United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 11-1424
Issued: December 19, 2011

Case Submitted on the Record

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

JURISDICTION
On June 1, 2011 appellant filed a timely appeal from a May 16, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP) denying his request for review of the
written record. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review this nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for review of the written
record.
On appeal, appellant contends that he sent notice to OWCP that he wished to cancel the
hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The findings of fact as set forth in the
Board’s prior decisions are hereby incorporated by reference.2 OWCP accepted that appellant
sustained a lumbosacral sprain and deep vein thrombosis of the left leg as a result of a
December 1, 1975 injury incurred when lifting a mail sack. It also accepted that he sustained a
herniated disc from lifting heavy objects at work. OWCP paid compensation for disability and
medical benefits. By decision dated September 3, 1997, it terminated appellant’s compensation
on the basis that he refused an offer of suitable employment. In a March 22, 2001 decision, the
Board affirmed the termination of his compensation for refusing an offer of suitable work. The
Board remanded the case to resolve a conflict in medical opinion regarding continuing
employment-related disability.3 In a decision dated October 26, 2006, the Board affirmed
OWCP decisions of September 19 and 29, 2005 finding that appellant was not entitled to
continuing compensation benefits on or after September 2, 1997.4 By an April 1, 2009 order, the
Board dismissed appellant’s appeal as there was no final decision of OWCP over which the
Board had jurisdiction.5 In a March 11, 2011 decision, the Board found that OWCP properly
denied appellant’s request for an oral hearing.6
On April 6, 2011 appellant requested review of the written record. By decision dated
May 16, 2011, OWCP denied his request. It noted that the last decision in appellant’s case was
issued by the Board. As decisions of the Board are final, the Branch of Hearings and Review
had no jurisdiction to review the Board’s decisions. OWCP reviewed appellant’s request under
its

2

In an Order Remanding Case dated May 2, 2005, the Board found that appellant’s case was not in posture for
decision as OWCP erred in not issuing a formal decision after reviewing the impartial medical opinion. The Board
remanded the case for further development of the evidence. Docket No. 99-1295 (issued May 2, 2005). By order
dated April 25, 2008, the Board concluded, with regards to Docket No. 07-903, that there was no final adverse
decision of OWCP over which it had jurisdiction and dismissed the appeal. In the same order, the Board also found
that appellant’s appeal in Docket No. 06-474 constituted an untimely petition for reconsideration of the Board’s
October 26, 2006 decision and dismissed it. Docket Nos. 07-903 & 06-474 (issued April 25, 2008).
3

Docket No. 99-1295 (issued March 22, 2001). The Board affirmed a September 28, 1998 decision of OWCP’s
hearing representative.
4

Docket No. 06-474 (issued October 26, 2006). The Board further found that OWCP properly denied appellant’s
request for reconsideration.
5

Docket No. 09-639 (issued April 1, 2009).

6

Docket No. 10-1566 (issued March 11, 2011). The Board’s decision affirmed a January 20, 2010 OWCP’s
decision.

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discretion and determined that it should be denied for the reasons that the issue in the case could
be addressed by requesting reconsideration from it and submitting new evidence.7
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides:
“Before review under section 8128(a) of this title (related to reconsideration), a
claimant for compensation not satisfied with a decision of the Secretary under
subsection(a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on [her] claim before a
representative of the Secretary.8
FECA provides OWCP with original jurisdiction in the processing of compensation
claims and section 8124(a) provides it with the duty and authority to issue an initial decision on
an employee’s claim for compensation.9 Once an initial decision is made in a compensation
case, the claimant’s rights arise by which the claimant may seek further review of his claim, the
right to a hearing or review of the written record before OWCP, the right to reconsideration
before OWCP or an appeal to the Board. The Board has clarified that OWCP does not have the
discretionary authority to grant a request for hearing immediately following a Board decision.
OWCP’s Branch of Hearings and Review may not assume jurisdiction in the claims process
absent a final adverse decision by the Director.10 Following the Board’s review of OWCP’s
decision, there is no final decision of it left unreviewed over which the Branch of Hearings and
Review can assume jurisdiction to exercise its discretionary appellant authority.11
ANALYSIS
The Board previously affirmed OWCP’s decisions terminating benefits and decisions
finding that appellant was not entitled to compensation benefits after September 2, 1997.12
OWCP did not issue a final decision on the merits after the Board’s last decision on the merits,
issued on October 26, 2006. It did issue a January 20, 2010 decision denying appellant’s request
7

The Board notes that on April 13, 2011 appellant filed a claim for a schedule award. On May 10, 2011 OWCP
noted that by decision dated September 19, 2005, it terminated his entitlement to wage loss and schedule award
compensation was terminated because appellant refused to accept suitable work. It enclosed a copy of that decision
and advised appellant to refer to the appeal rights of the decision if he wished to appeal from it. The Board
concludes that the May 10, 2011 letter was not a formal decision because it was informational in nature, containing
no findings of fact and a statement of reasons. It merely referred appellant to the appeal rights accompanying the
September 19, 2005 decision. See 20 C.F.R. § 10.126. Accordingly, the Board has no jurisdiction to review it. See
20 C.F.R. § 501.2(c).
8

5 U.S.C. § 8124(b)(1).

9

Id.

10

Patricia G. Aiken, 57 ECAB 441 (2006); Eileen A. Nelson, 46 ECAB 377 (1994).

11

Robert N. Thomas, 51 ECAB 180 (1999); J.H., Docket No. 09-1406 (issued January 14, 2010).

12

Docket No. 99-1295, supra note 2; Docket No. 06-474, supra note 3.

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for a hearing, a decision that this Board affirmed on March 11, 2011.13 After the Board’s
March 11, 2011 decision, appellant requested review of the written record before OWCP. The
Board has held that, following its review of OWCP’s decision, a claimant does not have the right
under 5 U.S.C. § 8124(b)(1) to request an oral hearing or review of the written record in the
absence of a final OWCP decision.14 The Board finds that appellant has no right to a review of
the written record following the Board’s March 11, 2011 decision. There is no final OWCP
decision left unreviewed over which the Branch of Hearings and Review could assume
jurisdiction.15 Therefore, the Board finds that OWCP properly denied appellant’s request for a
hearing.
On appeal, appellant contends that he wanted OWCP to cancel the hearing and to have
the Board decide his case. There was never a hearing or review of the written record scheduled
as it was not a proper avenue of appeal open to him. The Board’s jurisdiction is limited to
considering and deciding appeals from final adverse decisions of OWCP in cases arising under
FECA.16 The Board previously reviewed multiple merit and nonmerit decisions of OWCP.
There are no remaining issues on the merits for the Board to discuss.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a review of the
written record before its hearing representative.

13

Docket No. 10-1566, supra note 5.

14

Supra note 11.

15

Id.

16

20 C.F.R. § 501.2(c) and 20 C.F.R. § 501.3(a), respectively.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 16, 2011 is affirmed.
Issued: December 19, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Fayetteville, NC, Employer
__________________________________________

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

Docket No. 13-50
Issued: May 21, 2013

Case Submitted on the Record

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

JURISDICTION
On October 10, 2012 appellant, through her attorney, filed a timely appeal from a
September 14, 2012 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.
ISSUE
The issue is whether OWCP properly declined to reimburse appellant for travel expenses
to obtain medical treatment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was before the Board on a prior appeal with respect to a recurrence of disability
commencing May 13, 2010.2 OWCP accepted bilateral carpal tunnel syndrome and a keloid scar
as a result of repetitive activity in appellant’s federal employment as a patient services assistant.
Appellant filed claims for compensation that are not at issue on the current appeal.3
Appellant received treatment from attending physician Dr. Elliot Vann, a Board-certified
orthopedic surgeon. In a report dated March 31, 2011, Dr. Vann provided results on examination
and noted that appellant reported persistent pain following a carpal tunnel release several years
earlier.4 He recommended a left upper extremity electromyogram (EMG) and stated that he
would consider referring her to a hand specialist.
In a report dated May 13, 2011, Dr. Jennifer Patterson, a Board-certified orthopedic
surgeon with a subspecialty of hand surgery, noted that appellant had been referred by
Dr. Vann.5 She provided a history and results on examination, stating that she was reluctant to
perform any type of surgical release on the right arm in view of the poor results from the left
carpal tunnel release. Dr. Patterson stated that appellant’s primary complaint was hyperesthesia
at the surgical site. The record indicates that appellant received treatment from Dr. Patterson on
August 19, September 27 and November 1, 2011.6
Appellant submitted a claim for compensation for eight hours on August 19,
September 27 and November 1, 2011.7 The record indicates that she was paid compensation for
those dates.
In a letter dated December 13, 2011, appellant stated that Dr. Patterson’s office was
located 102 miles from her home in Fayetteville, North Carolina. By letter dated January 9,
2012, OWCP noted that she had claimed travel expenses for May 13, August 19, September 2
and November 1, 2011. It advised appellant that there was no evidence of record. Appellant
requested prior travel approval and 100 miles round trip was generally considered a reasonable
distance. In a letter dated March 12, 2012, her representative stated that Dr. Patterson was a
hand specialist and there were no other closer hand specialists that accept OWCP patients.
By decision dated March 21, 2012, OWCP denied reimbursement for the claimed travel
expenses for treatment by Dr. Patterson. It stated that a search of the Affiliated Computer
Services (ACS) website used for bill paying and medical authorization, found “there are other
2

Docket No. 12-687 (issued August 16, 2012).

3

The record contains a September 11, 2012 decision regarding compensation commencing in May 2010.
Appellant did not request review of this decision and pursued other appeal rights.
4

The record indicates that appellant underwent a left carpal tunnel release on April 11, 2008.

5

The letterhead on Dr. Patterson’s report indicated that she was located in Chapel Hill, North Carolina.

6

The record contains a report dated September 27, 2011 from Dr. Patterson regarding left thumb treatment.

7

The November 1, 2011 payment was based on four hours of wage loss.

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physicians and facilities located in Fayetteville, North Carolina that are registered with ACS for
treatment of federal injured workers.”
Appellant requested a hearing before an OWCP hearing representative, which was held
on July 17, 2012. At the hearing, counsel stated that the ACS website indicated only one hand
specialist in appellant’s area and contact with that physician determined that the physician did
not accept federal workers’ compensation cases. In a report dated April 19, 2012, Dr. Vann
stated that appellant was referred to a hand surgeon given the complexity of her problems and the
lack of a hand surgeon at the employing establishment facility. He stated that Dr. Patterson had
treated appellant and discussed surgical and nonsurgical treatment.
By decision dated September 14, 2012, OWCP’s hearing representative affirmed the
March 21, 2012 decision. The hearing representative found that Dr. Patterson was located over
100 miles from appellant’s home and OWCP records showed that there were other hand
specialists closer to appellant’s residence and Dr. Patterson did not provide treatment that could
not have been provided locally.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability or aid in lessening the amount of monthly compensation.8
With respect to travel expenses for medical treatment, the regulations provide:
“(a) The employee is entitled to reimbursement of reasonable and necessary
expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what is a reasonable distance to travel,
OWCP will consider the availability of services, the employee’s condition, and
the means of transportation. Generally, a roundtrip distance of up to 100 miles is
considered a reasonable distance to travel. Travel should be undertaken by the
shortest route, and if practical, by public conveyance. If the medical evidence
shows that the employee is unable to use these means of transportation, OWCP
may authorize travel by taxi or special conveyance.
“(b) For nonemergency medical treatment, if roundtrip travel of more than 100
miles is contemplated, or air transportation or overnight accommodations will be
needed, the employee must submit a written request to OWCP for prior
authorization with information describing the circumstances and necessity for
such travel expenses. OWCP will approve the request if it determines that the
travel expenses are reasonable and necessary and are incident to obtaining
authorized medical services, appliances or supplies. Requests for travel expenses
that are often approved include those resulting from referrals to a specialist for

8

5 U.S.C. § 8103

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further medical treatment, and those involving air transportation of an employee
who lives in a remote geographical area with limited local medical services.”
The issues of authorization for medical treatment and reimbursement of travel expenses
for medical treatment are separate and distinct. OWCP may authorize medical treatment but
determine that the travel expense incurred for such authorized treatment was unnecessary or
unreasonable.9 The Board has recognized that it has discretion with respect to authorization of
travel expenses for medical treatment.10
ANALYSIS
Appellant was referred to Dr. Patterson a hand specialist, by Dr. Vann. Dr. Patterson’s
office was approximately 102 miles each way from appellant’s home in Fayetteville, North
Carolina. Appellant seeks reimbursement for travel expenses to and from Dr. Patterson’s office.
As noted, requests for travel expenses can be approved for referrals to a specialist, if such
expenses are reasonable and necessary. Generally a round trip of up to 100 miles is considered
reasonable. Appellant’s round trip of 204 miles would have to be established as reasonable and
necessary under the circumstances.
Dr. Vann stated that appellant needed a hand specialist given her condition, and there is
no contrary evidence in this regard. OWCP did approve wage-loss compensation for treatment
by Dr. Patterson. The question is whether it was reasonable and necessary to incur the travel
expenses associated with the referral to Dr. Patterson. OWCP referred to the ACS system, which
it uses for medical bill payment and authorization services.11 The March 21, 2012 decision states
generally that an ACS search revealed there were “other physicians and facilities” in
Fayetteville, North Carolina, without providing further explanation. The decision did not state
whether it was referring to hand specialists or provide any other relevant information. According
to OWCP procedures,12 the ACS site is available to claimants and appellant asserted there was
only one local hand specialist who did not treat federal workers.
OWCP’s denial of travel expenses related to treatment by Dr. Patterson was based on its
determination that there were appropriate hand specialists located closer to appellant’s home, but
the evidence to support this determination was not adequately documented for the record.
OWCP’s hearing representative refers to OWCP “records” showing appropriate specialists on
ACS, without further explanation. The case record does not contain specific evidence from ACS
or other sources to properly address appellant’s assertion that there were no appropriate hand
specialists available closer to her home such that it was reasonable and necessary to travel to
Dr. Patterson.
9

W.M., 59 ECAB (2007).

10

V.K., Docket No. 12-1103 (issued October 12, 2012).

11

See Federal (FECA) Procedure Manual, Part 5 -- Benefit Payments, Overview of the BPS System, Chapter
5.300.3 (April 2005).
12

Id.

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The case will be remanded to OWCP for proper documentation of its findings on the
issue. After such further development as is deemed necessary, OWCP should issue an
appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 14, 2012 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: May 21, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF ENERGY, SAVANNAH
RIVER SITE OPERATIONS OFFICE,
Aiken, SC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-0235
Issued: December 21, 2015

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On November 10, 2014 appellant filed an application for review of a July 22, 2014
decision of the Office of Workers’ Compensation Programs (OWCP) which denied a request for
surgery. The appeal was docketed as No. 15-235.
The Board has duly considered the matter and notes that section 8124(a) of the Federal
Employees’ Compensation Act1 (FECA) and section 10.126 of the implementing regulations2
require that final decisions of OWCP contain findings of fact and a statement of reasons. A
decision denying a claim for benefits should contain a correct description of the basis for the
denial in order that the parties of interest will have a clear understanding of the precise defect of
the claim and the kind of evidence which would overcome it.3 The Board notes that OWCP’s
July 22, 2014 decision is incomplete and contains insufficient explanation of how OWCP
exercised it discretion in denying appellant’s requested surgery. The portion of the decision
entitled “Basis For Decision” states in its entirety: “The evidence is not sufficient to authorize
the proposed fusion of foot bones is hereby declined for the reason that the evidence presented is
1

5 U.S.C. § 8124(a).

2

20 C.F.R. § 10.126.

3

Patrick Michael Duffy, 43 ECAB 280 (1991).

not sufficient because you failed to provide a current MRI [magnetic resonance imaging scan] as
requested for review by [OWCP].” In its decision of July 22, 2014, OWCP failed to conform to
its established procedure, provisions of FECA, and its implementing regulations, and Board
precedent, all of which require that a final adverse decision of OWCP contain findings of fact
and a clear explanation of the deficiencies of the claim.4 Because its July 14, 2014 decision does
not contain a complete description of the basis for the denial of the claim or the findings of fact
reached therein, the Board finds that OWCP has not fulfilled its responsibility under section
8124 of FECA.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 22, 2014 is set aside and the case remanded for a de novo
decision with appropriate findings of fact and conclusions of law.5
Issued: December 21, 2015
Washington, DC

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

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

4

Id.; see 5 U.S.C. § 8124(a); 20 C.F.R. § 10.126. See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Disallowances, Chapter 2.1400.5 (February 2013) (regarding the elements that an OWCP decision should contain).
5

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
INSTITUTE, Berlin, NH, Employer
__________________________________________

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

Docket No. 16-1382
Issued: December 5, 2016

Case Submitted on the Record

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

JURISDICTION
On June 21, 2016 appellant, through counsel, filed a timely appeal from a May 25, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from OWCP’s most recent merit decision, dated March 4, 2015, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of appellant’s claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
pursuant to 5 U.S.C. § 8128(a).
On appeal counsel asserts that the May 25, 2016 decision was contrary to fact and law.
FACTUAL HISTORY
On May 10, 2013 appellant, then a 43-year-old senior officer specialist/correctional
officer, filed a traumatic injury claim (Form CA-1) alleging that on April 24, 2013 she had a
stress reaction at work due to unfair treatment. She noted that she could not control her
breathing, became numb, and could not talk due to the alleged unfair treatment. Appellant
stopped work that day and returned on April 30, 2013.
Appellant’s supervisor, A.G., controverted the claim. He indicated that on April 24, 2013
appellant was at a meeting with him and a union official when she became upset. After the
meeting, she told them she needed to go to the emergency room. In a June 24, 2013 statement,
A.G. advised that the April 24, 2013 meeting was held to discuss why appellant had been
temporarily reassigned. He explained that appellant was moved due to a number of complaints
lodged against her, and for concerns for her safety and security. A.G. noted that the temporary
move was not disciplinary in nature and that appellant was placed back in her regular post on
May 7, 2013.
In an undated statement, appellant alleged that she was treated in a disrespectful manner
and ignored by employing establishment lieutenants and captains who mistreated her. She
maintained that she was improperly removed from a position, denied union representation, and
was generally treated unfairly on numerous occasions since her arrival at the employing
establishment.
Appellant indicated that this caused stress-related conditions including
hyperventilation and problems with her neck, back, and extremities as well as headaches,
dizziness, and confusion. She noted that she was filing an Equal Employment Opportunity
(EEO) claim. Appellant submitted medical evidence including a July 8, 2013 report in which
Dr. Warren W. Chin, an osteopath, advised that he had seen appellant several times for problems
at work when she would become very agitated. Dr. Chin diagnosed a conversion-type reaction
and advised that her workplace was a trigger for the anxiety symptoms.
By decision dated May 16, 2014 OWCP denied the claim finding that appellant had not
established an injury in the performance of duty. Appellant timely requested a hearing with
OWCP’s Branch of Hearings and Review, held on December 16, 2014. Following her review of
the record and hearing appellant’s testimony, in a March 4, 2015 decision, the hearing
representative affirmed the May 16, 2014 decision.

2

On February 29, 2016 appellant requested reconsideration. In an attached statement
dated February 21, 2016, she asserted that she was placed in a hostile work environment and that
her claim should be accepted because the employing establishment caused work-related stress.3
In a May 25, 2016 nonmerit decision, OWCP denied appellant’s reconsideration request.
It noted that she submitted no evidence other than her statement in which she reiterated her belief
that she was wrongly treated by the employing establishment.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.4 Section 10.608(a) of OWCP’s regulations provides that a timely
request for reconsideration may be granted if OWCP determines that the employee has presented
evidence and/or argument that meets at least one of the standards described in section
10.606(b)(3).5 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that OWCP
erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new
evidence not previously considered by OWCP.6 Section 10.608(b) provides that when a request
for reconsideration is timely filed, but fails to meet at least one of these three requirements,
OWCP will deny the application for reconsideration without reopening the case for a review on
the merits.7
ANALYSIS
The only decision presently before the Board is the May 25, 2016 nonmerit decision of
OWCP denying appellant’s application for further merit review.
With her February 29, 2016 reconsideration request, appellant merely repeated her
allegations that she was treated unfairly by the employing establishment. The Board has held
that the submission of evidence or argument which repeats or duplicates evidence or argument
already in the case record does constitute a basis for reopening a case.8 She therefore did not
show that OWCP erroneously applied or interpreted a specific point of law or advance a relevant
legal argument not previously considered by OWCP. Consequently, appellant was not entitled to
a review of the merits of the claim based on the first and second above-noted requirements under
3

Appellant’s reconsideration request was followed by a reconsideration request by counsel on March 1, 2016.
Counsel attached a copy of appellant’s statement dated February 21, 2016.
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.608(a).

6

Id. at 10.606(b)(3).

7

Id. at § 10.608(b).

8

See L.R., Docket No. 15-1924 (issued September 27, 2016); Eugene F. Butler, 36 ECAB 393, 398 (1984).

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section 10.606(b).9 As to the third above-noted requirement under section 10.606(b)(3),
appellant submitted no additional evidence.
As appellant did not show that OWCP erred in applying a point of law, advance a
relevant legal argument not previously considered, or submit relevant and pertinent new
evidence not previously considered by OWCP, it properly denied her reconsideration request.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 5, 2016
Washington, DC

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

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

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

9

20 C.F.R. § 10.606(b).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OVERTON BROOK VETERANS MEDICAL
CENTER, Shreveport, LA, Employer
__________________________________________

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

Docket No. 12-620
Issued: August 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 27, 2012 appellant filed a timely appeal from the December 8, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding an overpayment
of compensation. 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 appellant received an $11,045.77 overpayment of
compensation; and (2) whether OWCP abused its discretion by refusing to waive recovery of the
overpayment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that by early 2002 appellant, then a 33-year-old patient services
assistant, sustained bilateral cubital tunnel syndrome, bilateral carpal tunnel syndrome and
bilateral lesions of his ulnar nerves due to the performance of his repetitive work duties.
In an April 10, 2007 award of compensation, OWCP granted appellant schedule awards
for 23 percent permanent impairment of his left arm and 20 percent permanent impairment of his
right arm. The awards ran for 134.16 weeks from December 14, 2006 to July 10, 2009. It was
based on an impairment calculation made under the standards of the fifth edition of American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)
(5th ed. 2001).
On March 12, 2009 Dr. Ronald H. Blum, a Board-certified orthopedic surgeon serving as
an OWCP medical adviser, reviewed additional medical evidence and determined that appellant
then had 31 percent permanent impairment of his left arm and 20 percent permanent impairment
of his right arm under the standards of the fifth edition of the A.M.A., Guides.
OWCP issued a July 20, 2009 decision granting appellant a schedule award for an
additional eight percent permanent impairment of his left arm.2 The award ran from
December 11, 2008 to January 1, 2010.3
On July 1, 2010 Dr. Blum provided a new calculation of appellant’s arm impairment
under the standards of the sixth edition of the A.M.A., Guides.4 He determined that appellant
had an eight percent permanent impairment of his left arm under these standards.5
In a July 15, 2010 decision, OWCP determined that appellant was not entitled to any
schedule award compensation for additional permanent impairment as the evidence did not
establish more than 31 percent permanent impairment of his left arm and the 20 percent
permanent impairment of his right arm.
In a September 28, 2010 decision, an OWCP hearing representative affirmed the July 15,
2010 decision but indicated that appellant was not entitled to receive the July 20, 2009 schedule
award for an eight percent right arm impairment because it was calculated under the fifth edition
of the A.M.A., Guides rather than under the sixth edition of the A.M.A., Guides. The hearing

2

As it was determined that appellant had 31 percent left arm impairment and he had already received a schedule
award for 23 percent left arm impairment, he was entitled to receive a schedule award for the difference between
these percentages.
3

In its award of compensation, OWCP suggested that the schedule award was calculated under the sixth edition
of the A.M.A., Guides. However, it was actually based on a calculation made by Dr. Blum under the fifth edition of
the A.M.A., Guides. In connection with the award, appellant received compensation in the amount of $11,045.77.
4

Dr. Blum indicated that he had reviewed an April 13, 2010 report of Dr. Roshan Sharma, an attending Boardcertified physical medicine and rehabilitation physician.
5

Dr. Blum also determined that appellant had an eight percent permanent impairment of his right arm.

2

representative remanded the case to OWCP in order to issue a preliminary determination
regarding an overpayment in the amount of $11,045.77.6
In a May 12, 2011 letter, OWCP advised appellant of its preliminary determination that
he received an $11,045.77 overpayment of compensation because he received schedule award
compensation to which he was not entitled. It also made a preliminary determination that he was
not at fault in the creation of the overpayment. Regarding the creation of the overpayment,
OWCP stated that appellant “received a schedule award by decision dated July 20, 2009, which
awarded you an eight percent impairment of your left upper extremity under [the fifth edition of
the A.M.A., Guides].7 Effective May 1, 2009, OWCP began using the sixth edition of the
A.M.A., Guides; therefore, the decision on July 29, 2009 was issued in error because it was based
on the fifth edition.”
OWCP advised appellant that he could submit evidence challenging the fact, amount or
finding of fault and request waiver of the overpayment. It informed him that he could submit
additional evidence in writing or at a prerecoupment hearing, but that a prerecoupment hearing
must be requested within 30 days of the date of the written notice of overpayment. OWCP
requested that appellant complete and return an enclosed financial information questionnaire
within 30 days even if he was not requesting waiver of the overpayment.
Appellant submitted a completed financial information questionnaire and requested
waiver of the overpayment. He requested a prerecoupment hearing with an OWCP hearing
representative that was scheduled for September 28, 2011.
In an October 18, 2011 decision, OWCP determined that appellant abandoned the
prerecoupment hearing that had been scheduled for September 28, 2011. It indicated that he
failed to appear for the hearing and did not contact it before or after the scheduled hearing to
explain his failure to appear.
In a December 8, 2011 decision, OWCP determined that appellant received an
$11,045.77 overpayment of compensation.8 It further found that he was not at fault in the
creation of the overpayment but that the overpayment was not subject to waiver. OWCP noted
that, although appellant completed a financial information questionnaire, the information was
“not specific enough to determine the claimant’s ordinary and necessary expenses” and,
therefore, the overpayment was declared due and payable in full.

6

In a March 10, 2011 decision, OWCP again affirmed its July 15, 2010 decision.

7

Appellant received $11,045.77 of schedule award compensation in connection with the July 20, 2009 award of
compensation for an eight percent impairment of his right arm.
8

OWCP stated that its December 8, 2011 decision superceded its October 18, 2001 decision. It found that, even
though it had properly determined that appellant abandoned the prerecoupment telephone hearing scheduled for
September 28, 2011, it still was required to issue a final decision on the overpayment matters, including fact and
amount of the overpayment and appellant’s request for waiver.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.9 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”10
The schedule award provision of FECA11 and its implementing regulations12 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. The A.M.A., Guides has
been adopted by the implementing regulations as the appropriate standard for evaluating
schedule losses.13
The effective date of the sixth edition of the A.M.A., Guides is May 1, 2009.14 If a
claimant who has received a schedule award calculated under a previous edition of the A.M.A.,
Guides is entitled to additional benefits, the increased award will be calculated according to the
sixth edition. Should the subsequent calculation result in a percentage of impairment lower than
the original award, a finding should be made that the claimant has no more than the percentage
of impairment originally awarded, that the evidence does not establish an increased impairment
and that OWCP has no basis for declaring an overpayment. Awards made under a previous
edition of the A.M.A., Guides should not be reconsidered merely on the basis that the A.M.A.,
Guides have changed.15
It is well established that, once OWCP accepts a claim, it has the burden of justifying the
termination or modification of compensation benefits. This holds true where, as here, OWCP
later decides that it erroneously accepted a claim. In establishing that, its prior acceptance was
erroneous, OWCP is required to provide a clear explanation of the rationale for rescission.16
OWCP’s procedures specify that a final decision of OWCP must include findings of fact
and provide clear reasoning which allows the claimant to “understand the precise defect of the
9

5 U.S.C. § 8102(a).

10

Id. at § 8129(a).

11

Id. at § 8107.

12

20 C.F.R. § 10.404 (1999).

13

Id.

14

FECA Bulletin No. 09-03 (issued March 15, 2009).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.7(b)(4) (January 2010); FECA Bulletin No. 09-03 (issued March 15, 2009).
16

John W. Graves, 52 ECAB 160, 161 (2000).

4

claim and the kind of evidence which would tend to overcome it.”17 These requirements are
supported by Board precedent.18
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not adequately explain the basis for its finding that
appellant received an $11,045.77 overpayment of compensation. Prior to the issuance of its
May 12, 2011 preliminary overpayment notice, OWCP had not issued a formal decision
rescinding a portion of his entitlement to schedule award compensation for his left arm.19 As
noted, before it modifies an award of compensation it must clearly explain the basis for such
modification.20 Through the overpayment determination, it effectively rescinded a portion of
appellant’s entitlement to schedule award compensation, but it did not adequately explain the
basis for such decision. In its May 12, 2011 preliminary overpayment notice, OWCP briefly
discussed a July 1, 2010 report of Dr. Blum, a Board-certified orthopedic surgeon serving as an
OWCP medical adviser, which contained impairment calculations made under the standards of
the sixth edition of the A.M.A., Guides. It ostensibly used these calculations as the basis for its
overpayment determination, but it did not provide an explanation of the calculations provided by
Dr. Blum or otherwise establish the correctness of the calculations.
In the preliminary overpayment letter and final overpayment decision, OWCP pointed out
that it should have applied the standards of the sixth edition of the A.M.A., Guides, rather than
the standards of the fifth edition, when it granted appellant an additional schedule award for an
eight percent right impairment on July 20, 2009, i.e., after the May 1, 2009 effective date of the
sixth edition.21 However, it did in fact apply the fifth edition of the A.M.A., Guides in granting
appellant additional schedule award compensation on July 20, 2009 and it did not address the
applicability of its procedure which provides that, if a subsequent calculation of a schedule
award under a later edition of the A.M.A., Guides results in a lower percentage of impairment
than that derived under an earlier edition, a finding should be made that the claimant has no more
than the percentage of impairment originally awarded and there is no basis for declaring an
overpayment.22 OWCP did not discuss this portion of its applicable procedure in either its
preliminary overpayment notice or its final overpayment decision or adequately explain why it
was not applicable to the facts of the present case.
Under these circumstances, appellant would not adequately understand, with respect to
the creation of the claimed overpayment, the precise defect of his claim and the kind of evidence

17

See Federal (FECA) Procedure Manual, supra note 15, Disallowances, Chapter 2.1400.4 (July 1997).

18

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

19

In a September 28, 2010 decision, an OWCP hearing representative suggested that an overpayment should be
declared, but the hearing representative actually affirmed OWCP’s July 15, 2010 decision, which found that
appellant was entitled to the compensation he had already received for his arm impairment.
20

See supra note 16.

21

See supra note 14.

22

See supra note 15.

5

which would tend to overcome it.23 OWCP did not adequately justify or explain its effective
rescission of a portion of his entitlement to schedule award compensation which in turn served as
the basis for the claimed overpayment.24 The case will be remanded to OWCP for further
development concerning the applicable procedures and fact of overpayment.25 After such
development as it deems necessary, OWCP should issue an appropriate decision on the
overpayment matters at issue in the present case.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether OWCP
properly determined that appellant received an $11,045.77 overpayment of compensation and
whether OWCP abused its discretion by refusing to waive recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the December 8, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with decision of the Board.
Issued: August 10, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

23

See supra notes 17 and 18.

24

See J.T., Docket 11-1164 (issued February 22, 2012).

25

Given the Board’s disposition of the first issue of this case, it is premature to address the second issue at the
present time.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Buffalo, NY, Employer
__________________________________________

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

Docket No. 13-451
Issued: April 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 13, 2012 appellant filed a timely appeal from a November 13, 2012 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 overpayment issue of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment in the amount of $12,859.60 for the period May 6 to September 22, 2012; and
(2) whether she was at fault in the creation of the overpayment and therefore not entitled to
waiver of recovery.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the November 13, 2012 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

FACTUAL HISTORY
OWCP accepted that on October 31, 2006 appellant, then a 58-year-old postal clerk,
sustained injuries to her left arm, back, and buttocks when she sat on a chair and it collapsed.
She stopped work on November 1, 2006 and returned to modified duty on December 18, 2006.
Appellant stopped work again on April 17, 2009 and filed a recurrence claim. In a decision
dated July 17, 2009, OWCP accepted her recurrence claim and paid wage-loss compensation for
total disability beginning April 17, 2009. Appellant was placed on the periodic rolls. She
submitted a direct deposit sign-up form.
OWCP referred appellant, along with a statement of accepted facts, to Dr. Arlen Snyder,
a Board-certified orthopedic surgeon, for a second opinion examination. In a March 1, 2012
report, Dr. Snyder reviewed appellant’s history, including the statement of accepted facts and
conducted an examination. He opined that her accepted employment injuries had resolved and
that she was capable of returning to full duty.
On April 3, 2012 OWCP proposed to terminate appellant’s medical and wage-loss
compensation benefits based on Dr. Arlen’s March 1, 2012 second opinion report which found
that her employment-related conditions had resolved and that she no longer had residuals of her
accepted employment conditions.
By decision dated May 4, 2012, OWCP finalized the termination of appellant’s wage-loss
compensation benefits effective May 6, 2012.
Appellant continued to receive disability compensation by direct deposit every 28 days
until September 22, 2012. She received a net compensation of $2,571.92 for each of the
following 28-day periods: May 6 to June 2; June 3 to 30; July 1 to 28; July 29 to August 25 and
August 26 to September 22, 2012.
An overpayment worksheet dated October 1, 2012 indicated that appellant received
compensation payments for 140 days of time lost which totaled $12,859.60. It noted that her
medical and wage-loss compensation benefits were terminated on May 6, 2012.
On October 12, 2012 OWCP issued a preliminary decision that appellant received an
overpayment in the amount of $12,859.60 because she received compensation for total disability
from May 6 to September 22, 2012 after her wage-loss compensation benefits were terminated
effective May 6, 2012. It found that she was at fault in creating the overpayment because she
accepted payments that she knew or reasonably should have known to be incorrect. OWCP
informed appellant of her appellate options and instructed her to complete an enclosed
overpayment recovery form and submit supporting documentation.
On October 12, 2012 appellant informed OWCP via telephone that she retired as of
May 2012 but had received five extra payments.
In a November 13, 2012 decision, OWCP finalized the overpayment of $12,859.60 and
found that appellant was at fault in the creation of the overpayment because she accepted
payments that she knew or reasonably should have known to be incorrect.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that while an employee is receiving compensation or if
she has been paid a lump sum in commutation of installment payments until the expiration of the
period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specific
instances.4
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
in compensation in the amount of $12,859.60 for the period May 6 to September 22, 2012. The
record reflects that OWCP terminated appellant’s wage-loss compensation benefits effective
May 6, 2012 but appellant continued to receive disability compensation until
September 22, 2012.
The record reveals that an amount of $2,571.92 in compensation benefits was
electronically deposited into appellant’s bank account every 28 days from May 6 to
September 22, 2012 for a period of 140 days even though her compensation benefits were
terminated effective May 6, 2012. As appellant’s compensation checks ran from May 6 to
September 22, 2012 and her benefits were terminated as of May 6, 2012, the entire amount of
compensation appellant received during this period, $12,859.60, was an overpayment of
compensation. The Board finds that appellant received an overpayment of compensation in the
amount of $12,589.86 for the period May 6 to September 22, 2012.5
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or be against equity and good conscience.6 No waiver of
payment is possible if appellant is with fault in helping to create the overpayment.7

3

5 U.S.C. § 8102.

4

Id. at § 8116(a).

5

See M.G., Docket No. 08-1942 (issued September 3, 2009).

6

5 U.S.C. § 8129(b).

7

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

3

In determining whether an individual is not without fault or alternatively, with fault,
section 10.433(a) of OWCP’s regulations provide in relevant part:
An individual is with fault in the creation of an overpayment who:
(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have known to
be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect.8
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.9
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment because
she accepted payments that she knew or should have known to be incorrect. The Board finds,
however, that OWCP failed to establish that, at the time appellant accepted the initial payment of
compensation, she knew or should have known the payments were incorrect.
In cases where a claimant receives compensation through direct deposit, the Board has
held that OWCP must establish that at the time a claimant received the direct deposit in question
that she knew or should have known that the payment was incorrect.10 The Board has held that
an employee who receives payments from OWCP in the form of a direct deposit might not be at
fault for the first incorrect deposit into her account since the acceptance of the overpayment, at
the time of receipt of the direct deposit, lacks the requisite knowledge.11 Because fault is defined
by what the claimant knew or should have known at the time of acceptance, one of the
consequences of electronic fund transfers is that the claimant lacks the requisite knowledge at the
time of the first incorrect payment.12 Whether or not OWCP determines that an individual is at
fault with respect to the creation of an overpayment depends on the circumstances surrounding
the overpayment.13 It is not appropriate, however, to make a finding that a claimant has accepted
an overpayment via direct deposit until such time as a reasonable person would have been aware
8

20 C.F.R. § 10.433(a).

9

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

10

C.K., Docket No. 12-746 (issued May 1, 2012).

11

Tammy Craven, 57 ECAB 589 (2006); see also George A. Hirsch, 47 ECAB 520 (1996).

12

Id.

13

Id.

4

that this overpayment had occurred. This awareness could be established either through
documentation such as a bank statement or notification from OWCP or where a reasonable
period of time has passed during which a claimant could have reviewed independent
confirmation of the incorrect payment.14
The record establishes that appellant received compensation by direct deposit every 28
days from May 6 to September 22, 2012. The evidence of record does not establish that on the
date of the first direct deposit of compensation after her benefits were terminated effective
May 6, 2012 that appellant knew or should have known that she was accepting a direct deposit to
which she was not entitled. The record does not contain any documentation or other evidence to
demonstrate that appellant had clear knowledge at the time of the initial direct deposit for the
period May 6 to June 2, 2012 that the payment was incorrect or that a reasonable period of time
passed during which she could have reviewed bank statements or been informed of the incorrect
payment. Thus, the Board finds that, when the initial June 2, 2012 direct deposit was made,
appellant had no knowledge that this direct deposit was incorrect. Appellant, therefore, cannot
be found at fault in the acceptance of the initial June 2, 2012 direct deposit.
Even though OWCP may have been negligent in making incorrect payments, this does
not excuse a claimant from accepting payments she knew or should have known to be
incorrect.15 In cases involving a series of incorrect payments, where the requisite knowledge is
established by documentation from OWCP or simply with the passage of time and opportunity
for discovery, the claimant will be at fault for accepting the payments subsequently deposited.16
Thus, by the time of the second payment dated June 30, 2012 appellant should have known that
she was no longer entitled to compensation and should have taken further steps to prevent
issuance of another payment. Accordingly, the Board will affirm the finding of fault for the
remaining June 3 to September 22, 2012 period of overpayment.
The Board finds that this case is not in posture for decision regarding the issue of waiver
of the overpayment for the initial direct deposit on June 2, 2012. The Board will set aside the
November 13, 2012 decision regarding the issue of fault as to the initial June 2, 2012 direct
deposit and will remand the case for OWCP to determine whether appellant is entitled to waiver
for the direct deposit of compensation covering the period May 6 to June 2, 2012.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for the period May 6 to September 22, 2012. The November 13, 2012 decision
is set aside and remanded to OWCP regarding the issue of waiver of the overpayment for the
period May 6 to June 2, 2012.

14

See K.H., Docket No. 06-191 (issued October 30, 2006).

15

William E. McCarty, 54 ECAB 525 (2003).

16

J.W., Docket No. 10-1271 (issued February 3, 2011); see also Karen K. Dixon, 56 ECAB 145 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 13, 2012 is affirmed in part or set aside in part. The
case is remanded for further action consistent with this decision.
Issued: April 12, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Omaha, NE, Employer
__________________________________________

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

Docket No. 13-1776
Issued: January 6, 2014

Case Submitted on the Record

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

JURISDICTION
On July 23, 2013 appellant filed a timely appeal from a May 31, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant established a traumatic injury in the performance of duty
on March 26, 2013.
FACTUAL HISTORY
On March 26, 2013 appellant, then a 33-year-old postal support employee clerk, filed a
traumatic injury claim (Form CA-1) alleging that she sustained an injury to her low back and left

1

5 U.S.C. § 8101 et seq.

hip in the performance of duty on that date. She stated that bending, lifting and throwing caused
her injury. The employing establishment issued a Form CA-16 on March 26, 2013.2
In a statement dated March 26, 2013, Dr. Eric Hawkins, a chiropractor, noted that
appellant was treated that day. He provided her with chiropractic adjustment and physiotherapy.
Dr. Hawkins recommended work restrictions of no kneeling or squatting, no repetitive bending
or stooping, no climbing of stairs or ladders, no repetitive shoveling, lifting only up to 10
pounds, pushing and pulling with up to 20 pounds of force and reaching to shoulder level only.
He diagnosed sprain/strain of the lumbar muscles. Dr. Hawkins did not state that x-rays were
obtained.
In an attending physician’s form dated March 26, 2013, Dr. Hawkins noted that appellant
had no history of preexisting injury, disease or physical impairment. He checked a box
indicating that he believed her condition was caused or aggravated by her employment, noting
that she was twisting and throwing magazine bundles.
By letter dated April 22, 2013, OWCP informed appellant that the evidence of record was
insufficient to establish her claim. It afforded her 30 days to submit additional evidence and to
respond to its inquiries, noting that chiropractors do not qualify as physicians under FECA unless
there is a diagnosed spinal subluxation, demonstrated by x-ray.
In a duty status report (Form CA-17) dated April 2, 2013, Dr. Hawkins recommended
work restrictions of no bending or stooping, no twisting, no reaching above the shoulder, and
pulling and pushing no more than six to seven hours per day.
In a note dated March 26, 2013, Dr. Hawkins diagnosed appellant with lumbago and
spasm of the lumbar muscle. He provided appellant with a chiropractic adjustment, electrical
muscle stimulation and mechanical traction. Dr. Hawkins noted that appellant’s lower back and
sacrum exhibited misalignment of moderate departure from the center, moderate range of motion
abnormality, moderate tissue and tone changes and moderate palpatory pain.
In notes dated March 27 through April 3, 2013, Dr. Hawkins reiterated the diagnoses and
appellant’s treatment. He noted gradual improvement in her condition over this period of time.
On April 5, 2013 Dr. Hawkins reported improvement in appellant’s condition. He noted
that her low back and sacrum exhibited misalignment of mild departure from the center, mild
range of motion abnormality, mild tissue and tone changes, and mild palpatory pain.
Additionally, Dr. Hawkins provided appellant with C/T mobilization.
In notes dated April 8 through 19, 2013, Dr. Hawkins reported improvement in
appellant’s condition. He reiterated the prior diagnosis and treatment. Dr. Hawkins provided
appellant with a chiropractic adjustment and T/S mobilization. He noted that appellant’s lower
back and sacrum exhibited misalignment of mild departure from the center and mild range of
motion abnormality.
2

When a medical treatment authorization Form CA-16 is issued to a specific health provider by the employing
establishment, the form creates a contractual obligation to pay for the cost of services rendered under the limitations
set forth by statute and the CA-16 form. See Luke M. Patch, Jr., 38 ECAB 259 (1986). The CA-16 form of record,
in this case, however, was not fully completed to authorize treatment by any specific medical provider.

2

On April 26, 2013 Dr. Hawkins reported improvement in appellant’s condition. He
reiterated that her low back and sacrum exhibited misalignment of mild departure from the
center. Dr. Hawkins provided appellant with a chiropractic adjustment.
By letter dated May 6, 2013, appellant responded to OWCP’s inquiries. Describing the
incident of March 26, 2013, she stated that her injury occurred when she was sorting bundled
circulars that had been palletized. The pallet was roughly two and a half feet above the ground.
It was appellant’s job to push it using a pallet jack to the needed location, then to sort the
bundles. The bundles weighed about five pounds each. Appellant lifted the bundles off the
pallet, then twisted to stack the bundles on the floor at the carrier case, estimating that she did
this approximately two hundred times. Her back began to hurt, but she continued to work
despite the pain. Appellant eventually asked a coworker to take over her task. Appellant began
to put mail into post office boxes, but could not bend over. She told the acting postmaster that
she needed to leave to see a chiropractor. Appellant described the duties of her position as a mail
clerk as working the dock, loading and unloading loads of mail and mail containers, and sorting
through trays, tubs, sacks of mail, parcels and bundled flats. She lifted, scanned, and threw
hundreds of parcels, sorted through stock, and delivered post office box mail. Appellant asserted
that she had not previously been treated for a back or hip condition, but was treated by
Dr. Hawkins on July 24, 2012 for a shoulder condition. She never saw a medical doctor for her
claimed injury because no one told her she needed to do so. Appellant listed her activities
outside of federal employment as sleeping, driving, grocery shopping, paying bills, housework,
errands and watching her son play sports. She asserted that she had no similar disability or
symptoms before the claimed date of injury. Appellant clarified that her claim was for traumatic
injury.
In a witness statement dated May 6, 2013, a coworker stated that appellant was teaching
her how to distribute mail when she hurt her back. Another coworker noted that appellant left to
see her chiropractor. For the next week, the coworker helped appellant on the dock on night
dispatch, loading and unloading trucks, due to her injury.
By decision dated May 31, 2013, OWCP denied appellant’s claim. It found that she did
not submit any medical evidence from a qualified physician. It noted that the medical evidence
was from a chiropractor who did not diagnose a subluxation of the spine as demonstrated by
x-ray.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time

3

5 U.S.C. §§ 8101-8193.

3

limitation period of FECA, that an injury4 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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.7 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.8 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.9
ANALYSIS
Appellant alleged that on March 26, 2013, she sustained an injury to her low back and
left hip in the performance of duty. The Board finds that she did not submit sufficient medical
evidence to establish an injury causally related to the accepted incident.
Appellant submitted reports from Dr. Hawkins, a chiropractor. Section 8101(2) of
FECA provides that the term “physician” includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to
correct a subluxation as demonstrated by x-ray to exist and subject to regulations by the
Secretary.11 The evidence of record does not substantiate that Dr. Hawkins obtained x-rays of
10

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
6

Id. See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

7

See J.Z., 58 ECAB 529, 531 (2007); Paul E. Thams, 56 ECAB 503, 511 (2005).

8

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

James Mack, 43 ECAB 321, 329 (1991).

10

5 U.S.C. § 8101(2).

11

See 20 C.F.R. § 10.311.

4

appellant’s spine. While he noted a misalignment of appellant’s spine, he did not diagnose a
spinal subluxation based upon x-ray evidence. Without a diagnosis of a spinal subluxation by
x-ray, a chiropractor is not a physician as defined under FECA and his opinion does not
constitute competent medical evidence.12 Therefore, the reports of Dr. Hawkins are of no
probative value on the issue of whether appellant sustained a low back or hip injury due to the
incident of March 26, 2013.
Because appellant did not submit rationalized medical opinion evidence, from a
physician, she has failed to meet her burden of proof.
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 established that she sustained an injury in the
performance of duty on March 26, 2013, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 31, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

12

See Jay K. Tomokiyo, 51 ECAB 361, 367-68 (2000).

5


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

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

Docket No. 11-464
Issued: September 19, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 21, 2010 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ (OWCP) November 9, 2010 decision denying her traumatic injury
claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§
501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a traumatic injury in the
performance of duty on June 24, 2008.
FACTUAL HISTORY
On December 29, 2008 appellant, then a 41-year-old rural carrier, filed a traumatic injury
claim alleging that, on June 24, 2008, she sustained a neck injury when her postal vehicle was
involved in a motor vehicle accident (MVA). She stated that at the time of the accident, her neck
1

5 U.S.C. § 8101 et seq.

made cracking noises and months later, she developed headaches and numbness and tingling in
her hands and arms. Appellant first received medical care on December 17, 2008.
On January 15, 2009 OWCP advised appellant of the factual and medical evidence
needed to establish her claim. Appellant was asked to provide a physician’s report with a
diagnosis and a rationalized opinion on how the claimed event caused the diagnosed condition.
She was also asked to explain why she delayed seeking medical treatment for six months.
The record contains a June 24, 2008 accident report indicating that appellant’s postal
vehicle was struck by another vehicle that was attempting to pass as she was turning. The record
also contains a June 24, 2008 patient declination form from Bensie County EMS reflecting that
appellant refused transport on that date. In a letter dated January 26, 2009, appellant explained
that she believed that she was “alright” after the accident but was “probably in shock” when she
refused treatment. She alleged that she had been experiencing pain and discomfort ever since.
Appellant submitted reports from November 12 to December 19, 2008 from Jacqueline
Norton, a physicians’ assistant, who diagnosed cervicalgia and stated that appellant had been
experiencing neck pain radiating to her hand and headaches since being involved in a MVA in
June 2008. She also submitted a November 12, 2008 report of an x-ray of the cervical spine and
a January 19, 2009 report of a magnetic resonance imaging (MRI) scan of the cervical spine.
In a March 17, 2009 decision, OWCP denied appellant’s claim on the grounds that the
medical evidence was insufficient to establish a causal relationship between the accepted
June 24, 2008 accident and her claimed neck condition.
On April 13, 2009 appellant, through her representative, requested a telephonic hearing.2
Appellant submitted reports dated March 12 and July 9, 2009 from Dr. Geoffrey K.
Turner, a Board-certified internist, who diagnosed headache (post-traumatic) and cervicalgia.
Examination of the cervical spine revealed decreased range of motion, painful movements and
restricted flexion and extension.
In a July 14, 2009 report, Dr. G. Tuzane, a treating physician, diagnosed headache and
neck injury, noting the June 24, 2008 as the date of injury. In response to the question as to
whether there was a causal relationship between the diagnosis and the history of injury, he stated,
“possible.”
The record contains a February 3, 2009 nerve conduction study (NCS) and
electromyogram (EMG) report from Dr. Karen Meyer, a Board-certified physiatrist. Testing of
the left upper extremity revealed electrodiagnostic evidence of moderate carpal tunnel syndrome
without evidence of axonal loss or of cervical radiculopathy or plexopathy. Dr. Meyer stated
that “clinically,” appellant had whiplash syndrome from a June 24, 2008 MVA, as well as a
suspected postconcussive syndrome. On March 4, 2009 he diagnosed “whiplash due to MVA
June 24, 2008.”
2

OWCP initially denied appellant’s claim in a February 20, 2009 decision. It reissued its decision denying the
claim on March 17, 2009.

2

In an April 27, 2009 report, Dr. Stephen J. Andriese, a Board-certified physiatrist,
provided a history of a June 24, 2008 MVA. On examination, Spurlings maneuver was negative
for radicular symptoms. Appellant was tender over the occipital ridge and over the cervical facet
at S1. The results of a recent MRI scan revealed uncovertebral joint degenerative changes,
narrowing right C5-6 neural foramen and C6-7 disc bulging. Dr. Andriese diagnosed
“cervicalgia, likely cervical facetogenic pain related to whiplash injury from [MVA June 24,
2008],” with related occipital neuralgia and insomnia, and “bilateral upper extremity paresthesias
described in the wake of the above-mentioned accident with some evidence of carpal tunnel
syndrome....”
On December 11, 2009 Roberta Herbst, a physicians’ assistant, diagnosed torticollis.
In an April 6, 2010 report, Dr. Douglas J. Coles, a Board-certified internist, stated that
appellant had chronic neck pain radiating into both upper extremities, more so on the left. He
noted that she was involved in a MVA on June 24, 2008 in which the vehicle she was driving
was struck by another vehicle. Physical examination findings included pain with palpation of the
cervical spine. Dr. Coles diagnosed “whiplash[-]type injury c-spine” and degenerative joint
disease of the cervical spine. In response to a question as to whether there was a causal
relationship between the history of injury and the diagnosed condition, he responded, “Yes.”
At the August 11, 2010 hearing, appellant testified that she notified her employer
immediately following the June 24, 2008 accident. She explained that she failed to seek medical
attention right away because she did not believe she was injured and had a delayed reaction to
the accident.
By decision dated November 9, 2010, OWCP’s hearing representative affirmed the
March 17, 2009 decision finding that the medical evidence was insufficient to establish a causal
relationship between the June 24, 2008 MVA and the claimed cervical condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of her claim including the fact that the individual is an “employee of the United States”
within the meaning of FECA, that the claim was filed within the applicable time limitation, that
an injury was sustained in the performance of duty as alleged and that any disability or specific
condition for which compensation is claimed is causally related to the employment injury.3
These are the essential elements of each and every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually

3

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

4

Daniel J. Overfield, 42 ECAB 718, 721 (1991).

3

experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
The medical evidence required to establish a causal relationship, generally, is rationalized
medical evidence. Rationalized medical evidence is medical evidence which includes a
physician’s rationalized medical opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
OWCP accepted that appellant was a federal employee, that she timely filed her claim for
compensation benefits, and that the June 24, 2008 MVA occurred in the performance of duty as
alleged. The issue, therefore, is whether she has submitted sufficient medical evidence to
establish that the employment incident caused an injury. The medical evidence presented does
not contain a rationalized medical opinion establishing that the work-related incident caused or
aggravated any particular medical condition or disability. Therefore, appellant has failed to
satisfy her burden of proof.
Appellant submitted reports from November 12 to December 19, 2008 from Jacqueline
Norton, a physicians’ assistant, who diagnosed cervicalgia and stated that appellant had been
experiencing neck pain radiating to her hand and headaches since being involved in a MVA in
June 2008. She also submitted a December 11, 2009 report of Roberta Herbst, a physicians’
assistant, who diagnosed torticollis. As physicians’ assistants do not qualify as “physicians”
under FECA, the Board finds that these reports do not constitute probative medical evidence.8
In reports dated March 12 and July 9, 2009, Dr. Turner provided findings on examination
and diagnosed headache (post-traumatic) and cervicalgia. He did not, however, provide a
definitive diagnosis9 or render an opinion as to the cause of appellant’s condition. Medical

5

Robert J. Krstyen, 44 ECAB 227, 229 (1992); John J. Carlone, 41 ECAB 354, 356-57 (1989).

6

Id.

7

Ern Reynolds, 45 ECAB 690, 695 (1994); Gary L. Fowler, 45 ECAB 365, 371 (1994).

8

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides
as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by State law.” See Merton J.
Sills, 39 ECAB 572, 575 (1988).
9

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See C.F.,
Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339, 342 (2004).

4

evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.10
On July 14, 2009 Dr. Tuzane diagnosed headache and neck injury, noting June 24, 2008
as the date of injury. In response to the question as to whether there was a causal relationship
between the diagnosis and the history of injury, he stated, “possible.” Dr. Tuzane did not
provide a definitive diagnosis, examination findings or an accurate factual and medical history.
Moreover, his opinion regarding a possible causal relationship between appellant’s cervical
condition and the June 24, 2008 incident is speculative. For all of these reasons, Dr. Tuzane’s
report is of limited probative value.
In an April 6, 2010 report, Dr. Coles diagnosed “whiplash-type injury c-spine” and
degenerative joint disease of the cervical spine, noting that appellant was involved in a MVA on
June 24, 2008. In response to a question as to whether there was a causal relationship between
the history of injury and the diagnosed condition, he responded, “Yes.” A mere checkmark or
affirmative notation in response to a form question on causal relationship is not sufficient to
establish a claim.11 Dr. Coles did not describe how the June 24, 2008 accident was competent to
cause appellant’s vaguely diagnosed conditions, or how he was able to make a medical
determination of such a causal relationship nearly two years after the accident. Accordingly, his
report is of diminished probative value.
On February 3, 2009 Dr. Meyer provided the results of NCS/EMG testing, which
revealed electrodiagnostic evidence of moderate carpal tunnel syndrome without evidence of
axonal loss or of cervical radiculopathy or plexopathy. She stated that “clinically,” appellant had
whiplash syndrome from a June 24, 2008 MVA, as well as a suspected postconcussive
syndrome. On March 4, 2009 Dr. Meyer diagnosed “whiplash due to [MVA June 24, 2008].”
Her report lacks probative value on several counts. The diagnosis is vague and speculative.
Moreover, Dr. Meyer failed to explain how appellant’s condition was causally related to the
June 24, 2008 accident. Medical conclusions unsupported by rationale are of little probative
value.12 In this case, such an explanation is particularly important in light of the fact that
appellant had no symptoms immediately following the accident and failed to seek medical
treatment for six months.
In an April 27, 2009 report, Dr. Andriese provided a history of a June 24, 2008 MVA and
examination findings. He diagnosed “cervicalgia, likely due to whiplash injury from June 24,
2008 MVA,” with related occipital neuralgia and insomnia, and “bilateral upper extremity
paresthesias described in the wake of the above-mentioned accident with some evidence of
carpal tunnel syndrome. Dr. Andriese’s opinion regarding the likely cause of appellant’s
condition is speculative in nature and thus of diminished probative value.13 More importantly, he

10

Michael E. Smith, 50 ECAB 313 (1999).

11

See Gary J. Watling, 52 ECAB 278 (2001).

12

Willa M. Frazier, 55 ECAB 379 (2004).

13

See Ellen L. Noble, 55 ECAB 530 (2004).

5

failed to explain the causal connection between the June 2008 incident and appellant’s current
conditions. Therefore, Dr. Andriese’s report is insufficient to establish her claim.
Appellant expressed her belief that her cervical condition resulted from the June 24, 2008
MVA. The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.14
Neither the fact that the condition became apparent during a period of employment, nor the belief
that the condition was caused or aggravated by employment factors or incidents, is sufficient to
establish causal relationship.15 Causal relationship must be substantiated by reasoned medical
opinion evidence, which it is appellant’s responsibility to submit. Therefore, appellant’s belief
that her condition was caused by the work-related incident is not determinative.
OWCP advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of her condition. Appellant failed to submit
appropriate medical documentation in response to OWCP’s request. As there is no probative,
rationalized medical evidence addressing how appellant’s claimed cervical condition was caused
or aggravated by her employment, she has not met her burden of proof in establishing that she
sustained an injury in the performance of duty causally related to factors of her federal
employment.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a traumatic injury on June 24, 2008 in the performance of duty.

14

See Joe T. Williams, 44 ECAB 518, 521 (1993).

15

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 9, 2010 decision is affirmed.
Issued: September 19, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, New Egypt, NJ, Employer
__________________________________________

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

Docket No. 10-893
Issued: October 26, 2010

Case Submitted on the Record

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

JURISDICTION
On February 18, 2010 appellant filed a timely appeal from a January 14, 2010 merit
decision of the Office of the Workers’ Compensation Programs. 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 met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on November 9, 2009.
FACTUAL HISTORY
On November 9, 2009 appellant, then a 30-year-old surface maintenance mechanic, filed
a traumatic injury claim alleging that, on that date, he was injured while he was loading a tow bar
onto the bed of a transport vehicle. He reported feeling a pop in his groin and had intense pain
on the right side of his body between the thigh and the lower abdominal area. In a witness
statement, a coworker recalled seeing appellant wince in discomfort while lifting the tow bar.
Appellant stopped work on November 9, 2009 and returned to work the next day.

In a December 8, 2009 worksheet, a continuation of pay (COP) nurse contacted the
employing establishment by telephone to confirm with appellant’s supervisor that he returned to
his regular duties on November 10, 2009.1
In a letter dated December 11, 2009, the Office informed appellant that additional
evidence was needed to establish his claim. It gave him 30 days to submit medical reports
detailing any treatment from a physician, clinic or hospital. In particular, the Office emphasized
that the physician’s report must include dates of examination and treatment, history of injury, a
detailed description of findings, results of x-rays and laboratory tests, diagnosis and clinical
course of treatment followed, and the physician’s opinion supported by a medical explanation
pertaining to how the reported work incident caused the injury.
In a decision dated January 14, 2010, the Office denied appellant’s claim for
compensation benefits. It found that he failed to provide any medical evidence demonstrating
that his injury was caused by the work incident.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of his claim by the weight of reliable,
probative and substantial evidence,3 including that he is an “employee” within the meaning of
the Act4 and that he filed his claim within the applicable time limitation.5 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.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. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8

1

See FECA Bulletin No. 10-04 (issued September 10, 2010).

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
5

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

2

Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence, which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS
The evidence supports that appellant was lifting a tow bar as alleged on
November 9, 2009. However, he did not submit any medical evidence to establish that lifting the
tow bar caused or aggravated a diagnosed medical condition.
On December 11, 2009 the Office advised appellant of the type of medical evidence
needed to establish his claim. In particular, it asked that appellant submit a medical report from
his physician explaining why the work incident caused an injury. The record establishes that
appellant failed to submit any medical evidence before the Office denied his claim on
January 14, 2010. Thus, there is no medical evidence from a physician supporting that the
November 9, 2009 work incident caused or aggravated a diagnosed medical condition.
Appellant did not provide the factual and medical evidence required to establish a prima facie
claim.10
Consequently, appellant has not met his burden of proof to establish that he sustained an
injury in the performance of duty causally related to his federal employment.11
CONCLUSION
The Board finds that appellant has not established that he sustained an injury causally
related to his employment on November 9, 2009.

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

See Donald W. Wenzel, 56 ECAB 390 (2005).

11

The Board notes that appellant submitted additional evidence to the Office after it rendered its decision. The
Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R.
§ 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.3 (1952). Appellant may
submit this evidence to the Office, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. § 10.606(b)(2).

3

ORDER
IT IS HEREBY ORDERED THAT the January 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 26, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4