant subsequently submitted evidence detailing her federal employment, including
her roles as a shipment clerk and an accounting technician at the employing establishment for the
period September 2, 1980 through December 30, 1989.
By decision dated September 6, 2018, OWCP denied appellant’s claim finding that she did
not file a timely claim within the requisite three-year time limit provided under 5 U.S.C. § 8122.
It found that her date of last exposure was December 30, 1989 and that she did not file her
occupational disease claim until May 15, 2018, more than three years after November 3, 2014, the
date she indicated that she first realized her condition was related to her federal employment.
On October 10, 2018 appellant requested reconsideration and submitted additional
evidence.
In a September 20, 2018 report, Mary Luder, an advanced practice registered nurse,
indicated that appellant was officially diagnosed via bone marrow biopsy on November 5, 2014.
She noted that she could not say with certainty that the exposure was the cause or trigger of
appellant’s cancer.

2

Appellant also submitted a narrative statement asserting that she was diagnosed with a form
of cancer that was mainly found in children and she did not file a claim within three years because
she had been misdiagnosed until her illness worsened and she was admitted to Kansas University
Medical Center.
In an e-mail dated January 8, 2019, the employing establishment notified OWCP that it
had no evidence that appellant’s immediate supervisor had actual knowledge of her condition
within 30 days of the date of injury.
By decision dated January 8, 2019, OWCP denied modification of its September 6, 2018
decision.
On April 9, 2019 appellant requested reconsideration. In an attached narrative statement,
she summarized her medical history and indicated that on November 3, 2014 she had been
admitted to the hospital due to a worsening of her condition. Appellant noted that her doctor
inquired whether she had worked around any chemicals. The doctor subsequently diagnosed her
with leukemia and went on to say that this type of leukemia was the type they found in small
children. Appellant indicated that she was unable to notify her supervisor of her illness because
her employment had ended on December 30, 1989. She subsequently contacted the employing
establishment and inquired about how to file a claim and then she filed.
By decision dated June 14, 2019, OWCP denied modification of its January 8, 2019
decision because the submitted evidence was insufficient to establish that her claim was timely
filed.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish 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 of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is 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 upon a traumatic injury or an occupational disease.6

3

Supra note 1.

4

G.L., Docket No. 18-1057 (issued April 14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

M.G., Docket No. 18-1616 (issued April 9, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6
20 C.F.R. § 10.115; A.S., Docket No. 19-1955 (issued April 9, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

3

The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.7 In cases of injury on or after September 7,
1974, section 8122(a) of FECA provides that an original claim for compensation, disability, or
death, must be filed within three years after the injury or death.8
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his or her condition and federal employment. Such awareness is competent to start the
limitation period even though the employee does not know the precise nature of the impairment or
whether the ultimate result of such affect would be temporary or permanent.9 Where the employee
continues in the same employment after he or she reasonably should have been aware that he or
she has a condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.10
Section 8122(b) provides that, in latent disability cases, the time limitation does not begin
to run until the claimant is aware, or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability.11 The
Board has emphasized that an employee need only be aware of a possible relationship between his
or her condition and his or her employment to commence the running of the applicable statute of
limitations,12 and that, if an employee continues to be exposed to injurious working conditions
after such awareness, the time limitation begins to run on the last date of this exposure.13
Even if a claim is not filed within the three-year period of limitation, it would still be
regarded as timely under section 8122(a)(1) if the immediate supervisor had actual knowledge of
his or her alleged employment-related injury within 30 days or written notice of the injury was
provided within 30 days pursuant to section 8119.14 The knowledge must be such as to put the
immediate superior reasonably on notice of an on-the-job injury or death.15

7

F.F., Docket No. 19-1594 (issued March 12, 2020); Charles W. Bishop, 6 ECAB 571 (1954).

8

5 U.S.C. § 8122(a); A.M., Docket No. 19-1345 (issued January 28, 2020); W.L., 59 ECAB 362 (2008).

9

S.O., Docket No. 19-0917 (issued December 19, 2019); Larry E. Young, 52 ECAB 264 (2001).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6 (March 1993); see also G.M., Docket
No. 18-0768 (issued October 4, 2018).
11

5 U.S.C. § 8122(b).

12

D.D., Docket No. 19-0548 (issued December 16, 2019); Gerald A. Preston, 57 ECAB 270 (2005).

13

D.R., Docket No. 18-1754 (issued April 4, 2019); Mitchel Murray, 53 ECAB 601 (2002); Garyleane A. Williams,
44 ECAB 441 (1993).
14

5 U.S.C. §§ 8122(a)(1), 8122(a)(2); see also Larry E. Young, supra note 9.

15

R.H., Docket No. 17-0251 (issued November 28, 2018); B.H., Docket No. 15-0970 (issued August 17, 2015).

4

It is the employee’s burden of proof to establish that a claim is timely filed.16
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she filed a
timely claim for compensation pursuant to 5 U.S.C. § 8122(a).
Appellant was employed by the employing establishment from September 2, 1980 to
December 30, 1989. On May 15, 2018 she filed a Form CA-2 indicating that she first became
aware of her condition in “early 2000” and “April 2004” and realized its relation to her federal
employment on November 3, 2014. Because appellant did not file her occupational disease claim
until May 15, 2018, more than three years after she first became aware that her condition was
related to her federal employment on November 3, 2014, the Board finds that she untimely filed
her claim.17
Appellant, therefore, has not established that this occupational disease claim was timely
filed.18
On appeal appellant reiterates that during the course of her illness she was not aware that
her illness was employment related until she was hospitalized for 30 days and was asked by one
of her physicians if she had ever worked around chemicals. As explained above, the Board finds
that she has not established that she timely filed her occupational disease claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she filed a
timely claim for compensation pursuant to 5 U.S.C. § 8122(a).

16

A.S., supra note 6.

17

D.R., supra note 13.

18

D.D., Docket No. 19-0548 (issued December 16, 2019); R.T., Docket No. 18-1590 (issued February 15, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the June 14, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 23, 2020
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

6


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

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0613
Issued: October 8, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 12, 2021 appellant filed a timely appeal from a February 16, 2021 nonmerit
decision of the Office of Workers’ Compensation Program (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated March 6, 2019, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 17, 2019 appellant, then a 43-year-old patrol agent, filed a traumatic injury
claim (Form CA-1) alleging that, earlier that day, he sustained an irritation of his neck and throat
and a temporary loss or lessening of his voice when a detainee struck him in the throat with his
hand while in the performance of duty.
In a development letter dated January 30, 2019, OWCP notified appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence required and
provided a questionnaire for his completion. OWCP afforded appellant 30 days to submit the
necessary evidence.
In response, appellant submitted an authorization for examination and/or treatment (Form
CA-16) completed by the employing establishment on January 17, 2019 noting that he had been
struck on the left side of his neck while in the performance of duty. In the attending physician’s
portion of the form, Part B, an emergency room practitioner whose signature is illegible found a
normal examination, diagnosed a neck contusion, and returned appellant to full-duty work.
Appellant also submitted a January 17, 2019 return to work slip signed by William Kyle
Scabrough, a registered nurse.
By decision dated March 6, 2019, OWCP accepted that the January 17, 2019 employment
incident had occurred as alleged, but denied appellant’s traumatic injury claim as he did not submit
sufficient medical evidence. It found that, as the January 17, 2019 form report did not contain a
legible signature, it was unable to verify the specialist who signed the report. OWCP concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.
On January 26, 2021 appellant requested reconsideration. He contended that a hospital
physician had signed the Form CA-16. Appellant asserted that he had already submitted the
required factual and medical evidence to OWCP, but that OWCP had not associated those
documents with his case record. He submitted additional evidence.
In a January 17, 2019 report, Dr. William C. Stief, a physician specializing in emergency
medicine, noted that appellant had been struck in the side of his throat during an altercation at
work. On examination, he found a nontender larynx and normal voice. Dr. Stief diagnosed a neck
contusion and returned appellant to full duty.
In a January 24, 2019 employing establishment safety investigation data form, an
employing establishment official noted that appellant had been struck in the throat while in the
performance of duty.
On reconsideration, appellant asserted, in a June 11, 2020 statement that, he sustained no
other injuries between the January 17, 2019 employment incident and the time he reported it to his
supervisor, and that he had no relevant preexisting conditions. He provided a December 15, 2016
report diagnosing metatarsalgia and October 23, 2019 reports about a right ankle problem.
Appellant also submitted copies of the Form CA-16 previously of record.

2

By decision dated February 16, 2021, OWCP denied appellant’s request for
reconsideration of the merits of his claim, finding that it was untimely filed and failed to
demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.2 This discretionary authority, however, is subject to certain restrictions. 3 OWCP’s
regulations establish a one-year time limitation for requesting reconsideration, which begins on
the date of the original OWCP merit decision. 4 Aright to reconsideration within one year also
accompanies any subsequent merit decision on the issues. 5 Timeliness is determined by the
document receipt date, the received date in OWCP’s Integrated Federal Employees’ Compensation
System (iFECS). 6 Imposition of this one-year filing limitation does not constitute an abuse of
discretion.7
When a reconsideration request is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s final merit decision was
in error.8 Its procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if his or her request
for reconsideration demonstrates clear evidence of error on the part of OWCP. 9 In this regard,
OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP. 11 The evidence must be positive, precise, and explicit and
2

5 U.S.C. § 8128(a); see B.W., Docket No. 19-0626 (issued March 4, 2020); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
3

20 C.F.R. § 10.607(a).

4

Id.; T.T., Docket No. 19-1624 (issued October 28, 2020); V.G., Docket No. 19-0038 (issued June 18, 2019); J.W.,
Docket No. 18-0703 (issued November 14, 2018); Alberta Dukes, 56 ECAB 247 (2005).
5

J.W., id.; Robert F. Stone, 57 ECAB 292 (2005).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

7

A.M., Docket No. 20-0143 (issued October 28 2020); S.T., Docket No. 18-0925 (issued June 11, 2019); E.R.,
Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).
8

L.N., Docket No. 20-0742 (issued October 26, 2020); C.V., Docket No. 18-0751 (issued February 22, 2019); B.W.,
Docket No. 10-0323 (issued September 2, 2010); Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma Mathews,
44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).
9

D.G., Docket No. 18-1038 (issued January 23, 2019); Gladys Mercado, 52 ECAB 255 (2001).

10

V.G., supra note 4; E.P., Docket No. 18-0423 (issued September 11, 2018); Nelson T. Thompson, 43 ECAB
919 (1992).
11

W.H., Docket No. 20-0395 (issued October 23, 2020); Darletha Coleman, 55 ECAB 143 (2003).

3

must manifest on its face that OWCP committed an error. 12 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. 13 It is not enough merely to demonstrate that the evidence could be
construed so as to produce a contrary conclusion. 14 This entails a limited review by OWCP 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 OWCP. 15 To
demonstrate clear evidence of error, the evidence submitted must not only be o f sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.16 The Board makes an
independent determination of whether a claimant has demonstrated clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review in the face of such
evidence.17
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
A request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 18 As previously explained, timeliness is determined by the
document receipt date, i.e., the “received date” into iFECS.19 As appellant’s request for
reconsideration was not received into iFECS until January 26, 2021, more than one year after the
issuance of OWCP’s March 6, 2019 merit decision, it was untimely filed. Consequently, he must
demonstrate clear evidence of error by OWCP in its March 6, 2019 merit decision. 20
The Board further finds, that appellant has established clear evidence of error in OWCP’s
March 6, 2019 merit decision.
In its March 6, 2019 decision, OWCP denied appellant’s claim based on the January 17,
2019 form report, i.e., Part B, the attending physician’s portion of Form CA-16, in which a medical
12

S.T., supra note 7; Pasquale C. D Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

13

L.B., Docket No. 19-0635 (issued August 23, 2019); V.G., supra note 4; Leon J. Modrowski, supra note 8.

14

W.H., supra note 11; V.G., supra note 4.

15

L.B., supra note 13; V.G., supra note 4.

16

D.G., supra note 9.

17

See P.A., Docket No. 20-0061 (issued January 29, 2021); George C. Vernon, 54 ECAB 319 (2003); Gregory
Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
18

20 C.F.R. § 10.607(a).

19

Id.

20

Supra note 18 at § 10.607(b). See also W.H., Docket No. 20-0395 (issued October 23, 2020).

4

practitioner diagnosed a neck contusion. OWCP found that this report was insufficient to establish
that the accepted January 17, 2019 employment incident had caused an injury. The Board finds,
however, that OWCP improperly denied appellant’s claim. OWCP may accept a case without a
medical report where the condition is a minor one, such as a burn, laceration, insect sting, or animal
bite, that can be identified on visual inspection by a layperson, and no dispute exists as to fact of
injury.21 A contusion is a visible injury capable of being diagnosed by a layperson. This diagnosis
was included in Part B of the January 17, 2019 Form CA-16 and OWCP accepted that the
January 17, 2019 employment incident occurred at the time and place, and in the manner alleged.
Therefore, a medical report was not necessary in this case for a contusion to be accepted as an
injury.22 Dr. Stief reconfirmed this diagnosis in his January 17, 2019 report which appellant
submitted on reconsideration. The Board finds that OWCP’s failure to accept contusion as a
visible injury demonstrates clear evidence of error.
Therefore, the Board finds that appellant has raised a substantial question as to the
correctness of the March 6, 2019 merit decision. The Board will reverse OWCP’s February 16,
2021 decision and remand the case for an appropriate decision on the merits of appellant’s claim.
CONCLUSION
The Board finds that appellant has demonstrated clear evidence of error in the March 6,
2019 merit decision and, thus, OWCP improperly denied his request for reconsideration of the
merits of his claim.

21

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c)
(January 2013). R.H., Docket No. 20-1684 (issued August 27, 2021); M.B., Docket No. 15-0287 (issued August 20,
2015); Pearlene Morton, 52 ECAB 493 (2001).
22

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the February 16, 2021 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further proceedings
consistent with this decision of the Board. 23
Issued: October 8, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

23

The Board notes that the employing establishment issued a completed Form CA-16 on January 17, 2019. A
completed Form CA-16 authorization may constitute a contract for payment of medical expenses to a medical facility
or physician, when properly executed. The form creates a contractual obligation, which does not involve the employee
directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R.
§ 10.300(c); C.B., Docket No. 19-1882 (issued April 1, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018);
Tracy P. Spillane, 54 ECAB 608 (2003).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF DEFENSE, EDUCATION
ACTIVITY, Alexandria, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-608
Issued: May 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 27, 2015 appellant, through counsel, filed a timely appeal from a January 23,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over this nonmerit decision. The last merit decision of record for the
present claim was dated August 20, 1998. Because more than 180 days have elapsed between
the last merit decision and the filing of this appeal on January 27, 2015, the Board lacks
jurisdiction to review the merits of this claim.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
1

5 U.S.C. §§ 8101-8193.

2

See 20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
OWCP accepted that on March 19, 1990 appellant, then a 34-year-old tractor operator,
sustained a traumatic injury in the form of a left hand fracture when his hand became caught in a
tractor steering wheel at work. It later accepted that on September 10, 1997 he sustained a
traumatic injury in the form of right wrist and right foot sprains due to a fall at work. The files
for the 1990 and 1997 injuries were later combined under the file for the 1997 injury.
On April 13, 1998 appellant filed a recurrence of disability claim (Form CA-2a) with
OWCP. The form mentioned that the recurrence of disability was alleged as occurring due to
both accepted work injuries.
In an August 20, 1998 decision, OWCP denied appellant’s claim for a recurrence of
disability due to his 1990 and 1997 work injuries. It discussed medical evidence from Dr. Noel
Rogers, an attending Board-certified orthopedic surgeon, but noted that it did not establish
appellant’s recurrence of disability claim.
In a September 18, 2014 letter received on December 2, 2014, counsel requested
reconsideration of OWCP’s August 20, 1998 decision “denying a claim for recurrence” on behalf
of appellant.3 He argued that the August 20, 1998 decision was erroneous on its face because it
was not decided in accordance with OWCP procedure. Counsel stated:
“The claim for compensation was an initial claim and was incorrectly treated as a
recurrence. As this was his first claim for compensation, you must vacate the
decision and develop the claim in accordance with FECA PM [procedure
manual], [Chapter] 2.901.05.
“The appropriate section of the FECA PM is [Chapter] 2.1400.7 which deals with
recurrences when an employee has been terminated for cause. [Chapter]
2.1400.7(a)(4) specifically states that for an employee to be ineligible for
compensation, ‘Most importantly, there was no evidence in the record that the
claimant was unable to perform the light[-]duty position….’
“The [August 20, 1998] denial is based on the fact that [appellant’s] termination
was not due to the accepted conditions. The only consideration in determining
compensability is whether [appellant] was physically capable of returning to his
work to his light[-]duty position.”4
In a January 23, 2015 decision, OWCP denied appellant’s request for further review of
the merits of his claim as his request was untimely filed and failed to demonstrate clear evidence
of error. It indicated that his request for reconsideration of its August 20, 1998 decision was
untimely because it was received on December 2, 2014, a period more than one year after the
3

Counsel refers to an August 19, 1998 decision of OWCP, but he appears to have inadvertently misidentified
OWCP’s August 20, 1998 decision as being dated August 19, 1998.
4

In the remainder of the letter, counsel mentioned medical evidence, including evidence of Dr. Rogers, which he
believed would establish that appellant sustained work-related disability.

2

issuance of the August 20, 1998 decision. Regarding why counsel’s September 18, 2014 letter
did not show clear evidence of error in OWCP’s August 20, 1998 decision, OWCP found:
“[Counsel] states that the August 20, 1998 recurrence denial was erroneous
because [OWCP] did not develop the initial claim in accordance with procedures.
However, you submitted a CA-2a form, Notice of Recurrence on April 13, 1998
and it was properly developed by letter dated May 6, 1998. Since your cases were
doubled, the August 20, 1998 recurrence denial addressed both of your injuries
from 1990 and 1997. It was noted you did not stop work due to your physical
inability to perform your assigned duties nor was there evidence you stopped due
to your work injuries.”
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP 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.5
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.6
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, OWCP must
nevertheless undertake a limited review to determine whether the application establishes “clear
evidence of error.”7 OWCP regulations and procedures provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of error” on
the part of OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
5

20 C.F.R. § 10.607(a).

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

8

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5a (October 2011).
OWCP procedure further provides, “The term ‘clear evidence of error’ is intended to represent a difficult standard.
The claimant must present evidence which on its face shows that OWCP made a mistake. For example, a claimant
provides proof that a schedule award was miscalculated, such as a marriage certificate showing that the claimant had
a dependent but the award was not paid at the augmented rate. Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued would have created a conflict in medical opinion
requiring further development, is not clear evidence of error.”
9

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

10

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

3

clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by OWCP 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 OWCP.13
ANALYSIS
In its January 23, 2015 decision, OWCP properly determined that appellant filed an
untimely request for reconsideration. Appellant’s reconsideration request was filed on
December 2, 2014, many years after OWCP’s August 20, 1998 decision, and he, therefore, must
demonstrate clear evidence of error on the part of OWCP in issuing this decision.
Appellant has not demonstrated clear evidence of error on the part of OWCP in issuing
its August 20, 1998 decision. He did not submit the type of positive, precise, and explicit
evidence which manifests on its face that OWCP committed an error.
Counsel, on behalf of appellant, argued that the August 20, 1998 decision was improper
because it treated appellant’s claim in 1998 as a claim for recurrence of disability rather than as
an “initial claim.” This argument would not tend to show that OWCP committed error as
appellant actually filed a claim for recurrence of disability in 1998 and counsel’s argument does
not tend to show that OWCP improperly developed appellant’s claim. In his letter, counsel
mentioned medical evidence, including evidence of Dr. Rogers, an attending Board-certified
orthopedic surgeon, which he believed would establish work-related disability. Counsel’s
argument does not establish clear evidence of error as it does not clearly show that OWCP
improperly evaluated the medical evidence, including reports of Dr. Rogers, in its August 20,
1998 decision.
For these reasons, the evidence submitted by appellant does not raise a substantial
question concerning the correctness of OWCP’s August 20, 1998 decision and OWCP properly
determined that appellant did not show clear evidence of error in that decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

11

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

4

ORDER
IT IS HEREBY ORDERED THAT the January 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 13, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, GWYNN OAK POST
OFFICE, Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1643
Issued: March 30, 2022

Case Submitted on the Record

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

JURISDICTION
On September 15, 2020 appellant filed a timely appeal from an August 25, 2020 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 has met her burden of proof to establish a right upper
extremity condition causally related to the accepted May 2, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 25, 2020 decision, OWCP received additional evidence. 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.

FACTUAL HISTORY
On May 9, 2020 appellant, then a 62-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on May 2, 2020 she sustained an open dislocation of the right
elbow while in the performance of duty. She stopped work on that date and returned to full-duty
work on August 2, 2020.
Hospital records, dated May 2, 2020, indicate that appellant was diagnosed with open
posterior dislocation of the right elbow after being seen by a care team consisting of Dr. Sam V.
Sydney, an orthopedic surgeon, Dr. Hilary F. Schmitt, an emergency medicine specialist, and
Robert A. Loya, a physician assistant. Appellant was provided wound care, prescribed medication,
and scheduled for a follow-up appointment with orthopedics on May 13, 2020.
In a note dated May 13, 2020, Aaron Shakespeare, a physician assistant, recommended that
appellant remain off work for three months. In a duty status report (Form CA-17) of even date, he
diagnosed a right elbow fracture and dislocation due to being ejected from a truck on May 2, 2020.
In a July 9, 2020 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary and provided a questionnaire for her completion. OWCP afforded appellant
30 days to respond.
In a July 31, 2020 response to OWCP’s development questionnaire, appellant indicated
that she was delivering mail to a mounted mailbox when the end of her sleeve became caught in
the mailbox. She related that she did not realize she was stuck until she was pulling away from
the box, and then she unbuckled her seatbelt and fell to the ground.
In a June 30, 2020 attending physician’s report (Form CA-20), Dr. Sydney noted a date of
injury of May 2, 2020 and a diagnosis of recurrent dislocation of the right elbow and a displaced
fracture of the right humerus. He indicated that appellant was hospitalized for this condition May 2
through 3, 2020 and, during that time, underwent a closed reduction of the right elbow. Dr. Sydney
checked a box marked “No” indicating that her condition was not caused or aggravated by an
employment activity.
By decision dated August 25, 2020, OWCP accepted that the May 2, 2020 employment
incident occurred as alleged. However, it denied the claim, finding that the medical evidence of
record was insufficient to establish that the diagnosed right elbow condition was causally related
to the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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

3

Supra note 1.

2

limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is 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 upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish causal relationship between a claimed sp ecific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 9
ANALYSIS
The Board finds that appellant has met her burden of proof to establish an open posterior
dislocation of the right elbow causally related to the accepted May 2, 2020 employment incident.
Hospital records, dated May 2, 2020, indicate that appellant was diagnosed with open
posterior dislocation of the right elbow after being seen by a care team consisting of Dr. Sydney,
Dr. Schmitt, and Mr. Loya. The records further indicate that she was provided wound care.
As the evidence of record establishes that appellant’s employment incident resulted in a
visible injury, the Board finds that she has met her burden of proof to establish an open dislocation

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

of the right elbow causally related to the accepted May 2, 2020 employment incident. 10 The case
will, therefore, be remanded for payment of medical expenses for appellant’s diagnosed open
dislocation of the right elbow, to be followed by a de novo decision regarding any attendant
disability.
CONCLUSION
The Board finds that appellant has established an open posterior dislocation of the right
elbow causally related to the accepted May 2, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 25, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 30, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c)
(January 2013). See also A.J., Docket No. 20-0484 (issued September 2, 2020); S.K., Docket No. 18-1411 (issued
July 22, 2020).

4