United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, BUSTLETON
STATION, Philadelphia, PA, Employer
__________________________________________

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Appearances:
Ricardo A. Byron, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1280
Issued: March 12, 2010

Case Submitted on the Record

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

JURISDICTION
On April 16, 2009 appellant, through his representative, filed a timely appeal from a
February 10, 2009 merit decision of the Office of Workers’ Compensation Programs denying his
claim for a consequential injury and a March 12, 2009 merit decision terminating medical
benefits. He also filed a timely appeal from a March 20, 2009 Office decision denying
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUES
The issues are: (1) whether appellant established that he sustained a right knee injury on
March 31, 2003 as a consequence of his March 19, 2003 employment injury; (2) whether the
Office properly terminated appellant’s medical benefits effective March 12, 2009 on the grounds
that he did not have residuals of his March 19, 2003 employment injury; and (3) whether the
Office properly denied merit review pursuant to 5 U.S.C. § 8128(a).

On appeal, appellant contends that the medical evidence of record is unequivocal and
clearly supports that he sustained a consequential injury to his right knee aggravated by physical
therapy for his accepted left knee injury.
FACTUAL HISTORY
On March 21, 2003 appellant, then a 56-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on March 19, 2003, while delivering mail, he caught his heel
on the edge of a step and twisted his left knee. The Office accepted the claim for left knee
sprain. After the injury, appellant began working light duty and underwent physical therapy. He
retired from the employing establishment on February 24, 2004.
In a May 22, 2003 medical authorization form, a physician stated that appellant had a
new problem with his right knee and needed to see a private physician. A May 30, 2003
magnetic resonance imaging (MRI) scan of appellant’s right knee revealed degenerative
osteoarthritis particularly in the medial compartment. Degenerative changes of the anterior horn
of the lateral meniscus suggested myxoid degeneration. The MRI scan also revealed a Baker’s
cyst but no ligamentous or tendonous injuries.
On August 21, 2006 appellant filed a claim for a March 31, 2003 recurrence (Form CA2a). He stated that while undergoing therapy for his left knee injury he rode a stationary bicycle
and later began limping. Appellant stated that his right knee condition was overlooked by the
Office and that it might be classified as a consequential injury.1
By letter dated October 24, 2006, the Office notified appellant of the deficiencies in his
claim. It requested that he provide additional medical and factual evidence.
In a November 22, 2006 letter, appellant’s representative claimed that there was no
substantial evidence to refute appellant’s claim that he sustained a right knee injury during
physical therapy. He contended that appellant’s treating physician, Dr. William C. Hamilton, a
Board-certified orthopedic surgeon, established causal relationship.
By decision dated December 1, 2006, the Office denied the recurrence claim on the
grounds that the factual and medical evidence did not establish that appellant sustained a
recurrence of his left knee sprain.
On December 3, 2007 appellant, through his representative, requested reconsideration.
He alleged that appellant’s claim was for a consequential injury to the right knee and not a
recurrence of his left knee injury. By letter dated October 7, 2008, appellant’s representative
requested an update as to the status of the reconsideration request. He submitted a second
request for an update on the reconsideration request on November 12, 2008.

1

Appellant filed a separate claim alleging that he sustained an injury on March 31, 2003 while riding an exercise
bicycle under Office file number xxxxxx433. In a March 1, 2006 decision, the Office denied the claim on the
grounds that the evidence did not support that he sustained a new injury in the performance of duty.

2

In an August 18, 2003 medical report, Dr. Hamilton stated that he was treating appellant
for symptomatic degenerative arthritis of the right knee. He reported that appellant sustained an
injury to his left knee at work on March 19, 2003. During physical therapy for this injury,
appellant aggravated preexisting degenerative arthritis of the right knee while using a bicycle.
Dr. Hamilton opined that appellant’s arthritic symptoms were clearly aggravated by the physical
therapy necessitated by his March 19, 2003 left knee injury.
The Office determined that a second opinion evaluation was required regarding whether
appellant’s right knee condition and any continuing residuals of the March 19, 2003 employment
injury. It referred appellant, together with his medical record and a statement of accepted facts,
to Dr. Robert Draper, a Board-certified orthopedic surgeon.
In a December 15, 2008 medical report, Dr. Draper reviewed appellant’s medical history.
He noted that on appellant’s statement his left knee condition had resolved and that he was not
experiencing left knee pain. Physical examination of the right knee revealed a lack of 10 degrees
of extension but flexion of 120 degrees. Anterior and posterior drawer signs and Lachman sign
were negative. A spring test was positive for the right knee. Dr. Draper noted some crepitus in
the right knee. Physical examination of the left knee revealed full extension and flexion of
145 degrees. Valgus and varus stress testing revealed no instability. Appellant did not
demonstrate any effusion of the left knee. Dr. Draper diagnosed left knee strain and preexisting
osteoarthritis of the right knee. He opined that appellant’s right knee osteoarthritis existed prior
to his employment injury and before he started physical therapy. Dr. Draper maintained that
appellant’s riding of a bicycle did not cause any exacerbation of his preexisting condition. He
stated that the natural progression of the osteoarthritis of the right knee had become more
symptomatic and caused right knee pain. The riding of the bicycle was coincidental but did not
cause or aggravate osteoarthritis of the right knee. Dr. Draper found that appellant did not
continue to experience any residuals of his employment-related left knee condition. He noted
that appellant could perform any work that did not require climbing ladders but that he had
retired.
Appellant, through his representative, submitted part of a June 10, 2003 medical report
from Dr. Hamilton, who reported that appellant injured his left knee at work on March 19, 2003.
As a result of using a bicycle during physical therapy treatment he developed right knee pain.
Dr. Hamilton noted appellant’s prior right knee condition in 1992 but stated that he was getting
along well with his right knee until he underwent physical therapy for his left knee. He agreed
that appellant’s left knee had recovered and he acknowledged that his left knee felt as though it
were recovered. Physical examination of the right knee demonstrated mild synovitis and a
possible small infusion. There was no demonstrable instability and no meniscus signs.
Appellant demonstrated full extension and flexion to 100 degrees. Radiographs of the right knee
revealed degenerative arthritis, most marked on the medial joint and to a lesser extent the
patellofemoral compartment. Dr. Hamilton diagnosed chronic degenerative joint disease of the
right knee, aggravated by left knee physical therapy.
Appellant’s representative submitted a July 28, 2003 letter from the employing
establishment controverting appellant’s claim of a consequential right knee condition.

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By letter dated January 5, 2009, the Office requested that Dr. Draper provide a
supplemental opinion addressing Dr. Hamilton’s June 10, 2003 medical report. On January 16,
2009 Dr. Draper stated that the June 10, 2003 medical report did not affect his conclusions as he
had already considered the events described.
By decision dated February 10, 2009, the Office denied appellant’s claim for a
consequential right knee injury. It found that Dr. Draper’s opinion represented the weight of the
medical evidence as he provided medical rationale to support his conclusions, which were based
on an accurate review of appellant’s history. The Office noted that Dr. Hamilton did not provide
any rationale to support his opinion that appellant sustained a right knee condition during
physical therapy for his left knee condition.
On February 10, 2009 the Office also proposed to terminate appellant’s medical benefits
on the grounds that Dr. Draper advised that the left knee condition had resolved and represented
the weight of the medical evidence. It noted that appellant did not submit any current medical
reports from Dr. Hamilton to establish continuing injury-related residuals. The Office advised
appellant that, if he disagreed with the proposed termination, he had 30 days to submit additional
evidence.
By letter dated March 4, 2009, appellant, through his representative, requested
reconsideration of the February 10, 2009 decision. He claimed that Dr. Hamilton’s June 10,
2003 medical report was unequivocal and contained sufficient medical rationale to support his
opinion that appellant’s right knee condition was caused by riding a bicycle during physical
therapy for his left knee injury.
By decision dated March 12, 2009, the Office finalized the proposed termination of
medical benefits effective that day. It noted that appellant did not submit any additional
evidence in response to the proposed termination of benefits.
By decision dated March 20, 2009, the Office denied appellant’s request for
reconsideration of the February 10, 2009 decision. It found that the only evidence submitted
after the decision was the March 4, 2009 letter from appellant’s representative, which did not
raise a substantive legal question or include new and relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
The general rule respecting consequential injuries is 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, which is attributable to the employee’s own intentional conduct.
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury.2 With respect to consequential injuries, the Board has stated that, where an
injury is sustained as a consequence of an impairment residual to an employment injury, the new

2

S.M., 58 ECAB 166 (2006); John R. Knox, 42 ECAB 193 (1990).

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or second injury, even though not employment related, is deemed, because of the chain of
causation, to arise out of and in the course of employment and is compensable.3
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship.4 Rationalized medical
evidence is evidence which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.5
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary
injury, the rules that come into play are essentially based upon the concepts of direct and natural
results and of claimant’s own conduct as an independent intervening cause. The basic rule is
that, a subsequent injury, whether an aggravation of the original injury or a new and distinct
injury, is compensable if it is the direct and natural result of a compensable primary injury.6 The
Board has held that, if treatment is performed as a result of an employment injury and such
treatment causes further impairments, this would constitute a compensable injury.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a left knee strain on March 19, 2003 in the
performance of duty. The issue is whether appellant established that he sustained an aggravation
of his preexisting right knee arthritis as a consequence of undergoing physical therapy for his
employment injury. The Board finds that he has not submitted sufficient medical evidence to
meet his burden of proof.
The Office determined that further development of the medical evidence was required
and referred appellant to Dr. Draper for a second opinion evaluation of his right knee condition.
In a December 15, 2008 medical report, Dr. Draper reviewed appellant’s medical history and
performed a full physical examination of the right knee revealing a positive spring test, crepitus
and a lack of 10 degrees extension. He diagnosed preexisting osteoarthritis of the right knee.
Dr. Draper opined that appellant’s riding of a bicycle did not cause an exacerbation of his right
knee arthritis. Rather, the natural progression of the osteoarthritis of the right knee became more

3

S.S., 59 ECAB ____ (Docket No. 07-579, issued January 14, 2008).

4

Charles W. Downey, 54 ECAB 421 (2003).

5

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

6

A. Larson, The Law of Workers’ Compensation, § 10.01 (December 2000). See Charles W. Downey, supra
note 4.
7

Kathryn Haggerty, 45 ECAB 383 (1994).

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symptomatic causing right knee pain. Dr. Draper maintained that the riding of the bicycle was
coincidental and that it did not cause or aggravate the osteoarthritis of the right knee.
The Board finds that Dr. Draper provided a well-rationalized opinion to support his
conclusion that appellant’s right knee arthritis was unrelated to his actions in physical therapy.
Dr. Draper’s opinion was based on a complete factual and medical background and after a full
physical examination.8
In support of his claim, appellant submitted medical reports dated June 10 and August 18,
2003 from Dr. Hamilton, his treating physician. In the June 10, 2003 medical report,
Dr. Hamilton described a physical examination and reviewed radiographs of appellant’s right
knee. He diagnosed chronic degenerative joint disease of the right knee aggravated by physical
therapy. Dr. Hamilton noted that appellant had a prior right knee condition in 1992 but that he
was getting along well until he underwent physical therapy for his left knee. In the August 18,
2003 report, he stated that he was treating appellant for symptomatic degenerative arthritis of the
right knee. Dr. Hamilton stated that appellant sustained an injury to his left knee at work.
During physical therapy for the injury, appellant aggravated his preexisting degenerative arthritis
of the right knee while using a bicycle. Dr. Hamilton opined that appellant’s arthritic symptoms
were clearly aggravated by physical therapy necessitated by appellant’s March 19, 2003 left knee
injury.
These reports are not sufficient to support appellant’s claim for a consequential right knee
injury. Dr. Hamilton did not describe how appellant’s physical therapy would aggravate his
preexisting arthritis. He did not provide a rationalized medical opinion explaining how the
mechanism of riding a bicycle exacerbated appellant’s right knee arthritis. The fact that riding
the bicycle revealed the underlying disease is not sufficient to established appellant’s claim.
Dr. Hamilton did not explain how the activity would cause the arthritis to progress. Moreover,
he did not explain how he determined that appellant’s arthritis was aggravated by the physical
therapy as opposed to the natural progression of the degenerative disease. Thus, the Board finds
that his medical reports are of diminished probative value.9
Appellant also submitted a May 22, 2003 medical authorization form in which a
physician stated that he had a new problem with his right knee and needed to see a private
physician. This form does not address the cause of his right knee condition and is therefore of
diminished probative value.10 Appellant further submitted a May 30, 2003 MRI scan report
revealing degenerative osteoarthritis of the right knee. As this is a diagnostic report, it does not
address causation and is similarly of diminished probative value.11
The Board finds that Dr. Draper’s medical opinion, that appellant’s right knee condition
was not caused or aggravated by physical therapy, represents the weight of the medical
8

See Carol S. Madsen, 54 ECAB 331 (2003).

9

See Robert Broome 55 ECAB 339 (2004); Linda I. Sprague, 48 ECAB 386 (1997).

10

See Donald T. Pippin, 54 ECAB 631 (2003).

11

See Conrad Hightower, 54 ECAB 796 (2003)

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evidence.12 Accordingly, appellant did not meet his burden of proof to establish that he
sustained a consequential injury resulting from his March 19, 2003 employment injury.13
LEGAL PRECEDENT -- ISSUE 2
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.14 It may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.15 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.16 To terminate authorization for
medical treatment, it must establish that an employee no longer has residuals of an employmentrelated condition which requires further medical treatment.17
ANALYSIS -- ISSUE 2
The Office accepted that appellant sustained a left knee sprain on March 19, 2003 in the
performance of duty. The issue is whether the Office properly terminated appellant’s medical
benefits on March 12, 2009 on the grounds that the employment injury had resolved.
The Office referred appellant to Dr. Draper for a second opinion evaluation regarding
whether he continued to experience any residuals of his employment-related left knee condition.
In a December 15, 2008 medical report, Dr. Draper relayed appellant’s claims that his left knee
condition had resolved and that he did not have left knee pain. Physical examination revealed
full extension and flexion of 145 degrees, no instability during valgus and varus stress testing
and negative anterior drawer, posterior drawer and Lachman signs. Dr. Draper opined that
appellant did not continue to experience any residuals of his employment-related left knee
condition. His medical report was comprehensive, well rationalized and based on a complete
and accurate medical history. Thus, the Board finds that Dr. Draper’s report constitutes the
weight of the medical evidence.18
Appellant did not submit any medical evidence to support that he continued to experience
residuals of his employment-related left knee condition. Rather, his treating physician,
Dr. Hamilton, stated in a June 10, 2003 medical report that the left knee condition had recovered
and that even appellant conceded that his left knee felt as if it were recovered. This evidence
12

See Charles W. Downey, supra note 4.

13

See Margarette B. Rogler, 43 ECAB 1034 (1992).

14

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
15

J.M., 58 ECAB 478 (2007); Anna M. Blaine, 26 ECAB 351 (1975).

16

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

17

T.P., supra note 16; Furman G. Peake, 41 ECAB 361, 364 (1990).

18

See John E. Cannon, 55 ECAB 585 (2004).

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supports Dr. Draper’s conclusion that appellant did not continue to experience residuals of his
left knee condition.
The Board finds that the medical evidence of record establishes that appellant’s
employment-related left knee condition had resolved prior to March 12, 2009. Therefore, the
Office properly terminated appellant’s medical benefits.19
LEGAL PRECEDENT -- ISSUE 3
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,20 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.21 To be entitled to a merit review of an Office 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.22 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.23
ANALYSIS -- ISSUE 3
The issue is whether appellant, in support of his reconsideration request, submitted
relevant and pertinent evidence, advanced a relevant legal argument not previously considered or
showed that the Office erroneously interpreted a specific point of law.
The only evidence submitted after the February 10, 2009 decision is a March 4, 2009
letter from appellant’s representative, who argued that Dr. Hamilton’s June 10, 2003 medical
report was sufficient to support appellant’s claim for a right knee consequential injury. The
Office previously reviewed Dr. Hamilton’s medical report in the February 10, 2009 decision and
determined that it was not sufficient to meet appellant’s burden of proof in establishing his
consequential injury claim. As this argument was previously considered by the Office, it is not a
sufficient basis for reopening appellant’s claim.24 Appellant did not otherwise show that the
Office erroneously interpreted a specific point of law or submit relevant and pertinent new

19

See B.T., 60 ECAB ___ (Docket No. 08-1885, issued June 3, 2009); Eddie Franklin, 51 ECAB 223 (1999).

20

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
21

20 C.F.R. § 10.606(b)(2).

22

Id. at § 10.607(a).

23

Id at § 10.608(b).

24

See Y.S., 60 ECAB ___ (Docket No. 08-440, issued March 16, 2009).

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evidence. Therefore, the Board finds that the Office properly declined to reopen appellant’s case
for merit review.25
CONCLUSION
The Board finds that appellant did not establish that he sustained a right knee injury on
March 31, 2003 as a consequence of his March 19, 2003 employment injury. The Board further
finds that the Office properly terminated appellant’s medical benefits effective March 12, 2009
on the grounds that he did not continue to experience any residuals from his March 19, 2003
employment injury. Finally, the Board finds that the Office properly denied merit review
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 20, March 12 and February 10, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 12, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

25

See J.M., 60 ECAB ___ (Docket No. 09-218, issued July 24, 2009).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MANCHESTER VETERANS HOSPITAL,
Manchester, NH, Employer
__________________________________________

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

Docket No. 07-152
Issued: July 5, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 23, 2006 appellant filed a timely appeal of an October 11, 2006 merit
decision of the Office of Workers’ Compensation Programs, which modified in part a May 10,
2006 decision denying wage-loss compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established entitlement for wage-loss compensation on
intermittent dates during the period March 31, 2005 to January 3, 2006.
FACTUAL HISTORY
On March 24, 1998 appellant, then a 51-year-old maintenance supervisor, filed a
traumatic injury claim alleging that he injured his right knee on March 23, 1998 when he slipped
on snow and fell. The Office accepted his claim for right knee sprain/strain. He returned to
limited-duty work April 6, 1998.

By decision dated August 18, 2005, the Office awarded appellant a schedule award for a
25 percent impairment of his right leg. As appellant was previously paid a schedule award for 17
percent right leg impairment, he received an additional 8 percent impairment covering the period
August 6, 2005 to January 14, 2006.
In a March 3, 2005 letter, Medical Consultants Network (MCN)1 advised appellant that it
had scheduled an appointment for him with Dr. Arnold Miller, a Board-certified orthopedic
surgeon, at 11:30 a.m. on April 13, 2005. It noted that Dr. Miller’s office was in Laconia, New
Hampshire and asked appellant to bring photograph identification to the examination. A number
for MCN’s Client Services Department was provided should appellant have any questions
regarding the appointment. In an earlier letter of October 28, 2004, the Office notified appellant
that an evaluation by a Board-certified medical specialist was warranted in his case and an
appointment had been made for him through the MCN. Appellant was instructed on the
procedures for confirming and canceling appointments. When confirming a scheduled
appointment, he was to “contact the physician’s office and confirm [his] appointment as soon as
possible before the day of [the] examination … and to take all available diagnostic films, e.g., xray, magnetic resonance imaging scans, computed tomography scans, myelograms, etc., that
have been taken in reference to this injury with [him] or arrange to have them sent to the
physician’s office.” Appellant attended the scheduled appointment on April 13, 2005 with
Dr. Miller.
On April 21, 2006 appellant filed a claim for compensation (leave buy back) in the
amount of $978.72 for 64 hours for the period March 31, 2005 to January 3, 2006. In the
accompanying time analysis form, a human resource specialist for the employing establishment
verified that appellant took 4 hours of annual leave on March 31, 2005 to deliver medical records
to Dr. Miller for his second opinion examination; 8 hours of annual leave on April 13, 2005 for
the scheduled second opinion examination with Dr. Miller; a combination of sick and annual
leave in 4-hour increments for a total of 12 hours on April 28, August 25 and September 29,
2005 for doctor visits to Dr. H. James Forbes, a Board-certified orthopedic surgeon, related to his
accepted condition; and a total of 40 hours of annual leave from December 27, 2005 to
January 3, 2006 due to total disability per his physician.
In an undated statement, appellant stated that he delivered his medical records to
Dr. Miller’s office in Laconia, New Hampshire, on March 31, 2005 as the physician wanted to
review the medical records prior to his appointment. He further stated that his appointment on
March 31, 2005 with Dr. Miller was scheduled for 11:30 a.m., but commenced 12:15 p.m. The
record reflects that appellant lived in Pembroke, New Hampshire, and worked in Manchester,
New Hampshire.
On May 10, 2006 the Office approved appellant’s claim for 4 hours of leave buy back on
April 28, 2005 but denied leave buy back on intermittent dates over the period March 31, 2005 to
January 3, 2006. The Office noted that, to have his leave buy back claim for April 13, 2005
processed, appellant had to file a claim for lost wages (Form CA-7). It noted that “[n]ormally,
the Office authorizes four hours for scheduled medical appointments. Current procedures
1

A company that schedules medical appointment for the Office.

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specifically limit reimbursement of lost wages to the time needed for examination or treatment
and incidental travel.”
It found that, without a detailed explanation of extenuating
circumstances, when appellant resubmits the claim he would be compensated for an additional
hour or a total of five hours of leave without pay as the appointment scheduled for 11:30 a.m. did
not commence until 12:15 p.m.
On May 12, 2006 appellant filed a Form CA-7 for lost wages of April 13, 2005 due to his
attendance at the second opinion examination. On May 19, 2006 the Office paid appellant
five hours of leave without pay for his April 13, 2005 attendance at the second opinion
examination. On May 18, 2006 appellant disagreed with the Office’s May 10, 2006 decision
and requested an oral hearing. On July 12, 2006 he requested reconsideration. In an August 19,
2006 letter, appellant indicated that he wished to drop his hearing request and pursue his
reconsideration request.
In an undated letter, appellant advised that he disagreed with the Office’s denial of his
leave buy back for the dates March 31 and April 13, 2005. He asserted that he delivered his
medical records to Dr. Miller on March 31, 2005 as the doctor’s office called him and advised
that it wanted the records prior to his examination. Appellant stated that he did not want to take
a chance on the mail so he hand delivered the records to Dr. Miller’s office, which he indicated
was 40 miles from his home and 55 miles from his work. He also asserted that he should be
entitled to a full eight hours of leave for his April 13, 2005 examination. Appellant reiterated
that the appointment, which was scheduled for 11:30 a.m., did not start until 12:15 p.m. He
further stated that the appointment ended at 1:00 p.m. and, after he had lunch and drove back
home, it was 2:45 p.m. Appellant stated that it did not make sense to drive to work, which was
15 miles south, as he got out of work at 4:30 p.m. In an August 19, 2006 letter, he asserted that
the distance to Dr. Miller’s office was 35 miles from his house and 45 miles from his work.
By decision dated October 11, 2006, the Office modified the May 10, 2006 decision to
reflect appellant’s entitlement to five hours of lost wages on April 13, 2005, for which he was
compensated, but denied any additional entitlement to lost wages for April 13, 2005.
LEGAL PRECEDENT
With respect to claimed disability for medical treatment, section 8103 of the Federal
Employees’ Compensation Act provides for medical expenses, along with transportation and
other expenses incidental to securing medical care for injuries.2 Appellant would be entitled to
compensation for any time missed from work due to medical treatment for an employmentrelated condition.3 However, the Office’s obligation to pay for medical expenses and expenses
incidental to obtaining medical care, such as loss of wages, extends only to expenses incurred for
treatment of effects of any employment-related condition.4 The Board will not require the Office
to pay compensation for disability in the absence of medical evidence directly addressing the
2

5 U.S.C. § 8103(a).

3

Vincent E. Washington, 40 ECAB 1242 (1989).

4

Dorothy J. Bell, 47 ECAB 624 (1996).

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particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.5
In situations where compensation is claimed for periods where leave was used, the Office
has the authority and the responsibility to determine whether the employee was disabled during
the period for which compensation is claimed.6 The Office determines whether the medical
evidence establishes that an employee is disabled by an employment-related condition during the
period claimed for leave buy back, after which the employing establishment will determine
whether it will allow the employee to buy back the leave used.7
The Office’s procedure manual provides that no more than four hours of compensation or
continuation of pay should be allowed for routine medical appointments. Longer periods of time
may be allowed when required by the nature of the medical procedure and/or the need to travel a
substantial distance to obtain the medical care.8
ANALYSIS
Appellant filed a claim for leave buy back in the amount of $978.72 for 64 hours of lost
wages for the period March 31, 2005 to January 3, 2006 for disability and/or medical treatment
causally related to his March 23, 1998 work injury. An employing establishment time analysis
form indicated that he used 4 hours of annual leave to deliver medical records to Dr. Miller on
March 31, 2005; 8 hours of annual leave April 13, 2005 to attend Dr. Miller’s second opinion
examination; a combination of sick and annual leave in 4-hour increments for a total of 12 hours
on April 28, August 25, and September 29, 2005 for doctors visits relating to his accepted
condition; and a total of 40 hours of annual leave from December 27, 2005 to January 3, 2006
due to disability related to his accepted condition. The Office approved the requested leave buy
back for April 28, 2005 and only five out of eight hours leave buy back claimed April 13, 2005.
The remainder of appellant’s claim was denied. This included intermittent dates from
August 25, 2005 to January 3, 2006 and four hours of leave buy back March 31, 2005.
The issue on appeal is whether appellant was disabled for work for 4 hours of March 31,
2005 to deliver medical records to Dr. Miller, for 3 hours on April 13, 2005 (the 3 hours
remaining after 5 hours of leave buy back were approved for his medical appointment) and 4
hours each day for a total of 8 hours August 25 and September 29, 2005 and a total of 40 hours
for December 27 to 30, 2005 and January 3, 2006.
The Office properly denied appellant’s leave buy back claims for intermittent dates from
August 25, 2005 to January 3, 2006 as appellant was in receipt of schedule award compensation
5

See Fereidoon Kharabi, 52 ECAB 29 (2001).

6

Laurie S. Swanson, 53 ECAB 517 (2002); see also 20 C.F.R. § 10.425, which provides: “The employee may
claim compensation for periods of annual and sick leave which are restorable in accordance with the rules of the
employing [establishment]. Forms CA-7a and CA-7b are used for this purpose.”
7

Laurie S. Swanson, supra note 6.

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (June 1999).

4

during the claimed period. The record reflects that appellant’s schedule award ran from
August 6, 2005 to January 14, 2006, which was during the period claimed. It is a wellestablished principle that a claimant is not entitled to dual workers’ compensation benefits for the
same injury.9 With respect to benefits under the Act, the Board has held that an employee cannot
concurrently receive compensation under a schedule award and compensation for disability for
work.10 As appellant’s leave buy back claims were during the period for which he was in receipt
of schedule award compensation, he is not entitled to leave buy back during the claimed period.
The Office properly denied appellant’s leave buy back claims for intermittent dates from
August 28, 2005 to January 3, 2006.
The Office denied appellant’s claimed four hours of leave buy back on March 31, 2005
due to his delivery of his medical records to Dr. Miller. Appellant argued that the physician’s
office wanted his medical records prior to the examination and that he did not want to take a
chance on the mail. However, the October 28, 2004 instruction letter from the Office
specifically advised that all diagnostic files associated with appellant’s injury either be taken to
the examination or sent to the physician’s office. MCN’s March 3, 2005 referral letter also made
no mention of any need for appellant to personally transport medical records to the doctor’s
office prior to the date of the scheduled examination. There is no requirement that appellant
hand deliver copies of his diagnostic files to an Office physician prior to the scheduled
examination date. Appellant’s delivery of his medical records to Dr. Miller on March 31, 2005
was of his own personal choice and is not compensable.
With respect to the remaining three hours of leave buy back claimed on April 13, 2005,
the Office previously advised appellant that, without a detailed explanation of extenuating
circumstances, he would be compensated for an additional hour or a total of five hours of leave
without pay as the scheduled appointment started late. Appellant subsequently indicated the
distance he needed to travel to Dr. Miller’s office. He also related that the appointment ended at
1:00 p.m. and, by the time he had lunch and drove back home, it was 2:45 p.m. Appellant stated
that it made no sense to drive to work, which was 15 miles south, as he got out of work at 4:30
p.m. As the record supports that appellant attended the appointment with Dr. Miller on April 13,
2005, he is entitled to compensation for time missed from work due to medical treatment for an
employment-related condition on April 13, 2005. However, the Board finds that this case is not
in posture for a decision as to whether appellant is entitled to the remaining three hours of
compensation claimed. While the Office addressed and compensated appellant for the time
delayed in the start of Dr. Miller’s examination, the record does not reflect that the Office
considered the length of time appellant spent with Dr. Miller on the date in question or the time
required for traveling to and from the appointment.11 The case must be remanded to the Office
for further development of the evidence, in order to determine the proper amount of time to be
allowed for appellant’s April 13, 2005 appointment with Dr. Miller.

9

James A. Earle, 51 ECAB 567, 568 (2000); Benjamin Swain, 39 ECAB 448, 454 (1988).

10

Id.; see also Andrew B. Poe, 27 ECAB 510, 512 (1976).

11

See E.T., Docket No. 07-477 (issued May 7, 2007).

5

CONCLUSION
The Board finds that the Office properly denied appellant compensation for leave buy
back for intermittent dates from August 28, 2005 to January 3, 2006 and for March 31, 2005.
The Board further finds that this case is not in posture for a decision as to a determination of the
appropriate amount of time that should be allowed for appellant’s April 13, 2005 medical
appointment with Dr. Miller and shall be remanded to the Office for further development.
ORDER
IT IS HEREBY ORDERED THAT the October 11, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and remanded for
action consistent with this decision.
Issued: July 5, 2007
Washington, DC

David S. Gerson, 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
__________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

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

Docket No. 17-1707
Issued: February 9, 2018

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 August 1, 2017 appellant filed a timely appeal from a February 3, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated January 25, 2016, 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 to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
On appeal appellant generally asserts that his claim should be accepted and requests a
new second opinion evaluation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 24, 2015 appellant, then a supervisor of distribution and operations, filed an
occupational disease claim (Form CA-2) for assault and emotional distress. In a statement dated
January 24, 2015, he indicated that on September 23, 2014 employee J.S. hit him on the
shoulder. Appellant further related that on December 23, 2014 the employing establishment sent
him a Notice of Proposed Removal on the basis of witness statements regarding this incident and
this caused increased stress. He related that he was on administrative leave and had also filed a
traumatic injury claim (Form CA-1).2
By letter dated February 2, 2015, OWCP informed appellant of the evidence needed to
support his occupational disease claim and asked the employing establishment to respond.
In a February 16, 2015 statement, appellant related that he had been made the scapegoat
of the events of September 23, 2014. He maintained that omissions and actions by the
employing establishment, J.S., and the union caused embarrassment and humiliation. Appellant
related that he began supervising J.S. in approximately October 2001. He indicated that at about
4:08 a.m. on September 23, 2014 he sent several employees to help J.S. with automated parcel
and bundle sorter (APBS) processing and sent additional personnel to help him with additional
tasks. Appellant indicated that J.S. had several complaints about his duties that evening, and as
he left the unit, J.S. followed him, began yelling profanity at him, and tried to hit him in the face.
He indicated that he put up his right hand to protect himself. Appellant claimed that employees
witnessed that J.S. was the aggressor and some gave false statements, which led to the proposed
removal. He further alleged that the union had defamed him, and all this caused stress beginning
on or about January 15, 2015 when he was on administrative leave.
Appellant submitted a January 28, 2015 report in which Dr. Carlos M. Zapata, a
psychiatrist, evaluated appellant for depression. Dr. Zapata related that appellant had been on
administrative leave since September 2014 based on a false accusation made at work. He
performed a mental status examination and diagnosed depression, unspecified, with occupational
problems. On January 30, 2015 appellant was seen by a social worker for psychotherapy followup. The social worker reiterated Dr. Zapata’s diagnosis.3
The employing establishment forwarded an October 6, 2014 investigative memorandum
from the postal inspection service regarding the events of September 23, 2014, describing
witness statements with J.S., supervisors, and coworkers. J.S. maintained that appellant was the
aggressor. Supervisor J.N., who did not see any hitting, saw appellant and J.S. square off in a
fighting stance. An acting supervisor, R.R., saw J.S. first hit appellant in the face. She reported
the incident to Manager M.G. and witnessed appellant and J.S. hitting each other, maintaining
that appellant was trying to hit J.S. back. R.R. further indicated that appellant followed her
telling her what she should say in her written statement. Another coworker witnessed what
appeared to be a physical fight. The postal inspectors also interviewed appellant who indicated
2

A traumatic injury claim is not found in the record before the Board.

3
Appellant also submitted a January 21, 2015 treatment note regarding treatment for diabetes, completed by a
registered nurse.

2

that J.S. began to act crazy and make complaints using abusive language and told appellant to
shut up repeatedly. Appellant maintained that he did not hit J.S., who hit at him first but that he
held his right arm out. He related that R.R. changed her statement which, he believed, was done
at the request of M.G. Statements and photographs of T.S.’ hand were attached.
The employing establishment forwarded a Notice of Proposed Removal dated
December 11, 2014 based on his improper conduct on September 23, 2014. Statements
regarding the September 23, 2014 incident, grievances and Equal Employment Occupational
(EEO) claims filed against appellant including some settlements, statements regarding other
concerns, and photographs of J.S.’ hands were also submitted. An incident summary was
completed by Manager M.G. A letter of removal decision was issued on May 20, 2015, effective
May 26, 2015. This indicated that the charge of improper conduct was fully supported by the
evidence and warranted appellant’s removal from the employing establishment.
A statement of accepted facts (SOAF) dated August 13, 2015 indicated that the sole
accepted factor was that on September 23, 2014 appellant and J.S. engaged in a verbal altercation
and physical assault.
In September 2015 OWCP referred appellant to Dr. Benjamin A. Carey, a Board-certified
psychiatrist, for a second opinion evaluation. In a November 21, 2015 report, Dr. Carey noted
his review of the SOAF and questions provided by OWCP. He noted that his office sent a
development questionnaire to appellant for completion before the appointment, but that when
appellant arrived he had not completed the questionnaire. Appellant acknowledged that he got
into an altercation on September 23, 2014 and this, along with his termination, caused
psychological stress. He related that he had a previous conflict with a manager at another facility
in 2011 or 2012, and then transferred to the employing establishment. Following review of the
record, psychological testing,4 and mental status evaluation, Dr. Carey diagnosed adjustment
disorder with mixed anxiety and depressed mood, improved, related to being terminated from his
job following the altercation with J.S. in September 2014. He included a provisional diagnosis
of another adjustment disorder due to a conflict with management in approximately 2012.
Dr. Carey also diagnosed dependent, schizoid, and passive-aggressive features. He concluded
that appellant could be gainfully employed, had no residuals from the employment injury, and
had no work restrictions.
By decision dated January 25, 2016, OWCP denied the claim, finding that the medical
evidence submitted was insufficient to establish causal relationship between the accepted
employment factor and a diagnosed emotional condition.
On March 4, 2016 appellant requested reconsideration. He submitted no additional
evidence or argument. In a nonmerit decision dated March 22, 2016, OWCP denied
reconsideration of the merits of the claim. It noted no additional evidence was received.
Appellant again requested reconsideration on January 30, 2017. He asserted that the
evidence of record supported that his claim should be accepted. Appellant submitted one page of
the Notice of Proposed Removal, and a November 17, 2014 investigation interview with R.R.
4

A copy of psychological test results is found in the record.

3

In a February 3, 2017 decision, OWCP found that, as appellant’s reconsideration request
was untimely filed and failed to present clear evidence of error, his request for reconsideration
was denied.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
an application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 When determining the one-year period for
requesting reconsideration, the last day of the period should be included unless it is a Saturday,
Sunday, or a federal holiday.6 Timeliness is determined by the document receipt date, as
indicated by the “received date” in OWCP’s Integrated Federal Workers’ Compensation
System.7 The Board has found that the imposition of the one-year limitation does not constitute
an abuse of discretionary authority granted OWCP under section 8128 of FECA.8
OWCP may not deny an application for review solely on the grounds that the application
was untimely filed. When an application for review is untimely filed, it must nevertheless
undertake a limited review to determine whether the application demonstrated clear evidence of
error.9 OWCP’s regulations and procedures provide that OWCP will reopen a claimant’s case
for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R.
§ 10.607(a), if the claimant’s application for review demonstrates clear evidence of error on the
part of OWCP.10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit, and
must manifest on its face that OWCP committed an error. Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error. It is not enough to merely show that the evidence could be
construed so as to produce a contrary conclusion. This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP. To
demonstrate clear evidence of error, the evidence submitted must be of sufficient probative value
to prima facie shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.11
5

20 C.F.R. § 10.607(a).

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see
also M.A., Docket No. 13-1783 (issued January 2, 2014).
7

Federal (FECA) Procedure Manual, id. at Chapter 2.1602.4(b) (February 2016).

8

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

9

See 20 C.F.R. § 607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

10

20 C.F.R. § 607(b); Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1602.5(a) (February 2016).

11

Robert G. Burns, 57 ECAB 657 (2006).

4

OWCP procedures note that the term “clear evidence of error” is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error. Evidence such as a detailed, well-rationalized medical report which, if submitted
before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.12 The Board makes an independent determination of
whether a claimant has demonstrated clear evidence of error on the part of OWCP.13
ANALYSIS
The only decision before the Board in this appeal is the February 3, 2017 nonmerit
decision in which OWCP denied appellant’s request for reconsideration because the request was
untimely filed and failed to demonstrate clear evidence of error. Appellant requested
reconsideration regarding denial of his occupational disease claim for an emotional condition.
The Board finds that as appellant’s request for reconsideration was received by OWCP on
January 30, 2017, more than one year after the most recent merit decision on this issue dated
January 25, 2016, the reconsideration request was untimely filed.14
The Board also finds that appellant failed to demonstrate clear evidence of error. In his
January 30, 2017 reconsideration request, appellant maintained that the record established that
his claim should be accepted. He submitted one page of the Notice of Proposed Removal which
was previously of record, and a November 17, 2014 statement from R.R. While this statement
was not previously of record, it merely described the September 23, 2014 altercation between
appellant and J.S., an accepted employment factor.
The merit issue in this case is whether appellant has established that a diagnosed
condition was causally related to the accepted employment factor. He submitted no additional
medical evidence following the January 25, 2016 merit decision.
The term “clear evidence of error” is intended to represent a difficult standard, and the
argument provided here is not the type of positive, precise and explicit evidence which
manifested on its face that OWCP committed an error.15 Evidence such as a detailed, wellrationalized medical report which, if submitted before the denial was issued, would have created
a conflict in medical opinion requiring further development, is not clear evidence of error.16
As the evidence and argument submitted are of insufficient probative value to shift the
weight in favor of appellant and raise a substantial question as to the correctness of the
January 25, 2016 OWCP merit decision, appellant has not established that OWCP committed
12

Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1602.5(a) (February 2016); J.S., Docket No.
16-1240 (issued December 1, 2016).
13

See D.S., Docket No. 17-0407 (issued May 24, 2017).

14

20 C.F.R. § 10.607(a) (2011).

15

Supra note 11.

16

E.D., Docket No. 16-0708 (issued January 17, 2017).

5

error.17 The Board therefore finds that in accordance with Board precedent, OWCP properly
performed a limited review of the argument and evidence submitted by appellant with his
January 30, 2017 reconsideration request to ascertain whether it demonstrated clear evidence of
error in its January 25, 2016 decision. OWCP correctly determined that it did not, and thus
properly denied appellant’s untimely request for merit reconsideration on that basis.18
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and failed
to demonstrate clear evidence of error. OWCP, therefore, properly denied a merit review of his
claim.
ORDER
IT IS HEREBY ORDERED THAT the February 3, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 9, 2018
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

17

D.S., Docket No. 14-0012 (issued March 18, 2014).

18

20 C.F.R. § 10.607(b) (2011); see D.G., 59 ECAB 455 (2008).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Denver, CO, Employer
__________________________________________

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

Docket No. 15-1462
Issued: February 5, 2016

Case Submitted on the Record

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

JURISDICTION
On June 29, 2015 appellant filed a timely appeal of a January 29, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $8,974.23 for the period August 1, 2001 through December 1, 2012 as offset for the
federal employment portion of his social security retirement benefits was not made to his
compensation benefits for which he was not at fault; (2) whether appellant is entitled to waiver of
recovery of the overpayment; and (3) whether OWCP properly determined recovery of the
overpayment in the amount of $240.00 from appellant’s continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 8, 1988 appellant, then a 52-year-old food service worker, filed a traumatic
injury claim (Form CA-1) alleging that he slipped and hit his chest on the edge of the table top
railing on that date bruising his ribs. He filed a second Form CA-1 on March 23, 1989 alleging
that he sustained a laceration of his left hand when an elevator door trapped his hand with a cart.
Appellant filed a third Form CA-1 on September 8, 1989 due to lifting trays on that date with
resulting left elbow pain. OWCP accepted his claims for brachial plexus lesions, synovitis, and
tenosynovitis on October 26, 1989 and left ulnar irritation on January 11, 1990. On February 27,
1991 it reduced appellant’s compensation benefits based on his capacity to earn wages as a selfservice gas station attendant.
In a letter dated June 25, 1992, OWCP provided appellant with his rate of compensation
and informed him that he was not entitled to receive benefits from both OWCP and the Office of
Personnel Management. It further noted that his FECA benefits would be reduced by Social
Security Act (SSA) benefits paid on the basis of age and attributable to his federal service. On
August 23, 1992 appellant elected to receive FECA benefits. OWCP granted him a schedule
award for five percent permanent impairment of his left upper extremity on January 27, 1992.
In a decision dated September 13, 2000, OWCP waived an overpayment in the amount of
$6,121.14 created by the death of appellant’s dependent spouse.
In a letter dated July 18, 2001, appellant informed OWCP that he would be turning 65
years old on August 11, 2001 and requested information regarding his change in compensation
status. He reported receiving SSA disability benefits on Form CA-1032’s from September 15,
2000 through August 21, 2013. In a letter dated December 3, 2002, OWCP provided the
regulation governing dual benefits and noted that SSA benefits may need to be offset.
In a letter dated October 30, 2013, OWCP informed appellant that he had been receiving
SSA dual benefits. It noted that the portion of the SSA benefits earned as a federal employee
was part of the Federal Employees Retirement System (FERS) retirement package and that
receipt of FECA benefits and federal retirement benefits at the same time was a prohibited dual
benefit. OWCP asserted that the SSA benefits which were attributable to appellant’s federal
service must be adjusted. It indicated that his four-week compensation amount would be
adjusted in the amount of $64.06.
On December 5, 2013 OWCP provided appellant with a preliminary determination that
he had received an overpayment of compensation in the amount of $8,974.23 for the period
August 1, 2001 through October 19, 2013, because his compensation benefits were not reduced
for the portion of his SSA retirement benefit earned while in federal service.2 It found that he
was without fault in the creation of the overpayment. OWCP included calculations of the
overpayment and noted that appellant had consistently reported his SSA benefits. It provided
him with an overpayment recovery questionnaire and informed him of his appeal rights, noting
that he had 30 days to request a prerecoupment hearing before a representative of the Branch of
2

The calculations provided with the preliminary finding actually indicate that the overpayment was calculated
from August 2, 2001 to December 1, 2012.

2

Hearings and Review, that he could request a telephone conference, or that he could request a
final decision from the district office. OWCP also provided appellant with an appeals form to
complete and submit.
Appellant requested a prerecoupment hearing on a form received by the Branch of
Hearings and Review on January 27, 2014. The envelope indicated that the postmark was
January 22, 2014.
Appellant provided arguments in a narrative statement dated
January 20, 2014.
Appellant also submitted an overpayment recovery questionnaire and additional financial
documents. He listed total household income of $4,161.00 consisting of SSA benefits of
$1,090.00 and his wife’s SSA benefits of $1,682.00, Supplemental Security Income of $1,220.00
and his wife’s pension of $169.00. Appellant did not include his monthly FECA benefits in his
income calculation. He described his monthly expenses of mortgage $1,418.00, food $400.00,
clothing $100.00, utilities $493.00, and other expenses of $700.00 per month. In a separate
statement, appellant detailed the $700.00 per month as including $200.00 a month for gasoline,
$24.00 for car maintenance, $474.00 for his over-the-counter medication and special foods. He
also listed monthly credit card payments of $261.62, $25.00, $65.00, $129.00, and $163.00.
Appellant listed monthly debts of $3,754.00 on the form. He further indicated that he had
additional medical expenses and averaged medical costs for his wife and himself over three years
and reached an amount of $150.00 per month. Appellant indicated that he had total monthly
expenses of $4,290.00, but the total expenses listed reach only $3,904.00. He provided lists of
medications purchased from January 1, 2001 through December 31, 2013.
By decision dated April 14, 2014, the Branch of Hearings and Review denied appellant’s
request for a prerecoupment hearing as untimely. The Board affirmed this decision on
October 7, 2014, determining that OWCP properly denied his request for a prerecoupment
hearing as untimely filed.3
On January 29, 2015 OWCP issued a final decision determining that appellant had
received an overpayment of compensation in the amount of $8,974.23, for the period August 1,
2001 to December 1, 2012, for which he was not at fault. It noted that he received FECA
compensation in the amount of $1,185.08 per month for a total household income of $5,346.08.
OWCP determined to collect the overpayment through withholding $240.00 from appellant’s
continuing compensation payments beginning February 8, 2015. It noted that he had submitted
an unsigned overpayment recovery questionnaire (OWCP-20) with no corroborating
documentation of most expenses. OWCP found that appellant had monthly household income of
$5,346.08 and monthly expenses of $3,790.62. It further found that he had assets in the amount
of $1,197.00. OWCP determined that appellant was not entitled to waiver as recovery would not
defeat the purpose of FECA or be against equity and good conscience.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
3

Docket No. 14-1432 (issued October 7, 2014).

3

performance of duty.4 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.5 Section 10.421 of the implementing
regulations provide that an employee may not receive compensation for total disability
concurrently with separation pay.6 FECA Bulletin No. 97-9 states that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.7 When OWCP discovers concurrent
receipt of benefits, it must declare an overpayment in compensation and give the usual due
process rights.8
ANALYSIS -- ISSUE 1
The record supports that appellant received FECA wage-loss compensation beginning in
1988 and that he received SSA retirement benefits beginning on August 1, 2001. The portion of
the SSA benefits he earned as a federal employee was part of his FERS retirement package, and
the receipt of benefits under FECA and federal retirement benefits concurrently is a prohibited
dual benefit. Appellant’s FECA compensation was not offset until October 19, 2013. The SSA
notified OWCP of the applicable SSA rates for him and their effective dates. Based on these
rates, OWCP was able to calculate the dual benefit appellant received from August 1, 2001
through December 1, 2012. This yielded an overpayment of compensation in the amount of
$8,974.23. The record includes an overpayment worksheet explaining the overpayment
calculation.
The Board has reviewed OWCP’s calculations of the dual benefits appellant received for
the period August 1, 2001 through December 1, 2012 and finds that he received dual benefits
totaling $8,974.23.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.9 Waiver of an overpayment is not permitted unless the claimant is without
fault in creating the overpayment.10
4

5 U.S.C. § 8102(a).

5

Id. at § 8116(a).

6

20 C.F.R. § 10.421(d); see B.R., Docket No. 15-1247 (issued October 26, 2015); L.J., 59 ECAB 264 (2007).

7

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

8

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

9

5 U.S.C. § 8129.

10

Steven R. Cofrancesco, 57 ECAB 662 (2006).

4

Section 10.433(a) of OWCP regulations provide that OWCP may consider waiving an
overpayment only if the individual to whom it was made was not at fault in accepting or creating
the overpayment.11 According to 20 C.F.R. § 10.436, recovery of an overpayment will defeat the
purpose of FECA if 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 from data furnished by the Bureau of Labor Statistics.12 Recovery of an
overpayment is considered to be against equity and good conscience under section § 10.437 of
OWCP regulations when any individual who received an overpayment would experience severe
financial hardship in attempting to repay the debt.13 Recovery of an overpayment is also
considered to be against equity and good conscience when any individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes
his or her position for the worse.14
OWCP procedures provide that recovery of an overpayment will defeat the purpose of
FECA if recovery would cause hardship by depriving a presently or formerly entitled beneficiary
of income and resources needed for ordinary and necessary living expenses under the criteria set
out in this section. Recovery would defeat the purpose of FECA if both the individual from
whom recovery is sought needed substantially all of his or her current income (including FECA
periodic benefits) to meet current ordinary and necessary living expense, and if the individual’s
assets did not exceed the resource base of $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent, plus $960.00 for each additional dependent. 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. In other words, the amount of monthly funds available for debt repayment is
the difference between current income and adjusted living expenses (i.e., ordinary and necessary
living expenses plus $50.00). If an individual has disposable current income or assets in excess
of the allowable amount, a reasonable repayment schedule can be established over a reasonable,
specified period of time. It is the individual’s burden to submit evidence to show that recovery
of the overpayment would cause the degree of financial hardship sufficient to justify waiver.15

11

20 C.F.R. § 10.433(a).

12

Id. at § 10.436. An individual is deemed to need substantially all of his or her monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Assets
must not exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual with a spouse or
dependent plus $960.00 for each additional dependent. See Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.6(a) (October 2004); B.F., Docket No. 13-785 (issued
September 20, 2013).
13

Id. at § 10.437(a).

14

Id. at § 10.437(b).

15

B.R., supra note 6.

5

ANALYSIS -- ISSUE 2
As OWCP found appellant without fault in the creation of the overpayment, waiver 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. The Board finds
that OWCP did not abuse its discretion by refusing to waive recovery of the overpayment of
compensation.
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because his income exceeds his monthly expenses by more than $50.00 a month. He
provided an overpayment recovery questionnaire and listed monthly income of $5,346.08,
including his FECA benefits, and monthly expenses of $3,904.00. Appellant’s income exceeds
his largely unsubstantiated expenses by $1,442.08 a month. Because he has not met the first
prong of the two-prong test of whether recovery of the overpayment would defeat the purpose of
FECA, it is not necessary to consider the second prong of the test, i.e., whether he has more than
$8,000.00 in assets.
Appellant generally contends on appeal that recovery of the overpayment would create a
financial hardship and thus be against equity and good conscience. As described above, the
record does not support this contention.
Recovery of an overpayment is also considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. Appellant has not
alleged that he gave up a valuable right or changed his position for the worse and has not
established that recovery would be against equity and good conscience.
LEGAL PRECEDENT -- ISSUE 3
OWCP’s implementing regulations provide that, if an overpayment of compensation has
been made to an individual entitled to further payments and no refund is made, OWCP shall
decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual, and any other
relevant factors, so as to minimize any hardship.16
ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of the $8,974.23 overpayment by
deducting $240.00 from appellant’s compensation payments every four weeks, OWCP took into
consideration the financial information submitted by him resulting in a monthly surplus of
$1,442.08 as well as the factors set forth in section 10.441(a) of its regulations and found that
this method of recovery would minimize any resulting hardship on him. Therefore, it properly
required repayment of the overpayment by deducting $240.00 from his compensation payments
every four weeks.
16

20 C.F.R. § 10.441(a).

6

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $8,974.23 for the period August 1, 2001 through December 1, 2012 as offset for the federal
employment portion of his social security retirement benefits was not made to his compensation
benefits for which he was not at fault. The Board further finds that he is not entitled to waiver of
recovery of the overpayment. The Board also finds that OWCP properly determined collection
of the overpayment in the amount of $240.00 from appellant’s continuing compensation
payments was appropriate.
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2016
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Show Lo, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-0245
Issued: September 4, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On November 12, 2014 appellant filed a timely appeal from a May 20, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of total disability on or after June 30, 2011 causally related to her January 12, 2011
employment injuries.
FACTUAL HISTORY
This case has previously been before the Board.2 In an August 28, 2013 decision, the
Board affirmed an OWCP hearing representative’s August 29, 2012 decision, which found that
1

5 U.S.C. § 8101 et seq.

2

Docket No. 13-807 (issued August 28, 2013).

appellant did not sustain a recurrence of disability on or after June 30, 2011 causally related to
her accepted employment-related injuries. The Board found that the evidence of record was
insufficient to establish a change in the nature and extent of her employment-related conditions,
or a change in the nature and extent of her light-duty job requirements. The facts of the case, as
set forth in the prior decision, are hereby incorporated by reference. The relevant facts are set
forth below.
On February 17, 2011 OWCP accepted that on January 12, 2011 appellant, then a 51year-old rural carrier, sustained a contusion of the left hip and concussion without loss of
consciousness when she slipped on snow and ice and fell, hitting the back of her head on the
ground. On June 3, 2011 appellant accepted the employing establishment’s job offer for a
modified-duty assignment. The assignment was for four hours a day with restrictions of a daily
average of one hour each of sitting, walking, grasping, and fine manipulation and five hours
standing.
OWCP paid disability compensation for four hours from July 2 through
November 16, 2013.3
Subsequent to the issuance of the hearing representative’s August 29, 2012 decision,
OWCP proceeded to further develop the issue of appellant’s total disability. On October 17,
2012 it referred her, together with a statement of accepted facts and the medical record, to
Dr. Ronald S. Bennett, a Board-certified neurologist, for an impartial medical examination to
resolve a conflict in medical opinion between Dr. Mitchell A. Major, an attending
anesthesiologist, and Dr. Scott C. Forrer, a Board-certified neurologist and second opinion
physician, regarding appellant’s capacity to perform full-time regular-duty work. In an
October 25, 2011 work capacity evaluation (Form OWCP-5c), Dr. Major opined that appellant
was not capable of performing her usual job secondary to loss of function of the right upper
extremity and complex regional pain syndrome secondary to her fall and occipital nerve damage.
In a May 21, 2012 medical report, Dr. Forrer diagnosed concussion without loss of
consciousness and contusion of the left hip and advised that appellant was capable of returning to
her rural carrier position without restrictions.
In an April 2, 2012 work capacity evaluation (Form OWCP-5c), Dr. Aaron C. Bornstein,
an attending family practitioner, advised that appellant could not perform her usual job for an
indeterminate period due to her neuropathy and chronic pain secondary to her January 12, 2011
trauma.
In a November 15, 2012 report, Dr. Bennett reviewed a history of the January 12, 2011
employment injuries and appellant’s medical treatment, social, and family background. He also
reviewed the medical record. Dr. Bennett provided essentially normal findings on physical
examination with the exception of slightly decreased lateral rotation and forward flexion of the
neck, extreme sensitivity on compression of the right greater occipital nerve, and sensory
hypesthesia over the anterolateral aspect of the left thigh. He reported that electromyogram
studies of the upper and lower extremities revealed no evidence of cervical or lumbar
radiculopathy and were consistent with his diagnosis of occipital nerve neuralgia and meralgia
paresthetica. Dr. Bennett advised that appellant suffered from a greater occipital nerve injury
3

The Board notes that appellant retired on disability from the employing establishment effective October 11,
2013 and elected to receive retirement benefits from the Office of Personnel Management.

2

secondary to her fall with right-sided headaches. By history there was some altered mental
status, but that was difficult to evaluate after the fact. Dr. Bennett noted that appellant
complained about tingling and numbness in her anterolateral left thigh and hip. He stated that
the left hip issue was related to meralgia paresthetica that was post-traumatic with tingling and
numbness in the thigh. Appellant’s dizziness was related to position and fulfilled criteria of
benign positional vertigo with dizziness and nausea secondary to her fall. Dr. Bennett stated that
this was due to a concussion of the inner ear that could occur with head injuries. He related that
further work up revealed very mild nonsurgical discogenic disease in the cervical and lumbar
spine that was unrelated to the fall. Dr. Bennett suspected that appellant had post-traumatic
stress disorder due to prolonged symptomatology and disability and medical treatments, but
stated that this was not his area of expertise and suggested further evaluation. He addressed her
treatment plan which included use of an occipital nerve stimulator. Dr. Bennett concluded that
she was temporarily disabled. He recommended revaluation in three months.
In an addendum report of even date, Dr. Bennett stated that he reviewed appellant’s
position description and the statement of accepted facts regarding her rural mail carrier activities.
He advised that she could perform all of these activities except loading mail onto a vehicle which
depended on how frequent this activity was performed, the weight of the mail, and whether there
was a positive response to the occipital nerve stimulator. Dr. Bennett concluded that all other
work activities were possible at that time. In an accompanying OWCP-5c form dated
November 15, 2012, he stated that appellant could work eight hours a day with restrictions which
included no pushing, pulling, or lifting more than 10 pounds.
Appellant, on January 3, 2013, submitted a January 3, 2012 report by Dr. Major who
assessed appellant as being status post the accepted work-related January 12, 2011 fall. She had
considerable cervicalgia, right greater than left which was absent prior to her fall. Appellant also
had right shoulder pain related to her fall and left thigh pain of unknown etiology. Dr. Major
concluded that appellant’s activities of daily living and quality of life were greatly diminished
and her family life was significantly impinged upon.
By letter dated March 25, 2013, OWCP expanded the acceptance of appellant’s claim to
include traumatic occipital neuralgia of the right cervical region.
Following the issuance of the Board’s August 28, 2013 decision, appellant, in a letter
dated February 28, 2014, requested reconsideration of the August 29, 2012 denial of her
recurrence claim. She contended that the Board’s decision did not mention Dr. Bennett’s
findings which established her entitlement to disability compensation.4

4

The Board did not review Dr. Bennett’s reports or any other new evidence submitted after the hearing
representative’s August 29, 2012 decision in its August 28, 2013 decision as the Board may only review evidence
that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09176 (issued September 23, 2009); J.T., 59 ECAB 293, 295 n.1 (2008); G.G., 58 ECAB 389, 391 n.7 (2007);
Donald R. Gervasi, 57 ECAB 281, 284 n.1 (2005); Rosemary A. Kayes, 54 ECAB 373, 375 n.8 (2003). Therefore,
this additional evidence was not considered on appeal. See James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

3

In OWCP-5c forms dated November 7, 2012 to November 4, 2013, Dr. Bornstein
reiterated that appellant was unable to perform her usual job due to her accepted employment
injuries.
In a May 20, 2014 decision, OWCP denied modification of the denial of appellant’s
recurrence of disability claim. It found that the weight of the medical evidence rested with
Dr. Bennett’s impartial medical opinion and established that she could perform her rural carrier
duties, except loading mail. OWCP stated that appellant was partially disabled and not totally
disabled.
LEGAL PRECEDENT
OWCP’s definition of a recurrence of disability means an inability to work after an
employee has returned to work, caused by a spontaneous change in a medical condition, which
had resulted from a previous injury or illness without an intervening injury or new exposure.
The term also means the inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.5
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence
establishes that he or she can perform the limited-duty position, the employee has the burden of
proof to establish a recurrence of total disability and that he or she cannot perform such limitedduty work. As part of this burden, the employee must show a change in the nature or extent of
the injury-related condition or a change in the nature and extent of the light-duty job
requirements.6 To establish a change in the nature and extent of the injury-related condition,
there must be probative medical evidence of record. The evidence must include a rationalized
medical opinion, based on a complete and accurate factual and medical history and supported by
sound medical reasoning, that the disabling condition is causally related to employment factors.7
In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.8
In a situation where OWCP secures an opinion from an impartial medical examiner for
the purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental
5

See John I. Echols, 53 ECAB 481 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

6

PA., Docket No. 10-1225 (issued April 20, 2011); Maurissa Mack, 50 ECAB 498 (1999).

7

Vanessa Young, 55 ECAB 575 (2004).

8

L.S., Docket No. 12-139 (issued June 6, 2012); Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch
(Ronald Brasch), 52 ECAB 252 (2001).

4

report from the examiner for the purpose of correcting the defect in the original opinion.9 If an
impartial medical specialist is unable to clarify or elaborate on his original report or if his
supplemental report is also vague, speculative or lacking in rationale, OWCP must submit the
case record and a detailed statement of accepted facts to a second impartial specialist for the
purpose of obtaining his rationalized medical opinion on the issue.10
ANALYSIS
The Board finds that the case is not in posture for a decision on whether appellant
sustained a recurrence of disability because of an unresolved conflict in medical opinion. OWCP
found that appellant did not sustain a recurrence of total disability commencing June 30, 2011
because of a worsening of her accepted employment-related conditions based on the opinion of
Dr. Bennett, an impartial medical specialist.
OWCP determined that a conflict existed between appellant’s attending physician,
Dr. Major, and Dr. Forrer, an OWCP referral physician, as to whether appellant was totally
disabled. To resolve the conflict, it referred the claim to Dr. Bennett, for an impartial medical
examination. In a November 15, 2012 report, Dr. Bennett listed his examination findings and
diagnosed occipital nerve neuralgia and benign positional vertigo with dizziness and nausea as a
consequence of the accepted January 12, 2011 employment injury. He found appellant
temporarily totally disabled for work. In addition, Dr. Bennett advised that further treatment was
necessary to return her to work. He recommended that she be reevaluated in three months to
consider long-term disability. Dr. Bennett did not find that appellant no longer had any residuals
or disability causally related to her accepted employment-related injuries. On the contrary, he
found that she did.
The Board finds that OWCP’s reliance on Dr. Bennett’s opinion in denying appellant’s
recurrence of disability claim was misplaced given his actual opinion that appellant’s ongoing
residuals and disability were employment related. In an undated addendum to his November 15,
2012 report, Dr. Bennett stated that appellant could return to her rural mail carrier activities. In
the addendum, his opinion lacks detail about the required work activities she could perform.
Dr. Bennett generally found that she could perform all work activities, except loading mail onto
a vehicle. However, he further stated that appellant’s ability to perform this activity depended on
the frequency of the activity, the weight of the mail, and a positive response to an occipital nerve
stimulator. Dr. Bennett did not explain what he meant regarding the required activities she could
perform upon her return to work.
For reasons stated above, the Board finds that Dr. Bennett’s reports cannot be given the
special weight afforded an impartial medical examiner, and do not resolve the conflict of medical
opinion on the issue of whether appellant sustained a recurrence of total disability on or after
June 30, 2011. Therefore, the case will be remanded for OWCP to obtain detailed clarification
9

Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

10

Guiseppe Aversa, 55 ECAB 164 (2003); Harold Travis, 30 ECAB 1071, 1078 (1979); see also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11(e)
(September 2010).

5

from Dr. Bennett on whether appellant had any continuing disability as of June 30, 2011 that
could be causally related to the accepted January 12, 2011 employment injury. If it is unable to
obtain such clarification, then appellant should be referred to another Board-certified specialist
for an examination and an opinion on this matter.11 After such further development of the case
record as OWCP deems necessary, it should issue a de novo decision on appellant’s recurrence
claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 20, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: September 4, 2015
Washington, DC

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

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

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

11

Id.

6