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

)
)
)
)
)
)
)
)

Appearances:
Randy K. Fleming, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2398
Issued: June 8, 2009

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 September 2, 2008 appellant through counsel filed a timely appeal of the August 19,
2008 merit decision of the Office of Workers’ Compensation Programs, denying her claim for
wage-loss compensation for the period April 1 to December 31, 2006. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she was totally disabled from April 1
to December 31, 2006, due to her accepted employment-related injury.
FACTUAL HISTORY
On April 27, 2005 appellant, then a 40-year-old city carrier, filed a claim alleging that she
sustained a recurrence of disability on January 20, 2005 causally related to her December 28,
1993 employment-related back injury.1 She stated that, following the December 28, 1993
1

Appellant’s claim for the December 28, 1993 employment-related injury was file number xxxxxx845 and the
Office accepted it for lumbar degenerative disc disease at L5-S1.

employment-related injury, she returned to light-duty work with restrictions. On January 20,
2005 appellant remained seated in her vehicle for four to five hours while delivering mail
because snow had been plowed closely to mailboxes on her route. This task involved twisting,
reaching and pulling, which aggravated her back condition.
By letter dated May 19, 2005, the Office advised appellant that she had identified a new
work injury as the cause of her back condition. It adjudicated her claim as a new traumatic
injury.
Medical records covering the period January 25 through November 7, 2005 from
Dr. Kirnjot Singh, an attending Board-certified orthopedic surgeon, Dr. Maria R. Ayala Badar,
an internist, and Barbara A. Robe, a physical therapist, addressed appellant’s degenerative disc
disease, disability and physical restrictions. Diagnostic test results addressed her back condition.
By decision dated February 14, 2006, the Office denied appellant’s claim. It found the
factual evidence insufficient to establish that the January 20, 2005 incident occurred as alleged.
The Office further found the medical evidence insufficient to establish that she sustained an
injury causally related to the claimed employment incident.
On February 21, 2006 appellant requested reconsideration. In a February 16, 2006
medical report, Dr. Singh stated that appellant had a disc herniation and degenerative disc
disease which were exacerbated by the December 28, 1993 employment-related injury. In a
February 20, 2006 report, Dr. Badar stated that appellant’s January 20, 2005 employment injury
was caused by her letter carrier duties.
By decision dated April 7, 2006, the Office modified the February 14, 2006 decision to
find that the January 20, 2005 incident occurred as alleged. However, it found the medical
evidence insufficient to establish that appellant sustained an injury causally related to the
accepted employment incident.
On May 2, 2006 appellant requested reconsideration. In reports dated April 24 and 27,
2006, Dr. Singh and Dr. Badar opined that the January 2005 employment incident aggravated
appellant’s preexisting employment-related herniated disc condition.
In a July 19, 2006 decision, the Office set aside the April 7, 2006 decision. It found that
the January 20, 2005 employment incident aggravated appellant’s preexisting lumbar
degenerative disc disease.2 By letter dated July 19, 2006, the Office accepted her claim for
aggravation of preexisting lumbar degenerative disc disease.
On September 5, 2006 appellant filed a claim for wage-loss compensation for the period
May 20 through July 21, 2006. Time analysis forms indicated that she was off work from
May 7, 2005 through March 28, 2006. In a September 12, 2006 form report, Dr. Singh stated
that appellant suffered from degenerative disc disease, stenosis and chronic back pain. He
indicated with an affirmative mark that the diagnosed conditions were caused by the accepted
2

The Office also found that appellant was not entitled to continuation of pay or wage-loss compensation for the
period January 24 through February 3, 2005 and beginning on April 10, 2006.

2

January 20, 2005 employment-related injury.
disabled from April to December 31, 2006.

Dr. Singh opined that appellant was totally

By letter dated October 2, 2006, the Office requested that appellant submit medical
evidence establishing that she was totally disabled during the period May 7, 2005 through
March 28, 2006.
In an October 2, 2006 report, Dr. Singh stated that he had previously evaluated appellant
in April 2006. Appellant experienced excruciating back pain and it was uncomfortable for her to
sit. Dr. Singh excused her from work because she could not sit comfortably for a long period of
time and she was unable to tolerate any kind of work at the employing establishment. He opined
that her work duties caused recurrent exacerbations. Dr. Singh advised that appellant was
permanently disabled.
In treatment notes and a report covering the period February 14 through March 7, 2005,
Ms. Robe addressed appellant’s back problems.
By decision dated January 18, 2007, the Office denied appellant’s claim for wage-loss
compensation for the period April 1 to December 31, 2006. It found the evidence insufficient to
establish that she was totally disabled due to the accepted January 20, 2005 employment-related
injury.
On January 29, 2007 appellant, through counsel, requested reconsideration. In a
March 31, 2006 report, Dr. Ramesh P. Kanuru, a Board-certified anesthesiologist, noted
appellant’s complaint of left lower back pain that radiated down to her left leg. He reviewed the
history of her medical, family and social background. Dr. Kanuru reported essentially normal
findings on physical examination. On sensory examination, he reported decreased sensation over
the dorsum of the left foot and lateral aspect of the left lower leg. Dr. Kanuru diagnosed lumbar
degenerative disc disease and left lumbar radiculitis. On March 31, 2006 he performed a lumbar
discography at L3-4, L4-5 and L5-S1.
In reports dated June 5 and September 11, 2006, Dr. Singh reiterated his prior diagnosis
of chronic back pain. A December 4, 2006 report from Steven Bunag, a physician’s assistant,
noted that appellant suffered from chronic back pain. In an April 2, 2007 report, Dr. Singh stated
that appellant was status post posterior spine fusion.
By decision dated April 9, 2007, the Office denied appellant’s request for reconsideration
on the grounds that the evidence was insufficient to warrant further merit review of her claim.
An April 2, 2007 report of Dr. Adolph R. Yaniz, a Board-certified family practitioner,
stated that appellant was status post lumbar fusion.
In a May 9, 2007 report, Dr. Singh reiterated his prior opinion that appellant’s
degenerative disc disease at L5-S1 was causally related to her January 20, 2005 employment
injury.
On May 24, 2007 the Office referred appellant, together with a statement of accepted
facts, the case record and a list of questions to be addressed, to Dr. Edward S. Forman, a Board3

certified orthopedic surgeon. It requested an opinion on whether she had any residuals of her
January 20, 2005 employment-related aggravation of preexisting degenerative disc disease at
L5-S1 and the extent of any such aggravation.
In an April 18, 2007 report, Dr. Singh diagnosed possible spinal stenosis.
On June 7, 2007 appellant requested reconsideration of the Office’s January 18, 2007
decision. In a July 11, 2006 report, Dr. Yaniz opined that appellant had bilateral radiculopathy to
both lower extremities. In reports dated March 7 and May 1, 2007, Dr. Samir Gupta, a Boardcertified psychiatrist, stated that appellant suffered from major depression, chronic back pain and
severe psychosocial stressors related to her unemployment and financial difficulties. Appellant
had a global assessment function score of 50 to 60. In a February 8, 2007 report, Dr. Singh
approved physical therapy for appellant’s back pain.
By decision dated July 17, 2007, the Office denied modification of the January 18, 2007
decision. It found the evidence insufficient to establish that appellant was totally disabled from
April 1 to December 31, 2006.
In a July 24, 2007 report, Dr. Forman reviewed the history of appellant’s January 20,
2005 employment injury and medical treatment and social background. He reported essentially
normal findings on physical examination. On x-ray examination, Dr. Forman reported L4-5
fusion mass at the transverse processes. He diagnosed degenerative disc disease of the lumbar
spine. Dr. Forman stated that it was difficult to assess whether appellant had residuals of her
January 20, 2005 employment injury due to her complaints of continued pain. He recommended
an electromyogram (EMG) and functional capacity evaluation (FCE) to assess her functionality.
On September 12, 2007 Loretta Haynes-Hudgins, an occupational therapist and case
manager, performed an FCE. She stated that work conditioning or hardening was not
recommended based on appellant’s current status. Ms. Haynes-Hudgins stated that appellant was
significantly limited by high pain levels and poor mobility. She related that appellant could
benefit from intervention that would address her high pain levels and mobility and endurance to
improve her potential to participate in a work hardening rehabilitation program.
In an October 8, 2007 supplemental report, Dr. Forman reviewed the results of the
September 12, 2007 FCE and an EMG performed on September 5, 2007. He opined that, while
appellant suffered from chronic low back pain secondary to the aggravation of her preexisting
degenerative disc disease at L5-S1, she could return to sedentary work. Dr. Forman noted that
she was still objectively symptomatic and provided a treatment plan.
Dr. Julian Ungar-Sargon, a neurologist, performed the September 5, 2007 EMG. He
reported chronic changes only in the left lumbar roots at L4-5. Dr. Ungar-Sargon found little
evidence of any acute denervation.
In reports dated October 2, 2006 and January 30, 2008, Dr. Singh reiterated his opinion
that appellant had chronic back pain. In a July 11, 2007 report, Mr. Bunag stated that appellant
sustained degenerative disc disease at L5-S1.

4

In a February 21, 2008 report, Dr. Gupta related that on August 2, 2007 appellant’s
diagnosis of a single episode of major depression was changed to depression secondary to a
medical condition. He opined that the psychosocial stressors of her back injury contributed to
her emotional condition.
By letter dated June 12, 2008, appellant, through counsel, requested reconsideration of
the Office’s July 17, 2007 decision.
In an August 19, 2008 decision, the Office denied modification of the July 17, 2007
decision. It found the evidence insufficient to establish that appellant was totally disabled during
the period April 1 through December 31, 2006 due to her accepted January 20, 2005 employment
injury.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act, the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time
of the injury, i.e., an impairment resulting in loss of wage-earning capacity.3 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.4 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.5 The
fact that a condition manifests itself during a period of employment does not raise an inference
that there is a causal relationship between the two.6 The Board will not require the Office to pay
compensation for disability in the absence of medical evidence directly addressing the specific
dates of disability for which compensation is claimed. To do so would essentially allow an
employee to self-certify her disability and entitlement to compensation.7
ANALYSIS
The Office accepted that appellant sustained an aggravation of preexisting lumbar
degenerative disc disease at L5-S1 while in the performance of duty on January 20, 2005.
Appellant sought compensation for wage loss, contending that she was totally disabled from
April 1 to December 31, 2006. She has the burden of establishing by the weight of the
substantial, reliable and probative evidence, a causal relationship between the claimed disability
and the accepted conditions.8 The Board finds that appellant did not submit sufficient medical
3

See Prince E. Wallace, 52 ECAB 357 (2001).

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

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

6

Manuel Garcia, 37 ECAB 767 (1986).

7

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Alfredo Rodriguez, 47 ECAB 437 (1996).

5

evidence to establish employment-related disability for the period claimed due to her accepted
injury.
Dr. Singh’s September 12, 2006 report stated that appellant’s degenerative disc disease,
stenosis and chronic back pain were caused by the January 20, 2005 employment injury. He
advised that she was totally disabled from April to December 31, 2006. However, Dr. Singh
failed to adequately explain how appellant’s disability was causally related to the accepted
employment-related aggravation of preexisting lumbar degenerative disc disease at L5-S1.9 On
October 2, 2006 he stated that appellant was permanently disabled due to her work duties which
caused recurrent exacerbations of her employment-related back condition. Dr. Singh did not
address how appellant’s disability for the claimed period was due to her accepted employment
injury. The Board finds that this report is also insufficient to establish appellant’s claim.
Dr. Singh’s progress reports reiterated that appellant had chronic back pain. In an
April 2, 2007 report, he related that she was status post posterior spine fusion. Dr. Singh’s
April 18, 2007 report provided a diagnosis of possible spinal stenosis. In a May 9, 2007 report,
he stated that appellant’s degenerative disc disease at L5-S1 was causally related to the
January 20, 2005 employment injury. This evidence did not address appellant’s total disability
for the claimed period due to her accepted employment injury. The Board finds that Dr. Singh’s
progress reports are insufficient to establish appellant’s claim.
Similarly, Dr. Kanuru’s March 31, 2006 report is insufficient to establish appellant’s
claim. He reported essentially normal findings on physical examination with decreased
sensation over the dorsum of the left foot and lateral aspect of the left lower leg on sensory
examination. Dr. Kanuru diagnosed lumbar degenerative disc disease and left lumbar radiculitis.
He performed a lumbar discography at L3-4, L4-5 and L5-S1 on March 31, 2006. However,
Dr. Kanuru did not address whether appellant was totally disabled during the claimed period due
to her accepted employment injury. The Board finds that his report is insufficient to establish
appellant’s claim.
Dr. Yaniz’ July 11, 2006 and April 2, 2007 reports, found that appellant was status post
lumbar fusion at L4-5 secondary to degenerative lumbar disc disease and that she sustained
bilateral radiculopathy of both lower extremities. Dr. Gupta’s February 8, 2007 report approved
physical therapy for appellant’s back pain. In reports dated March 7 and May 1, 2007, he found
that she suffered from major depression, chronic back pain and severe psychosocial stressors
related to her unemployment and financial difficulties. On February 21, 2008 Dr. Gupta changed
his prior diagnosis to depression secondary to her back condition. He opined that the
psychosocial stressors of her back injury contributed to her emotional condition. Dr. Forman’s
October 8, 2007 report stated that appellant’s chronic low back pain was due to her accepted
January 20, 2005 employment-related injury and that she could return to sedentary work based
on the September 5, 2007 EMG and September 12, 2007 FCE. Each of the physicians, however,
failed to address whether appellant was totally disabled during the claimed period due to her

9

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).

6

accepted employment injury. The Board finds that their reports are insufficient to establish
appellant’s claim.
The treatment notes and reports of Ms. Robe, a physical therapist, Mr. Bunag, a
physician’s assistant, and Ms. Haynes-Hudgins, an occupational therapist, do not constitute
probative medical evidence. A physical and occupational therapist10 or a physician’s assistant11
are not physicians as defined under the Act. Therefore, the Board finds that these reports do not
constitute competent medical evidence to support appellant’s claim.
Appellant has failed to submit rationalized medical evidence establishing that her total
disability during the period April 1 to December 31, 2006 resulted from the residuals of her
accepted employment-related aggravation of preexisting degenerative disc disease at L5-S1. The
Board finds that appellant has not met her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she was totally disabled from
April 1 to December 31, 2006 due to her January 20, 2005 accepted employment-related injury.

10

5 U.S.C. § 8101(2); see David P. Sawchuk, 57 ECAB 316 (2006).

11

Id. at § 8102(2); see Roy L. Humphrey, 57 ECAB 238, 242 (2005).

7

ORDER
IT IS HEREBY ORDERED THAT the August 19, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 8, 2009
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.I., Appellant
and
U.S. POSTAL SERVICE, OKEMOS POST
OFFICE, Okemos, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Benjamin W. Ide, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0035
Issued: November 4, 2019

Case Submitted on the Record

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

JURISDICTION
On October 4, 2018 appellant, through her representative, filed a timely appeal from an
April 13, 2018 merit decision of the 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 appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2 (c) (1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

ISSUES
The issues are: (1) whether appellant has received an overpayment of compensation in the
amount of $27,998.65 because she concurrently received Social Security Administration (SSA)
benefits while also receiving FECA benefits for the period February 1, 2014 through April 29,
2017; (2) whether OWCP properly determined that appellant was at fault in the creation of the
overpayment and therefore not entitled to waiver of recovery of the overpayment; and (3) whether
OWCP properly required recovery of the overpayment by deducting $200.00 every 28 days from
appellant’s continuing compensation payments.
FACTUAL HISTORY
On August 31, 1995 appellant, then a 47-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 23, 1995 she experienced emotional distress when her
supervisor told her that a threat on her life had been made by a coworker who had previously
physically assaulted her. She stopped work on August 23, 1995. OWCP accepted the claim for
post-traumatic stress disorder, adjustment reaction, and depression, single episode in remission. It
paid appellant wage-loss compensation on the periodic rolls for temporary total disability
beginning October 13, 1996.
On EN1032 forms signed by appellant on February 21, 2014, February 28, 2015,
February 26, 2016, and March 7, 2017, she indicated that she was not receiving SSA benefits as
part of an annuity for federal service.4
On March 29, 2017 SSA forwarded a FERS/SSA dual benefits calculation form to OWCP.
The form indicated that beginning in February 2014 appellant’s SSA rate with FERS was
$1,226.70 and without FERS was $518.60, beginning in December 2014 her SSA rate with FERS
was $1,247.50 and without FERS was $527.40, beginning in December 2015 her SSA rate with
FERS was $1,247.50 and without FERS was $527.40, and beginning in December 2016 her SSA
rate with FERS was $1,251.20 and without FERS was $528.90. It noted that she was entitled to
SSA age-based benefits beginning in February 2014.
On September 28, 2017 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $27,998.65 had been created. It explained that the overpayment
occurred because a portion of appellant’s age-based SSA benefits that she received from
February 1, 2014 through April 29, 2017 was based on credits earned while working in the Federal
Government, and this portion of her SSA was a prohibited dual benefit. OWCP found her at fault
in the creation of the overpayment and provided an overpayment action request form and an

4
The EN1032 forms signed by appellant provided: “Report any benefits received from the SSA which you receive
as part of an annuity under the Federal Employees’ Retirement System (FERS). DO NOT report any benefits received
from the SSA on account of employment in the private sector.” On an EN1032 form signed on February 25, 2018 she
related that she was receiving SSA retirement benefits as part of an annuity under the FERS.

2

overpayment recovery questionnaire (Form OWCP-20) for her completion.5 It informed appellant
of the actions she could take and allotted 30 days for her to respond.
On October 25, 2017 OWCP appellant requested a prerecoupment hearing regarding the
issues of fault and possible waiver of the overpayment. Appellant attached an income and expense
summary, with some financial documentation.
A telephonic hearing was held on March 9, 2018.
By decision dated April 13, 2018, OWCP finalized the preliminary overpayment
determination, finding that an overpayment of compensation in the amount of $27,998.65 had been
created for the period February 1, 2014 through April 29, 2017 because appellant received FECA
benefits and age-based benefits from SSA without appropriate offset. It further found her at fault
because she failed to provide information in her EN1032 forms which she knew or should have
known to be material. The hearing representative evaluated appellant’s income and expenses and
found that she had $436.70 available in monthly discretionary income. She set recovery at the rate
of $200.00 every 28 days from appellant’s continuing FECA 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 duty.6 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.7
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA benefits that are attributable to federal service of the
employee.8 FECA Bulletin No. 97-09 provides 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.9

5

OWCP also requested that appellant submit supporting financial documentation including income tax returns,
bank account statements, bills and cancelled checks, pay slips, and any other records which supported income and
expense listed.
6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see E.K., Docket No. 18-0587 (issued October 1, 2018).

9

FECA Bulletin No. 97-09 (February 3, 1997).

3

Section 404.310 of SSA regulations provides that entitlement to SSA compensation begins
at 62 years.10 Section 404.409 of SSA regulations provides that for individuals born from 1943 to
1954, full retirement age is 66 years.11
OWCP’s procedures provide that, once an overpayment is identified, it is responsible for
determining whether the claimant was with fault or without fault, issuing a preliminary finding,
and unless a hearing is requested, OWCP is responsible for issuing a final decision.12 These
procedures note that, if the claimant is determined to be with fault, a Form CA-2201 (preliminary
finding notice) must be released (along with a Form OWCP-20) within 30 days of the date the
overpayment is identified. Both the reason that the overpayment occurred and the reason for the
finding of with fault must be clearly stated. A CA-2201 form informs the claimant of the right to
submit evidence and the right to a prerecoupment hearing on the issue of: (a) fact and amount of
overpayment; and (b) waiver. Along with the CA-2201 form, OWCP should provide a clearly
written statement explaining how the overpayment was created.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $27,998.65 for the period February 1, 2014
through April 29, 2017.
In its April 13, 2018 decision, OWCP found that an overpayment of compensation had
been created based on the evidence received from SSA with respect to age-based benefits paid to
appellant. A claimant cannot receive both compensation for wage-loss and SSA retirement
benefits attributable to federal service for the same period.14 The information provided by SSA
indicated that appellant received age-based SSA benefits that were attributable to federal service
for the period February 1, 2014 to April 29, 2017 in the amount of $27,998.65.
The Board finds however that OWCP failed to follow its procedures in issuing the April 13,
2018 overpayment decision.15 As noted, OWCP procedures provide that a CA-2201 form
(preliminary finding notice) must be released along with an OWCP-20 within 30 days of the date
the overpayment is identified.16
In this case, OWCP was first formally placed on notice that appellant was receiving SSA
age-based benefits in a form received by OWCP on March 29, 2017, wherein SSA advised OWCP
10

20 C.F.R. § 404.310.

11

Id. at § 404.409.

12

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(a)(1) (May 2004).
13

See P.H., Docket No. 18-1539 (issued August 2, 2019).

14

Supra notes 8 and 9; see M.S., Docket No. 18-0740 (issued February 4, 2019).

15

Supra note 13.

16

Supra note 12.

4

that she had concurrently received FECA and SSA age-based benefits based on FERS
contributions as of February 2014. However, it did not issue a preliminary notice regarding the
overpayment until September 28, 2017. This preliminary notice was therefore not issued within
30 days after the overpayment was identified.
The Board thus finds that OWCP did not follow its own procedures and did not issue a
preliminary notice of overpayment within 30 days of identifying an overpayment based upon
appellant’s receipt of SSA age-based benefits.17
CONCLUSION
The Board finds that OWCP failed to follow its established procedures in determining that
appellant received an overpayment of compensation in the amount of $27,998.65 during the period
February 1, 2014 through April 29, 2017.
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2018 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: November 4, 2019
Washington, DC

Janice B. Askin, 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
Based on the Board’s disposition of whether an overpayment of compensation was created, the issues of waiver
and recovery are moot. See C.C., Docket No. 16-1190 (issued May 12, 2017).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, KIRKLAND AIR
FORCE BASE, NM, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-2070
Issued: September 11, 2009

Case Submitted on the Record

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

JURISDICTION
On July 21, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated April 25, 2008. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount $5,182.67 as he received duplicative schedule awards; and (2) whether the Office
properly found that he was at fault in the creation of the overpayment such that it was not subject
to waiver.
FACTUAL HISTORY
On September 9, 2003 appellant, then a 57-year-old meat cutter, filed a traumatic injury
claim alleging that on July 17, 2003 he injured his left shoulder in the performance of duty. The
Office accepted his claim for left rotator cuff tear on July 8, 2004. It granted appellant a
schedule award for 21 percent permanent impairment of his left upper extremity covering the

period January 8 to September 4, 2004 in the amount of $16,799.07 based on a weekly pay rate
of $493.94 and 65.52 weeks of compensation.
On June 10, 2004 appellant filed a second traumatic injury claim alleging that he slipped
and injured his left shoulder in the performance of duty on May 22, 2004. On October 26, 2004
the Office accepted his claim for sprain and strain of the left shoulder and upper arm.1 It also
accepted tenosynovitis of the left hand and wrist on November 9, 2005.
By decision dated July 6, 2005, the Office granted appellant a schedule award for 24
percent permanent impairment of the left upper extremity.2 It determined that his pay rate was
$435.99 per week and that he was entitled to 74.88 weeks of compensation. The Office paid
$5,169.69 for the period March 21 to June 11, 2005. On November 9, 2005 it amended the
July 6, 2005 schedule award decision to reflect appellant’s entitlement to a schedule award for 24
percent impairment of the left upper extremity less the 21 percent previously paid. The Office
found that appellant was entitled to compensation in the amount of $4,087.48 for the period
March 21 through May 25, 2005, representing an additional three percent impairment of his left
upper extremity.3 Appellant requested an oral hearing of the November 9, 2005 decision on
November 17, 2005.
On December 8, 2005 appellant filed a recurrence of disability claim attributing his left
elbow trouble and carpal tunnel syndrome to his May 22, 2004 left shoulder injury. On
March 21, 2006 the Office accepted the condition of tenosynovitis of the left wrist as resulting
from appellant’s May 22, 2004 employment injury.
In a May 25, 2006 decision, the Branch of Hearings and Review set aside the Office’s
November 9, 2005 decision and remanded for additional development of the medical evidence.
By decision dated August 30, 2006, the Office found that appellant was entitled to a schedule
award for 39 percent impairment of his left upper extremity which included 24 percent
impairment to his shoulder and 20 percent impairment to the left wrist. It stated that the amount
of the award had already been paid.
In a letter dated August 30, 2006, the Office made a preliminary determination that
appellant had received an overpayment in the amount of $5,182.67 because he had previously
received a schedule award for 21 percent permanent impairment of his left upper extremity under
a separate claim and the Office issued a subsequent schedule award for 24 percent impairment of
his left upper extremity. It found that appellant was at fault in the creation of the overpayment
because he accepted a payment which he knew or should have known was incorrect as he had
1

On November 21, 2005 the Office informed appellant that his claims, file numbers xxxxxx131 and xxxxxx326
had been combined and that file number xxxxxx131 was the master file.
2

The Board notes that the Office mistakenly referred to the right upper extremity in the issuance of the schedule
award.
3

The Office noted that appellant had received compensation in the amount of $13,889.63 for the period March 21
through October 29, 2005. It stated that appellant was due $4,087.48 and that he had received an overpayment in
the amount of $9,802.15. The Office issued a preliminary determination of overpayment on November 10, 2005
based on these calculations. It did not issue a final decision regarding this overpayment.

2

previously received a schedule award for his left upper extremity. By decision dated April 25,
2008, the Office found that appellant had received an overpayment of compensation in the
amount of $5,182.67 because he accepted an additional schedule award after being paid for the
same body part on another claim. It found that appellant was at fault in the creation of the
overpayment because he failed to return the check.4
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Federal Employees’ Compensation Act defines the limitations on the
right to receive compensation benefits. This section of the Act provides that, while an employee
is receiving compensation, he may not receive salary, pay or remuneration of any type from the
United States, except in limited circumstances.5 When a claimant receives a duplicative
compensation payment for a period that he has already received compensation for wage loss, an
overpayment of compensation is created.6
A final decision of the Office shall contain findings of fact and a statement of reasons.7
With respect to overpayment decisions, the Office must provide clear reasoning showing how the
overpayment was calculated.8
ANALYSIS -- ISSUE 1
The Office granted appellant a schedule award for 21 percent impairment of his left upper
extremity under his original claim which was accepted for left rotator cuff tear. Appellant filed a
second claim for an upper extremity injury which was accepted for sprain and strain of the left
shoulder and upper arm. The Office granted him a schedule award for 24 percent impairment
due to his second shoulder injury. It then issued an amended schedule award on November 9,
2005 to reflect appellant’s entitlement to schedule award totaling 24 percent impairment of the
left upper extremity, less the 21 percent previously paid. In the November 9, 2005 decision, the
Office stated that he had received duplicate payments and was only entitled to payment for an
additional three percent impairment. On appeal, the hearing representative set aside the Office’s
November 9, 2005 schedule award decision and remanded for additional development of the
medical evidence. By decision dated August 30, 2006, the Office found that appellant was
entitled to schedule awards which combined totaled 39 percent impairment of his left upper
extremity. This amount included 24 percent impairment to his shoulder which he had already

4

By decision dated January 23, 2009, the Office denied appellant’s claim for an additional schedule award for his
left upper extremity. The Board does not have jurisdiction to consider this decision on appeal. 20 C.F.R.
§ 501.3(d)(2).
5

5 U.S.C. § 8116(a).

6

See Lawrence J. Dubuque, 55 ECAB 667, 670-71 (2004).

7

20 C.F.R. § 10.126.

8

O.R., 59 ECAB ___ (Docket No. 07-2399, April 10, 1999); James Tackett, 54 ECAB 611 (2003).

3

received and 20 percent impairment to the left wrist.9 The Office noted that he had already
received payment.
The record indicates that appellant received two schedule awards totaling 45 percent
impairment of his upper extremity due to his accepted left shoulder conditions when he was only
entitled to receive compensation for a total of 24 percent impairment of the left upper extremity
due to his left shoulder conditions. The Board finds he has received an overpayment of
compensation due to duplicative schedule awards.
The record before the Board does not include any calculations explaining how the Office
determined the amount of the overpayment. The Board is unable to determine whether the
amount of the overpayment, $5,169.69, as calculated by the Office is correct. The Office must
provide the clear reasoning showing how the overpayment was calculated.10 Without any record
of the method used to determine the amount of the overpayment, the Board is unable to
adequately review this aspect of the case. The case will be remanded to the Office for further
development regarding the amount of overpayment. The Office should fully explain its rationale
and provide adequate documentation to support its explanation. After such further development,
it should issue an appropriate decision.
CONCLUSION
The Board finds that appellant received an overpayment of compensation due to duplicate
schedule awards. The Board further finds, however, that the case is not in posture for decision
regarding the amount of the overpayment. It is, therefore, premature to address appellant’s
eligibility for waiver and recovery of the overpayment.

9

The American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th ed. (2001) p. 604.

10

O.R., supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the April 25, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: September 11, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sharonville, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 20-0428
Issued: August 25, 2020

Case Submitted on the Record

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

On December 16, 2019 appellant, through counsel, filed a timely appeal from an October 3,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards assigned the appeal Docket No. 20-0428.
On December 11, 2018 appellant, then a 48-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed swelling in his knee due to factors of his
federal employment, including working long hours during the holiday season because of an
increased volume of packages. He noted that he first became aware of his condition and first
realized that it was caused or aggravated by his federal employment on December 6, 2018. On the
reverse side of the claim form, the employing establishment indicated that there was no record or
knowledge that appellant’s condition developed while he was at work. It related that appellant
stopped work on December 12, 2018.

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.

In a development letter dated December 18, 2018, OWCP advised appellant of the factual
and medical evidence necessary to establish his claim and provided a questionnaire for his
completion. It afforded him 30 days to submit the requested evidence. No response was received.
By decision dated January 29, 2019, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish the alleged employment factors. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
On July 15, 2019 appellant, through counsel, requested reconsideration.
By decision dated October 3, 2019, OWCP found that the submitted medical reports did
not support that appellant’s injury occurred as appellant alleged, but that the evidence of record
was sufficient to modify its January 29, 2019 decision “from a denial based on one of the five basic
elements for FECA coverage to a denial based on another basic element, but the case remains
denied for insufficient evidence to meet all five basic elements for FECA coverage.”
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.2 Section 10.126 of Title 20 of the
Code of Federal Regulations provides that the decision of the Director of OWCP shall contain
findings of fact and a statement of reasons.3 OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.4 These requirements are supported by
Board precedent.5
In its October 3, 2019 decision, OWCP indicated that it did not modify its January 29, 2019
decision. However, it also noted that it did modify its January 29, 2019 decision, changing it from
a denial based on one of the five basic FECA elements to a denial based on a different FECA
element. This statement is contradictory and does not provide a clear reason for denying
appellant’s claim. While OWCP had initially denied the claim as appellant had not established the
factual component of fact of injury, the October 3, 2019 decision is unclear as to whether the
factual component is now accepted. As such, the Board finds that OWCP did not discharge its
responsibility to provide reasoning clear enough for the reader to understand the precise defect of
the claim and the kind of evidence which would overcome it. Appellant was not clearly advised
as to whether additional factual or medical evidence was necessary to establish her claim.
The Board will therefore set aside OWCP’s October 9, 2019 decision for OWCP to make
findings of fact and provide reasons for its decision, pursuant to the standards set forth in section
2

5 U.S.C. § 8124(a).

3

20 C.F.R. § 10.126.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

5

J.W., Docket No. 19-0199, Order Remanding Case (issued January 6, 2020); R.P., Docket No. 18-1128 (issued
December 17, 2018); R.B., Docket No. 16-1696 (issued September 7, 2017); James D. Boller, Jr., 12 ECAB 45,
46 (1960).

2

5 U.S.C. § 8128(a) and 20 C.F.R. § 10.126. After such further development as OWCP deems
necessary, it shall issue a de novo decision. Accordingly,
IT IS HEREBY ORDERED THAT the October 3, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: August 25, 2020
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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF AGRICULTURE, FARM
SERVICE AGENCY, St. Louis, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1342
Issued: February 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 27, 2014 appellant filed a timely appeal from a January 14, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration as untimely and insufficient to establish clear evidence of error.1 As more than
180 days elapsed from the last merit decision dated November 20, 2012 and the filing of this
appeal, the Board lacks jurisdiction to review the merits of her claim pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
1

Appellant filed a timely request for oral argument. By order dated December 8, 2014, the Board denied her
request on the grounds that her arguments could be adequately addressed in a decision based on a review of the case
record. Order Denying Request for Oral Argument, Docket No. 14-1342 (issued December 8, 2014).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 21, 2012 appellant, then a 53-year-old systems analyst tester, filed a traumatic
injury claim alleging that on that date she injured her right leg, right ankle, and right side when
she fell on green slime covering a sidewalk while walking around the campus at lunch. The
employing establishment controverted the claim, arguing that she was not in the performance of
duty as she was walking around the premises of the General Service Administration (GSA) on
her lunch hour.
In a statement dated June 25, 2012, the employing establishment advised that appellant
was not “on premises owned, operated, or controlled” by the employing establishment. It
indicated that it leased space in Building 103 from the GSA. The employing establishment
related that appellant was walking at lunch about 100 yards from Building 103 at the time of her
fall. It further indicated that she was “on personal time during lunch period” not performing a
work assignment.
On June 25, 2012 appellant related that she was within the GSA compound when she fell
and noted that her employer leased property from the GSA. She indicated that she was walking
at lunch when she fell.
By decision dated July 20, 2012, OWCP denied appellant’s claim on the grounds that she
was not in the performance of duty at the time of her May 21, 2012 fall. It determined that she
was not on the employing establishment’s premises at the time of her fall nor was she performing
work reasonably incidental to her job duties. OWCP noted that her employer leased property
from the GSA and that her fall was on the GSA campus but 100 yards away from the building in
which she worked.
In an August 6, 2012 e-mail, appellant requested that Tara VanBibber, building manager
with GSA, indicate whether there were any regulations identifying the boundaries of the property
of the employing establishment. In an August 7, 2012 response, Ms. VanBibber related that she
was “not aware of any regulations that limit boundaries.” She advised that each agency had an
agreement about using the fitness center and that there were some “sidewalk markings for
walking distances from the fitness center.”
On August 20, 2012 appellant related that neither she nor GSA were aware of regulations
showing the boundaries of the employing establishment on the campus of the GSA. She related
that she “engaged in normal business activity in locations throughout the GSA campus” that
were farther from her building than the place where she was injured. Appellant indicated that it
was common to walk during lunch and was encouraged by the employing establishment. She
submitted a case issued under another workers’ compensation statute.
On August 22, 2012 appellant requested reconsideration.
In a decision dated
November 20, 2012, OWCP denied modification of its July 20, 2012 decision. It found that the
fact that she did not know whether there were boundary limitations for the employing
establishment on the GSA campus was not dispositive in determining whether she was on the
property of the employing establishment at the time of the May 21, 2012 incident. OWCP
determined that appellant was not on the premises of the employing establishment, that she was

2

exercising or performing recreational activities during an authorized lunch or break, and that she
was not participating in a structured physical fitness program.
By letter dated August 16, 2013, received by OWCP on November 21, 2013, appellant,
through her representative, requested reconsideration. He argued that the Federal Protection
Service (FPS) filed an accident report regarding appellant’s May 21, 2012 fall, and that it was
thus “reasonable to assume that [she] was indeed on the premises of the employing
[establishment].” Appellant’s representative further contended that she was injured in the
performance of duty as she was on the premises and engaged in exercise or a recreational activity
on an authorized lunch break. He also noted that the employing establishment gave appellant 30
minutes of administrative leave to file the incident report by the FPS. Appellant’s representative
stated, “Not only does this new documentation present evidence of the location of the accident,
but it also shows the intent of the [employing establishment] by putting [appellant] on
administrative leave during the time the accident was recorded.”
Appellant submitted a time sheet showing that she used 30 minutes of administrative
leave on May 21, 2012. She also submitted a FPS form dated May 21, 2012, which indicated
that on that date she fell and injured her right ankle, upper thigh and back leg, but did not require
emergency medical services.
Appellant requested reconsideration on November 21, 2013.
By decision dated January 14, 2014, OWCP denied appellant’s request for
reconsideration on the grounds that it was not timely filed and the evidence was insufficient to
establish clear evidence of error. It found that the fact that the employing establishment
completed an accident report and allowed her to use administrative leave to complete the form
did not establish that she was in the performance of duty at the time of her fall and thus did not
show clear evidence of error.
On appeal appellant argued that she attempted to request reconsideration by e-mail on
November 18, 2013 but her exhibits would not upload. She then tried to overnight a
reconsideration request but could not get an overnight delivery to a business. Appellant sent the
reconsideration request through the mail and it arrived one day late. She notes that the postmark
date of November 18, 2013 was timely. Appellant also maintains that OWCP erred in its
interpretation of the accident report prepared by the FPS. She notes that the report was prepared
while she was in a nurses’ station on government grounds.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a) of FECA.3 As one such limitations, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought. OWCP will consider an untimely application only

3

5 U.S.C. § 8101 et seq.

3

if the application demonstrates clear evidence of error on the part of OWCP in its most recent
merit decision. The application must establish, on its face, that such decision was erroneous.4
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that OWCP made an error (for example,
proof of a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized
medical report which, if submitted prior to the denial, would have created a conflict in medical
opinion requiring further development, is not sufficient to establish clear evidence of error and
would not require a review of the case on the Director’s own motion.5 To establish 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 it
committed an error.6
As noted, OWCP’s regulations at 20 C.F.R. § 10.607(a) establish a one-year time limit
for requesting reconsideration. The one-year period begins on the date of the original decision
and an application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought for merit decisions issued on or after
August 29, 2011.7
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.8 A right to reconsideration within one year
also accompanies any subsequent merit decision on the issues.9 As appellant’s request for
reconsideration was not received until November 21, 2013, more than one year after the last
merit decision of record dated November 20, 2012, it was untimely. Consequently, she must
demonstrate clear evidence of error by OWCP in denying her claim for compensation.10
On appeal appellant argues that she unsuccessfully attempted to request reconsideration
by e-mail and overnight delivery. She noted that her request was only one day late and asserted
that OWCP should have considered the postmark date. As discussed, however, OWCP’s new
procedures as of August 19, 2011 require that for all merit decisions issued on and after
August 29, 2011, the timeliness of a reconsideration request is determined by the date the request
4

20 C.F.R. § 10.607.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011).

6

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011).

8

20 C.F.R. § 10.607(a).

9

Robert F. Stone, supra note 6.

10

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

4

is received by OWCP.11 As appellant’s request for reconsideration was received by OWCP on
November 21, 2013, more than one year after the last merit decision of November 20, 2012, it
was untimely.
OWCP denied appellant’s traumatic injury claim after finding that she was not in the
performance of duty on May 21, 2012 when she fell on the sidewalk. It determined that she was
not on the premises of the employing establishment or engaged in activities reasonably incidental
to her employment. With her request for reconsideration, appellant argued that as the federal
protective service prepared an accident report after her May 21, 2012 fall, this establishes that
she was on the premises of the employing establishment. The underlying issue in this case is
whether appellant was in the performance of duty when she was injured. Without more, the fact
that a federal official completed the accident report is not dispositive to the underlying issue and
thus could not establish error.
Appellant further maintained that the fact that her employer gave her 30 minutes of
administrative leave showed that she was on the premises at the time of her fall. The employing
establishment, however, denied that she was on the premises at the time of her fall, though she
remained on property owned by the Federal Government. The fact that the employing
establishment, within its discretion, granted her administrative leave is not dispositive of whether
she was on the premises at the time of her fall and is thus insufficient to show clear evidence of
error.12
To establish clear evidence of error, it is not sufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is
intended to represent a difficult standard. None of the evidence submitted manifests on its face
that OWCP committed an error in denying appellant’s claim. She has not provided evidence of
sufficient probative value or raised a substantial question as to the correctness of OWCP’s
decision. Thus, the evidence is insufficient to establish clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was not timely filed and failed to demonstrate clear evidence of error.

11

See supra note 7; see also A.S., Docket No. 13-1793 (issued January 2, 2014).

12

Sondra J. Mills, 33 ECAB 1092, 1094 (1982).

5

ORDER
IT IS HEREBY ORDERED THAT the January 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 24, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.O., Appellant
and
TENNESSEE VALLEY AUTHORITY,
BROWNS FERRY NUCLEAR POWER,
Decatur, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1561
Issued: March 7, 2011

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 May 25, 2010 appellant filed a timely appeal from the April 19, 2010 merit decision
of the Office of Workers’ Compensation Programs denying his claim for a schedule award for a
loss of hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
schedule award in this case.
ISSUE
The issue is whether appellant has a ratable employment-related loss of hearing entitling
him to a schedule award.
FACTUAL HISTORY
On November 9, 2009 appellant, then a 51-year-old fire protection foreman, filed an
occupational disease claim alleging that he sustained permanent hearing loss while in the
performance of duty. He became aware of his hearing loss during his annual hearing loss
assessment on October 23, 2009.

On January 27, 2010 the Office referred appellant, together with a statement of accepted
facts, to Dr. Sage Kinney Copeland, a Board-certified otolaryngologist, for a second opinion
examination to determine whether he sustained a hearing loss due to noise exposure in his
federal employment. In a February 11, 2010 report, Dr. Copeland set forth findings on
examination and opined that appellant’s mild bilateral high frequency loss was employment
related. He noted that appellant’s current audiometric findings showed sensorineural loss in
excess of what would be expected from presbycusis. Dr. Copeland diagnosed noise-induced
moderate right neurosensory hearing loss and moderately severe left neurosensory hearing loss,
which was due to noise exposure during his federal employment. He performed an otologic
evaluation of appellant on February 11, 2010 and audiometric testing was conducted that day.
Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed the
following: right ear 10, 10, 15 and 35 decibels; left ear 5, 15, 25 and 55 decibels.
By letter dated February 19, 2010, the Office asked the Office medical adviser to review
Dr. Copeland’s report and determine the extent and degree any employment-related hearing loss.
In an opinion of the same date, the Office medical adviser applied the hearing loss standards as
set forth in the American Medical Association, Guides to the Evaluation of Permanent
Impairment (sixth edition) (A.M.A., Guides) to determine that appellant had zero percent
monaural hearing loss in the right ear and a zero percent monaural hearing loss in the left ear.
He concluded that appellant had no ratable loss of hearing.
The Office accepted the claim for bilateral sensorineural hearing loss.
On March 16, 2010 Dr. Copeland recommended bilateral hearing aids.
On March 31, 2010 appellant filed a claim for a schedule award for a loss of hearing and
submitted a March 31, 2010 report from Michelle Hames containing audiological test results.
She reported test results at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second
for the right ear of 15, 10, 10 and 30 decibels and of the left ear 20, 15, 25 and 55 decibels.
In an April 19, 2010 decision, the Office denied appellant’s claim for a schedule award,
finding that the extent of hearing loss was not severe enough to be ratable.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants.3 The A.M.A., Guides has been adopted by the
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

See D.K., 61 ECAB ___ (Docket No. 10-174, issued July 2, 2010); Michael S. Mina, 57 ECAB 379 (2006).

2

implementing regulations as the appropriate standard for evaluating schedule losses.4 Effective
May 1, 2009, the Office adopted the sixth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.5
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second,
the losses at each frequency are added up and averaged.7 Then, the fence of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions.8 The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss.10 The Board has concurred in the
Office’s adoption of this standard for evaluating hearing loss.11
ANALYSIS
The Office referred appellant to Dr. Copeland to evaluate the extent and degree of any
employment-related hearing loss. Dr. Copeland concluded that appellant sustained a mild
bilateral high frequency hearing loss resulting from his exposure to noise at work.
An Office medical adviser agreed with Dr. Copeland’s findings and conclusion that
appellant’s hearing loss was aggravated by his employment. The medical adviser applied the
Office’s standardized procedures to the February 11, 2010 audiogram. Testing for the right ear
at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibels losses
of 10, 10, 15 and 35 decibels for the right ear. These decibels were totaled at 70 and were
divided by 4 to obtain an average hearing loss at those cycles of 17.50 decibels. The average of
17.50 decibels was then reduced by 25 decibels (the first 25 decibels were discounted as
discussed above) to equal zero which was multiplied by the established factor of 1.5 to compute
a zero percent hearing loss for the right ear. Testing for the left ear at the frequency levels of
4

20 C.F.R. § 10.404; see F.D., 61 ECAB ___ (Docket No. 09-1346, issued July 19, 2010); Billy B. Scoles, 57
ECAB 258 (2005).
5

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010). See P.B., 61 ECAB ___ (Docket No. 10-103, issued July 23, 2010).
6

A.M.A., Guides 250 (6th ed. 2009).

7

Id.

8

Id.

9

Id.

10

Id.

11

J.H., 60 ECAB ___ (Docket No. 08-2432, issued June 15, 2009); Thomas O. Bouis, 57 ECAB 602 (2006);
Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No. 011570 (issued August 13, 2002).

3

500, 1,000, 2,000 and 3,000 cycles per second revealed decibels losses of 5, 15, 25 and 55
respectively. These decibels were totaled at 100 and were divided by 4 to obtain the average
hearing loss at those cycles of 25 decibels. The average of 25 decibels was then reduced by 25
decibels (the first 25 decibels were discounted as discussed above) to zero which was multiplied
by the established factor of 1.5 to compute a zero percent hearing loss for the left ear.
The Board finds that the Office medical adviser applied the proper standards to
Dr. Copeland’s report and the February 11, 2010 audiogram. The result is a nonratable binaural
hearing loss. Although the record contains an audiological report submitted by appellant, it is of
no probative value as it was not certified by any physician as accurate and was not accompanied
by an audiogram.12
CONCLUSION
The Board finds that appellant has not established a ratable loss of hearing. Therefore,
appellant is not entitled to a schedule award.

12

See Joshua A. Holmes, 42 ECAB 231, 236 (1990) (if an audiogram is prepared by an audiologist, it must be
certified by a physician as being accurate before it can be used to determine the percentage of hearing loss). See
also James A. England, 47 ECAB 115 (1995) (finding that an audiogram not certified by a physician as being
accurate has no probative value; the Office need not review uncertified audiograms).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 19, 2010 is affirmed.
Issued: March 7, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, SAN FRANCISCO
PROCESSING & DISTRIBUTION CENTER,
San Francisco, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1527
Issued: July 16, 2020

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 July 10, 2019 appellant filed a timely appeal from an April 24, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 24, 2019 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish total disability from
work for the period February 18 to March 1, 2019 causally related to the accepted employment
injury.
FACTUAL HISTORY
On December 23, 2014 appellant, then a 52-year-old sales retention center agent, filed an
occupational disease claim (Form CA-2) alleging that he developed trigger finger of the right
middle and little finger as a result of repetitive work factors of continuous keyboarding, using a
mouse, and writing. He indicated that he initially became aware of his condition and its
relationship to his federal employment on December 8, 2014. Appellant stopped work on
December 24, 2014. OWCP adjudicated this claim under File No. xxxxxx890, and on February 6,
2015 accepted bilateral carpal tunnel syndrome (CTS) and bilateral second and third digit trigger
finger.
Appellant has three prior claims that were accepted by OWCP and administratively
combined with the current claim, which OWCP designated as the master file.
Appellant has three other claims accepted for injuries to his upper extremities. Under
OWCP File No. xxxxxx367, OWCP accepted appellant’s traumatic injury claim (Form CA-1) for
a May 6, 2005 left wrist strain. Under File No. xxxxxx204, it accepted appellant’s November 30,
2007 occupational disease claim for right CTS. Appellant had a right carpal tunnel release on
April 24, 2008. Under File No. xxxxxx714, OWCP accepted appellant’s November 28, 2008
occupational disease claim for left CTS and left trigger finger. Appellant underwent left carpal
tunnel release surgery on April 20, 2009.
On March 6, 2019 appellant filed a claim for compensation (Form CA-7) for disability
from work during the period February 18 through March 1, 2019. On a time analysis form (Form
CA-7a), appellant claimed that he used 72 hours of leave without pay (LWOP) for disability from
work for the period February 18 through March 1, 2019. An employing establishment human
resource specialist noted on the form that appellant had not worked since December 22, 2014.
In support of his claim, he submitted a February 20, 2019 declaration of disability form in
which Dr. Vincent Baldwin, Board-certified in family medicine, diagnosed bilateral CTS, bilateral
trigger finger, bilateral wrist tendinitis, anxiety and depression. Dr. Baldwin advised that appellant
was totally disabled from work from January 1 to April 30, 2019.
By development letter dated March 12, 2019, OWCP informed appellant of the type of
factual and medical evidence needed to support his claim for compensation commencing
February 18, 2019. It afforded him 30 days to submit the requested information.
OWCP subsequently received a narrative report dated January 15, 2019, wherein
Dr. Baldwin indicated that appellant had been totally disabled since December 2014 and noted
current complaints of severe bilateral wrist pain with numbness in his second and third digits of
both hands and decreased hand strength. Dr. Baldwin related that appellant’s repetitive job duties

2

as both a clerk and a sales retention agent caused multiple progressive work-related injuries
involving his shoulders, neck, wrists, elbows, hands, and fingers and these contributed to chronic
pain syndrome, anxiety, and depression. He wrote that holding a pencil or pen, using a mouse, or
holding a telephone led to increased pain. Dr. Baldwin described examination findings of
decreased cervical range of motion with muscle spasms and tenderness, and a positive Tinel’s over
both wrists and the right elbow. He maintained that appellant’s chronic pain syndrome with its
pain and dysfunction made it impossible for him to complete his work duties and led to anxiety
and depression. Dr. Baldwin diagnosed chronic pain syndrome, tendinitis of both wrists, bilateral
CTS with surgery, trigger finger of third and fifth digit, repetitive strain injury/cumulative trauma
disorder, anxiety, and depression. He noted that all appellant’s work required repetitive activities
and advised that he could not return to any type of work since all would require a significant
amount of repetitive activity. Dr. Baldwin indicated that any attempt to work caused increased
pain and dysfunction. He recommended magnetic resonance imaging (MRI) scans of both wrists,
acupuncture, medication, massage therapy, meditation CDs, and home exercise.
By decision dated April 24, 2019, OWCP denied appellant’s claim for wage-loss
compensation for the period February 18 through March 1, 2019. It found that the medical
evidence of record did not establish that he was totally disabled from work during the claimed
period as a result of his accepted conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or medical condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.5
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.6 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment

3

Supra note 1.

4

A.B., Docket No. 18-0834 (issued June 11, 2020); N.S., 59 ECAB 422 (2008).

5

Id.

6
20 C.F.R. § 10.5(f); see J.M., Docket No. 18-0763 (issued April 29, 2020); B.K., Docket No. 18-0386 (issued
September 14, 2018).

3

injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.7
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.8 Whether a
particular injury causes an employee to become disabled from work, and the duration of that
disability, are medical issues that must be proven by a preponderance of reliable, probative and
substantial medical opinion evidence.9
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish total disability
for the period February 18 through March 1, 2019.
The medical evidence relevant to the claimed period of disability includes Dr. Baldwin’s
January 15, 2019 report in which he indicated that appellant had been disabled since
December 2014. Dr. Baldwin attributed appellant’s disability to multiple progressive employment
injuries involving his shoulders, neck, wrists, elbows, hands, and fingers, and opined that these
contributed to appellant’s chronic pain syndrome, anxiety, and depression. He advised that the
chronic pain syndrome and dysfunction made it impossible for appellant to complete his work
duties and activities. Dr. Baldwin diagnosed chronic pain syndrome, tendinitis of both wrists,
bilateral CTS and surgery, trigger finger third and fifth digit, anxiety, and depression. However,
he did not provide a pathophysiological explanation as to how appellant’s modified job duties as
a sales retention center agent worsened the accepted conditions such that he could no longer work
or how they caused chronic pain syndrome, anxiety, and depression.11 OWCP has not accepted
chronic pain syndrome, anxiety, and depression. For conditions not accepted by OWCP as being
employment related, it is the employee’s burden to provide rationalized medical evidence
sufficient to establish causal relation, not OWCP’s burden to disprove such relationship.12
Appellant has not met his burden of proof to establish additional conditions as work related.
Furthermore, Dr. Baldwin did not explain with sufficient rationale how appellant’s inability to
7

See B.C., Docket No. 18-0692 (issued June 5, 2020).

8

See C.E., Docket No. 19-1617 (issued June 3, 2020).

9
20 C.F.R. § 10.5(f); see W.C., Docket No. 19-1740 (issued June 4, 2020); Fereidoon Kharabi, 52 ECAB
291 (2001).
10

J.K., Docket No. 19-0488 (issued June 5, 2020); Sandra D. Pruitt, 57 ECAB 126 (2005).

11

See P.L., Docket No. 19-1750 (issued March 26, 2020).

12

E.R., Docket No. 19-0889 (issued February 3, 2020); Alice J. Tysinger, 51 ECAB 638 (2000).

4

work was due to his accepted December 8, 2014 conditions. Moreover, a medical opinion is of
limited value if it is conclusory in nature.13 This report is therefore of limited probative value and
insufficient to establish the claimed period of disability.14
In the disability declaration form dated February 20, 2019, Dr. Baldwin merely noted
diagnoses of bilateral carpal tunnel syndrome, bilateral trigger finger, bilateral wrist tendinitis,
anxiety and depression and indicated that appellant was totally disabled from January 1 to
April 30, 2019. This report, without further explanation of how the accepted conditions caused
the claimed disability, is insufficient to establish the claimed period of disability.15
As the medical evidence of record does not contain a rationalized medical opinion, which
based on objective medical findings, related that appellant was disabled from work due to his
accepted employment conditions, the Board finds that he has not met his burden of proof to
establish disability for the period February 18 through March 1, 2019.16
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish total disability
for the period February 18 through March 1, 2019 causally related to the accepted employment
injury.

13

R.S., Docket No. 19-1774 (issued April 3, 2020).

14

T.H., Docket No. 19-0436 (issued August 13, 2019); C.B., Docket No. 18-0040 (issued May 7, 2019).

15

Id.

16

See K.A., Docket No. 19-1564 (issued June 3, 2020).

5

ORDER
IT IS HEREBY ORDERED THAT the April 24, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 16, 2020
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS MEDICAL CENTER, Hines, IL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Esther Ferrer, for the appellant
Office of Solicitor, for the Director

Docket No. 12-718
Issued: July 26, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 13, 2012 appellant, through his representative, filed a timely appeal from the
January 27, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
terminating his compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective September 30, 2011 on the grounds that he had no
residuals of his September 13, 1976 work injury after that date.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on September 13, 1976 appellant, then a 39-year-old housekeeping
aid, sustained a lumbosacral strain due to lifting a bag filled with linen. He stopped work on
September 13, 1976 and received compensation for total disability.
The record reveals that appellant sought medical treatment for his back condition on a
sporadic basis. In a March 12, 1999 report, Dr. Henry Rosler, an attending physician Boardcertified in physical medicine and rehabilitation, provided a description of appellant’s reported
back symptoms and stated, “For all practical purposes, the patient is totally and permanently
disabled for gainful employment.”
In May 2008, OWCP referred appellant to Dr. David Lotman, a Board-certified
orthopedic surgeon, for examination and an evaluation of whether he continued to have residuals
of his September 13, 1976 work injury. In a June 5, 2008 report, Dr. Lotman indicated that
appellant had nonwork-related degenerative disease of the lumbosacral spine and opined that his
work-related lumbosacral strain had resolved.
In a November 13, 2008 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective November 23, 2008 based on the opinion of Dr. Lotman. On
October 20, 2009 an OWCP hearing representative reversed OWCP’s November 13, 2008
decision finding that Dr. Lotman’s opinion was not based on a complete review of the medical
evidence and that it did not contain adequate medical rationale in support of its conclusions.
In an April 20, 2011 note, an individual with an illegible signature stated that appellant
was a patient with a history of low back pain. Although the top of the note contains the names of
three physicians, it is unclear whether a physician signed the note.
In mid 2011, OWCP noted that there were gaps in the medical record due to the lack of
follow-up care by appellant. It referred appellant to Dr. William Dinenberg, a Board-certified
orthopedic surgeon, for an examination and opinion regarding whether he continued to have
residuals of his September 13, 1976 work injury.
In a June 13, 2011 report, Dr. Dinenberg described appellant’s September 13, 1976 work
injury and detailed the treatment he received for his back condition. He noted that an April 17,
2007 magnetic resonance imaging (MRI) scan test revealed generalized disc bulges with facet
joint arthritis and disc protrusions at L4-5 and L5-S1 and that a July 14, 2009 MRI scan test
showed lumbar degenerative disc disease, disc bulging and herniation at L4-5 and stenosis at
L5-S1.2 Dr. Dinenberg indicated that physical examination revealed lumbosacral tenderness,
intact sensation to light touch, 5/5 strength of the lower extremities and negative straight leg
raising. Appellant exhibited considerable instability even when using a walker. Dr. Dinenberg
diagnosed lumbar degenerative disc disease, lumbar stenosis and resolved lumbosacral strain.3
2

Radiographic testing from 1990 had shown only mild degenerative changes at L4-5 and L5-S1.

3

Dr. Dinenberg also noted appellant’s other medical conditions, including diabetes mellitus and coronary artery
disease.

2

He determined that the September 13, 1976 lumbosacral strain had resolved and that the findings
on examination showed that appellant no longer had residuals of this injury. Dr. Dinenberg
concluded that appellant was symptomatic due to lumbar degenerative disc disease and stenosis,
which were unrelated to the September 13, 1976 injury and opined that he was disabled on
account of those nonwork-related conditions. He stated:
“The lumbar degenerative disc disease and lumbar spinal stenosis are not related
to the lifting injury of September 13, 1976…. The claimant is currently
symptomatic from the lumbar degenerative disc disease and lumbar spinal
stenosis. Those findings were noted on MRI [scan] of July 14, 2009…. The
claimant’s subjective complaints do correspond with the objective findings of
degenerative disc disease and lumbar spinal stenosis. Again, I do not feel that the
claimant currently is experiencing symptoms from his lumbar sprain/strain. I do
feel this has resolved.”4
In an August 18, 2011 letter, OWCP advised appellant that it proposed to terminate his
wage-loss compensation and medical benefits on the grounds that he ceased to have residuals of
his September 13, 1976 work injury. It noted that the well-rationalized opinion of Dr. Dinenberg
showed that the September 13, 1976 work injury had resolved. OWCP provided appellant 30
days to submit evidence and argument challenging the proposed termination.
In an August 30, 2011 letter, appellant objected to the proposed termination of his
compensation noting that he had experienced serious back symptoms since he sustained the
September 13, 1976 work injury.
In a September 30, 2011 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective September 30, 2011 based on the opinion of Dr. Dinenberg.
Appellant requested a review the written record by an OWCP hearing representative. In
a January 27, 2012 decision, OWCP’s hearing representative affirmed OWCP’s September 30,
2011 termination decision indicating that the weight of the medical evidence continued to rest
with the opinion of Dr. Dinenberg.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.5 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6

4

In a June 9, 2011 work restrictions form, Dr. Dinenberg stated that appellant was unable to work due to his
nonwork-related degenerative disc disease and stenosis.
5

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

6

Id.

3

Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.7
ANALYSIS
OWCP accepted that on September 13, 1976 appellant sustained a lumbosacral strain due
to lifting a bag filled with linen. He stopped work on September 13, 1976 and received
compensation for total disability. In a June 13, 2011 report, Dr. Dinenberg, a Board-certified
orthopedic surgeon who served as an OWCP referral physician, determined that appellant no
longer had residuals of his September 13, 1976 work injury. Based on this opinion, OWCP
terminated appellant’s wage-loss compensation and medical benefits effective
September 30, 2011.
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Dinenberg, whose June 13, 2011 report establishes that appellant
had no residuals of his September 13, 1976 work injury after September 30, 2011.
In his June 13, 2011 report, Dr. Dinenberg provided an extensive discussion of
appellant’s medical history, including past findings on examination and diagnostic testing. He
indicated that the physical examination performed on June 13, 2011 revealed lumbosacral
tenderness, intact sensation to light touch, 5/5 strength of the lower extremities and negative
straight leg raising. Dr. Dinenberg diagnosed lumbar degenerative disc disease, lumbar stenosis
and resolved lumbosacral strain. He determined that the examination findings showed that the
September 13, 1976 lumbosacral strain had resolved and posited that appellant’s continuing back
symptoms and disability were related to lumbar degenerative disc disease and stenosis,
conditions which were unrelated to the September 13, 1976 injury.
The Board has carefully reviewed the opinion of Dr. Dinenberg and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Dinenberg provided a thorough factual and medical
history and accurately summarized the relevant medical evidence.8 He provided medical
rationale for his opinion by explaining that appellant did not have any objective signs of the
work-related September 13, 1976 lumbosacral strain. Dr. Dinenberg noted that this type of softtissue injury would have resolved itself and that the examination findings did not show the
existence of a lumbosacral strain. He further explained that appellant’s continuing medical
problems were due to degenerative disc disease and stenosis, conditions which were shown by
diagnostic testing and other medical evidence to be unrelated to his accepted September 13, 1976
work injury.

7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

4

Appellant did not submit any medical evidence showing that he had residuals of his
September 13, 1976 work injury around the time his compensation was terminated or thereafter.9
OWCP met its burden of proof to terminate his wage-loss compensation and medical benefits
effective September 30, 2011.
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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective September 30, 2011 on the grounds that he had no
residuals of his September 13, 1976 work injury after that date.
ORDER
IT IS HEREBY ORDERED THAT the January 27, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 26, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9

On appeal, appellant asserted that the medical evidence showed that the termination of his compensation was
not justified, but he did not indicate which medical evidence in the record supported this assertion. The record
contains very few medical records from attending physicians as appellant only sporadically sought medical care for
his back condition.

5