United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
COMPLEX, Victorville, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1758
Issued: February 27, 2012

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 July 26, 2011 appellant filed a timely appeal from the July 7, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which denied his bilateral knee claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant’s bilateral knee condition is causally related to his federal
employment.
FACTUAL HISTORY
On March 18, 2005 appellant, a 55-year-old cook foreman, filed an occupational disease
claim alleging that his food service duties, including being on his feet all day on a concrete floor
1

5 U.S.C. § 8101 et seq.

and pushing carts weighing up to 500 pounds, caused a left foot injury. He was last exposed to
the conditions alleged to have caused his injury on January 3, 2005.
OWCP accepted appellant’s claim for a temporary aggravation of degenerative joint
disease of the first metatarsal phalangeal joint of the left foot. In 2005 appellant underwent a
cheilectomy of the affected joint with debridement and chondroplasty. At the end of the year he
retired. On December 19, 2006 appellant received a schedule award for a seven percent
impairment of his left foot.
In 2009 appellant notified OWCP that he was having problems with his knees. It advised
him to submit a medical report from his physician providing a rationalized opinion on the causal
relationship, if any, between the work injury and the medical condition for which he was now
being treated. OWCP also asked appellant to submit a detailed history of his knee problems and
the reason he believed the condition related to the accepted left foot injury.
Appellant explained that he worked for the employing establishment for about 22 years
and that standing, lifting, pulling and pushing contributed to the deterioration of his feet and
knees. He presently worked as a cook for a new employer with the same duties he performed for
the Bureau of Prisons and with the same repetitive tasks.
X-rays in April 2006 showed no significant abnormality but were compatible with
minimal bilateral knee osteoarthritis. Appellant was advised that the type of arthritis he had was
minimal and progressed very slowly. A magnetic resonance imaging scan of both knees in 2007
showed a mild thinning and irregularity of the patellar articular cartilage on the right. The
impression, however, was a normal study.
On October 9, 2009 Dr. Cliff Jong-Ho Hwang, a Board-certified internist, reported as
follows: “Patient has bilateral knee osteoarthritis contributed by prolonged standing, pushing,
and pulling heavy materials at work.”
On November 10, 2009 Dr. Paul C. Liu, a Board-certified orthopedic surgeon, explained
that he treated appellant for chronic bilateral anterior knee pain and painful arthritis of the right
knee patellofemoral compartment. He stated that appellant’s knee pain dated to the mid 1990s
with radiation to his legs. Dr. Liu concluded: “Standing, pushing [and] pulling contributes to his
knee and leg pains as he works in food service in a detention center.”
An OWCP medical adviser was asked to address whether OWCP should expand its
acceptance of appellant’s claim to include his bilateral knee condition. The medical adviser
found that it was not medically established that the bilateral knee arthritis arose out of the
accepted mechanism of injury.
In a decision dated January 14, 2010, OWCP denied appellant’s bilateral knee claim. It
found that Dr. Hwang offered no rationale beyond his stated conclusion that standing, pushing
and pulling at work caused appellant’s bilateral knee condition. Further, the medical evidence
did not attribute appellant’s bilateral knee condition to the accepted left foot injury.
On September 16, 2010 Dr. Liu noted that appellant had bilateral knee pain since 1999,
after 15 years of working at a job that entailed kneeling and squatting. X-rays and an imaging
2

study showed bilateral arthritis in the medial and patellofemoral compartment.
addressed causal relationship:

Dr. Liu

“I write to state also that the knee problems that [appellant] currently experiences
are related to the type of work that he used to do in the food service line of work,
which he did from 1984 to 2005. [Appellant] also went back to work in the food
service in the current workplace in 2006. The work that he used to do has a
causative effect on his current knee symptoms.”
In a decision dated December 10, 2010, OWCP reviewed the merits of appellant’s claim
and denied modification of its prior decision. It found that Dr. Liu did not adequately address
the consequential injury issue. “The claimant did not have a knee condition when he developed
the left foot condition in March 1997 and without any specific injury to the knee and only an
opinion concerning weight bearing activities does not lend itself to support a consequential
injury connection.” Because Dr. Liu did not provide a rationalized opinion concerning a
consequential injury but instead supported that a prolonged period of standing and pushing heavy
carts was the cause of appellant’s bilateral knee condition, OWCP found that he did not meet his
burden of proof.
Dr. Guirguis S. Hanna, a consulting specialist in occupational medicine, noted that
appellant’s physical examination was unremarkable except for bilateral patellofemoral crepitus.
X-rays obtained on November 16, 2010 showed very mild osteoarthritic changes bilaterally, left
slightly worse. Dr. Hanna offered his opinion on causal relationship:
“Based on patient’s history, review of his job description, my physical
examination and review of imaging study, in my medical opinion, there is causal
relationship between the job activities and his knee condition. Reviewing medical
literature indicates that there is insufficient evidence between knee osteoarthritis
and heavy lifting, standing, and walking. Nonetheless, there is some evidence for
osteoarthritis development and occupational risk factors combining the squatting
and kneeling with heavy lifting and climbing.”
Dr. Hanna noted that appellant was currently working his regular job duty and could
continue to do so.
In a decision dated July 7, 2011, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decisions. It found that Dr. Hanna’s opinion was insufficient to
establish a causal relationship between the conditions diagnosed and the accepted left foot
condition. OWCP noted that appellant clearly had a new injury that was not due to the effects of
the left foot condition as he left the employment of his agency on December 31, 2005 and had
been working as a cook for a different employer.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
2

5 U.S.C. § 8102(a).

3

has the burden of proof to establish the essential elements of his claim. When an employee
claims that he sustained an injury in the performance of duty, he must submit sufficient evidence
to establish that he experienced a specific event, incident or exposure occurring at the time, place
and in the manner alleged. He must also establish that such event, incident or exposure caused
an injury.3
Causal relationship is a medical issue,4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,5 must be one of reasonable medical certainty,6
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.7
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent, intervening cause attributable to the employee’s own intentional conduct.8
ANALYSIS
When appellant originally notified OWCP that he was having problems with his knees,
he did not attribute those problems to his left foot injury. He explained that he worked for the
employing establishment for approximately 22 years and that standing, lifting, pulling and
pushing contributed to the deterioration of his feet and knees. Appellant’s claim, therefore, is not
one of consequential injury. It is a claim that his bilateral knee condition is causally related to
his food service duties as a cook foreman for the Federal Government.
Appellant has the burden to establish the element of causal relationship. He submitted
several medical opinions to support his claim. Dr. Hwang was of the opinion that prolonged
standing, pushing and pulling heavy materials at work contributed to appellant’s bilateral knee
osteoarthritis. He offered no medical rationale, however, explaining the basis for this
conclusion. Dr. Hwang did not explain how prolonged standing or pushing and pulling heavy
materials contributed to the disease. According to him, medical literature indicated there was
insufficient evidence between knee osteoarthritis and standing, walking or heavy lifting.
3

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

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

8

John R. Knox, 42 ECAB 193 (1990); Lee A. Holle, 7 ECAB 448 (1955).

4

Dr. Hwang did not provide a clear medical explanation of how standing, pushing and pulling
contributed to the cause or progression of the bilateral knee osteoarthritis. Medical conclusions
unsupported by rationale are of diminished probative value.9 Further, having offered this
opinion, Dr. Hwang did not make clear whether he was referring to appellant’s work with the
Federal Government or his subsequent work performing the same duties for a private employer.
Dr. Liu stated that appellant’s knee pain dated to the mid 1990s, and that standing,
pushing and pulling contributed to his knee and leg pain “as he works in food service in a
detention center.” This opinion lacks adequate medical rationale and is of little probative value.
Dr. Liu expressed the opinion that the knee problems appellant currently experienced were
related to the type of work he used to do in food service from 1984 to 2005. He stated that the
work appellant used to do had a causative effect on his current knee symptoms, but he did not
explain how. It is not enough simply to express a conclusion on causal relationship. Dr. Liu
must support that opinion with sound medical reasoning. He did not provide sufficient medical
rationale necessary to establish the element of causal relationship.
Dr. Hanna, a consulting specialist in occupational medicine, generally supported
appellant’s claim. After opining that there was a causal relationship between appellant’s job
activities and his knee condition, he observed that there was some evidence in the medical
literature for osteoarthritis development and occupational risk factors combining squatting and
kneeling with heavy lifting and climbing. Medical texts and excerpts from publications are of no
evidentiary value in establishing causal relationship, as they are of general application and are not
determinative of whether the specific condition claimed was causally related to the particular
employment injury involved.10 Dr. Hanna did not fully address how such physical activities
affect the development of osteoarthritis, or explain how he was able to distinguish appellant’s
very mild osteoarthritis from the natural progression of the disease. It is not enough to point out
that there is a theoretical possibility of causal relationship. Dr. Hanna did not explain what
evidence of record compelled him to conclude that the development of very mild knee
osteoarthritis in a man of appellant’s age was something more than a natural, common or
coincidental development. His opinion lacks sufficient medical rationale.
The opinions offered by Drs. Hwang, Liu and Hanna do not provide sufficient medical
rationale to establish the element of causal relationship. The Board finds that appellant has not met
his burden of proof. The Board will affirm OWCP’s July 7, 2011 decision denying his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden to establish that his bilateral knee
condition is causally related to his federal employment.
9

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

10

Gaetan F. Valenza, 35 ECAB 763 (1984); Kenneth S. Vansick, 31 ECAB 1132 (1980).

5

ORDER
IT IS HEREBY ORDERED THAT the July 7, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 27, 2012
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SURFACE WARFARE CENTER, Dahlgren, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Karen Hedetniemi, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-405
Issued: February 10, 2009

Case Submitted on the Record

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

JURISDICTION
On November 20, 2007 appellant filed a timely appeal from an August 21, 2007 decision
of an Office of Workers’ Compensation Programs’ hearing representative regarding an
overpayment of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the overpayment issues.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation during the period September 5 to October 28, 2006 in the amount
of $5,198.89; and (2) whether the Office properly found that appellant was at fault in creating the
overpayment.
FACTUAL HISTORY
On February 24, 2000 appellant, then a 53-year-old cross connection controls systems
inspector filed a traumatic injury claim alleging that on that date he slipped on steep stairs and

fell down in a twisting motion in performance of duty. He stopped work on February 25, 2000
and returned to work in a light-duty capacity on March 24, 2000.
The Office accepted the claim for aggravation of preexisting degeneration of the spine.
Appellant underwent authorized back surgery on June 26, 2000.1 He underwent an authorized
laminectomy and L4-S1 fusion. Appellant filed for disability retirement which was approved on
September 15, 2000.2 On January 23, 2003 the Office authorized posterior lumbar interbody
fusion; spinal implementation; laminectomy; and iliac bone graft harvesting. Appellant’s claim
expanded to include degenerative disc disease and lumbar spondylosis. He returned to full-time
modified duty on March 31, 2005. On January 24, 2006 appellant underwent spinal cord
stimulator trial and epidural placement of spinal cord stimulator leads. On February 16, 2006 he
underwent spinal cord stimulator and programming. The record reflects that appellant was
received wage-loss compensation through direct deposit. Appropriate compensation benefits
were authorized and paid.
By letter dated February 22, 2006, the Office informed appellant that he would receive
$2,880.00 in gross compensation every 28 days. Appellant was also advised that his
compensation would continue as long as the medical evidence supported his inability to work.
Additionally, he was advised that he must “NOTIFY THIS OFFICE IMMEDIATELY WHEN
YOU RETURN TO WORK.” Appellant was advised that, if he worked for any portion of the
period for which compensation was received, he must return the check to the Office or an
overpayment of compensation would result.
The record reflects that appellant returned to full-time modified duty on work on
September 5, 2006 with the employing establishment.
In a letter dated September 29, 2006, the Office advised appellant that, since he returned
to work on September 5, 2006, he must return his last 28-day compensation check to avoid an
overpayment and a new one with the appropriate date would be reissued.
On November 8, 2006 the Office made a preliminary finding that an overpayment of
$5,198.89 arose because appellant returned to work on September 5, 2006 but continued to
receive full compensation benefits for total disability through October 28, 2006. It advised him
that he was only entitled to receive full compensation for disability through September 4, 2006.
The Office found that appellant was with fault in the creation of the overpayment because he
accepted a payment for total disability which he knew or reasonably should have known was
incorrect.
In a memorandum to the file also dated November 8, 2006, the Office noted that
appellant returned to work at the employing establishment on September 5, 2006 but continued
to receive compensation benefits for total disability through October 28, 2006. It noted that
1

The record reflects that appellant had a prior history of back problems, obesity, coronary artery disease with
angioplasty in 1999, seasonal asthma, gastroesophageal reflux disease and noninsulin-dependent diabetes mellitus
controlled with diet. Additionally, he has a history of chronic lumbar pain dating back to 1979.
2

Appellant returned to work in the private-sector in March 2001 and was laid off in December 2001. The record
reflects that he underwent nonwork-related arthroscopies to the right knee in 2001 and 2002.

2

appellant was advised by letter dated February 22, 2006 of the conditions for which wage loss
was paid. The Office noted that appellant was specifically advised that full compensation was
only payable while he was unable to work and that, if he received a compensation check which
included a payment for a period in which he worked, he must return the check immediately to
prevent an overpayment of compensation. It advised appellant that, since he did not return the
check, an overpayment was created. The Office indicated that for the period September 3 to
October 28, 2006 appellant received $5,962.00. It indicated that the amount of $542.36 was
subtracted for health benefits and $28.20 was deducted for life insurance. The Office indicated
that appellant should have received $212.93 as payment for the period September 3 to 4, 2006,
with deductions of $19.37 for health benefits and $1.01 for life insurance. It subtracted the
amount that he received for the period that he was working and determined that the overpayment
was equal to $5,198.89. The Office found that appellant was at fault in creating the overpayment
because he knowingly accepted a payment which he knew or should have known to be incorrect.
Appellant was further informed of his right to challenge the amount of the overpayment or
request a waiver of the overpayment. If he wished a waiver of the overpayment, he was
specifically directed to submit financial information by completing an overpayment recovery
questionnaire.
Copies of the payments that appellant received via direct deposit were also included and
reflect that, on September 30, 2006, he received a direct deposit of $2,981.00 for the period
September 3 to 30, 2006 and on October 28, 2006 he received $2,981.00 for the period October 1
to 28, 2006.
Appellant requested a telephonic prerecoupment hearing, which was held on
June 6, 2007. During the hearing, he alleged that he believed that the compensation checks that
he received were for an earlier period of time. Appellant explained that he contacted the Office
on several occasions because he believed that the money was for the period October 25 to
January 24, 2006, because he had undergone an approved surgery, but had not received
compensation.3 His wife confirmed that his payments were received via direct deposit and that
they knew they would have to mail it back, but she wanted a hearing. She indicated that medical
documentation was provided, but that he did not receive compensation for that time frame.
Appellant testified that he had no income. His wife indicated that she had a net monthly income
of $1,800.00 per month and also provided testimony regarding their income, assets and
expenses.4
In a decision dated August 22, 2007, the Office hearing representative finalized its
preliminary findings on the fact and amount of overpayment. The Office hearing representative
found that appellant was with fault because he accepted compensation that he knew or should
have known that he was not entitled to receive. The Office determined that, because he was no

3

Appellant was advised by the Office hearing representative that this was outside the period under review and
that the recurrence would be addressed separately.
4

Appellant also completed the recovery sheet and indicated that he had monthly income of $6,023.24, expenses
in the amount of $6,525.00 and assets comprised of cash and stocks in the amount of $42,610.00. No
documentation regarding the alleged expenses was submitted.

3

longer receiving compensation, the payment was required in full.
representative requested the Office request repayment in full.

The Office hearing

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act provides that the
United States shall pay compensation for the disability or death of an employee resulting from
personal injury sustained while in the performance of duty.5 A claimant, however, is not entitled
to receive compensation for temporary total disability and actual earnings for the same period.6
Office procedures provide that an overpayment in compensation is created when a claimant
returns to work but continues to receive wage-loss compensation.7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in compensation in the amount
of $5,198.89. The record reflects that appellant returned to work effective September 5, 2006.
The record reflects that he continued to receive payments for compensation for temporary total
disability through October 28, 2006. As noted above, appellant is not entitled to receive
compensation for temporary total disability after he has returned to work. Accordingly, an
overpayment of compensation has been created.
The Office indicated that appellant received gross compensation for the period
September 3 to October 28, 2006 in the amount of $5,962.00. It indicated that the amount of
$542.36 was subtracted for health benefits and $28.20 was deducted for life insurance. The
Office indicated that appellant should have received $212.93 as payment for the period
September 3 to 4, 2006, with deductions of $19.37 for health benefits and $1.01 for life
insurance. It subtracted the amount that he received for the period that he was working, noting
credits for health and life insurance benefits and determined that this resulted in a $5,198.89
overpayment of compensation.
Consequently, appellant received an overpayment of compensation from September 5 to
October 28, 2006 in the amount of $5,198.89. There is no contrary evidence regarding the fact
of and the amount of the overpayment. The Board will affirm the Office’s finding on the fact
and the amount of the overpayment. Accordingly, appellant received an overpayment, as he
returned to work and continued to receive compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act8 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
5

5 U.S.C. § 8102(a).

6

L.S., 59 ECAB ___ (Docket No. 07-1961, issued February 14, 2008); Danny E. Haley, 56 ECAB 393 (2005).

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(a) (May 2004). See id.
8

5 U.S.C. § 8129(b).

4

and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.” Section 10.433 of the Office’s implementing regulations9
provide that, in determining whether a claimant is at fault, the Office will consider all pertinent
circumstances. 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.”
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.10
The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit, which involve a series of payments over several
months with clear knowledge that the payments were incorrect.11 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 that this overpayment had occurred. This
awareness could be established either through documentation such as a bank statement or
notification from the Office or where a reasonable period of time has passed during which a
claimant could have reviewed independent confirmation of the incorrect payment.12
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. It determined that appellant was at fault in creating the overpayment of
$5,198.89 based on its finding that he knew or should have known that the payments received by
direct deposit from September 5 through October 28, 2006 were not proper because he had
returned to work. Even if the overpayment resulted from negligence on the part of the Office,
this does not excuse the employee from accepting payment which he knew or should have
known that he was not entitled.13 Appellant was apprised by letter dated February 22, 2006, he
was clearly advised that he must “NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU
9

20 C.F.R. § 10.433.

10

20 C.F.R. § 10.433(b).

11

See Karen K. Dixon, 56 ECAB 145 (2004).

12

See K.H., Docket No. 06-191 (issued October 30, 2006). See Tammy Craven, 57 ECAB 689 (2006).

13

See Russell E. Wageneck, 46 ECAB 653 (1995).

5

RETURN TO WORK.” The Office also indicated that, if appellant worked for any portion of
the period for which compensation was received, he must return the check to the Office or an
overpayment of compensation would result.
The record reflects that appellant received a direct deposit on September 30, 2006 in the
amount of $2,981.00 containing the portion of the overpayment covering the period September 5,
through 30, 2006. The Board has held that an employee who receives payment from the Office
in the form of direct deposit may not be at fault the first time incorrect funds are deposited into
his account, as the acceptance of the resulting overpayment lacks the requisite knowledge.14 The
Board has found a claimant to be at fault in cases where he or she is receiving compensation
checks through direct deposit which involve a series of payments over several months with clear
knowledge that the payments were incorrect.15 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 that this overpayment had occurred. This awareness could be
established either through documentation such as a bank statement or notification from the
Office or where a reasonable period of time has passed during which a claimant could have
reviewed independent confirmation of the incorrect payment.16
Regarding the overpayment of compensation for the period September 5 through 30,
2006, the Board finds that appellant was without fault in creating the overpayment. While
appellant accepted the overpayment by gaining control of the funds deposited into his bank
account pursuant to his authorization, he did not know that he would receive an incorrect
payment on that day.17 Although the Office sent appellant a letter on September 29, 2006, there
is no evidence that he received it before September 30, 2006 when the funds were direct
deposited. Unlike the situation where a claimant receives a physical check and is aware of the
amount of the payment before depositing it into his account, appellant was not on notice of the
amount of the payment until after it was deposited electronically into his account.18 There is no
specific evidence of record in this case to show that appellant had notice that he was aware that
he had accepted an incorrect payment via direct deposit for the compensation payment that
included the period September 5 through 30, 2006. A finding of no fault does not mean,
however, that the claimant may keep the money, only that the Office must consider eligibility for
waiver for this period. The case will thus be remanded to the Office to determine whether he is
entitled to waiver for this period.
After appellant’s receipt of the first direct deposit, for which fault may not be imputed to
him, he knew or should have known that the subsequent direct deposits were in error under the
reasonableness standard addressed above. When he received the second check on October 28,
2006, in the amount of $2,981.00 for the period October 1 to 28, 2006, he had worked for around
14

See Karen K. Dixon, supra note 11.

15

Id.

16

See supra note 12.

17

See Tammy Craven, supra note 12.

18

Id.

6

seven weeks. Appellant has not argued or offered any probative evidence that he believed that
these payments for temporary total disability were correct. Rather, he alleged that he believed
that he was entitled to receive these payments as he had not received compensation for an earlier
period of time. However, in a September 29, 2006 letter, the Office clearly advised to return his
compensation payment as he had returned to work. Also, as noted, it advised appellant on
February 22, 2006 that he could not receive compensation for a period in which he also worked.
In determining fault the Office applies a reasonable person test.19 It was not reasonable for
appellant to believe that he could continue to receive compensation after he returned to work and
enough time had passed for him to review confirmation of the incorrect payments in his bank
account. Furthermore, appellant’s hearing testimony indicates that he was aware that there was a
question as to whether he was entitled to the compensation payment. The Board finds that
appellant knew or should have known that the deposit received covering the period October 1
through 28, 2006 was incorrect. Therefore, appellant was at fault in creating this portion of the
overpayment.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation during the period September 5 to October 28, 2006, in the amount
of $5,198.89. The Board further finds that appellant was without fault in the creation of the
overpayment for the period September 5 to 30, 2006 but is with fault in creating the overpayment
for the period October 1 through 28, 2006.

19

See L.C., 59 ECAB ___ (Docket No. 08-209, issued June 16, 2008).

7

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2007 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed in part and set aside in
part, and the case is remanded for further proceedings consistent with this opinion of the Board.
Issued: February 10, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Albany, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0829
Issued: November 14, 2016

Case Submitted on the Record

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

JURISDICTION
On March 1, 2016 appellant filed a timely appeal from a September 4, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated August 25, 2014 to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the
Board lacks jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration of the merits of his claim under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts relevant to the instant appeal
will be set forth. Appellant, then a 27-year-old material handler, filed a traumatic injury (Form
CA-1) on December 8, 1992 alleging that he injured his left hip and lower back on May 20,
1992, when he slipped and fell to the floor. OWCP accepted the claim for lumbar sprain.
Appellant stopped work on May 20, 1992 and returned on June 1, 1992.
On July 11, 1996 OWCP terminated appellant’s compensation benefits. Appellant
appealed the termination of his compensation benefits to the Board on September 16, 1996. By
decision dated December 2, 1998, the Board affirmed the termination.2
On September 24, 2003 appellant filed a recurrence of disability (Form CA-2a). On
July 22, 2004 OWCP denied his recurrence claim. Appellant requested a hearing before an
OWCP hearing representative on August 18, 2004. An OWCP hearing representative affirmed
the denial of appellant’s recurrence claim by decision dated September 19, 2005. On
December 27, 2005 appellant appealed the September 19, 2005 decision to the Board. By
decision dated September 7, 2006, the Board affirmed OWCP’s September 19, 2005 decision.3
Appellant thereafter filed claims for compensation (Forms CA-7) on April 16, 2007 and
May 7, 2008 alleging entitlement to wage-loss compensation as of September 6, 1995.
On June 18, 2008 OWCP expanded acceptance of the claim to include aggravation of
displacement of intervertebral disc without myelopathy, lumbosacral neuritis, radiculitis,
sciatica, and aggravation of preexisting degenerative lumbosacral intervertebral disc. This
acceptance was based upon the March 12, 2008 report of appellant’s treating physician,
Dr. Wing K. Chang, Board-certified in physical medicine and rehabilitation, who diagnosed L5S1 disc degeneration and disc protrusion causally related to appellant’s employment injury, and
the second opinion physician, Dr. Jeffrey Fried, Board-certified in orthopedic surgery, who
concurred in a report dated April 15, 2008 that appellant’s lumbar disc disease caused by his
employment injury had progressed and he now had disc herniation and serve degenerative
changes at L5-S1.
By decision dated June 19, 2008, OWCP denied appellant’s claims for disability
compensation commencing September 6, 1995. Appellant requested a hearing before an OWCP
hearing representative on July 30, 2008. By decision dated January 8, 2009, an OWCP hearing
representative affirmed the June 19, 2008 decision. Appellant requested reconsideration on
July 7, 2009. By decision dated September 2, 2009, OWCP denied modification of its prior
decision. Appellant again requested reconsideration on August 2, 2010. By decision dated
September 15, 2010, OWCP again denied modification of its prior decision.

2

Docket No. 97-0164 (issued December 2, 1998).

3

Docket No. 06-0468 (issued September 7, 2006).

2

Appellant appealed to the Board on February 11, 2011. By decision dated January 5,
2012, the Board affirmed the September 15, 2010 OWCP decision.4 The facts and circumstances
outlined in the Board’s prior decisions are incorporated herein by reference.
On May 2, 2008 appellant filed a Form CA-7 claim for a schedule award based on an
impairment of his lower extremities.
In an August 27, 2009 report, Dr. John D. Marshall, a specialist in family medicine and
appellant’s treating physician, advised that appellant was experiencing severe pain in the L5-S1
region of the spine and that his condition had reached maximum medical improvement as of
September 16, 1995.
By letter dated October 21, 2009, OWCP informed appellant that it required additional
medical evidence in order to determine whether he was entitled to a schedule award. It
specifically asked him to have his treating physician submit a medical report containing an
impairment rating rendered pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed.). Appellant was afforded 30
days to submit the additional evidence.
By decision dated November 16, 2009, OWCP found that appellant had no ratable
impairment causally related to his accepted lower back conditions and, therefore, was not
entitled to a schedule award.
On February 3, 2010 appellant requested reconsideration of the November 16, 2009
decision.
In a November 23, 2009 report, Sammy Bonfin, a physical therapist, indicated that
appellant had three percent right lower extremity impairment and three percent left lower
extremity impairment pursuant to the A.M.A., Guides.
In a February 24, 2010 report, OWCP’s medical adviser reviewed Mr. Bonfin’s findings
and found no ratable impairment of the lower extremities. He noted that there was no
documentation of radiculopathy or findings of motor or sensory loss from the L4-5 levels, as
required for an impairment rating under the A.M.A., Guides.
By decision dated March 12, 2010, OWCP denied modification of the November 16,
2009 decision. It found that appellant had submitted no impairment rating causally related to his
accepted lower back conditions, which presented a basis for a schedule award.
On June 12, 2013 appellant filed another Form CA-7 claim for a schedule award based on
an impairment of his lower extremities.
In order to determine whether appellant had any permanent impairment from his accepted
lower back conditions, OWCP referred him to Dr. Douglas P. Hein, Board-certified in
orthopedic surgery, for a second opinion examination and impairment rating. In a November 13,
4

Docket No. 11-0848 (issued January 5, 2012).

3

2013 report, Dr. Hein opined that appellant had no ratable impairment stemming from his
accepted lower conditions. He advised that on examination appellant had a subjective L3, L4,
L5, and SI decreased sensation in the left lower extremity. Dr. Hein reported that the
electrodiagnostic tests he underwent in May 1995, including a magnetic resonance imaging
(MRI) scan and a computerized axial tomography scan, did not show any evidence of
compressive neuropathy or radiculopathy. He reported that more recent MRI scans did show
definite progressive degeneration at the L5-S1 levels with some foraminal stenosis. Dr. Hein
administered radiographic tests on the date of the examination, which showed significant L5-S1
disc space degeneration and protrusion with minimal changes at higher levels.
Dr. Hein opined that appellant had a lumbar strain with aggravation of his degenerative
disc changes at the time of his work injury of May 20, 1992, with subsequent resolution of the
acute lumbar strain. He noted that appellant had experienced ongoing symptoms since then, but
advised that these were more compatible with progressive degeneration, which was not a direct
result of the May 20, 1992 work injury. Dr. Hein asserted that this was the normal progression
of appellant’s disease. He reported decreased range of motion on examination, but opined that
this was greater than would be expected based on his objective findings, which were outweighed
by his objective findings. Dr. Hein concluded that appellant had zero percent permanent
impairment of the affected member from the accepted injuries. He asserted that all of appellant’s
symptoms were attributable to preexisting abnormalities.
By decision dated December 12, 2013, OWCP found that appellant had no ratable
impairment causally related to his accepted lower back conditions and, therefore, was not
entitled to a schedule award. It noted that Dr. Hein had asserted in his second opinion report that
there was no basis for a schedule award stemming from appellant’s accepted lower back
conditions.
On December 17, 2013 appellant requested an oral hearing before an OWCP hearing
representative, which was held on June 9, 2014.
By decision dated August 25, 2014, an OWCP hearing representative affirmed the
December 12, 2013 decision denying appellant’s schedule award claim. He explained that
appellant had not submitted evidence from a treating physician, establishing that appellant had
permanent impairment pursuant to the A.M.A., Guides. Dr. Hein, the second opinion physician
had provided a proper report, which concluded that appellant did not have ratable impairment
pursuant to the A.M.A., Guides.
On August 24, 2015 appellant requested reconsideration. With his request for
reconsideration he submitted a number of documents that did not pertain to his schedule award
claim. Appellant also submitted additional medical evidence.
In reports dated August 5, September 3, and November 25, 2014, Dr. Lamar Moree,
Board-certified in pain medicine, advised that appellant was experiencing chronic lower back
pain secondary to degenerative disc disease of the lumbosacral spine and osteoarthritis. He
noted in his September 3, 2014 report that on examination appellant showed moderate tenderness
to palpation to the lumbosacral spine. In his November 25, 2014 report, Dr. Moree attributed his
lower back pain to a previous work-related trauma.

4

In a December 11, 2014 report, Dr. Marshall advised that appellant was experiencing
work-related back spasms and numbness in his left foot. He opined that appellant had lumbar
disc disease and paresthesias of the left leg.
In a May 19, 2015 report, Dr. Marshall advised that appellant had sharp pain in his right
side, lumbosacral back pain with movement, and cramping of the left leg.
By decision dated September 4, 2015, OWCP denied appellant’s application for review
as it neither raised substantive legal questions, nor included new and relevant evidence sufficient
to require OWCP to review its prior decision.
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.5 Section 10.608(a) of OWCP’s regulations provide that a timely
request for reconsideration may be granted if OWCP determines that the claimant has presented
evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).6 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.7 Section 10.608(b) provides that when a request for
reconsideration is timely, but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.8
ANALYSIS
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law, nor has he advanced a relevant legal argument not previously
considered by OWCP. He did submit a series of reports from Drs. Moree and Marshall from
2014 and 2015.
The Board has held that the submission of evidence which does not address the particular
issue involved in the case does not constitute a basis for reopening the claim.9 The issue in this
case is medical; i.e., whether appellant had any ratable impairment causally related to his
accepted lower back conditions entitled him to a schedule award. The reports from Drs. Moree
and Marshall are not relevant as they do not contain an impairment rating rendered pursuant to
5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.608(a).

7

Id. at § 10.606(b)(3).

8

Id. at § 10.606(b).

9

See David J. McDonald, 50 ECAB 185 (1998).

5

the A.M.A., Guides. These reports merely state findings on examination and indicate that
appellant was experiencing continuing lower back pain generally attributable to the May 20,
1992 work injury.
Appellant’s reconsideration request failed to show that OWCP erroneously applied or
interpreted a point of law, nor did it advance a point of law not previously considered by OWCP.
The additional evidence submitted by appellant with his request for reconsideration did not
constitute pertinent new and relevant evidence. The Board thus finds that OWCP did not abuse
its discretion in refusing to reopen appellant’s claim for a review on the merits.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for
reconsideration of the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 4, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS PROCESSING & DISTRIBUTION
CENTER, Kearny, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Robert D. Campbell, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0359
Issued: December 13, 2021

Case Submitted on the Record

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

JURISDICTION
On January 5, 2021 appellant, through counsel, filed a timely appeal from an October 21,
2020 merit decision Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 3
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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 21, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $12,223.48, for which he was without fault,
because he concurrently received FECA wage-loss compensation and Social Security
Administration (SSA) age-related retirement benefits for the period May 1, 2019 through
February 29, 2020, without an appropriate offset; (2) whether it properly denied waiver of
recovery of the overpayment; and (3) whether OWCP properly required recovery of the
overpayment by deducting $500.00 from appellant’s continuing compensation payments every 28
days.
FACTUAL HISTORY
On June 4, 2018 appellant, then a 61-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that on May 31, 2018 he pulled his right hamstring when
climbing out of a truck while in the performance of duty. He stopped work on June 6, 2018 and
did not return. Appellant underwent OWCP-authorized surgical arthroscopy of the right knee with
partial medial meniscectomy on September 14, 2018. On January 23, 2019 OWCP accepted the
claim for complex tear of the medial meniscus of the right knee. It later expanded the acceptance
of the claim to include permanent aggravation of right knee arthritis. OWCP paid appellant wageloss compensation benefits on the supplemental rolls from January 26 through March 30, 2019 and
on the periodic rolls, commencing March 31, 2019.
On February 7, 2020 OWCP provided SSA with a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form.
On March 4, 2020 SSA completed the dual benefits calculation form, which listed
appellant’s SSA benefit rates with a FERS offset and without a FERS offset. Beginning May 2019,
the SSA rate with FERS was $1,812.00 and without FERS was $602.00. Beginning
December 2019, the SSA rate with FERS was $1,840.00 and without FERS was $611.00.
On March 13, 2020 OWCP prepared a FERS offset calculation worksheet wherein it noted
the calculation of appellant’s SSA offset overpayment from May 1, 2019 through
February 29, 2020. The total overpayment was determined to be $12,223.48. OWCP found that
appellant received an overpayment in the amount of $8,536.48 for the period May 1 through
November 30, 2019 and an overpayment in the amount of $3,687.00 for the period December 1,
2019 through February 29, 2020.
In a letter dated March 16, 2020, OWCP notified appellant that, based on the information
provided by SSA regarding the amount of his age-related retirement benefits, which were
attributable to Federal service, his FECA wage-loss compensation had been adjusted. After the
SSA offset, appellant was to receive net FECA wage-loss compensation of $2,355.39.
On March 24, 2020 OWCP issued a preliminary overpayment determination, finding that
an overpayment of compensation in the amount of $12,223.48 had been created, for the period
May 1, 2019 through February 29, 2020, because appellant’s SSA age-related retirement benefits
were partially based on credits earned while working for the federal government, and that this
portion of his SSA benefits constituted a prohibited dual benefit. It found him without fault in the
creation of the overpayment and provided him with an overpayment action request form and an
2

overpayment recovery questionnaire (Form OWCP-20) for his completion. OWCP requested that
appellant provide supporting financial documentation including income tax returns, bank account
statements, bills and cancelled checks, pay slips, and any other records to support his reported
income and expenses. It notified him that, within 30 days of the date of the letter, he could request
a telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
No response was received.
By decision dated April 28, 2020, OWCP finalized its preliminary overpayment
determination that appellant had received an overpayment of compensation in the amount of
$12,223.48, for the period May 1, 2019 through February 29, 2020, because it had failed to offset
his compensation payments by the portion of his SSA age-related retirement benefits that were
attributable to Federal service. It further found that he was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment because the evidence of record
was insufficient to establish that recovery of an overpayment would defeat the purpose of FECA
or would be against equity and good conscience. OWCP required recovery of the overpayment by
deducting $609.45 every 28 days from appellant’s continuing compensation payments.
OWCP subsequently received appellant’s overpayment action request dated April 20,
2020, wherein appellant requested a prerecoupment hearing regarding possible waiver of recovery
of the overpayment. In an accompanying Form OWCP-20, he reported that he had total monthly
income of $8,643.00, including his spouse’s income of $4,000.00, SSA benefits of $1,840.00,
workers’ compensation benefits of $2,437.78, and other benefits of $365.22. Appellant listed
monthly expenses totaling $7,456.00. He listed his monthly expenses as $1,985.00 for mortgage,
$85.00 for gas, $149.00 for electricity, $550.00 for automobile loan, $200.00 for automobile gas,
$280.00 for automobile insurance, $150.00 for tolls, $200.00 for cell phone, $231.00 for cable,
telephone and internet, $170.00 for water, $300.00 for storage, $49.00 for health insurance,
$500.00 for food, $100.00 for clothes, $130.00 for hospital payment, $1,600.00 for credit card
payments, and $777.00 for a personal loan. Appellant noted that he had $694.00 in a checking
account. He indicated that he would be retiring on May 1, 2020 and would therefore be making
$1,964.00 before deductions in retirement. Appellant attached an SSA notice of award letter,
which showed that he received monthly benefits in the amount of $1,812.00 , beginning May 2019.
In a June 5, 2020 election of benefits form, appellant elected to receive Civil Service
Retirement System (CSRS) or FERS benefits in preference to any benefits to which he may have
been entitled to under FECA. 4
OWCP subsequently received another overpayment action request form, dated May 20,
2020, in which appellant requested a review of the written record by a representative of OWCP’s
Branch of Hearings and Review. In an accompanying Form OWCP-20, appellant again reported
that he had total monthly income of $8,643.00. He noted that he had available funds of $676.75
as of May 20, 2020.
OWCP subsequently received a Form OWCP-20, dated September 30, 2020, in which
appellant reported that he had total monthly income of $8,979.73, including his spouse ’s income
Appellant, through counsel, appealed OWCP’s April 28, 2020 decision to the Board. By order dated July 31,
2020, the Board dismissed appellant’s appeal at counsel’s request. Order Dismissing Appeal, Docket No. 20-1244
(issued July 31, 2020).
4

3

of $5,128.51, SSA benefits of $1,840.00, Supplemental Security Income of $1,646.00, and other
benefits of $365.22. Appellant listed total monthly expenses totaling $7,585.16. He noted monthly
expenses of $1,995.00 for rent or mortgage, $500.00 for food, $100.00 for clothing, $1,740.00 for
utilities, $873.00 for other expenses, $777.16 for a personal loan, and $1,600.00 for credit card
expenses. Appellant indicated that he had available funds of $1,545.47 as of September 30, 2020.
He reported that he had total debts of $71,510.93. Appellant attached a benefit statement showing
that he received $609.45 in net compensation for the period April 26 through May 23, 2020.
By decision dated October 21, 2020, OWCP’s hearing representative finalized the
March 24, 2020 preliminary overpayment determination, finding that appellant had received an
overpayment of compensation in the amount of $12,223.48 for the period May 1, 2019 through
February 29, 2020, because OWCP had failed to offset his compensation by the portion of his SSA
age-related retirement benefits that was attributable to his Federal service. It further found that he
was without fault in the creation of the overpayment, but denied waiver of recovery of the
overpayment because the evidence of record was insufficient to establish that recovery of an
overpayment would defeat the purpose of FECA or would be against equity and good conscience.
OWCP required recovery of the overpayment by deducting $ 500.00 every 28 days from
appellant’s continuing compensation payments.
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 or her duty. 5 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 6
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s Federal service. 7 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA age-related retirement benefits because
the portion of the SSA benefit earned as a federal employee is part of the FERS retirement package,
and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $12,223.48, for which he was without fault, because he
concurrently received FECA wage-loss compensation benefits and SSA age-related retirement
benefits for the period May 1, 2019 through February 29, 2020, without an appropriate offset.
5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see J.R., Docket No. 17-0181 (issued August 12, 2020); L.W., Docket No. 19-0787 (issued
October 23, 2019).
8

FECA Bulletin No. 97-09 (issued February 3, 1997); see also S.M., Docket No. 20-0152 (issued August 10, 2020).

4

The evidence of record indicates that, while appellant was receiving FECA wage-loss
compensation benefits, he was also receiving SSA age-related retirement benefits attributable to
his federal service. As noted, a claimant cannot receive both compensation for wage -loss
compensation benefits under FECA and SSA age-related retirement benefits attributable to federal
service for the same period without an appropriate offset.9 The information provided by SSA
establishes that appellant received SSA age-related retirement benefits that were attributable to his
federal service during the period May 1, 2019 through February 29, 2020. Consequently, the fact
of the overpayment has been established.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. SSA provided its rate with FERS and without FERS for specific periods
commencing May 1, 2019 through February 29, 2020. OWCP provided its overpayment
calculations for each relevant period based on the SSA worksheet and in its March 24, 2020
preliminary overpayment determination.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period May 1, 2019 through February 29, 2020 and finds that an overpayment of compensation in
the amount of $12,223.48 was created.10
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides: “Adjustment or recovery [of an overpayment] by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.”11
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 12 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00. 13 Also, assets must
9

See I.U., Docket No. 20-0129 (issued July 31, 2020).

10

Id.

11

5 U.S.C. § 8129(b).

12

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2020). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).
13

Id. at Chapter 6.400.4a(3); C.B., Docket No. 20-0031 (issued July 27, 2020); N.J., Docket No. 19-1170 (issued
January 10, 2020).

5

not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent. 14 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits. 15
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or o n notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.16
OWCP regulations provide that the individual who received the overpayment is responsible
for providing information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment would defeat the
purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery of the overpayment must be considered, and repayment is still required unless adjustment
or recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience. 18 However, appellant had the responsibility to provide financial information to
OWCP,19 but failed to do so.
In its preliminary overpayment determination, dated March 24, 2020, OWCP requested
that appellant provide a completed Form OWCP-20 and supporting financial documentation,
including copies of income tax returns, bank account statements, bills and cancelled checks, pay
slips, and any other records to support income and expenses. It advised him that it would deny
waiver of recovery if he failed to furnish the requested financial information within 30 days. While
appellant provided the requested Form OWCP-20, he did not submit any financial information
necessary for OWCP to determine if recovery of the overpayment would defeat the purpose of
FECA or be against equity and good conscience.

14

See supra note 122 at Chapter 6.400.4a(2) (September 2020).

15

Supra note 12 at Chapter 6.400.4b(3).

16

20 C.F.R. § 10.437(a)(b).

17

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

18

Id. at § 10.436.

19

Id. at § 10.438; S.P., Docket No. 19-1318 (issued July 31, 2020).

6

Accordingly, as appellant did not submit the information required under 20 C.F.R. § 10.438
of OWCP’s regulations to determine his eligibility for waiver, the Board finds that OWCP properly
denied waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. 20
Section 10.441 of OWCP’s regulations21 provides that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as the error is discovered or his or her attention is called to the
same. If no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardsh ip.22
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$500.00 every 28 days from appellant’s continuing compensation payments.
OWCP provided appellant a Form OWCP-20 with its March 24, 2020 preliminary
overpayment determination. Appellant, however, did not provide sufficient financial information
and supporting documentation to support his income and expenses prior to the final October 21,
2020 overpayment decision. When an individual fails to provide sufficient financial information
with supporting documentation, OWCP should follow minimum collection guidelines designed to
collect the debt promptly and in full. 23 As such, the Board finds that OWCP properly required
recovery of the $12,223.48 overpayment at the rate of $500.00 every 28 days from his continuing
compensation payments.24
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $12,223.48, for which he was without fault, because he
concurrently received FECA wage-loss compensation benefits and SSA age-related retirement
benefits for the period May 1, 2019 through February 29, 2020, without an appropriate offset. The
Board further finds that OWCP properly denied waiver of recovery of the overpayment and

20

Id. at § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

21

Id. at § 10.441(a).

22

Id.; see L.G., Docket No. 19-1274 (issued July 10, 2020).

23

See J.A., Docket No. 19-1946 (issued July 13, 2020); Frederick Arters, 53 ECAB 397 (2002); supra note 122 at
Chapter 6.500.2 (September 2020).
24

See J.A., id.; E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued
March 2, 2017).

7

properly required recovery of the overpayment by deducting $500.00 from his continuing
compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 13, 2021
Washington, DC
Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL ARKANSAS HCS, Little Rock, AR,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-414
Issued: June 5, 2008

Case Submitted on the Record

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

JURISDICTION
On November 20, 2007 appellant filed a timely appeal from an October 22, 2007 decision
of the Office of Workers’ Compensation Programs denying her request to expand her claim to
include diagnosed cervical conditions. 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 has established that her cervical conditions are due to the
accepted March 22, 2006 employment injury.
FACTUAL HISTORY
On April 7, 2006 appellant, a 53-year-old nurse, filed a traumatic injury claim alleging
that she sustained injuries to her right shoulder on March 22, 2006, when “a stretcher locked up
as [she] was pushing against it to make a corner.” She felt pain in her right shoulder and
numbness in her thumb and fingers.

Appellant submitted March 23, 2006 notes from Odessa M. Hood, a licensed practical
nurse, who stated that appellant was experiencing pain in her right shoulder, as a result of a work
injury sustained while pushing a stretcher the previous day. Appellant submitted notes and duty
status reports from Michael I. Reel, an advanced practical nurse. On March 24, 2006 Mr. Reel
stated that appellant had injured her right shoulder while moving a stretcher on March 22, 2006.
He assessed inflammation of the longhead of the bicep tendon. In a March 24, 2006 duty status
report, Mr. Reel opined that appellant could return to work with restrictions. The April 3, 2006
follow-up reports noted significant discomfort in the head of the bicep tendon.
On April 6, 2006 Dr. Ashley S. Ross, a Board-certified orthopedic surgeon, noted that
appellant experienced a sudden onset of pain in her right shoulder on March 22, 2006 when a
stretcher she was pushing jammed and stopped suddenly. She allegedly aggravated the shoulder
pain on March 31, 2006, while lifting a patient onto another stretcher. Dr. Ross’ examination of
the right shoulder revealed full range of motion with discomfort, particularly on abduction, and
internal and external rotation. She opined that appellant had “probable tendinitis of the right
shoulder.” Dr. Ross stated, “I cannot rule out some type of cervical dis[c] with radicular pain,
although this does not fit any pattern.”
Appellant submitted an April 17, 2006 report from Dr. Jeffrey William Johnson, a
treating physician. She informed Dr. Johnson that, on March 22, 2006, while pushing a
stretcher, it suddenly locked up and she “jammed” her right shoulder. Appellant complained of
numbness in her index finger and thumb and significant pain in her right shoulder. On April 16,
2006 she allegedly began experiencing pain in her neck and left shoulder region. On
examination, appellant was able to fully flex and abduct the right shoulder with pain. She had
full range of motion and full external rotation when relaxed. Internal rotation was to T10
bilaterally, with no signs of impingement. On palpation, there was tenderness on the trapezius
on the right. A report of an April 12, 2006 magnetic resonance imaging (MRI) scan of the
cervical spine suggested anterior osteophytes at the C4-5 and C5-6 levels, and a small broadbased disc bulge in the central portion of the disc, with mild adjacent spinal cord impingement at
C4-5, without evidence of neuroforaminal stenosis. A report of an April 12, 2006 MRI scan of
the right shoulder suggested a partial tear of supraspinatus tendinitis, involving the supraspinatus
muscle strain of the suprascapularis and a questionable depression of the humeral head in the
anterior aspect. Dr. Johnson diagnosed right shoulder pain and possible rotator cuff tendinitis.
He recommended a follow up based on results from the cervical MRI scan.
The record contains reports of an April 12, 2006 MRI scan of the cervical spine, and an
April 12, 2006 MRI scan of the right shoulder. Appellant submitted notes for the period May 5
through 11, 2006 from Dr. Edwin L. Watson, a Board-certified family practitioner, who treated
her for a rotator cuff injury. On May 8, 2006 Dr. Watson noted that the April 12, 2006 MRI scan
showed a cervical disc protrusion with mild impingement, without cord signal abnormality.
In a report dated May 10, 2006, Dr. Martin Greenberg, a Board-certified neurosurgeon,
stated that appellant injured herself while pulling and twisting a heavy stretcher on
March 22, 2006. An MRI scan of the right shoulder showed a right rotator cuff tear. A cervical
MRI scan showed central disc herniation at C4-5, and a smaller disc herniation at C5-6.
Dr. Greenberg indicated that appellant had no history of a cervical disc problem. His physical
examination revealed that appellant was in acute distress from neck and right cervical radicular

2

pain. Motor examination revealed 4/5 in the right deltoid and right biceps. Deep tendon reflexes
were absent in the upper extremities. Hoffman’s sign was negative bilaterally. Sensory
examination decreased to light touch and pinprick in the right C5-6 distribution. Dr. Greenberg
diagnosed cervical disc disease, C4-5, and right C5-6 radiculopathy, which he opined was
“clearly secondary to cervical HPN at C4-5 and C5-6.”
On May 24, 2006 the Office accepted the claim for sprain/strain of the right rotator cuff.
The Office denied appellant’s request for an x-ray and CT scan of the spine, because her
physician had failed to relate her cervical condition to the accepted injury.
By letter dated June 5, 2006, the Office informed appellant that the evidence of record
was insufficient to establish that her cervical condition was causally related to the accepted
injury. The Office advised her to submit a medical report with a diagnosis and a rationalized
medical opinion as to the cause of the diagnosed cervical condition. On June 15, 2006 the Office
asked Dr. Greenberg to provide a rationalized medical opinion explaining the nature of the
relationship between appellant’s diagnosed cervical condition and the accepted March 22, 2006
injury. In a statement dated June 9, 2006, appellant contended that the information submitted
was sufficient to establish a causal relationship between her cervical condition and the March 22,
2006 injury, because she had experienced no cervical pain prior to the accepted injury. She
submitted notes dated June 15, 2006 from Dr. Watson, who urged her to proceed with a CT
myleogram, even though her neck condition had not been accepted by the Office.
On July 12, 2006 the Office authorized a change in physicians to Dr. Reed Kilgore, a
Board-certified orthopedic surgeon. The Office informed appellant that, following her initial
examination, her physician should send a complete medical report to the Office, including
objective findings, a diagnosis and a rationalized opinion explaining the causal relationship
between her diagnosed conditions and the accepted injury. In a July 26, 2006 letter, appellant
informed the Office that she had asked Dr. Greenberg to resubmit his medical statement to the
effect that her cervical condition was causally related to the March 22, 2006 injury. On
August 1, 2006 the Office notified appellant that Dr. Greenberg had not submitted a rationalized
medical opinion. In a statement dated August 11, 2006, appellant reiterated her belief that her
cervical condition was causally related to the accepted injury because she had never experienced
neck pain before March 22, 2006. She enclosed a copy of Dr. Greenberg’s May 10, 2006 report
and June 29, 2006 discharge instructions, which reflected that Dr. Greenberg performed a twolevel anterior cervical discectomy of C4-5 and C5-6 instrumentation.
In an August 9, 2006 report, Dr. Kilgore described the history of injury, as reported by
appellant. He noted her claim that her neck and shoulder problems resulted from the accepted
injury. Dr. Kilgore stated that appellant’s ruptured cervical discs had been repaired by
Dr. Greenberg. Pursuant to an MRI scan of the right shoulder, he determined that she had a
partial tear of the anterior fibers of the supraspinatus, with a possible full thickness component,
as well as tendinosis of the same muscle and muscle strain of the subscapularis. In an
accompanying duty status report, Dr. Kilgore diagnosed rotator cuff tear, related to March 22,
2006 injury. Under the heading “other diagnosed conditions,” he listed, “ruptured C4-5, C5-6
dis[c], repaired.”

3

By decision dated September 19, 2006, the Office denied appellant’s claim for her
cervical condition. The Office found that the evidence did not contain a rationalized medical
opinion explaining a causal relationship between the diagnosed cervical condition and the
accepted injury.
On July 24, 2007 the Office received a request for reconsideration, in which appellant
contended that the evidence of record supported a causal relationship between her cervical
condition and the accepted injury. Appellant submitted notes from Mary Strickland, a registered
nurse, dated September 11 and 19, 2006; a September 19, 2006 duty status report, bearing an
illegible signature; and reports dated September 5, 2006 through July 12, 2007 from Dr. Kilgore.
On September 5, 2006 Dr. Kilgore performed a subacromial injection. On September 19, 2006
he noted improved range of motion of the shoulder and stated that appellant’s neck condition had
also improved. In a November 15, 2006 duty status report, Dr. Kilgore diagnosed rotator cuff
tear. On July 12, 2007 he noted the possibility of surgery for appellant’s rotator cuff tear. In a
letter dated August 24, 2007, appellant reiterated her position that Dr. Greenberg’s report
established that her ruptured discs were causally related to the accepted injury.
By decision dated October 22, 2007, the Office denied modification of the September 19,
2006 decision, finding that the medical evidence was insufficient to establish a causal
relationship between the diagnosed cervical condition and the accepted injury.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, she bears the burden of proof to establish that the condition is
causally related to the employment injury.1 To establish a causal relationship between the
condition claimed, as well as any attendant disability, and the employment event or incident, an
employee must submit rationalized medical evidence based on a complete medical and factual
background supporting such a causal relationship.2 Causal relationship is a medical issue, and
the medical evidence required to establish a causal relationship is rationalized medical evidence.3
Rationalized medical evidence is 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 rationalized medical evidence explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4 Neither the fact that a disease or condition manifests itself during a

1

Jaja K. Asaramo, 55 ECAB 200 (2004).

2

Jennifer Atkerson, 55 ECAB 317 (2004).

3

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

4

Leslie C. Moore, 52 ECAB 132 (2000).

4

period of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.5
ANALYSIS
The Board finds that appellant has not established that her cervical condition is causally
related to her accepted injury. The Office accepted the claim for a sprain/strain of the right
rotator cuff. Appellant contends that the Office accept her diagnosed cervical conditions, namely
cervical disc disease and a herniated disc at C4-6. A review of the medical evidence does not
reveal a reasoned medical opinion establishing a causal relationship between appellant’s cervical
conditions and the accepted injury.
Dr. Greenberg stated that appellant was in acute distress from neck and right cervical
radicular pain. After examining her, and reviewing right shoulder and cervical MRI scans, he
diagnosed a right rotator cuff tear, as well as cervical disc disease, C4-5, and right C5-6
radiculopathy, which he opined was “clearly secondary to cervical HPN at C4-5 and C5-6.”
Dr. Greenberg indicated that appellant had no history of a cervical disc problem. However, he
did not adequately explain how appellant’s cervical condition was causally related to the
accepted March 22, 2006 injury. Although Dr. Greenberg opined that the radiculopathy was
secondary to a herniated disc at C4-5 and C5-6, he did not offer an opinion as to the cause of the
disc herniation. The mere fact that a condition manifests itself during a period of employment is
insufficient to establish causal relationship.6 Therefore, Dr. Greenberg’s report is of limited
probative value and does not support appellant’s claim to expand the scope of accepted
conditions.7 The Board notes that the Office requested clarification from Dr. Greenberg
regarding the causal relationship between appellant’s cervical condition and the accepted injury.
The record does not contain a response to the Office’s request.
Dr. Ross opined that appellant had “probable tendinitis of the right shoulder,” and stated,
“I cannot rule out some type of cervical disc with radicular pain, although this does not fit any
pattern.” His report is speculative and unsupported by rationalized medical evidence explaining
the nature of the relationship between appellant’s cervical condition and the accepted injury.8
Therefore, it, too, is of diminished probative value.
On August 9, 2006 Dr. Kilgore noted appellant’s claim that her neck and shoulder
problems resulted from the accepted injury, indicating that her ruptured cervical discs had been
repaired by Dr. Greenberg. Pursuant to an MRI scan of the right shoulder, he determined that
appellant had a partial tear of the anterior fibers of the supraspinatus, with a possible full
thickness component, as well as tendinosis of the same muscle and muscle strain of the
subscapularis. In an accompanying duty status report, Dr. Kilgore diagnosed rotator cuff tear,
related to the March 22, 2006 injury. Under the heading “other diagnosed conditions,” he listed,
5

Ernest St. Pierre, 51 ECAB 623 (2000).

6

Id.

7

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

8

Leslie C. Moore, supra note 4.

5

“ruptured C4-5, C5-6 disc, repaired.” On September 19, 2006 Dr. Kilgore noted that appellant’s
neck condition had improved. None of his reports provides an opinion as to the cause of
appellant’s cervical condition. Medical evidence which does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value.9
Dr. Johnson diagnosed right shoulder pain and possible rotator cuff tendinitis. He noted
the results of an April 12, 2006 MRI scan of the cervical spine, which suggested anterior
osteophytes at the C4-5 and C5-6 levels, and a small broad-based disc bulge in the central
portion of the disc, with mild adjacent spinal cord impingement at C4-5. However, as
Dr. Johnson failed to provide an opinion as to the cause of appellant’s condition, his report is of
diminished probative value. Similarly, Dr. Watson’s reports do not contain an opinion as to the
cause of appellant’s cervical condition and, thus, do not support appellant’s claim.
Appellant submitted notes and reports from Ms. Hood, a licensed practical nurse;
Mr. Reel an advanced practical nurse; and Ms. Strickland, a registered nurse. Nurses do not
qualify as “physicians” under the Act. Therefore, their opinions are of no probative value.10
Reports of MRI scans and x-rays, which do not contain an opinion as to the cause of appellant’s
condition, are of diminished probative value and are insufficient to establish appellant’s claim.11
Appellant also submitted reports bearing illegible signatures. These reports do not constitute
probative medical evidence, in that they lack proper identification.12
The Board finds that appellant has failed to meet her burden of proof to establish that the
cervical conditions claimed are causally related to the accepted employment injury.13 The fact
that a condition is mentioned in a medical report along with other accepted conditions does not
infer that it is related to the work injury. An award of compensation may not be based on
surmise, conjecture, speculation, or upon appellant’s own belief that there was a causal
relationship between her claimed condition and her employment.14 Accordingly, the Office
properly limited the accepted conditions to sprain/strain of the right rotator cuff.
CONCLUSION
The Board finds that appellant failed to establish that her claim should be expanded to
include a cervical condition due to the accepted employment injury.

9

Michael E. Smith, supra note 7.

10

5 U.S.C. § 8101(2) of the Act 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.”
11

Michael E. Smith, supra note 7.

12

See Merton J. Sills, 39 ECAB 572, 575 (1988).

13

Jaja K. Asaramo, supra note 1.

14

Patricia J. Glenn, 53 ECAB 159 (2001).

6

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 5, 2008
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
GENERAL SERVICES ADMINISTRATION,
OFFICE OF FEDERAL SUPPLIES &
SERVICES, Duluth, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1676
Issued: November 20, 2014

Case Submitted on the Record

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

JURISDICTION
On July 29, 2014 appellant filed a timely appeal from a May 15, 2014 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. As more than 180 days elapsed from the last merit decision of OWCP dated
February 21, 2013 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
his claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen his case for
further review of the merits under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated December 17, 2010,
the Board affirmed an October 27, 2009 decision denying appellant’s request to reopen his case
for further merit review under 5 U.S.C. § 8128.2 The Board affirmed in part and reversed in part
a September 29, 2009 decision terminating his compensation and authorization for medical
benefits effective March 15, 2009. The Board determined that the opinion of Dr. Harold H.
Alexander, a Board-certified orthopedic surgeon and OWCP referral physician, was insufficient
to establish that appellant had no further disability due to his low back strain with sciatica and
L4-5 disc bulge. It found, however, that the opinion of Dr. Brian Teliho, a Board-certified
psychiatrist and referral physician, established that he had no further disability or need for
medical treatment due to his accepted post-traumatic stress disorder. By decision dated
August 2, 2013, the Board affirmed OWCP’s February 21, 2013 decision terminating appellant’s
compensation on the grounds that he had no further disability as a result of his May 24, 1983
work injury.3 The Board found that the opinions of Dr. Alexander Doman, a Board-certified
orthopedic surgeon, and Dr. R. Michael Prudent, a Board-certified psychiatrist, constituted the
weight of the evidence and established that he had no further employment-related disability. The
facts and circumstances as set forth in the prior decisions are hereby incorporated by reference.
On December 5, 2013 appellant requested reconsideration. In an accompanying letter
dated September 25, 2013, he disagreed with Dr. Doman’s finding that he had age-related
degenerative disc disease, noting that his attending physician informed him that his back injury
would eventually cause degenerative disc disease. Appellant further asserted that Dr. Doman’s
diagnosis of age-related degenerative disc disease would prevent him from performing his
regular employment duties as a warehouse worker. He noted that the employing establishment
had closed its warehouses and questioned whether any agency would hire him given his
condition. Appellant maintained that Dr. Prudent could not comment on whether he sustained
PTSD as a result of his back injury. He noted that Dr. Prudent attributed his symptoms of PTSD
to his experiences in Vietnam. Appellant related that a physician at the Department of Veterans
Affairs (DVA) determined that he had PTSD. He experienced difficulty finding a physician who
would treat him for a federal workers’ compensation injury. Appellant maintained that OWCP
established only that he could perform a light-duty position. He asserted that March 12, 2009
report from Dr. Shel Sharpe, a psychiatrist, established that he had PTSD. Appellant resubmitted
the March 12, 2009 report from Dr. Sharpe.
By decision dated May 15, 2014, OWCP denied appellant’s request for reconsideration.
It found that the evidence submitted was repetitious and insufficient to warrant reopening his
case for further review of the merits under section 8128.
On appeal, appellant contends that he was following his appeal rights as instructed by the
Board. He asserts that no agency was trying to assist him with his claim.
2

Docket No. 10-878 (issued December 17, 2010). OWCP accepted that on May 24, 1983 appellant, then a 37year-old warehouse worker, sustained low back strain with sciatica, a bulging disc at L4-5 and post-traumatic stress
disorder (PTSD) in the performance of duty. It paid him compensation for total disability beginning in 1986.
3

Docket No. 13-995 (issued August 2, 2013).

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.5 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.6 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.7
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.8 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.9 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.10
ANALYSIS
In the most recent merit decision dated August 2, 2013, the Board affirmed OWCP’s
February 21, 2013 decision terminating appellant’s compensation effective that date on the
grounds that the weight of the medical evidence established that he had no further disability due
to his accepted conditions of low back strain with sciatica, a bulging disc at L4-5 and PTSD. On
December 5, 2013 appellant requested reconsideration of the termination of his compensation.
As noted, the Board does not have jurisdiction over a merit decision of OWCP. The issue
presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. In his
December 5, 2013 request for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law. He did not identify a specific point of law or show
that it was erroneously applied or interpreted. Appellant did not advance a new and relevant
legal argument not previously considered by OWCP. He disagreed with Dr. Doman’s finding
4

Supra note 1. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.”
5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

7

Id. at. § 10.608(b).

8

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

9

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

10

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

3

that his degenerative disc disease was due to age. Appellant’s lay opinion, however, is not
pertinent to the medical issue, which can only be resolved through the submission of probative
medical evidence from a physician.11 He contended that Dr. Doman’s diagnosis of age-related
degenerative disc disease would prevent him from performing his usual employment. The
relevant issue, however, is whether an employment-related condition prevents appellant from
performing his usual work duties.
Appellant asserted that Dr. Prudent did not address whether he sustained PTSD due to his
back injury. In his April 10, 2012 report, Dr. Prudent questioned whether a back injury was
sufficiently outside the scope of normal experience to cause PTSD. He further found, however,
that it was not appropriate for him to reach such a determination regarding causation. The Board
reviewed Dr. Prudent’s opinion on prior appeal and found that it was sufficient to support that
appellant had no further disability due to his PTSD. Consequently, appellant’s contention is
insufficient to warrant reopening his case for further merit review.
Appellant argued that a physician at the DVA diagnosed PTSD and that Dr. Sharpe’s
March 12, 2009 report established that he had the condition. The underlying issue in this case
was whether OWCP properly terminated his compensation effective February 21, 2013 on the
grounds that the medical evidence established that he had no further employment-related
disability. That is a medical issue which must be addressed by relevant medical evidence.12 As
discussed, appellant’s lay opinion does not constitute probative medical evidence from a
physician.13
Appellant contended that the employing establishment would not rehire him as a
warehouse worker. Again, however, the relevant issue is whether he has any further disability
due to his May 24, 1983 work injury. Evidence or argument that does not address the particular
issue involved does not warrant reopening a case for merit review.14
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence, but appellant did not submit any pertinent new and relevant medical evidence in this
case. Appellant resubmitted a March 12, 2090 report from Dr. Sharpe. Evidence which repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.15
On appeal, appellant asserts that he had not received assistance pursuing his claim and
that he had followed his appeal rights as instructed by the Board. The Board’s jurisdiction,
however, is limited to reviewing final adverse decisions of OWCP issued under FECA.16
11

L.G., Docket No. 09-1517 (issued March 3, 2010); Gloria J. McPherson, 51 ECAB 441 (2000).

12

See Bobbie F. Cowart, 55 ECAB 746 (2004).

13

See supra note 11.

14

J.P., 58 ECAB 289 (2007); Freddie Mosley, 54 ECAB 255 (2002).

15

See J.P., id.; Richard Yadron, 57 ECAB 207 (2005).

16

20 C.F.R. §§ 501.2(c) and 501.3(a).

4

The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen his case for
further review of the merits under section 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2014
Washington, DC

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

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

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

5