United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New York, NY, Employer
__________________________________________

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Appearances:
Sizzette A. Nieves-Caussade, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0836
Issued: November 10, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 3, 20162 appellant, through his representative, filed a timely appeal from a
September 16, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed since April 7, 2015, the date of the most recent OWCP
merit decision, to the filing of this appeal, pursuant to the Federal Employees’ Compensation
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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See
20 C.F.R. § 501.3(e)-(f). One hundred and eighty days from September 16, 2015, the date of OWCP’s last decision
was March 14, 2016. Since using March 15, 2016, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is March 3, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction to
review the merits of the claim.4
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On June 5, 1992 appellant, then a 39-year-old licensed practical nurse filed a traumatic
injury claim (Form CA-1) alleging that on May 14, 1992 he injured his left knee while
performing patient care. He stopped work on May 18, 1992 and did not return. OWCP accepted
appellant’s claim for left medial meniscus tear.
Appellant was treated by Dr. Bruce Ross, a Board-certified orthopedist, who performed
an authorized arthroscopic partial medial meniscectomy of the left knee on July 16, 1992.
Dr. Ross diagnosed torn medial meniscus of the left knee. A magnetic resonance imaging (MRI)
scan of the left knee dated January 15, 1993 revealed a bucket handle tear of the posterior horn
and body of the medial meniscus. On March 2, 1993 Dr. Shahid Mian, a Board-certified
orthopedist, performed an authorized arthroscopic partial medial meniscectomy, partial lateral
meniscectomy, and shaving chondroplasty of the left knee.
Thereafter, in the course of developing the claim, OWCP referred appellant to several
second opinion physicians and also to an impartial medical examiner to determine whether a
third arthroscopic surgery to appellant’s left knee was causally related to his accepted work
injury.
In a decision dated February 16, 1995, OWCP denied authorization for left knee
arthroscopic surgery as the weight of the medical evidence did not support the need for the
procedure as related to his employment. Appellant requested an oral hearing before an OWCP
hearing representative.
In a decision dated October 13, 1995, an OWCP hearing representative affirmed the
decision dated February 16, 1995.
On November 19, 2014 the employing establishment offered appellant a limited-duty
position as a financial account technician, with a tour of duty of 7:30 a.m. to 4:00 p.m. and salary
of $53,011.00 a year. The position was effective December 14, 2014. The position was in
conformance with the medical restrictions provided by a second opinion physician.
In a January 2, 2015 letter, OWCP advised appellant that the job offer constituted suitable
work. Appellant was informed that he had 30 days to accept the position or provide reasons for
3

5 U.S.C. § 8101 et seq.

4

Subsequent to the April 7, 2015 merit decision appellant submitted new evidence. The Board has no jurisdiction
to review evidence which was not before OWCP at the time it issued its final decision; see 20 C.F.R. § 501.2(c)(1).
Thus, the Board may not review it for the first time on appeal.

2

refusing it, or he risked termination of his wage-loss and schedule award benefits. OWCP noted
that on November 26, 2014 his representative advised that appellant was not cleared to return to
work and was undergoing bilateral knee surgery.
On March 10, 2015 OWCP advised appellant that the position of a limited-duty financial
account technician was suitable work. It noted that it considered the reasons given by him for
refusing the position and found them to be unacceptable. OWCP afforded appellant 15
additional days to accept the job offer.
In a decision dated April 7, 2015, OWCP terminated appellant’s wage-loss and schedule
award benefits as he refused an offer of suitable work.
Appellant requested an oral hearing on August 25, 2015. The form was dated and
postmarked August 20, 2015. Appellant noted that he would be assisted by his representative
and that he preferred video or teleconference. In a May 19, 20155 letter addressed to the
employing establishment, appellant, through his representative, noted that the employing
establishment refused appellant’s objections to returning to work. He indicated that appellant
still had residuals of the work-related condition and recently had a heart attack. Appellant
advised that his current medical condition made him unsuitable for the position offered or any
other position. He was under medical orders not to work or perform strenuous activities.
Appellant submitted a hospital admission report from January 7 to 9, 2015 where he was
treated by Dr. Gloria Colon Rivas, a cardiologist, who noted that appellant had sustained a
myocardial infarction on January 7, 2015. Dr. Rivas noted that appellant was surgically treated
with a stent. In an April 1, 2015 report, she opined that appellant was permanently and totally
disabled. Dr. Rivas noted that appellant was a high risk for a cardiovascular event, thrombosis,
and death.
In a decision dated September 16, 2015, OWCP denied appellant’s request for an oral
hearing. It found that the request was untimely filed. Appellant was informed that his case had
been considered in relation to the issues involved, and that the request was further denied as the
issues in this case could equally be addressed by requesting reconsideration from OWCP and
submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied
with a decision of the Secretary ... is entitled, on request made within 30 days after the date of
the issuance of the decision, to a hearing on his claim before a representative of the Secretary.”6
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provides that a claimant shall be afforded a choice of an oral hearing or a review of the written

5

This letter is actually dated May 19, 2014, but based on the context of the letter and accompanying evidence,
this is a typographical error and it should read May 19, 2015.
6

5 U.S.C. § 8124(b)(1).

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record by a representative of the Secretary.7 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.8 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.9
ANALYSIS
Appellant requested an oral hearing in an appeal request form dated and postmarked on
August 20, 2015. This request was more than 30 days after the April 17, 2015 OWCP decision.
Section 8124(b)(1) is unequivocal on the time limitation for requesting a hearing.10 Because the
hearing request was untimely filed, appellant was not entitled to an oral hearing as a matter of
right.
OWCP has the discretionary power to grant an oral hearing when a claimant is not
entitled to one as a matter of right. It exercised this discretion in its September 16, 2015
decision, finding that appellant’s issue could be addressed by requesting reconsideration and
submitting additional evidence. This basis for denying his request for a hearing is a proper
exercise of OWCP’s authority.11 Accordingly, the Board finds that OWCP properly denied
appellant’s request for an oral hearing.
On appeal, appellant reiterated that the job offer of a financial account technician was not
suitable. However, as noted, the Board does not have jurisdiction over the merits of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing.

7

20 C.F.R. §§ 10.616, 10.617.

8

Id. at § 10.616(a).

9

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

10

William F. Osborne, 46 ECAB 198 (1994).

11

Mary B. Moss, 40 ECAB 640, 647 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the September 16, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, ST. PETERSBURG
MAIN POST OFFICE, St. Petersburg, FL,
Employer
__________________________________________

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Appearances:
Joanne M. Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1115
Issued: May 18, 2021

Case Submitted on the Record

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

JURISDICTION
On May 7, 2020 appellant, through his representative, filed a timely appeal from an
April 24, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As
more than 180 days elapsed from OWCP’s last merit decision, dated May 20, 2019, to the filing

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.

of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the claim.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 2, 2011 appellant, then a 39-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) under OWCP File No. xxxxxx665 alleging that on that date he sustained
contusions to his right shoulder and arm, chest, and bilateral thighs when he was involved in a
motor vehicle accident (MVA) while in the performance of duty.4 OWCP accepted his claim for
contusions to the chest wall, bilateral thighs, right shoulder region, and right upper arm. Appellant
stopped work following the MVA and returned to a modified job on April 16, 2011. He stopped
work again on June 7, 2011. On March 28, 2012 OWCP expanded its acceptance of the claim to
include lumbar sprain, neck sprain, and temporary aggravation of lumbar herniated nucleus
pulpous. On July 1, 2013 it again expanded its acceptance of the claim to include additional
conditions of right shoulder impingement, permanent aggravation of cervical degenerative disc
disease, and permanent aggravation of cervical disc herniation at C3-4, C4-5, and C5-6. OWCP
paid appellant intermittent wage-loss compensation on the supplemental rolls until February 9,
2013 and on the periodic rolls as of February 10, 2013. Appellant returned to a modified-duty
position on October 20, 2014. By decision dated September 14, 2016, OWCP found that
appellant’s employment as a letter carrier, effective October 20, 2014, fairly and reasonably
represented his wage-earning capacity with no wage loss.
By decision dated October 11, 2016, OWCP granted appellant a schedule award for 16
percent permanent impairment of the left lower extremity and 16 percent permanent impairment
of the right lower extremity based on a moderate weakness and moderate sensory deficit over the
bilateral L5 nerve root. The schedule award ran for 92.16 weeks for the period June 21, 2016 to
March 28, 2018. The weight of the medical opinion evidence was accorded to the August 29, 2016
report of Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving as OWCP’s district
medical adviser (DMA). The DMA concurred with the June 21, 2016 medical opinion of
Dr. Samy F. Bishai, an attending orthopedic surgeon, that appellant had 16 percent left lower
extremity (left leg) impairment and 16 percent right lower extremity (right leg) impairment based
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the April 24, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
4

Under OWCP File No. xxxxxx844, OWCP accepted a May 30, 2009 traumatic injury claim for lumbar sprain,
herniated disc at L5-S1 and disc bulge at L3-4. Appellant underwent OWCP-approved lumbar discectomy at L3-4
and L5-S1 on May 7, 2010. He returned to modified duty on February 16, 2011. The current OWCP file has been
combined with File No. xxxxxx844, with the latter serving as the master file.

2

on a bilateral L5 nerve root impairment under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5
On November 14, 2016 OWCP issued an amended schedule award of compensation based
on the correct pay rate.
On June 29, 2018 appellant filed a claim for an increased schedule award (Form CA-7). In
support thereof, he submitted a May 31, 2018 report, wherein Dr. Mark A. Seldes, a Boardcertified family physician, opined that, under the A.M.A., Guides and The Guides Newsletter,
Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009)
(The Guides Newsletter), appellant had 12 percent permanent impairment of the left lower
extremity and 12 percent permanent impairment of the right lower extremity due to a bilateral S1
nerve root radiculopathy with moderate sensory and moderate motor deficits.
In a July 30, 2018 report, the DMA, Dr. Berman, opined that there was no change or
additions from appellant’s previously awarded 16 percent permanent impairment of the right and
left lower extremities. He opined that Dr. Seldes’ impairment rating for the left and right lower
extremities due to a moderate sensory deficit and moderate motor deficit of the S1 nerve root was
properly calculated under the A.M.A., Guides. However, the DMA opined that the 16 percent
permanent impairment of the right and left lower extremities, which was previously awarded,
should be utilized because there was moderate weakness and moderate sensory deficit over the
bilateral L5 nerve root. He also opined that Dr. Seldes’ June 6, 2018 date of maximum medical
improvement (MMI) represented a stable clinical picture with no change anticipated within the
coming year with or without treatment.
By decision dated August 14, 2018, OWCP denied an increased schedule award.
On October 12, 2018 appellant, through his representative, requested reconsideration. The
representative contended that The Guides Newsletter allows for multiple levels of impairment to
the nerve roots, including the S1 nerve root. Thus, she concluded that appellant had an additional
12 percent permanent impairment of his bilateral lower extremities.
In a September 7, 2018 report, Dr. Seldes advised that he correctly used the A.M.A, Guides
in calculating appellant’s 12 percent permanent lower extremity impairment for the left side and
12 percent permanent lower extremity impairment for the right side for the moderate motor deficit
and moderate sensory deficit of the bilateral S1 nerve root. He indicated that The Guides
Newsletter allowed for the combined impairment of multiple level or bilateral radiculopathy, not
to exceed 56 percent of the lower extremity impairment. Dr. Seldes opined that combining the 16
percent bilateral lower extremity impairment for the bilateral L5 nerve root with the 12 percent
bilateral lower extremity impairment for the S1 nerve root totaled a 28 percent permanent
impairment of each lower extremity.
On October 17, 2018 OWCP again requested that the DMA review the record, including
Dr. Seldes’ September 7, 2018 report, to determine appellant’s lower extremity impairments
emanating from the spine. It requested that its DMA provide a clear explanation regarding his
5

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

3

calculations as determined under The Guides Newsletter. OWCP noted that, when providing the
current impairment, the DMA should stipulate whether the percentage provided included the prior
percentage awarded or if it should be considered an addition to the prior percentage awarded. The
DMA was also asked to address Dr. Seldes’ reports and discuss any points of disagreement.
In a November 17, 2018 report, the DMA, Dr. Berman, reiterated that Dr. Seldes’ 12
percent impairment rating to the left and right lower extremities based on the S1 nerve root was
properly calculated under the A.M.A., Guides. He also reiterated that the bilateral impairment
rating stemming from the L5 nerve root should be utilized, over that of the bilateral impairment
rating stemming from the S1 nerve root, due to the moderate motor weakness and moderate sensory
deficit of the bilateral L5 nerve root. Dr. Berman also again opined that the date of MMI was
May 31, 2018.
By decision dated May 20, 2019, OWCP denied modification of its August 14, 2018
decision for an increased schedule award.
On April 8, 2020 appellant, through his representative, requested reconsideration. The
representative argued that OWCP incorrectly determined that the weight of the medical evidence
should be given to DMA Dr. Berman. She noted that both Dr. Seldes and Dr. Berman agreed that
appellant had 16 percent permanent impairment of each lower extremity at L5 for which he
received a schedule award, and that appellant had 12 percent permanent impairment of each lower
extremity due to permanent impairment at S1. However, the DMA did not properly address The
Guides Newsletter provisions, which allowed for the combining of the multilevel nerve root
impairments not to exceed 56 percent lower extremity impairment. The representative contended
that OWCP failed to follow the procedures outlined in The Guides Newsletter, which allowed for
the combination of the multilevel nerve root impairments.
By decision dated April 24, 2020, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.6 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.7 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.8
A timely request for reconsideration, including all supporting documents, must set forth arguments
and contain evidence that either: (i) shows that OWCP erroneously applied or interpreted a
6
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his (we are to pick which one it is – and our current Secretary is a male) own motion or
on application.” 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.607.

8

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of the OWCP decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

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specific point of law; (ii) advances a relevant legal argument not previously considered by OWCP;
or (iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.9
When a timely request for reconsideration does not meet at least one of the above-noted
requirements, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.10
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
In support of his timely request for reconsideration, appellant’s representative contended
that OWCP had failed to address the question of whether The Guides Newsletter allowed multilevel nerve root impairments to be combined up to a maximum rating of 56 percent permanent
impairment of a lower extremity. The underlying issue on reconsideration is the medical question
of whether appellant is entitled to an additional schedule award for permanent impairment of his
lower extremities, due to his accepted spinal conditions. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairment consistent with sixth edition methodology. For peripheral nerve
impairments to the upper or lower extremities resulting from spinal injuries, OWCP’s procedures
indicate that the July/August 2009 edition of The Guides Newsletter is to be applied.11
While appellant previously argued on October 12, 2018 that The Guides Newsletter
allowed for a combined impairment of multilevel nerve root impairments,12 the record does not
indicate that OWCP requested that the DMA, Dr. Berman, address this specific issue following
his November 17, 2018 report, which did not address whether the nerve root impairments from L5
and S1 should be combined for an increased schedule award. Rather, the DMA continued to opine
that the bilateral impairment rating stemming from the previously awarded L5 nerve root should
be utilized due to the moderate motor weakness and moderate sensory deficit of the bilateral L5
nerve root.13 OWCP’s regulations provide that benefits payable under section 8107(c) shall be
reduced by the period of compensation paid under the schedule for an earlier injury if:
(1) compensation in both cases is for impairment of the same member or function or different parts
of the same member or function; and (2) OWCP finds that the later impairment in whole or in part
would duplicate the compensation payable for the preexisting impairment.14 The Board has
9

20 C.F.R. § 10.606(b)(3).

10

Id. at § 10.608(a), (b).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.
12

Page 3 of The Guides Newsletter states that the combined impairment for multiple-level or bilateral radiculopathy
cannot exceed 37 percent upper extremity impairment or 56 percent lower extremity impairment.
13

The Board notes that the bilateral impairment stemming from the bilateral S1 nerve root was also due to moderate
motor weakness and moderate sensory deficit.
14

20 C.F.R. § 10.404(d). See E.B., Docket No. 19-0530 (issued August 9, 2019).

5

explained that simply comparing the prior percentage of impairment awarded to the current
impairment for the same member is not always sufficient.15 The issue is not whether the current
impairment rating is greater than the prior impairment ratings, but whether it duplicates in whole
or in part the prior impairment rating.16 Thus, the Board agrees that OWCP erred in according
weight to its DMA’s opinion in denying appellant an increased schedule award without
acknowledgement or consideration of the provisions in The Guides Newsletter, which allows for
a combined impairment of multilevel nerve root impairments.17
As appellant has shown that OWCP erroneously applied or interpreted a specific point of
law not previously considered by OWCP, he is entitled to a review of the merits of the claim under
section 10.606(b)(3) of OWCP’s regulations.18 Following any further development as deemed
necessary, OWCP shall issue an appropriate merit decision regarding appellant’s increased
schedule award claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

15

See E.M., Docket No. 19-1041 (issued January 3, 2020); T.S., Docket No. 16-1406 (issued August 9, 2017).

16

Id.

17

See supra note 13.

18
J.T., Docket No. 19-1829 (issued August 21, 2020); T.P., Docket No. 18-0608 (issued August 2, 2018). See L.K.,
Docket No. 15-0659 (issued September 15, 2016); T.L., Docket No. 16-0536 (issued July 6, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the April 24, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: May 18, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 09-1701
Issued: March 9, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 17, 2009 appellant filed a timely appeal from a December 23, 2008 merit
decision of the Office of Workers’ Compensation Programs denying her claim for an
occupational disease and a May 20, 2009 decision finding that she had abandoned her request for
an oral hearing before an Office hearing representative.1 Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant established that she sustained an occupational
disease causally related to the factors of her federal employment; and (2) whether the Office
properly found that appellant abandoned her request for an oral hearing before an Office hearing
representative.
On appeal, appellant contends that she did not receive notice of her scheduled oral
hearing.
1

The Board received appellant’s appeal on June 25, 2009 by letter postmarked June 17, 2009.

FACTUAL HISTORY
On September 4, 2008 appellant, then a 55-year-old small package and bundle sorting
clerk, filed an occupational disease claim (Form CA-2) alleging that she sustained an injury to
her knee from twisting and bending while sweeping and loading trays to all-purpose containers.
She further claimed a shoulder injury from lifting and pulling trays from the upper sections of
racks in automation. Appellant indicated that she first realized her conditions were caused or
aggravated by her employment on August 29, 2008. She also stated that she first noticed her
knee condition in January 2008 and her shoulder condition in May 2008. The employing
establishment controverted the claim.
By letter dated September 10, 2008, the Office notified appellant of the deficiencies in
her claim and requested she provide additional factual and medical evidence.
A position description of a parcel post distributor listed duties including operating an
electromechanical parcel post sorting machine and bundling machine and other clerical duties as
assigned.
Appellant subsequently submitted statements dated August 29 and September 20, 2008
describing the history of her knee and shoulder conditions. She claimed that she first noticed her
shoulder hurting in May 2008 while working in automation. Appellant stated that she felt as
though she strained her shoulder while sweeping mail on the top tier of the machines, pulling and
lifting trays and loading them into all-purpose containers. She further stated that she experienced
pain while sweeping heavy top trays, reaching to pull trays down from the top rack of the
machine, reaching above her head, making new boxes for the small packages and bundle sorting
setup and lifting heavy flat sorter tubs. Appellant alleged that her shoulder condition had
worsened and that she had limited mobility. Further, she claimed that she twisted her knee in
January 2008 while bending and twisting while loading the bottom section of an all-purpose
container with full trays. Appellant stated that her knee made a loud popping sound at the time
and since the injury her knee catches and locks intermittently and aches continually.
Medical chart notes for the period December 21, 1992 through September 16, 2002
addressed a July 8, 1993 right shoulder and neck injury due to sweeping a machine and a
March 18, 1994 left hip, buttocks and back injury from picking up tray of flats.
By decision dated December 23, 2008, the Office denied appellant’s occupational disease
claim on the grounds that the factual evidence was insufficient to establish that her claimed work
factors occurred as alleged. Further, it found that she did not submit sufficient medical evidence
containing a diagnosis which could be connected to the claimed work factors.
On January 13, 2009 appellant filed a request for an oral hearing before an Office hearing
representative.
In an April 1, 2009 letter, the Office notified appellant that an oral hearing before an
Office hearing representative was scheduled for May 7, 2009 at 10:00 a.m.
By decision dated May 20, 2009, an Office hearing representative found that appellant
abandoned her request for an oral hearing.
2

LEGAL PRECEDENT -- ISSUE 1
An employee who claims benefits under the Federal Employees’ Compensation Act2 has
the burden of establishing the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.3 An injury does
not have to be confirmed by eyewitnesses in order to establish the fact that an employee
sustained an injury in the performance of duty, but the employee’s statements must be consistent
with the surrounding facts and circumstances and his or her subsequent course of action.4 An
employee has not met his or her burden of proof of establishing the occurrence of an injury when
there are such inconsistencies in the evidence as to cast serious doubt upon the validity of the
claim.5 Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.6 However, an
employee’s statement alleging 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.7
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.8
ANALYSIS -- ISSUE 1
The issue is whether appellant established that she sustained an occupational disease
causally related to the factors of her federal employment. The Office denied the claim on the
grounds that appellant did not submit a sufficiently detailed statement identifying the work
factors that she believed caused an employment injury.
The Board finds that appellant has established the factual requirements of her
occupational disease claim. In her claim form and subsequent statements, appellant specifically
identified the employment duties that she believed caused her shoulder condition. These duties
included sweeping heavy top trays, reaching to pull trays down from the top rack of a machine,
2

5 U.S.C. §§ 8101-8193.

3

D.B., 58 ECAB 464 (2007); George W. Glavis, 5 ECAB 363, 365 (1953).

4

M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); George W. Glavis, supra note 3.

5

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Gus Mavroudis, 9 ECAB 31, 33 (1956).

6

M.H., supra note 4; John D. Shreve, 6 ECAB 718, 719 (1954).

7

S.P., supra note 5; Wanda F. Davenport, 32 ECAB 552, 556 (1981).

8

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

3

lifting trays and loading them into all-purpose containers, making new boxes for the small
packages and bundle sorting setup and lifting heavy flat sorter tubs. Further, appellant stated that
her claimed knee condition was related to bending and twisting while loading the bottom section
of all-purpose containers with full trays. Appellant’s statements regarding her employment
duties are relatively consistent with each other, the provided position description and the
surrounding circumstances. There is no evidence from the employing establishment to refute her
claims regarding her employment activities.9 Therefore, the Board finds that appellant has
sufficiently identified and established the employment factors that she believed caused an
employment injury.
Although appellant established the factual aspect of her claim, she still has the burden to
show that she sustained a resulting injury due to her employment factors.10 The only medical
evidence in this case is medical chart notes for the period December 21, 1992 through
September 16, 2002. There is no evidence that these notes were signed by a physician, nor do
they provide a diagnosis or explain how appellant sustained a shoulder or knee injury due to her
employment factors. Moreover, the notes predate appellant’s claimed conditions, which did not
manifest until 2008. Thus, the chart notes are of diminished probative value.11 Appellant did not
submit any evidence containing a rationalized medical opinion explaining how she sustained a
diagnosed shoulder or knee condition causally related to her identified employment factors.
Therefore, the Board finds that the medical evidence of record is insufficient to establish that
appellant sustained an injury causally related to employment factors.12
LEGAL PRECEDENT -- ISSUE 2
Under the Act and its implementing regulations, a claimant who has received a final
adverse decision by the Office is entitled to receive a hearing upon writing to the address
specified in the decision within 30 days of the date of the decision for which a hearing is
sought.13 Unless otherwise directed in writing by the claim, the Office hearing representative
will mail a notice of the time and place of the hearing to the claimant and any representative at
least 30 days before the scheduled date.14 The Office has the burden of proving that it mailed
notice of a scheduled hearing to a claimant.15
The authority governing the abandonment of hearings rests with the Office’s procedure
manual, which provides that a hearing can be abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not requested a
9

See Louise F. Garnett, 47 ECAB 639 (1996); Loise G. Moore, 20 ECAB 165 (1968).

10

See Roy L. Humphrey, supra note 8.

11

See E.A., 58 ECAB 677 (2007); Merton J. Sills, 39 ECAB 572 (1988).

12

See A.D., 58 ECAB 149 (2006).

13

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

14

20 C.F.R. § 10.617(b).

15

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

4

postponement; the claimant has failed to appear at a scheduled hearing; and the claimant has
failed to provide any notification for such failure within 10 days of the scheduled date of the
hearing. Under these circumstances, the Branch of Hearings and Review will issue a formal
decision finding that the claimant has abandoned her request for a hearing and return the case to
the district Office.16
ANALYSIS -- ISSUE 2
By decision dated December 23, 2008, the Office denied appellant’s occupational disease
claim. Appellant timely requested an oral hearing before an Office hearing representative. In an
April 1, 2009 letter, it notified her that an oral hearing was scheduled for May 7, 2009 at
10:00 a.m. The record shows that appellant did not appear for the scheduled hearing. Further,
she did not request a postponement of the hearing or explain her failure to appear at the hearing
within 10 days of the scheduled hearing date of May 7, 2009. Therefore, the Board finds that she
abandoned her request for a hearing.17
On appeal, appellant contends that she did not receive notice of the scheduled hearing.
The record reflects that a copy of the April 1, 2009 hearing notice was mailed to appellant’s last
known address of record and was not returned as undeliverable. The Board has found that, in the
absence of evidence to the contrary, a letter properly addressed and mailed in the due course of
business, such as in the course of the Office’s daily activities, is presumed to have arrived at the
mailing address in due course. This is known as the mailbox rule.18 As the Office properly
mailed a hearing notice to appellant’s address of record, it is presumed to have arrived at her
mailing address.
CONCLUSION
The Board finds that appellant established the factors of her federal employment that she
believed caused an injury. However, the Board also finds that appellant did not establish that she
sustained an injury causally related to her employment factors. Finally, the Board finds that the
Office properly found that appellant abandoned her request for an oral hearing before an Office
hearing representative.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999). See also G.J., 58 ECAB 651 (2007).
17

See id.

18

Jeffrey M. Sagrecy, 55 ECAB 724 (2004); James A. Gray, 54 ECAB 277 (2002).

5

ORDER
IT IS HEREBY ORDERED THAT the May 20, 2009 and December 23, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed, as modified.
Issued: March 9, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Archdale, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James M. Snow, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 09-138 & 09-298
Issued: August 4, 2009

Case Submitted on the Record

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

JURISDICTION
On October 20, 2008 appellant, through counsel, filed a timely appeal of the
September 5, 2008 merit decision of the Office of Workers’ Compensation Programs, finding
that he received an overpayment of compensation. On November 12, 2008 he also filed a timely
appeal of the Office’s October 28, 2008 nonmerit decision, denying his request for
reconsideration of an October 16, 2007 decision granting him a schedule award of his upper
extremities. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), 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 of $28,320.40 for the period October 28, 2007 to August 2, 2008; (2) whether the Office
properly found that appellant was at fault in creating the overpayment and, therefore, ineligible
for waiver of the recovery of the overpayment; and (3) whether the Office properly denied
appellant’s request for a merit review of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On October 20, 2006 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim which the Office accepted for left carpal tunnel syndrome and left thumb trigger
finger. In a July 13, 2007 letter, the Office accepted appellant’s claim for right carpal tunnel
syndrome.
On July 26, 2007 appellant filed a claim for a schedule award. In an April 4, 2007
medical report, Dr. Warburton opined that appellant reached maximum medical improvement on
February 20, 2007. He determined that appellant sustained a five percent impairment of the left
upper extremity and a four percent impairment of the right upper extremity based on the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (5th ed. 2001).
On August 8, 2007 an Office medical adviser reviewed appellant’s case record. The
medical adviser agreed with Dr. Warburton’s April 4, 2007 findings and determined that
appellant sustained a five percent impairment of the left upper extremity and a four percent
impairment of the right upper extremity based on the A.M.A., Guides.
By decision dated October 16, 2007, the Office granted appellant a schedule award for a
five percent impairment of the left arm and a four percent impairment of the right arm for the
period February 20 to October 27, 2007. It informed him that, during the stated period, he would
receive $21,889.81. This was based on multiplying appellant’s weekly pay rate of $922.12 as of
November 26, 2006 by the 75 percent compensation rate, resulting in a payment of $2,766.36
every four weeks. The Office stated that payment of the schedule award would end on
October 27, 2007. It advised appellant that, after the ending date of the award, his entitlement to
compensation would be based solely on any disability for work resulting from his accepted
injury.
Compensation payment logs demonstrated that appellant received electronic funds
transfers in the amount of $21,889.81 for the period February 20 to September 29, 2007 and
$2,766.36 on October 27, 2007 for the period beginning on September 30, 2007. Thereafter, he
received electronic funds transfers every four weeks of $2,766.36 from October 28, 2007 to
March 15, 2008, $2,948.00 from March 16 to April 12, 2008 and $2,885.00 from April 13 to
August 2, 2008.
On August 1, 2008 the Office made a preliminary determination that appellant received
an overpayment of compensation in the amount of $28,320.40 for the period October 28, 2007 to
August 2, 2008 because he erroneously continued to receive schedule award payments after the
expiration of the schedule award on October 27, 2007. It determined that he was at fault in the
creation of the overpayment because he had been advised in the October 16, 2007 decision that
the schedule award would expire on October 27, 2007. The Office determined that during the
stated periods appellant received $28,320.40 based on the calculations in its overpayment
worksheet. Appellant was advised that he could request a telephone conference, a final decision
based on the written evidence only or a hearing within 30 days if he disagreed that the
overpayment occurred, with the amount of the overpayment or if he believed that recovery of the
overpayment should be waived. The Office requested that he complete an accompanying

2

overpayment recovery questionnaire (Form OWCP-20) and submit financial documents in
support thereof within 30 days.
In an August 25, 2008 letter, appellant contended that he was not at fault in creation of
the overpayment. He explained that he was confused by the October 16, 2007 decision which
advised him that he would receive $2,766.36 every four weeks which he began to receive on
October 26, 2007 after receiving a larger sum. Appellant stated that an Office representative
advised him that he would receive a $21,000.00 payment and payments every four weeks
thereafter until the expiration of the schedule award. The Office representative advised him that
she did not know how many payments he would receive but that they would be directly
deposited into his bank account until the award was complete. Appellant noted that his
coworkers had received a large sum schedule award and subsequent payment every four weeks
until the expiration of the award. He related that he received a benefits statement for each direct
deposit of compensation and believed everything was fine. Appellant contended that repayment
of the overpayment would cause severe financial hardship. In an August 26, 2008 OWCP-20
form, appellant stated that he did not have any of the incorrectly paid checks or payments in his
possession. He reported monthly income of $7,583.000 which represented $7,568.00 in earnings
and $15.00 for other income. Appellant also reported monthly expenses of $7,195.00. Appellant
had $100.00 cash on hand, $1,076.00 in a checking account, $8,152.00 in a savings account and
$2,500.00 in stocks and bonds, totaling $11,828.00. He submitted supporting financial
documents.
By decision dated September 5, 2008, the Office finalized the preliminary determination
of overpayment and fault. It directed recovery of the overpayment at a rate of $400.00 per
month.
In an October 13, 2008 letter, appellant, through counsel, requested reconsideration of the
Office’s October 16, 2007 schedule award decision.
By decision dated October 28, 2008, the Office denied appellant’s request for
reconsideration on the grounds that it neither raised substantive legal questions nor included new
and relevant evidence and, thus, was insufficient to warrant a merit review of its October 16,
2007 decision.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act1 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty.2 The Office’s procedure manual identifies

1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8102(a).

3

various situations when overpayments of compensation may occur, including when a schedule
award expires but compensation continued to be paid.3
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained bilateral carpal tunnel syndrome and left
thumb trigger finger. It granted him a schedule award on October 16, 2007. The Office
explained that appellant would be paid $21,889.81 for the period February 20 to
October 27, 2007. This was based on multiplying appellant’s weekly pay rate of $922.12 by the
75 percent compensation rate, resulting in a payment of $2,766.36 every four weeks.
On August 1, 2008 the Office calculated that appellant had received a total of $28,320.40
from October 28, 2007 to August 2, 2008 as he received compensation after his schedule award
ended on October 27, 2007. The Board notes that the period of the overpayment was
October 28, 2007 to August 2, 2008 and the overpayment amount is $28,320.40 as determined
by the Office in its overpayment worksheet and supporting documentation. There is no contrary
evidence regarding the fact and the amount of the overpayment. The Board, therefore, finds that
an overpayment occurred in the amount of $28,320.40 for the period October 28, 2007 to
August 2, 2008 as appellant received schedule award payments for that period after the
expiration of his award.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act4 provides that an overpayment of compensation shall be
recovered by the Office unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of the Act or would be against
equity and good conscience.5 Thus, the Office may not waive the overpayment of compensation
unless appellant was without fault.6 Adjustment or recovery must, therefore, be made when an
incorrect payment has been made to an individual who is with fault.7
On the issue of fault, section 10.433 of the Office’s regulations, provides that an
individual will be found at fault if he or she has done any of the following:
“(1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect;
“(2) failed to provide information which he or she knew or should have known to
be material; or
3

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2
(May 2004).
4

5 U.S.C. § 8129(b).

5

Michael H. Wacks, 45 ECAB 791, 795 (1994).

6

Norman F. Bligh, 41 ECAB 230 (1989).

7

Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994).

4

“(3) accepted a payment which he or she knew or should have known was
incorrect.”8
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provide in relevant part:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”9
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in creating the overpayment because he knew
or should have known he was not entitled to schedule award compensation after the expiration of
the award on October 27, 2007. In order for the Office to establish that he was at fault in
creating the overpayment of compensation, the Office must establish that, at the time appellant
received the compensation check in question, he knew or should have known that the payment
was incorrect.10
The Board finds that appellant was at fault in creation of the overpayment from
October 28, 2007 to August 2, 2008. The October 16, 2007 schedule award decision clearly set
forth the period of the overpayment and the amount of the payments to be issued, noting that the
schedule award ended on October 27, 2007. Appellant’s August 25, 2008 letter stated that, he
received a benefits statement for each compensation payment he received by direct deposit
which led him to believe that he was receiving the correct amount of compensation. He,
however, acknowledged that a schedule award has an expiration date as he stated that his
coworkers had received a large sum schedule award and subsequent payment every four weeks
until the expiration of the award. The Board notes that appellant received his schedule award
compensation in the same manner. Appellant received a direct deposit of $21,889.89 for the
period February 20 to September 29, 2007 and on October 27, 2007 he received a direct deposit
of $2,766.36 for the period beginning on September 30, 2007. The Board also notes that the
period between the issuance of the schedule award and expiration of the award was only 12 days
while appellant continued to receive compensation for over 10 months. For these reasons, the
Board finds that the Office correctly found appellant at fault in creation of the overpayment from
October 28, 2007 to August 2, 2008. Appellant knew or should have reasonably known that the
payments he received following the expiration of the schedule award were incorrect.
On appeal, appellant contended that the Office failed to properly explain the conditions
under which he would receive schedule award payments. He also contended that he was advised
8

20 C.F.R. § 10.433(a).

9

Id. at § 10.433(b); Diana L. Booth, supra note 7.

10

Diana L. Booth, supra note 7.

5

by an Office representative in October 2007 that he would receive a $21,000.00 payment and
payments every four weeks thereafter until the expiration of the schedule award. Appellant
stated that the Office representative stated that she did not know how many payments he would
receive but that they would be directly deposited into his bank account until the award was
complete. The Office regulations provide that an individual may not be at fault if he or she
relied on misinformation given in writing by the Office (or by another government agency which
he or she had reason to believe was connected with the administration of benefits) as to the
interpretation of a pertinent provision of the Act or its regulations.11 There is no evidence that
appellant relied on misinformation given in writing by the Office. He accepted payments that he
knew or should have known to be incorrect. As the evidence establishes that appellant is at fault
in the creation of the overpayment in compensation that occurred in this case, the Board finds
that he is not entitled to waiver of recovery of the overpayment.12 The fact that the Office may
have erred in issuing the payments does not mitigate this finding.13
With respect to the recovery of the overpayment in compensation, the Board’s
jurisdiction is limited to reviewing those cases where the Office seeks recovery from continuing
compensation benefits under the Act.14 As appellant is no longer receiving schedule award
compensation, the Board does not have jurisdiction with respect to recovery of the overpayment
under the Debt Collection Act.15
LEGAL PRECEDENT -- ISSUE 3
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,16 the Office’s regulation provide that a claimant must: (1) show
that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant
legal argument not previously considered by the Office; or (3) constitute relevant and pertinent
new evidence not previously considered by the Office.17 To be entitled to a merit review of an
Office decision denying or terminating a benefit, a claimant also must file his or her application
for review within one year of the date of that decision.18 When a claimant fails to meet one of
the above standards, the Office will deny the application for reconsideration without reopening
the case for review of the merits.

11

20 C.F.R. § 10.435(b).

12

D.R., 59 ECAB ___ (Docket No. 07-823, issued November 1, 2007).

13

See 20 C.F.R. § 10.435(a); D.R., supra note 14; William E. McCarty, 54 ECAB 525 (2003).

14

20 C.F.R. § 10.441(a); Terry A. Keister, 56 ECAB 559 (2005); see also Cheryl Thomas, 55 ECAB 610 (2004).

15

Cheryl Thomas, supra note 14.

16

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
17

20 C.F.R. § 10.606(b)(1)-(2).

18

Id. at § 10.607(a).

6

ANALYSIS -- ISSUE 3
By letter dated October 13, 2008, appellant disagreed with the Office’s October 16, 2007
schedule award decision. The relevant issue in the case, whether he has more than a five percent
impairment of the left arm and a four percent impairment of the right arm, is medical in nature.
Appellant did not submit any relevant or pertinent new evidence not previously
considered by the Office in support of his request for reconsideration. Further, he did not show
that the Office erroneously applied or interpreted a specific point of law or advance a relevant
legal argument not previously considered by the Office. Appellant merely requested
reconsideration of the Office’s October 16, 2007 decision. As appellant did not meet any of the
necessary regulatory requirements, the Board finds that he is not entitled to a merit review.19
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $28,320.40 for the period October 28, 2007 to August 2, 2008. The Board also finds that the
Office properly found that appellant was at fault in creating the overpayment and, therefore,
ineligible for waiver of the recovery of the overpayment. The Board further finds that the Office
properly denied appellant’s request for a merit review of his claim pursuant to 5 U.S.C.
§ 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 28 and September 5, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: August 4, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
19

See 20 C.F.R. § 10.608(b); Richard Yadron, 57 ECAB 207 (2005).

7


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

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)
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)
)
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Appearances:
Howard L. Graham, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0711
Issued: October 17, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 19, 2019 appellant, through counsel, filed a timely appeal from a January 11,
2019 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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the January 11, 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.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant ’s
wage-loss compensation and medical benefits, effective February 15, 2018, as she no longer had
residuals or disability causally related to her accepted April 11, 2017 employment injury; and
(2) whether appellant has met her burden of proof to establish employment-related continuing
residuals or disability on or after February 15, 2018.
FACTUAL HISTORY
On April 24, 2017 appellant, then a 50-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 11, 2017 she sustained a left shoulder and upper arm injury
when she lifted a heavy parcel from her delivery vehicle while in the performance of duty. She
experienced the immediate onset of severe left shoulder pain, but continued working through
April 14, 2017, when she stopped work and did not return. Appellant received continuation of pay
(COP) through May 26, 2017.
On August 31, 2017 OWCP accepted the claim for strain of muscle, fascia, and tendon at
neck level, initial encounter.
In reports dated August 31, 2017, Dr. Jeffrey Johnson, a Board-certified neurosurgeon,
provided a history of injury and treatment. He noted an impression of left upper extremity pain
and nonspecific degenerative changes. Dr. Johnson held appellant off work.
In a September 13, 2017 report, Dr. Johnson opined that a May 21, 2017 magnetic
resonance imaging (MRI) scan of the cervical spine showed “chronic-appearing degenerative
changes at C5-6, including spondylosis,” retrolisthesis, and pronounced bilateral foraminal
narrowing with possible C6 nerve root impingement. He recommended a C5-6 epidural steroid
injection to clarify how the April 11, 2017 employment injury had contributed to appellant’s
degenerative disc disease and foraminal stenosis. Dr. Johnson held appellant off work through
October 31, 2017.
A September 20, 2017 MRI scan of the left shoulder demonstrated a partial thickness
undersurface tear versus tendinopathy of the anterior fibers of the supraspinatus tendon without
retraction of muscle atrophy, subscapularis tendinopathy, and possible subdeltoid bursitis.
In a report dated October 2, 2017, Dr. Richard W. Tobin, a Board-certified orthopedic
surgeon, opined that the partial thickness supraspinatus tear demonstrated on a September 20, 2017
MRI scan and possible underlying impingement of the left shoulder may have been exacerbated
by the April 11, 2017 employment injury. He restricted appellant to light duty.
In an October 3, 2017 report, Dr. Joseph Stapleton, Board-certified in anesthesia and pain
management, diagnosed a cervical disc disorder with radiculopathy, and “cervical strain of muscle,
fascia, tendon, initial encounter.”
On November 1, 2017 OWCP referred appellant for a second opinion to Dr. Mary
Cunningham, a Board-certified orthopedic surgeon. It requested that Dr. Cunningham provide an
opinion regarding whether appellant continued to have residuals or disability due to her accepted
April 11, 2017 employment injury.
2

In a November 11, 2017 report, Dr. Cunningham detailed appellant’s factual and medical
history and described her current complaints, including bilateral biceps and triceps pain, worse on
the left; stabbing and burning sensations in the left triceps; tingling in the dorsum of the middle
finger, left greater than right; pain radiating from her neck into the left triceps and left hand in a
C7 nerve distribution; and a pulling sensation in the left trapezial region. She reported the findings
of the physical examination noting limited cervical and bilateral shoulder motion, decreased
sensation in the left C7 and C8 dermatomes, a positive Spurling’s sign on the left, and negative
Hawkins’, Neer’s, and O’Brien’s signs on the left for shoulder symptomatology. Dr. Cunningham
diagnosed possible cervical radiculopathy, significant cervical degenerative disc disease, and
degenerative changes in the left shoulder. She opined that these conditions were unrelated to the
April 11, 2017 employment injury. Dr. Cunningham noted that she had been followed by a
chiropractor for neck pain prior to the accepted injury. She opined that appellant’s idiopathic
spinal conditions had progressed to radiculopathy in accordance with the anticipated course of the
disease, unrelated to the April 11, 2017 cervical sprain which should have resolved without
residuals within six weeks. Dr. Cunningham returned appellant to full-time, light-duty work with
restrictions necessitated by her nonoccupational conditions.
In a report dated December 26, 2017, Dr. Johnson diagnosed C5-6 cervical radiculopathy
and cervicalgia.
By decision dated December 4, 2017, OWCP denied expansion of the claim to include
bilateral shoulder impingement syndrome and cervical disc disease as the medical evidence of
record had not demonstrated that the diagnosed conditions were causally related to the accepted
April 11, 2017 cervical strain.
Appellant filed claims for wage-loss compensation (Form CA-7) for periods of total
disability commencing June 7, 2017. OWCP denied the claims in a series of decisions
commencing December 5, 2017 finding the medical evidence of record had not established total
disability due to the accepted April 11, 2017 injury, based on Dr. Cunningham’s opinion as the
weight of the medical evidence. 4
In a January 9, 2018 letter, OWCP advised appellant of its proposed termination of her
medical benefits, finding that she ceased to have residuals of her April 11, 2017 employment
injury. It informed her that the termination was justified by the opinion of Dr. Cunningham.
OWCP afforded appellant 30 days to submit evidence and argument challenging the proposed
action. In response, counsel submitted a February 2, 2018 statement contending that OWCP failed
to develop the medical evidence and noted its authorization for a cervical injection.
In a February 5, 2018 work slip, Dr. Johnson held appellant off work through
March 18, 2018. Dr. Stapleton performed an authorized left C5-6 transforaminal epidural steroid
injection on February 6, 2018.

4
OWCP issued decisions on the following dates: January 30, 2018 for the periods June 7 to 16, 2017; October 13,
2017 for the period June 24 to August 6, 2017; September 4 to 17, and October 2 to November 26, 2017; December 5,
2017 for the period August 7 to September 3, 2017; December 6, 2017 for the period August 7 to 20, 2017; January 5,
2018 for the period September 18 to October 1, 2017; March 22, 2018 for the period December 25, 2017 to January 21,
2018; July 20, 2018 for the period November 27 to December 24, 2017.

3

By decision dated February 20, 2018, OWCP terminated appellant’s entitlement to wageloss compensation and medical benefits, effective February 15, 2018. It determined that its
termination was justified by the opinion of Dr. Cunningham.
On July 10, 2018 appellant, through counsel, requested reconsideration. In letters dated
June 26, and July 16 and 26, 2018, counsel contended that the opinions of appellant’s physicians
established ongoing disability causally related to the April 11, 2017 employment injury. Counsel
submitted additional medical evidence.
In a February 1, 2018 report, Dr. Johnson held appellant off work and recommended a C5-6
epidural steroid injection, performed on February 21, 2018 by Dr. Stapleton. In a report dated
May 17, 2018, he recommended a C5-6 anterior discectomy and fusion. In a May 21, 2018 report
and July 11, 2018 addendum, Dr. Johnson opined that the accepted April 11, 2017 employment
injury contributed to C6 radiculopathy and foraminal stenosis, disabling her for work through
July 2018.
On June 5, 2018 Dr. Johnson performed a C5-6 discectomy and decompression with
placement of interbody cage and fixation plates.
By decision dated January 11, 2019, OWCP denied modification of its February 20, 2018
decision. It determined that the February 20, 2018 termination action was proper and found that,
since the time of termination, appellant had not established continuing residuals or disability
causally related to her accepted employment injury. OWCP determined that the additional medical
evidence submitted on reconsideration was of limited probative value with respect to continuing
employment-related disability/residuals.
LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP has accepted a claim it has the burden of proof to justify
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
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background. 7

5

L.G., Docket No. 19-0142 (issued August 8, 2019); C.C., Docket No. 17-1158 (issued November 20, 2018); I.J.,
59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541 (1986).
6

A.D., Docket No. 18-0497 (issued July 25, 2018). In general the term disability under FECA means incapacity
because of injury in employment to earn the wages which the employee was receiving at the time of such injury. See
20 C.F.R. § 10.5(f).
7

L.G., supra note 5; R.P., Docket No. 17-1133 (issued January 18, 2018).

4

Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective February 15, 2018.
The evidence of record establishes that there is disagreement between Dr. Cunningham,
the second opinion physician, and Dr. Johnson, appellant’s treating physician, as to whether
appellant had residuals or disability from her accepted April 11, 2017 cervical strain as of
February 15, 2018. Dr. Cunningham found in her November 11, 2017 report that appellant’s
symptoms from the accepted injury should have ceased within six weeks, and that any subsequent
complaints were related only to preexisting, idiopathic degenerative disc disease. In contrast,
Dr. Johnson opined that the employment injury had exacerbated appellant’s preexisting cervical
degenerative disc disease and foraminal stenosis and that additional studies were required to fully
evaluate that causal relationship. He held appellant off work from August 31, 2017 onward due
to C5-6 radiculopathy and cervicalgia with the onset of severe symptoms following the April 11,
2017 employment injury. The two physicians thus disagree on the nature and extent of a period
of disability caused by the accepted injury.
The Board finds that an unresolved conflict of medical evidence remains between the
opinions of Dr. Cunningham and Dr. Johnson on whether appellant had continuing residuals or
disability from the accepted condition. The reports are based on a proper history of injury, provide
physical findings, and address the issue of causal relationship between the April 11, 2017
employment injury and her diagnosed conditions.
Thus, the Board finds that OWCP did not meet its burden of proof in terminating
appellant’s compensation benefits. 9
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective February 15, 2018.

8

5 U.S.C. § 8123(a). See also G.B., Docket No. 16-0996 (issued September 14, 2016) (where the Board held that
OWCP improperly terminated the claimant’s wage-loss compensation and medical benefits as there was an unresolved
conflict of medical opinion between her treating physician and a second opinion specialist).
9

In light of the Board’s disposition in issue one, issue two is rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the January 11, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 17, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.D., Appellant
and
U.S. POSTAL SERVICE, DELIVERY
DISTRIBUTION CENTER, Fife, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Graham L. Howard, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1073
Issued: December 28, 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 March 25, 2011 appellant filed a timely appeal from a September 29, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
December 13, 2009.
FACTUAL HISTORY
On February 23, 2010 appellant, then a 47-year-old mail processing clerk, filed a
traumatic injury claim Form CA-1 alleging that on December 13, 2009 she sustained injuries
when she slipped on ice in the employees’ parking lot. She stated that the incident occurred at
1

5 U.S.C. § 8101 et seq.

9:55 p.m. The reverse of the claim form listed appellant’s regular work hours as 11:45 p.m. to
7:00 a.m. In a telephone call memorandum (Form CA-110) dated March 29, 2010, OWCP
reported that appellant’s supervisor stated that on December 13, 2009 her scheduled starting time
was 10:30 p.m. The supervisor indicated that appellant was scheduled for “scheme training” to
learn addresses for different mail routes.
In a statement dated March 30, 2010, appellant indicated that she came to work at
approximately 9:55 p.m. on December 13, 2009 to work on the Combined Federal Campaign
(CFC). She again indicated that she slipped on ice in the employees’ parking lot.
By decision dated April 19, 2010, OWCP denied the claim for compensation. It found
that appellant was not in the performance of duty at the time of the December 13, 2009 incident.
On July 30, 2010 OWCP received appellant’s request for reconsideration. Appellant’s
representative stated that appellant was told by her supervisor to make 100 percent contact with
every employee at the work facility for the purposes of the CFC. He asserted that she was
“required to be at the facility at times other than her scheduled work hours” in order to fulfill her
CFC obligations.
In a statement dated June 7, 2010, a union steward stated that appellant was required to
make contact with every employee at the facility to perform her duties as a contact representative
for the CFC. He stated that on numerous occasions she had to perform her CFC duties outside
scheduled work hours.
The record contains a memorandum of an August 12, 2010 conference between an
OWCP claims examiner and Julio Rodriguez, the employing establishment facility manager,
who stated that the parking lot was leased by the employing establishment, but not owned or
controlled by the employing establishment. Mr. Rodriguez indicated that certain mangers had
assigned parking spaces, but employees parked in any unassigned parking space. According to
him, the parking lot was easily accessible by the general public and was not monitored by the
employing establishment to determine if there was unauthorized use. With respect to CFC
duties, Mr. Rodriguez stated that appellant was responsible for only the mail processing
employees and was not required to work beyond her scheduled work hours.
In a Form CA-110 dated April 19, 2010, OWCP reported that a supervisor, Mr. Edwards,
stated that the parking lot was not owned, controlled or maintained by the employing
establishment. According to Mr. Edwards, the building owner maintained the parking lot and the
lot was used by the general public for commercial businesses shared by the other facilities.
By decision dated September 29, 2010, OWCP reviewed the merits of the claim for
compensation. It denied modification of the prior decision, finding appellant was not in the
performance of duty at the time of the December 13, 2009 incident.

2

LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”2 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of and in the course of
employment.”3
To arise in the course of employment, an injury must occur at a time when the employee
may reasonably be said to be engaged in the master’s business, at a place where he may
reasonably be expected to be in connection with the employment and while he was reasonably
fulfilling the duties of his employment or engaged in doing something incidental thereto.4
The Board has recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and places of work while going to or coming from work or during
a lunch period, are not compensable, as they do not arise out of and in the course of employment.
Rather, such injuries are merely the ordinary, nonemployment hazards of the journey itself,
which are shared by all travelers.5 This is generally known as the coming and going rule.6
The factors which determine whether a parking area used by employees may be
considered a part of the employing establishment’s premises include: whether the employer
contracted for the exclusive use by its employees of the parking area; whether parking spaces on
the lot were assigned by the employer to its employees; whether the parking areas were checked
to see that no unauthorized cars were parked in the lot; whether parking was provided without
cost to the employees; whether the public was permitted to use the lot and whether other parking
was available to the employees. Mere use of a parking facility, alone, is not sufficient to bring
the parking lot within the premises of the employer. The premises doctrine is applied to those
cases where it is affirmatively demonstrated that the employer owned, maintained or controlled
the parking facility, used the facility with the owner’s special permission, or provided parking for
its employees.7
ANALYSIS
The question of whether an employee is in the course of employment at the time of injury
is based on the time, place and activity involved in the alleged incident. Appellant stated that she
was injured in a parking lot on December 13, 2009 at approximately 9:55 p.m. Her scheduled
2

5 U.S.C. § 8102(a).

3

Valerie C. Boward, 50 ECAB 126 (1998).

4

R.A., 59 ECAB 581 (2008); Mary Keszler, 38 ECAB 735 (1987).

5

See John M. Byrd, 53 ECAB 684 (2002); see also Gabe Brooks, 51 ECAB 184 (1999); Thomas P. White, 37
ECAB 728 (1986); Robert F. Hart, 36 ECAB 186 (1984).
6

See R.C., 59 ECAB 427 (2008).

7

Diane Bensmiller, 48 ECAB 675 (1997); Rosa M. Thomas-Hunter, 42 ECAB 500 (1991).

3

work hours for that shift, according to the employing establishment, began at 10:30 p.m.
Therefore the time of the incident was prior to appellant’s scheduled work shift when she is
coming to work.
As noted, an employee who is coming to work and sustains an injury off the premises of
the employing establishment is not considered to be in the course of employment. Therefore it is
important to determine whether the place of the incident is considered to be part of the premises
of the employing establishment. The evidence of record reflects that the parking lot was leased
by the employing establishment for the use of employees. The mere use of a parking lot by
employees does not itself bring the lot within the premises of the employing establishment.8 The
evidence did not establish that it was owned, maintained or controlled by the employing
establishment. The facility manager Mr. Rodriguez stated that the parking lot was not controlled
or monitored for exclusive use by the employing establishment and another supervisor indicated
that it was used by the general public as well.
The employing establishment noted that there were limited spaces assigned to managers.
There is no evidence that appellant was assigned a specific parking space or that the incident
occurred in a space assigned to any employee.9 Based on the evidence of record, the incident on
December 13, 2009 occurred at a location that could have been used by an employee or the
general public, in a parking lot that was not owned, maintained or controlled by the employing
establishment. Weighing the factors noted above with respect to an employing establishment’s
premises, the Board finds that the December 13, 2009 incident did not occur on the premises of
the employing establishment.
An analysis of the time and place of the December 13, 2009 incident establishes that it
falls with the general “coming and going” rule that precludes coverage for an employee injured
off premises while coming to work. With respect to the activity involved at the time of the
incident, appellant alleged that she arrived at work earlier than her scheduled work shift because
she intended to work on duties related to a CFC representative. The Board notes that the
evidence from her supervisor did not support the assertion that she was required to work outside
of scheduled work hours on CFC duties. Moreover, the “coming and going” rule is not based on
the intended activity once the employee arrives on the premises of the employing establishment.
Even if appellant were to establish that a job duty required her to be at work by 10:00 p.m. on
December 13, 2009, this would not place her in the course of employment. The incident
occurred in the parking lot as she was coming to work. Appellant remains within the “coming
and going” rule and is not in the course of employment.
The Board finds that appellant was not in the course of employment at the time of the
December 13, 2009 incident when she slipped and fell in a parking lot. Any injuries she
sustained would not be considered to have occurred while in the performance of duty and she is
not entitled to compensation under FECA. Appellant may submit new evidence or argument

8

Id.

9

Cf. D.L. 58 ECAB 667 (2007) (where the claimant had an assigned parking spot in a parking lot used solely by
employees).

4

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.
On appeal, appellant states that the supervisor’s statements are not supported by the
evidence of record. To the extent she is referring to the statements regarding the parking lot, the
supervisor’s statements are the evidence of record. If appellant has additional evidence or
argument, particularly with respect to the factors noted above to determine the constructed
premises of the employing establishment, she may submit such evidence or argument with an
application for reconsideration to OWCP. Based on the evidence of record, OWCP properly
denied her claim for compensation in this case.
CONCLUSION
The Board finds that appellant was not in the performance of duty at the time of the
December 13, 2009 incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 29, 2010 is affirmed.
Issued: December 28, 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