United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.D., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
St. Petersburg, FL, Employer
__________________________________________
Appearances:
Stephanie M. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0131
Issued: September 11, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On October 21, 2019 appellant, through counsel, filed a timely appeal from a
September 27, 2019 decision.2 The Clerk of the Appellate Boards assigned Docket No. 20-0131.

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

The Board notes that, following September 27, 2019, 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.

This case has previously been before the Board.3 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On November 15, 1998 appellant, then a 49-year-old air traffic controller, filed a traumatic
injury claim (Form CA-1) alleging that on that date he injured his low back and groin when he
slipped on a wet floor while in the performance of duty. The Office of Workers’ Compensation
Programs (OWCP) accepted the claim, assigned File No. xxxxxx744, for cervical and lumbosacral
strain, cervical and lumbar disc displacement, sciatica, lumbar neuritis, an aggravation of brachial
neuritis, and chronic pain syndrome.4 It paid appellant wage-loss compensation on the
supplemental rolls as of March 1, 2001 and then on the periodic rolls as of October 30, 2005.
In a report dated June 5, 2019, Dr. Kenneth P. Botwin, a Board-certified physiatrist, noted
that appellant had sustained occupational injuries on July 4, 1977 and November 15, 1998. He
diagnosed displacement of a lumbar and cervical intervertebral discs without myelopathy, sciatica,
lumbar radiculitis, lumbar myofascial pain, lumbar stenosis, back muscle spasm, lumbar spinal
enthesopathy, and insomnia. Dr. Botwin advised that appellant required physical therapy, in
particular BioWave treatment, aquatic therapy, and massage therapy, to treat his cervical and
lumbar intervertebral disc displacement, sciatica, and radiculitis. He opined that BioWave therapy,
aquatic therapy, and massage therapy would improve his ability to function and reduce his need
for pain medication.
On September 5, 2019 Dr. Kenechukwu Ugokwe, a Board-certified neurosurgeon serving
as a district medical adviser (DMA), advised that the proposed BioWave treatment, massage
therapy, and aquatic therapy were causally related to appellant’s accepted employment injury. He
found, however, that the treatments were not medically necessary as there was insufficient
evidence supporting the effectiveness of BioWave treatment and massage therapy. Dr. Ugokwe
further opined that a home exercise program would benefit appellant to the same extent as aquatic
therapy.
By letter dated September 27, 2019, OWCP indicated that it had authorized physical
therapy for an extended period that had not resulted in increased function or decreased disability.
It advised that a DMA had reviewed appellant’s claim on September 5, 2019 and found that further
physical therapy or services were not medically necessary.
The Board has duly considered the matter and finds that the letter dated September 27,
2019, while not accompanied by appeal rights, constitutes a final adverse decision by OWCP. In
the letter, OWCP denied appellant’s request for further authorization for BioWave treatment,
massage therapy, and aquatic therapy as a DMA had found that further such services were no
longer medically necessary. The letter noted that a copy of the DMA’s findings was enclosed.

3

Docket No. 17-0233 (issued December 20, 2017).

4

OWCP had previously accepted that on July 4, 1977 appellant sustained thoracic, lumbar, and cervical strains and
cervical radiculitis under File No. xxxxxx162. It administratively combined appellant’s claims with File No.
xxxxxx744 designated as the master file.

2

The Board notes that section 8124(a) of FECA5 and section 10.126 of its implementing
regulations6 require that final decisions of OWCP contain findings of fact and a statement of
reasons. A decision should contain a correct description of the basis for the denial in order that
the parties of interest have a clear understanding of the precise defect of the claim and the kind of
evidence which would overcome it.7
The Board finds that the September 27, 2019 decision was incomplete as OWCP did not
provide findings regarding the medical evidence appellant submitted from Dr. Botwin, nor did it
provide a statement of reasons explaining its determination that the opinion of the DMA
constituted the weight of the evidence on the issue of authorization for BioWave treatment, aquatic
therapy, and massage therapy. Appellant, therefore, was not apprised of the deficiencies that
OWCP had found in the medical evidence. Although the September 27, 2019 decision included a
copy of the DMA’s report, OWCP did not discharge its responsibility to set forth findings of fact
and a clear statement of reasons explaining its disposition so that appellant could understand the
basis for the decision, as well as the precise defect and the evidence needed to overcome the denial
of authorization for physical therapy.8
Accordingly, the case must be remanded to OWCP to properly consider all of the evidence
and provide clear reasons regarding its disposition of appellant’s request for authorization for
BioWave treatment, aquatic therapy, and massage therapy. Following this and other such further
development as OWCP deems necessary, it shall issue a de novo decision.

5

5 U.S.C. § 8124(a).

6

20 C.F.R. § 10.126.

7

L.R., Docket No. 15-0235 (issued December 21, 2015); Patrick Michael Duffy, 43 ECAB 280 (1991).

8

R.M., Docket No. 19-0163 (issued July 17, 2019).

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IT IS HEREBY ORDERED THAT the September 27, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: September 11, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 11-81
Issued: August 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 7, 2010 appellant filed a timely appeal from May 6 and July 23, 2010 merit
decisions of the Office of Workers’ Compensation Programs (OWCP) which denied her
recurrence claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of total disability on or after March 12, 2010 due to her August 29, 2008 employment
injury.
FACTUAL HISTORY
On August 29, 2008 appellant, then a 36-year-old mail carrier, filed a traumatic injury
claim alleging that on that date she sustained abrasions on both knees when she fell down stairs
1

5 U.S.C. § 8101 et seq.

in the performance of duty. She stopped work on August 30, 2008 and returned to full duty on
September 3, 2008. On March 23, 2010 OWCP accepted appellant’s claim for bilateral knee
abrasions and strain.
On March 16, 2010 appellant filed a notice of recurrence of disability alleging that on
March 12, 2010 she was only able to complete part of her route due to pain. She explained that
she experienced a lot of pain due to inflammation in both her knees since the original injury.
Appellant provided medical records from Dr. William Lopez, a Board-certified internist.
In March 12 and 16, 2010 examination notes, Dr. Lopez diagnosed lower leg joint pain and a
knee sprain. He provided a duty status report authorizing appellant to work eight hours a day
with restrictions to not climb stairs or ladders. In a March 12, 2010 medical report, Dr. Lopez
stated that she worked for the postal service and complained about her leg, which was injured on
October 9, 2008 when she fell down. He also noted that appellant complained of persistent pain
and discomfort since “September/2008” after she sustained a fall coming down steps. Dr. Lopez
reviewed her medical history and conducted an examination. He observed bilateral knee joint
stiffness. Regarding appellant’s left knee, Dr. Lopez noted mild tenderness anteriorly, equivocal
minimal swelling and effusion. Appellant’s drawer sign, Lachman’s test and McMurray’s test
were negative with no erythema, giving away, locking, or popliteal fossa swelling. She had
normal dorsalis pedis pulse and gait with full active range of motion. Regarding appellant’s right
knee, Dr. Lopez observed negative drawer sign, Lachman’s and McMurray’s test. He did not
find any ecchymosis, knee effusion, erythema, swelling or tenderness. Appellant also had full
range of motion, normal dorsalis pedis pulse, normal gait and minimal endrange soreness.
Dr. Lopez diagnosed bilateral knee strain and contusion and bursitis. Appellant was restricted
from climbing stairs or ladders.
In a March 16, 2010 follow-up report, appellant complained of intermittent bilateral knee
soreness, more on the left, that was exacerbated by walking up or down stairs. Upon
examination of appellant’s left knee, Dr. Lopez observed equivocal anterior swelling with no
tenderness, ecchymosis, knee effusion or erythema. Appellant’s drawer sign, Lachman’s and
McMurray’s tests were negative. She had full range of motion with mild main and normal
dorsalis pedis pulse. Upon examination of her right knee, Dr. Lopez observed that her knee joint
was stable with no ecchymosis, knee effusion, erythema, swelling, valgus-varus stress or
tenderness. Appellant’s drawer sign, Lachman’s and McMurray’s test were negative. She had
full range of motion with normal dorsalis pedis pulse and foot sensation intact. Dr. Lopez
reviewed a 2008 magnetic resonance imaging scan report and noted degenerative spurring, more
on the left, but no bony destruction. He diagnosed bilateral knee strain, contusion and bursitis.
Appellant reported that she injured both her knees last year when she fell down some
steps on her mail route. She explained that since the injury she experienced knee pain in both
knees, which has worsened, but she continued to work hoping her knee problems would go
away. Appellant’s physician informed her that both her knees were inflamed.
OWCP requested additional evidence regarding her specific activities on March 12, 2010
and additional medical evidence including dates of all examinations and treatment, history of the
recurrence, a firm diagnosis, periods of disability and a physician’s opinion explaining how her
disability resulted from the original injury.

2

On April 6, 2010 appellant submitted two CA-7 forms requesting compensation for the
period March 13 to April 23, 2010. In an April 14, 2010 letter, OWCP requested additional
factual and medical evidence.
Appellant submitted some earlier reports to support her claim. In a September 5, 2008
report, a physical therapist noted that appellant was a postal service employee who injured her
leg on August 30, 2008 when she fell on both her knees while going down the stairs to deliver
mail. The examination revealed abrasions on her bilateral patellar tendons and limited knee
flexion due to soft tissue resistance of healing tissue on patellar tendons. Appellant’s x-rays
were negative.
A September 10, 2008 medical report, signed by a physician’s assistant, noted that
appellant returned for a follow-up appointment after she sustained bilateral knee abrasions and
strain on August 30, 2008. Appellant complained of pain, especially in the anterior aspect, when
walking up and down the stairs. The examination revealed tenderness anteriorly and diffusely
with a stable knee joint. Appellant’s drawer sign was negative and she did not have ecchymosis,
knee effusion or swelling.
A March 18, 2010 insurance form indicated that appellant had sustained a knee sprain to
both her knees on March 12, 2010 as a result of walking up and down the stairs on her route.
She noted that she had similar symptoms on September 10, 2008 and that she stopped work as a
result of her disability on March 13, 2010.
In an April 6, 2010 medical note, Dr. E. McKinley Fourte, a Board-certified family
practitioner, confirmed that he examined appellant and placed her on restricted duty beginning
April 7, 2010. Appellant also submitted handwritten examination and prescription notes from
Dr. Fourte, who diagnosed bilateral knee pain and requested an x-ray of both knees.
In an April 16, 2010 handwritten duty status report, an unknown provider stated that
appellant injured both her knees when she was walking up and down the stairs. The date of
injury was noted as September 10, 2008.
On April 20, 2010 appellant accepted a modified assignment as a full-time city carrier.
She was restricted to casing route for two hours, carrying flats for eight hours, no continuous
lifting over 35 pounds and sitting intermittently.
On May 6, 2010 OWCP denied appellant’s recurrence claim on the grounds of
insufficient evidence demonstrating that her claimed recurrent disability resulted from the
accepted August 29, 2008 injury.
On June 3, 2010 appellant filed a claim for reconsideration. She resubmitted Dr. Lopez’
March 12 and 16, 2010 medical reports, the September 3, 5 and 10, 2008 physician’s assistant
report and the September 5, 2008 physical therapist medical report.
In a June 4, 2010 statement, appellant reported that on August 29, 2008 she injured
herself on her route while delivering mail when she fell down. She has experienced severe pain
since then and returned to her treating physician on numerous occasions for treatment. Appellant
explained that when she filed her recurrence claim she got the dates confused. She called injury
3

compensation to get the date of injury, but was given the date of a follow-up medical visit with
her treating physician. Appellant also stated that when she completed her recurrence claim she
was only guessing or estimating about her date of injury because she did not realize that she
needed to be precise. She has requested for her treating physician to correct the date of injury,
but was told that he could not change dates on medical records. Appellant requested
reconsideration because she had financial responsibility for her two children and requested
compensation for the time she was off from work from March 13 to April 20, 2010.
By decision dated July 23, 2010, OWCP denied modification of its May 6, 2010 denial
decision because the medical evidence failed to establish a causal relationship between
appellant’s claimed disability and the accepted August 29, 2008 injury.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.2
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, she has the burden of establishing that the recurrence of disability is causally
related to the original injury.3 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes, on the basis of a complete and accurate factual and medical
history, that the condition is causally related to the employment injury.4 The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated, or
aggravated by the accepted injury.5
ANALYSIS
OWCP accepted that appellant sustained bilateral knee abrasions and strain on
August 29, 2008 in the performance of duty. Appellant returned to work on September 3, 2008.
On March 16, 2010 she filed a recurrence of disability claim alleging that she continued to
experience pain since the original injury and was unable to finish her route. The Board finds that
appellant failed to meet her burden of proof to establish that her claimed disability was causally
related to the August 29, 2008 injury.
Appellant submitted medical reports from Dr. Lopez, who diagnosed lower leg joint pain
and knee sprain and authorized her to return to work on March 16, 2010 with restrictions. In his
March 12, 2010 report, Dr. Lopez stated that she initially injured her leg on October 9, 2009
when she fell down and complained of persistent pain and discomfit since then. He did not,
2

20 C.F.R. § 10.5(x).

3

Id. at § 10.104(b); Carmen Gould, 50 ECAB 504 (1999); Robert H. St. Onge, 43 ECAB 1169 (1992).

4

Helen K. Holt, 50 ECAB 279, 382 (1999).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (March 2011).

4

however, explain why appellant became disabled from performing her work as of March 12,
2010 as a result of the original injury. Dr. Lopez did not address at all the cause of her condition
as of March 12, 2010. As his reports do not provide any opinion regarding the cause of
appellant’s current condition and inability to work, they are of little probative value on the issue
of causal relationship.6 In addition, Dr. Lopez’ reports are based on an inaccurate history of
injury because in his March 12, 2010 report he noted the original date of injury as October 9,
2009, not August 29, 2008. A medical opinion based on inaccurate or incomplete histories are of
little probative value.7 Similarly, in an April 16, 2010 duty status report, the provider noted the
date of injury as September 10, 2008. These reports do not constitute probative medical
evidence sufficient to establish appellant’s recurrence claim.
In an April 6, 2010 report, Dr. Fourte diagnosed bilateral knee pain and placed appellant
on restricted duty. He did not, however, address her claimed disability nor explain how her
inability to work resulted from her August 29, 2008 injury.
Appellant also submitted reports from a physician’s assistant and a physical therapist who
noted appellant’s complaints of knee pain as a result of falling down on both her knees on
August 30, 2008. These reports, although they do support the date of the original injury, they do
not constitute probative medical evidence because neither a physician’s assistant nor a physical
therapist qualify as physicians under FECA.8
Neither the fact that appellant’s claimed condition became apparent or worsened during a
period of employment nor her belief that her condition was aggravated by her employment is
sufficient to establish causal relationship.9
Although appellant contends that she was unable to work from March 13 to April 20,
2010 as a result of her August 29, 2008 knee injury, the issue of causal relationship is a medical
issue and the medical evidence required to establish causal relationship is rationalized medical
evidence.10 The record in this case does not contain a well-rationalized opinion from a
physician, who based on a complete and accurate factual and medical history, concluded that she
was disabled beginning on March 12, 2010 as a result of her August 29, 2008 injury. Appellant,
therefore, did not meet her burden of proof to establish that her claimed disability was causally
related to her original injury.
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.
6

S.S., 59 ECAB 315 (2008); Elizabeth H. Kramm, 57 ECAB 117 (2008).

7

James A. Wyrick, 31 ECAB 1805 (1980); B.L., Docket No. 10-1646 (issued May 9, 2011).

8

Section 8101(2) of FECA provides that a physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. See also M.B., Docket No. 10-2004 (issued April 14, 2011).
9

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

10

G.T., 59 ECAB 447 (2008); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of disability on or after March 12, 2010.
ORDER
IT IS HEREBY ORDERED THAT the July 23 and May 6, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 22, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF THE NAVY, CMDR,
NAVAL INTL-INACTIVE FACILITY,
San Diego, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-883
Issued: October 25, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On March 13, 2012 appellant filed a timely appeal of a December 28, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his request
for reconsideration. The appeal was docketed as No. 12-883.
OWCP’s December 28, 2011 decision determined that the evidence submitted in support
of appellant’s request for reconsideration of OWCP’s May 16, 2011 decision was insufficient to
warrant a merit review. It noted that in the May 16, 2011 decision, an OWCP hearing
representative affirmed a November 4, 2010 loss of wage-earning capacity decision. The
December 28, 2011 decision noted the requirements for modifying a wage-earning capacity
determination but concluded that the evidence and arguments submitted in support of the request
for reconsideration were cumulative, a standard typically used in considering whether to grant a
merit review from a timely reconsideration request.1 As the underlying issue is modification of a
wage-earning capacity determination, appellant’s request should not be treated as a

1

See e.g., James W. Scott, 55 ECAB 606 (2004).

reconsideration request but should be adjudicated as a request for modification of a wage-earning
capacity determination.2
Section 8124(a) of FECA provides: OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.3 Its regulations at section 10.126 of
Title 20 of the Code of Federal Regulations provide: The decision of the Director of OWCP
shall contain findings of fact and a statement of reasons.4 Moreover, OWCP’s procedure manual
provides: 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.5
The Board, having duly considered the matter, finds that OWCP’s December 28, 2011
decision fails to properly explain the findings with respect to the issue presented. The decision
states that a merit review was not conducted yet also sets forth the standard for determining
whether a wage-earning capacity determination should be modified. OWCP appears to have
both analyzed appellant’s request as a timely request for reconsideration, under 5 U.S.C.
§ 8128(a), for which merit review was not granted and also analyzed the merits of whether the
wage-earning capacity determination should be modified. As noted, since the underlying issue is
modification of a wage-earning capacity determination, appellant’s request should not be treated
as a reconsideration request but should be adjudicated as a request for modification of a wageearning capacity determination. Thus, OWCP, in its December 28, 2011 decision, did not
discharge its responsibility to set forth findings of fact and a clear statement of reasons
explaining the disposition so that appellant could understand the basis for the decision, i.e.,
whether he met his burden of proof to show modification of the loss of wage-earning capacity
determination.
The case must be returned to OWCP for a proper decision which includes findings of fact
and a clear and precise statement regarding appellant’s request for modification of a wageearning capacity determination. Following this and such further development as OWCP deems
necessary, it shall issue an appropriate merit decision.

2

See F.B., Docket No.10-99 (issued June 21, 2010); M.J., Docket No. 08-2280 (issued July 7, 2009).

3

5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).

4

20 C.F.R. § 10.126. See also O.R., 59 ECAB 432 (2008); Teresa A. Ripley, 56 ECAB 528 (2005); M.L., Docket
No. 09-956 (issued April 15, 2010).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(e) (March 1997).

2

IT IS HEREBY ORDERED THAT the December 28, 2011 decision be set aside and
the matter remanded to the Office of Workers’ Compensation Programs for further proceedings
consistent with this order of the Board.
Issued: October 25, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF THE ARMY,
LEXINGTONBLUE GRASS ARMY DEPOT,
Richmond, KY, Employer
__________________________________________

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

Docket No. 19-1500
Issued: February 24, 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 3, 2019 appellant filed a timely appeal from a May 17, 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
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $4,794.68 for the period June 1, 2017 through October 13, 2018 because he
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the May 17, 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.

concurrently received FECA wage-loss compensation and Social Security Administration (SSA)
age-related retirement benefits without an appropriate offset, for which he was without fault;
(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether
OWCP properly required recovery of the overpayment by deducting $200.00 from appellant’s
continuing compensation payments every 28 days.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On February 9, 1994 appellant, then a 42-year-old boiler operator, filed an occupational
disease claim (Form CA-2) alleging that he sustained carpal tunnel syndrome causally related to
factors of his federal employment. OWCP accepted the claim for bilateral carpal tunnel syndrome.
It paid appellant wage-loss compensation for total disability beginning August 31, 1995.
By decisions dated September 12, 2001 and May 7, 2002, OWCP reduced appellant’s
compensation benefits based on its finding that he had the capacity to work as a telecommunicator.
Appellant appealed to the Board. By decision dated January 29, 2003, the Board reversed
OWCP’s loss of wage-earning capacity determination, finding that the record contained a conflict
in medical opinion regarding his work capacity.4
By decision dated June 4, 2013, OWCP terminated appellant’s compensation and
entitlement to a schedule award effective that date as he refused an offer of suitable employment
under 5 U.S.C. § 8106(c)(2).
On June 15, 2013 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
Following a September 13, 2013 telephonic hearing, by decision dated November 26,
2013, OWCP’s hearing representative affirmed the June 4, 2013 decision.
On December 16, 2013 appellant requested a review of the written record. By decision
dated April 23, 2014, OWCP denied his request for a review of the written record as it was made
after he had previously received a telephonic hearing.
By decisions dated January 14 and February 9, 2015, OWCP denied appellant’s
reconsideration requests as untimely filed and insufficient to demonstrate clear evidence of error.

3

Docket No. 02-1754 (issued January 29, 2003); Docket No. 15-0811 (issued August 20, 2015); Docket No.
16-0102 (issued March 11, 2016).
4

Id.

2

On February 18, 2015 appellant appealed to the Board. By decision dated August 20, 2015,
the Board set aside OWCP’s January 14 and February 9, 2015 decisions.5 The Board found that
appellant had timely requested reconsideration of the November 26, 2013 hearing representative’s
decision in correspondence received October 31, 2014. The Board remanded the case for OWCP
to apply the standard applicable to timely reconsideration requests.
By decision dated September 30, 2015, OWCP denied modification of its November 26,
2013 decision regarding the termination of appellant’s compensation for the refusal of suitable
work under 5 U.S.C. § 8106(c)(2).
Appellant appealed to the Board. By decision dated March 11, 2016, the Board reversed
the September 30, 2015 OWCP decision.6 The Board found that the medical evidence of record
was insufficient to establish that appellant could work for 10 hours per day for four days a week
and that, consequently, OWCP had failed to discharge its burden of proof to support termination
of his wage-loss compensation under 5 U.S.C. § 8106(c)(2).
Following the Board’s decision, OWCP reinstated appellant’s wage-loss compensation.
On October 18, 2018 SSA provided OWCP with a FERS/SSA dual benefit calculation
worksheet setting forth appellant’s SSA rate with FERS and without FERS from June 2017
through December 2017. With FERS, his SSA rate was $1,065.70 effective June 2017 and
$1,087.00 effective December 2017. Without FERS, appellant’s SSA rate was $778.50 effective
June 2017 and $794.00 effective December 2017.
OWCP completed a FERS offset calculation form on November 13, 2018. It calculated
the amount that it should have offset from appellant’s wage-loss compensation from June 1, 2017
through October 13, 2018. OWCP found that, effective June 1, 2017, the monthly offset was
$287.20 ($1,065.70-$778.50), or $265.11 every 28 days and effective December 1, 2017, the
monthly offset was $293.00 ($1,087.00 - $794.00), or $270.46 every 28 days.7 It divided the 28day offset amount to find the daily amount, which it multiplied by the number of days in each
period June 1, 2017 through October 13, 2018, to find the amount that it overpaid appellant for
each period. OWCP added the amounts for each period and determined that it should have offset
$4,794.68 from his wage-loss compensation.
In a preliminary overpayment determination dated November 13, 2018, OWCP notified
appellant that he had received an overpayment of compensation in the amount of $4,794.68
because it had failed to reduce his wage-loss compensation benefits for the period June 1, 2017
through October 13, 2018 by the FERS portion of his SSA retirement benefits. It further advised
him of its preliminary determination that he was without fault in the creation of the overpayment.
OWCP provided appellant with an overpayment action request form and an overpayment recovery
questionnaire (Form OWCP-20). Additionally, it notified him that, within 30 days of the date of
5

Id.

6

Id.

7
The 28-day offset amount is calculated by multiplying the monthly FERS offset amount by 12 and then dividing
this amount by 13.

3

the letter, he could request a telephone conference, a final decision based on the written evidence,
or a prerecoupment hearing.
On November 26, 2018 appellant requested a prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review. In an accompanying Form OWCP20, he advised that he had monthly income of $5,924.00 and provided a list of monthly expenses.
Appellant related that he had assets totaling $50.00. He asserted that he was without fault in
creating the overpayment of compensation. Appellant did not submit any supporting financial
documentation.
A telephonic hearing was held on April 10, 2019. Appellant related that he had received
disability compensation from SSA until June 1, 2017, when he began receiving retirement benefits.
OWCP’s hearing representative noted that he had not listed the amount that he received from
OWCP as part of his monthly income on his overpayment recovery questionnaire.8 He advised
appellant that he could submit updated financial information regarding his income and expenses
with supporting documentation.
By decision dated May 17, 2019, OWCP’s hearing representative finalized the preliminary
determination that appellant had received an overpayment of compensation in the amount of
$4,794.68 as he had received wage-loss compensation from OWCP without an appropriate offset
for SSA age-related retirement benefits attributable to FERS from June 1, 2017 through
October 13, 2018. He further determined that he was without fault in the creation of the
overpayment. OWCP’s hearing representative found that appellant was not entitled to waiver of
recovery of the overpayment as he had not provided complete information regarding his income
and expenses. He determined that the overpayment would be recovered by withholding $200.00
every 28 days from his continuing compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.9 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.10
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service.11 FECA Bulletin No. 97-09 states that FECA benefits have to be
8
OWCP’s hearing representative attempted to go through appellant’s monthly income and expenses, but appellant
advised that he did not want it reviewed. He requested a copy of the record.
9

5 U.S.C. § 8102(a).

10

Id. at § 8116.

11
20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802
(issued August 20, 2018).

4

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.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received a $4,794.68
overpayment of compensation for the period June 1, 2017 through October 13, 2018 because he
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits.
In its May 17, 2019 decision, OWCP found that an overpayment of compensation was
created for the period June 1, 2017 through October 13, 2018. The overpayment was based on the
evidence received from SSA with respect to age-related retirement benefits paid to appellant. A
claimant cannot receive wage-loss compensation and SSA age-related retirement benefits
attributable to federal service for the same period.13 The information provided by SSA indicated
that appellant received age-related SSA retirement benefits that were attributable to his federal
service during the period June 1, 2017 through October 13, 2018.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of age-related SSA retirement benefits that were attributable to
federal service. The SSA provided the SSA rate with FERS, and without FERS for specific periods
commencing June 1, 2017 through October 13, 2018. OWCP provided its calculations for each
relevant period based on an SSA worksheet and in its November 13, 2018 preliminary
overpayment determination. No contrary evidence was provided.
The Board has reviewed OWCP’s calculation of benefits appellant received for the period
June 1, 2017 through October 13, 2018 and finds that an overpayment of compensation in the
amount of $4,794.68 was created.14
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.15
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.16
12

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

13

Id.; L.M., Docket No. 19-1197 (issued January 8, 2020).

14

A.S., Docket No. 19-0171 (issued June 12, 2019).

15

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.F., Docket No. 19-0054 (issued
June 12, 2019).
16

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

5

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.17 Additionally, recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.18
OWCP regulations provide that the individual who received the overpayment is responsible
for providing information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment would defeat the
purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.19 Failure to submit the requested information
within 30 days of the request will result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished.20
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
OWCP found that appellant was without fault in the creation of the overpayment of
compensation. The fact that a claimant is without fault in creating an overpayment does not
preclude OWCP from recovering the overpayment.21 Waiver is only possible if recovery would
defeat the purpose of FECA or be against equity and good conscience.22 Appellant, however, did
provide the requisite financial documentation to OWCP.23
In its preliminary determination dated November 13, 2018, OWCP clearly explained the
importance of providing the completed overpayment recovery questionnaire (Form OWCP-20)
and supporting financial documentation. It advised appellant that it would deny waiver of recovery
if he failed to furnish the requested financial information within 30 days. While appellant
submitted a completed overpayment recovery questionnaire, he did not provide the necessary
17
20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
18

Id. at § 10.437(a)(b).

19

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

20

Id. at § 10.438(b).

21

See L.D., Docket No. 19-0606 (issued November 21, 2019); R.B., Docket No. 15-0808 (issued October 26, 2015).

22

20 C.F.R § 10.436; J.C., Docket No. 19-0122 (issued June 11, 2019).

23

Id. at § 10.438(b); T.J., Docket No. 19-1242 (issued January 13, 2020).

6

financial documentation supporting his income and expenses. As a result, OWCP did not have the
necessary financial information to determine whether waiver of recovery of the overpayment
would defeat the purpose of FECA or would be against equity and good conscience.24 It was,
therefore, required to deny waiver of recovery of the overpayment.25
On appeal appellant contends that he is entitled to waiver of recovery as he was without
fault in the creation of the overpayment. However, the fact that he was not at fault does not relieve
him from liability for repayment of the overpayment of compensation.26
Appellant also asserts that OWCP’s hearing representative failed to advise him to submit
additional documentation. As noted, however, he received a preliminary overpayment
determination with an overpayment recovery questionnaire advising him of the need for financial
information. Further, OWCP’s hearing representative informed appellant at the telephonic hearing
that he could submit updated financial information and supporting documentation. As he did not
do so, OWCP properly denied waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.411 of OWCP’s regulations provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”27
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required repayment of the overpayment by deducting
$200.00 from appellant’s continuing compensation payments every 28 days.
As discussed, appellant completed the overpayment recovery questionnaire, but did not
provide the necessary financial information to support his income and expenses prior to the final
May 17, 2019 overpayment decision. The overpaid individual is responsible for providing
information about income, expenses, and assets as specified by OWCP.28 When an individual fails
to provide requested financial information, OWCP should follow minimum collection guidelines
24

See E.M., Docket No. 19-0857 (issued December 31, 2019).

25

Supra note 21.

26

See M.G., Docket No. 19-0424 (issued July 1, 2019).

27

20 C.F.R. § 10.441(a); see G.G., Docket No. 19-0684 (issued December 23, 2019).

28

Id. at § 10.438.

7

designed to collect the debt promptly and in full.29 As appellant did not submit the financial
documentation to OWCP as requested, the Board finds that there is no evidence of record to
establish that OWCP erred in directing recovery of the $4,794.68 overpayment at the rate of
$200.00 every 28 days from his continuing compensation payments.30
On appeal appellant asserts that OWCP failed to respond to his request for a copy of the
case record. However, on April 11, 2019 OWCP provided his representative with a copy of the
imaged record. It also sent the April 11, 2019 correspondence to appellant.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$4,794.68 for the period June 1, 2017 through October 13, 2018 because he concurrently received
FECA wage-loss compensation and SSA age-related retirement benefits without an appropriate
offset, for which he was without fault. The Board further finds that OWCP properly denied waiver
of recovery of the overpayment and properly required recovery of the overpayment by deducting
$200.00 from his continuing compensation payments every 28 days.

29

E.M., supra note 25; Federal (FECA) Procedure Manual, supra note 18 at Chapter 6.500.2 (September 2018).

30

See E.K., Docket No. 18-0587 (issued October 1, 2018).

8

ORDER
IT IS HEREBY ORDERED THAT the May 17, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 24, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Winston Salem, NC, Employer
__________________________________________

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)
)
)
)
)

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

Docket No. 07-1937
Issued: January 7, 2008

Case Submitted on the Record

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

JURISDICTION
On July 17, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 19, 2007 denying her claim for
compensation and a June 25, 2007 decision denying her application for reconsideration without
merit review of the claim. 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 has established an injury in the performance of
duty on January 22, 2007; and (2) whether the Office properly denied appellant’s application for
reconsideration without merit review of the claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 24, 2007 appellant, then a 69-year-old food inspector, filed a traumatic injury
claim (Form CA-1) alleging that she sustained an injury on January 22, 2007. She alleged that

while inspecting a pheasant with an infected leg, fluid from the animal squirted into her right
eye. The record contains a (Form CA-16,) authorization for examination and/or treatment, dated
January 22, 2007 and signed by an employing establishment supervisor.1 No other evidence was
submitted.
By decision dated March 19, 2007, the Office denied the claim for compensation. The
Office accepted that an incident occurred as alleged, but found that there was no probative
medical evidence to support an injury.
On March 22, 2007 the Office received additional evidence. A form report dated
January 22, 2007 contains a history that a diseased chicken part went into appellant’s right eye
and provides results on examination and a diagnosis of “foreign body/fluid exposure [right] eye.”
The report is initialed by a physician’s assistant, Ken Bush. Appellant submitted additional
copies of the report that contain an unidentified initial next to Mr. Bush’s name. A January 23,
2007 form report contains results on examination and a diagnosis of “F.B. [foreign body] OD.”
A copy of the report submitted on April 10, 2007 contains an illegible physician’s signature. On
April 10, 2007 the Office also received an application for reconsideration.
By decision dated June 25, 2007, the Office determined the application for
reconsideration was insufficient to warrant merit review of the claim. The Office indicated that a
physician’s assistant was not a physician under the Federal Employees’ Compensation Act.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Act2 has the burden of establishing that he or she
sustained an injury while in the performance of duty.3 In order to determine whether an
employee actually sustained an injury in the performance of duty, the Office begins with an
analysis of whether “fact of injury” has been established. Generally, “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury and generally this can be established only by medical evidence.4
Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.5 In clear-cut
1

Where an employing establishment properly executes a CA-16 form which authorizes medical treatment as a
result of an employee’s claim for an employment-related injury, the CA-16 form creates a contractual obligation,
which does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the
action taken on the claim. Tracey P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized
by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by the Office. See
20 C.F.R. § 10.300(c).
2

5 U.S.C. §§ 8101-8193.

3

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

4

See John J. Carlone, 41 ECAB 354, 357 (1989).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

2

traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.6
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.7
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained an injury when animal fluid squirted into her right
eye during an inspection. The Office accepted that a January 22, 2007 incident occurred as
alleged. Therefore, the issue is whether the evidence is sufficient to establish an injury resulting
from the employment incident. This is not a case where the Office may accept an injury based
on visual inspection without a medical report. Prior to the March 19, 2007 decision, no medical
evidence was submitted. The Board accordingly finds that appellant did not meet her burden of
proof to establish an injury in the performance of duty on January 22, 2007.
As noted, the record contained a CA-16 form, which may entitle an employee to medical
treatment regardless of whether the Office accepts an employment injury. The Office did not
address the issue and it is not before the Board on this appeal.8
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,9
the Office’s regulations provides that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that [the Office] erroneously applied or interpreted a specific
point of law; (ii) advances a relevant legal argument not previously considered by [the Office];
or (iii) constitutes relevant and pertinent evidence not previously considered by [the Office].”10
6

Id.

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

On return of the case record the Office shall address this issue.

9

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
10

20 C.F.R. § 10.606(b)(2).

3

Section 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in section 10.606(b)(2) will be denied by the Office without review of the
merits of the claim.11
ANALYSIS -- ISSUE 2
In this case, appellant did submit additional evidence that was not previously considered
by the Office. The evidence must, however, be relevant and pertinent to the issue presented. To
be considered competent medical evidence, a medical report must be from a physician under the
Act.12 5 U.S.C. § 8101(2) provides that a physician includes, “surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of
their practice as defined by state law.”13 A physician’s assistant is not a “physician” as defined by
the Act.14 The reports from Mr. Bush are therefore not considered competent medical evidence.
With respect to a January 22, 2007 report, there are copies in the record containing what
appears to be an unidentified initial. It is not clear, however, whether this was a physician’s initial
as the report contains no other identifying marks or signature.15 It is well established that medical
evidence lacking proper identification is of no probative medical value.16 This report lacks
proper identification and it is unclear whether a physician under the Act prepared or reviewed the
report. It is therefore not considered competent medical evidence.
The January 23, 2007 report does contain a physician’s signature, although the name of
the physician is unclear. To the extent that this report constitutes competent medical evidence, it
is not considered relevant and pertinent to the medical issue presented. The report does not
provide a history of injury or any opinion on causal relationship between the employment
incident and a diagnosed condition. While the evidence does not have to be sufficient to
establish the claim, it must be relevant and pertinent evidence. The Board finds that the
January 23, 2007 report is not sufficient to require the Office to reopen the case for merit review.
The Board finds that appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
or submit relevant and pertinent evidence not previously considered by the Office. Accordingly,
the Office properly refused to reopen the claim for merit review.

11

Id. at 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

12

See James Robinson, Jr., 53 ECAB 417 (2002).

13

5 U.S.C. § 8101(2).

14

Allen C. Hundley, 53 ECAB 551 (2002).

15

One of the copies contains a circle around the term “M.D.” another does not. It is not clear who circled the
term M.D.
16

Thomas L. Agee, 56 ECAB ___ (Docket No. 05-335, issued April 19, 1985); Richard F. Williams, 55 ECAB
343 (2004); Merton J. Sills, 39 ECAB 572 (1988).

4

CONCLUSION
The Office properly denied the claim as appellant did not submit any supporting medical
evidence. On application for reconsideration, appellant did not meet the requirements of
20 C.F.R. § 10.606(b)(2).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 25 and March 19, 2007 are affirmed.
Issued: January 7, 2008
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, CO, Employer
__________________________________________

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

Docket No. 16-0199
Issued: March 8, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 12, 2015 appellant filed a timely appeal of an August 28, 2015 merit
decision and a September 17, 2015 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish an injury in the
performance of duty; and (2) whether OWCP properly refused to reopen appellant’s case for
further review of the merits of her claim under 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence with her appeal. The Board’s jurisdiction is limited to the evidence that was
before OWCP at the time of its final decision. It has no jurisdiction to review new evidence for the first time on
appeal. See 20 C.F.R. § 501.2(c)(1); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

FACTUAL HISTORY
On July 10, 2015 appellant, then a 49-year-old city carrier assistant, filed an occupational
disease claim (Form CA-2) alleging that she suffered plantar fasciitis in her feet as a result of
walking at least 10 miles per day in her job. She indicated that she became aware of this disease
or illness on December 15, 2014.
By letter dated July 22, 2015, OWCP advised appellant that additional factual and
medical evidence was needed. Appellant was requested to describe in detail how the injury
occurred. She was also asked to provide medical evidence. OWCP afforded appellant 30 days
within which to submit the requested information.
In a July 1, 2015 report, Dr. Jack L. Rook, a Board-certified internist, noted that appellant
had a history of progressively worsening bilateral foot pain affecting the left side more than the
right. He explained that appellant worked as a letter carrier on a walking route and walked more
than 10 miles per day since April 2014. Dr. Rook also indicated that appellant was on her feet
for at least eight hours per day. He related that she first began to experience foot pain in
December 2014, which began in the left foot and then the right foot. Dr. Rook advised that at
that time, appellant was working up to seven days a week as there were Sunday deliveries before
Christmas. He explained that her foot pain progressively worsened over the next few months
despite receiving two pairs of orthotics. Dr. Rook noted that appellant denied any significant
weight bearing activities outside of work or any traumatic events. He also indicated that x-rays
taken by the podiatrist, revealed findings consistent with a diagnosis of plantar fasciitis and
bilateral heel spurs. Dr. Rook related that appellant had no foot problems prior to working at the
employing establishment. He examined her and diagnosed bilateral plantar fasciitis with x-ray
evidence of heel spurs and muscle spasm on the left posterior calf musculature. Dr. Rook opined
that appellant’s duties as a letter carrier, which included a walking route that required her to be
on her feet for eight hours a day to case and deliver mail contributed to the diagnosed conditions.
He explained that the prolonged weight bearing caused stretching of the plantar fascia. Dr. Rook
noted that the plantar fascia inserted into the calcareous bones bilaterally and the repetitive
pulling in this region led to the development of microscopic tears where the plantar fascia met
the calcaneus. He explained that this led to the development of the heel spurs due to calcification
in the area of the ligamentous injury. Dr. Rook opined that, with a reasonable degree of medical
certainty, appellant developed an occupational disease related to her work.
By decision dated August 28, 2015, OWCP denied appellant’s claim. It found that the
factual evidence did not support that the injury and/or events occurred. OWCP specifically
noted that appellant did not respond to the questionnaire requesting additional information
pertaining to her employment-related activities.
Darryl Parrott, a supervisor with the employing establishment, explained in a letter
received by OWCP on September 1, 2015, that there was no evidence or documentation to refute
anything in the employees claim. He noted that he was aware that she experienced pain and was
purchasing better quality shoes and orthotic inserts, but he had no knowledge of the precise cause
of the pain. Mr. Parrott noted that the duties included: lifting mail and parcels intermittently, up
to 70 pounds throughout the day, and carrying mail and parcels up to 35 pounds for up to three to
six hours per day. The duties also included: standing or walking for up to 10 hours per day,
pushing, pulling, bending, stooping, and climbing up steps occasionally throughout the day.
2

Mr. Parrott noted that appellant initially chose the route knowing how much walking was
entailed and was later unable to relinquish it due to union agreements.
On September 1, 2015 OWCP received a position description.
On September 4, 2015 appellant requested reconsideration. She argued that she never
received a questionnaire requesting additional information regarding her employment-related
activities. Appellant explained that her supervisor, Mr. Parrott advised her that he sent in all of
the requested information.
In a decision dated September 17, 2015, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant review of its prior
decision. It found that the evidence was irrelevant or immaterial.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning 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 and/or specific condition for which compensation is claimed are causally related
to the employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.5
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and her subsequent
course of action. An employee has not met his or her burden to establish the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

3

obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement
in determining whether a prima facie case has been established.6
ANALYSIS -- ISSUE 1
Appellant alleged that she developed sustained plantar fasciitis in her feet as a result of
walking at least 10 miles per day in the performance of duty. OWCP denied her claim because
she failed to establish the factual basis of her claim. The Board has carefully reviewed the record
and finds that there is insufficient factual or medical evidence of record to support fact of injury
as alleged.
OWCP informed appellant in a July 22, 2015 letter that the record was devoid of any
medical or factual evidence to satisfy her burden of proof. Appellant was advised that she had
the burden of proof to establish that she was injured as a result of her work-related duties.
OWCP informed her that she needed to submit factual evidence regarding employment duties
giving rise to the claimed condition.
The Board notes that appellant did not respond to the request for additional factual
information. The record before OWCP at the time of its August 28, 2015 decision does not
otherwise have any evidence confirming her work duties and how the claimed condition
occurred. Because appellant failed to provide the requested factual information opinion as
requested by OWCP, the Board finds that appellant has not met her burden of proof to establish
her claim.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,7 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [OWCP].”8

6

Betty J. Smith, 54 ECAB 174 (2002).

7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(3).

4

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.9
ANALYSIS -- ISSUE 2
With her request for reconsideration dated September 4, 2015, appellant indicated that
she did not receive the questionnaire. However, she noted that her supervisor, Mr. Parrott, had
provided the requested information and informed her that he had sent in all of the requested
information. The record reflects that on September 1, 2015, OWCP received a detailed report
from Mr. Parrott, who explained that he did not refute her claim and essentially confirmed the
duties that she performed. Mr. Parrott also described her employment activities and noted that
she had informed him that she was experiencing foot pain. While OWCP refused to review the
merits of appellant’s claim, finding the information submitted on reconsideration to be irrelevant
or immaterial, the Board disagrees. The Board finds that this evidence constitutes pertinent new
and relevant evidence warranting further consideration of the merits.
The requirements for reopening a case for merit review do not include the requirement
that a claimant submit all evidence which may be necessary to discharge his or her burden of
proof. The claimant need only submit evidence that is relevant and pertinent and not previously
considered.10 If OWCP should determine that the new evidence submitted lacks probative value,
it may deny modification of the prior decision, but only after the case has been reviewed on the
merits.11
The Board notes that the report from the employing establishment, which agrees with
appellant’s statement and describes appellant’s duties, along with appellant’s statement is
pertinent new and relevant evidence with regard to the basis of OWCP’s denial of the claim. The
case shall be remanded to OWCP to conduct a merit review. After such further development as
is deemed necessary, OWCP shall issue an appropriate merit decision.
On appeal, appellant made several arguments. However, in light of the Board’s
disposition it is premature to address the arguments at this juncture.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that an injury
in the performance of duty. The Board also finds that OWCP improperly refused to reopen
appellant’s case for further review of the merits of her claim under 5 U.S.C. § 8128(a).

9

Id. at § 10.608(b).

10

R.T., Docket No. 11-749 (issued December 23, 2011); Mary A. Ceglia, 55 ECAB 626 (2004); see also Billy
Scoles, 57 ECAB 258 (2005).
11

See Dennis J. Lasanen, 41 ECAB 933 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the September 17, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with the above opinion. The August 28, 2015 decision of OWCP is affirmed.
Issued: March 8, 2016
Washington, DC

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

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

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

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

)
)
)
)
)
)
)
)

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

Docket No. 12-203
Issued: July 3, 2012

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 November 14, 2011 appellant, through her attorney, filed a timely appeal from a
June 1, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) which denied
merit review. Because more than 180 days elapsed since the most recent merit decision dated
June 3, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits of the
claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On December 19, 2007 appellant, then a 40-year-old custodial maintenance worker, filed
a claim alleging that she twisted her right foot on December 17, 2007 while chopping ice and
shoveling steps at work. OWCP accepted her claim for contusion of the right foot, stress fracture
of the right tibia or fibula, right tibialis tendinitis and closed fracture of the right metatarsal
bones. Appellant stopped work on December 17, 2007 and returned on December 19, 2007.
Appellant was treated by Dr. Robert C. Parajon, a podiatrist from January 4 to
September 25, 2008, for a right tibial fracture sustained at work. Dr. Parajon noted a history of
injury and diagnosed contusion of the right foot, fracture of the tibial sesamoid of the right foot
and capsulitis of the right foot. On October 24, 2008 he performed an excision of the tibial
sesamoid of the right foot. In reports dated April 30 and May 21, 2009, Dr. Parajon treated
appellant in follow-up for painful sesamoiditis and capsulitis of the first metatarsal of the right
foot. He recommended physical therapy. In a July 10, 2009 report, Dr. Parajon noted that
appellant presented status post excision of the tibial sesamoid of the right foot. He listed
findings of intact pulses, neurological deficit in the first metatarsophalangeal joint and full range
of motion. Dr. Parajon noted that appellant reached maximum medical improvement. He
advised that she had some residual pain in the area and a little loss of motion consistent with a 15
percent disability of the right foot.
On July 21, 2009 appellant filed a claim for a schedule award. On July 28, 2009 OWCP
requested that she submit a detailed report from her treating physician which provided an
impairment evaluation pursuant to the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2
In an August 17, 2009 worksheet, Dr. Parajon noted a decreased range of motion of the
first metatarsal, decreased strength, pain, sensory and motor deficits. He did not rate
impairment.
On February 8, 2010 appellant was referred for a second opinion to Dr. Edward Kirby, a
Board-certified orthopedic surgeon. In a April 7, 2010 report, Dr. Kirby noted that appellant
reached maximum medical improvement in October 2009. He opined that pursuant to the
A.M.A., Guides she had two percent impairment of the right lower extremity.
In a May 18, 2010 report, OWCP’s medical adviser reviewed the medical evidence and
agreed that appellant reached maximum medical improvement in October 2009. Under the
A.M.A., Guides, he concurred with Dr. Kirby’s opinion that appellant sustained a two percent
impairment of the right lower extremity.
In a June 3, 2010 decision, OWCP granted appellant a schedule award for two percent
impairment of the right leg. The period of the award was from October 24 to December 3, 2009.
On May 17, 2011 appellant through her attorney requested reconsideration and presented
medical evidence and legal arguments. In a May 30, 2011 brief, she asserted that she was
2

A.M.A., Guides (6th ed. 2008).

2

entitled to a schedule award greater than two percent as granted by OWCP on June 3, 2010.
Appellant submitted a duplicate copy of Dr. Parajon’s July 9, 2009 report which found 15
percent impairment of the right leg. She asserted that his report provided an adequate description
of her impairment of sufficient detail so that the claims examiner and others reviewing the report
would be able to visualize the impairment. Appellant contended that because Dr. Parajon was
her attending physician, he was in a better position to make judgments with respect to the
percentage of permanent impairment.
By decision dated June 1, 2011, OWCP denied appellant’s request for reconsideration on
the grounds that the evidence submitted was insufficient to warrant further merit review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,3 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.5
ANALYSIS
OWCP’s most recent merit decision dated June 3, 2010 granted appellant a schedule
award for two percent permanent impairment of the right leg based on second opinion report and
OWCP’s medical adviser. It denied her reconsideration request, without a merit review and she
appealed this decision to the Board.
The Board does not have jurisdiction over the June 3, 2010 OWCP decision. The issue is
whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(2), requiring OWCP to
reopen the case for review of the merits of the claim. In her request for reconsideration, she did
not show that OWCP erroneously applied or interpreted a specific point of law. Appellant did
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b).

3

not identify a specific point of law or show that it was erroneously applied or interpreted. She
did not advance a new and relevant legal argument. Appellant asserted that she was entitled to a
schedule award greater than two percent impairment of the right lower extremity granted by
OWCP on June 3, 2010. She contends that Dr. Parajon’s July 9, 2009 report provided an
adequate description of the impairment in sufficient detail so that the claims examiner and others
reviewing the report would be able to visualize the impairment. Appellant also argued that
because he was the attending physician he was in a better position to make judgments with
respect to a schedule award and his extensive treatment of her and evaluation with respect to the
percentage of impairment. These assertions do not show a legal error by OWCP or a new and
relevant legal argument as OWCP had previously considered Dr. Parajon’s opinion. The
underlying issue in this case was whether appellant had greater impairment than the two percent
impairment of the lower extremity granted by OWCP. That is a medical issue which must be
addressed by relevant medical evidence.6 A claimant may be entitled to a merit review by
submitting new and relevant evidence, but appellant did not submit any new and relevant
medical evidence in this case. Consequently, appellant is not entitled to a review of the merits of
her claim based on the first and second above-noted requirements under section 10.606(b)(2).
Regarding Dr. Parajon’s July 9, 2009 report submitted by appellant on reconsideration,
this is not relevant because it is duplicative as the report was previously before OWCP when it
issued its June 3, 2010 decision. As noted by OWCP, this report had been found insufficient
because he had never prepared an evaluation under the A.M.A., Guides. Therefore, this report is
insufficient to require OWCP to reopen the claim for a merit review.7
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, appellant asserts that she was entitled to a schedule award for greater than the
two percent impairment of the right lower extremity granted by OWCP and that her treating
physician, Dr. Parajon, in his July 9, 2009 report, establishes greater impairment. The Board
notes, however, that it only has jurisdiction over whether OWCP properly denied a merit review
of the claim. As explained, appellant did not submit any evidence or argument in support of her
reconsideration request that warrants reopening of her claim for a merit review under 20 C.F.R.
§ 10.606(b)(2).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.

6

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

7

See James W. Scott, 55 ECAB 606 (2004) (evidence that repeats or duplicates evidence already in the case
record has no evidentiary value and does not constitute a basis for reopening a case).

4

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 3, 2012
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