United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Van Buren, ME, Employer
__________________________________________

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Appearances:
Theodore M. Smith, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0452
Issued: October 27, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 11, 2016 appellant, through counsel, filed a timely appeal from an August 19,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its August 19, 2015 decision.
The Board’s review is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the
Board lacks jurisdiction to review this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant met his burden of proof to establish a left shoulder
condition causally related to the February 19, 2014 employment incident.
FACTUAL HISTORY
On February 24, 2014 appellant, then a 51-year-old automotive mechanic, filed a
traumatic injury claim (Form CA-1) alleging a left shoulder condition that allegedly arose in the
performance of duty on February 19, 2014. He explained that when he went to push the close
button on the door controller, he felt his left shoulder lock up as he lowered his arm back to his
side. Appellant stopped work on February 19, 2014.
Dr. Daniel P. Harrigan, Board-certified in emergency medicine, examined appellant on
February 19, 2014 and noted a history of pain in the left shoulder after abducting the left arm.
He also noted a concurrent or preexisting history of left shoulder calcific tendinitis. Physical
findings included tenderness and painful range of motion in the left shoulder. Dr. Harrigan
diagnosed left shoulder bicipital tendinitis. On the form report (Form CA-20), he checked a box
marked “yes” in response to the question of whether he believed that the condition was caused or
aggravated by the employment activity. Dr. Harrigan advised that appellant was totally disabled
from February 19 to 23, 2014, and would be able to resume regular work on or after
February 23, 2014.
A February 22, 2014 left shoulder x-ray revealed no acute fracture or dislocation, calcific
bursitis or calcific tendinopathy, and a large spur under the surface distal clavicle which could be
associated with supraspinatus tears.
In February 22, 2014 reports, Dr. Harrigan noted that appellant’s chief complaint was an
injury to the left shoulder. He noted that appellant indicated that the injury occurred three days
ago at work as a twisting injury. Dr. Harrigan examined appellant’s left shoulder and found mild
tenderness in the anterior and lateral aspect of the shoulder and bicipital tendon along with
limited range of motion to pain. He diagnosed left shoulder tendinitis.
OWCP received reports dated February 24 and April 7, 2014 from Dr. Mark N.
Perlmutter, an orthopedic surgeon, who noted that appellant’s chief complaint was left shoulder
pain. In the February 24, 2014 attending physician’s report (Form CA-2), Dr. Perlmutter noted a
February 19, 2014 history of injury of left shoulder pain and limited range of motion after
reaching up to push a button for the garage door. His findings/diagnoses included partially torn
tendon, impingement, left shoulder occupational bursitis, and calcific tendinitis. Dr. Perlmutter
checked a box marked “yes” on the form indicating that the condition was caused or aggravated
by an employment activity, but did not provide an explanation regarding causal relationship. He
recommended modified duty with no overhead or over the shoulder work and no lifting with the
left arm/shoulder.
In separate treatment notes also dated February 24, 2014, Dr. Perlmutter noted that
appellant was originally injured on August 19, 2010, and reinjured on February 19, 2014. He
described the trauma as a “twisting injury with quick motion.” Dr. Perlmutter related that

2

appellant indicated that his shoulder suddenly locked up and he heard a popping sound in the
shoulder. Appellant also reported a snapping and clicking sensation in the shoulder, and noted
that his shoulder would catch during movement. There was also a sensation of something
floating in the shoulder. Appellant advised that the shoulder could not be dislocated voluntarily.
Dr. Perlmutter diagnosed left shoulder occupational bursitis and calcific tendinitis. In his
April 7, 2014 follow-up treatment notes, he essentially reiterated the previously reported history
and assessment. In a similarly dated attending physician’s report (Form CA-20), Dr. Perlmutter
noted “regular duty” in the remarks section.
In a July 2, 2014 follow-up report, Dr. Perlmutter diagnosed left shoulder occupational
bursitis, calcific tendinitis, and left shoulder strain. He imposed an upper extremity work
restriction until appellant’s next follow-up appointment in October 2014.
In an October 2, 2014 report, Dr. Perlmutter diagnosed left shoulder strain, calcific
tendinitis, and occupational bursitis of the left shoulder. He completed a work capacity
evaluation and checked the box marked “yes” in response to whether appellant was capable of
performing his usual job.
In a November 17, 2014 development letter, OWCP informed appellant of the type of
evidence needed to support his claim and requested that he submit such evidence within 30 days.
It explained that it was unclear how he had injured his left arm pushing the close button of a door
controller. OWCP further noted that the medical evidence of record failed to show how the
diagnosed conditions (left shoulder strain, tendinitis, impingement, and occupational bursitis)
were either caused or aggravated by the February 19, 2014 work injury.
In a November 12, 2014 report, Dr. Perlmutter diagnosed left shoulder strain, calcific
tendinitis, and occupational bursitis of the left shoulder. He opined that, to a reasonable degree
of medical certainty, appellant’s left shoulder calcific tendinitis was directly caused by his workrelated left shoulder strain. Dr. Perlmutter explained that the strain functionally disrupted the
rotator cuff tendon, which healed with excessive calcifications which were currently
symptomatic. He related that they had placed restrictions on appellant’s work duties to include
no reaching above the left shoulder.
In a December 1, 2014 statement, responding to OWCP’s request for additional
information, appellant noted that the door controller was located beside the garage door and he
had to reach to the side as opposed to overhead to reach it. He noted that his shoulder had been
bothering him since the first injury at work on August 19, 2010, while pulling an “ATV” crank
in order to start the machine. Appellant also noted that he injured his left shoulder at work on
March 5, 2013 when lifting a tire at work. He responded “no” with regard to whether he suffered
from any traumatic events outside work. Appellant indicated that he lost time from work from
February 19 through 23, 2014. He responded that he had worked full-time duties thereafter,
“although in pain.”
OWCP received part of an attending physician’s report from June 2013 pertaining to an
incident when appellant was lifting a tire at work as well as notes from a physician assistant.

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By decision dated December 19, 2014, OWCP denied appellant’s claim because he failed
to establish that the diagnosed left shoulder conditions were causally related to the February 19,
2014 employment incident.
On January 9, 2015 appellant requested an oral hearing, which was held on July 8, 2015.
In a December 31, 2014 report, Dr. Perlmutter advised that appellant had not sought
medical treatment during the 10-month period that preceded the February 19, 2014 injury. He
advised that appellant’s shoulder was stable and the new injury caused weakness of the rotator
cuff as shown on examination and weakness of internal and external rotation. Dr. Perlmutter
opined that this injury of February 19, 2014 has caused increased pain with new weakness and
that the injury was stable until injury on February 19, 2014.
In a March 31, 2015 report, Dr. Jean Pierre Michaud, an orthopedic surgeon, noted that
appellant had a work-related injury dating back to 2010. He related the history which included
that a magnetic resonance imaging (MRI) scan revealed some elements of inflammation,
degeneration, capsulitis, and tendinitis. Dr. Michaud explained that the MRI scan was performed
on February 13, 2015 and revealed acromioclavicular (AC) joint arthritis, degenerative shoulder
arthritis, glenohumeral joint, rotator cuff tendinitis, partial injury, and no full-thickness tear along
with intraarticular loose bodies. He indicated that appellant’s range of motion was 90 percent
normal now and they would avoid surgery for now.
In his report dated July 16, 2015, Dr. Michaud advised that appellant was last seen and
evaluated on June 2, 2015. He noted that appellant had evidence of chronic AC joint arthritis,
chronic rotator cuff pathology, glenohumeral arthritis, and a chronic impingement syndrome.
Dr. Michaud advised that x-rays revealed a large inferior spur and degeneration and arthritis in
the glenohumeral joint, AC arthritis, and inferior spur formation “predisposing [appellant] to
chronic impingement syndrome.” He also related that appellant had a left shoulder MRI scan on
February 13, 2015 which revealed AC joint and glenohumeral joint arthritis as well as multiple
loose bodies in the joint. Dr. Michaud advised that it also showed a partial thickness injury and
tearing to the rotator cuff, but no full-thickness tear was noted. He noted that appellant had
ongoing impingement and subacromial inflammation, subacromial bursitis, and rotator cuff
tendinitis. Dr. Michaud explained that “any at, or above shoulder level activity or repetitive
movement requiring heavy demand utilizing this shoulder can and most likely will exacerbate
the patient’s impingement, pain, swelling and dysfunction.” He indicated that appellant had “a
preexisting condition of tendinitis, subacromial bursitis, AC joint arthritis that is being
aggravated with any at or above shoulder level activity.”
By decision dated August 19, 2015, an OWCP hearing representative affirmed the
December 19, 2014 decision. He explained that there was no rationalized medical evidence
sufficient to establish causal relationship.

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LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged and that
any specific condition or disability claimed is causally related to the employment injury.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a
personal injury.7 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.8
The fact that a condition manifests itself during a period of employment is insufficient to
establish causal relationship.9 Temporal relationships alone will not suffice.10 Entitlement to
FECA benefits may not be based on surmise, conjecture, speculation, or on the employee’s own
belief of a causal relationship.11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12

4

See supra note 2.

5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
8

Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

20 C.F.R. § 10.115(e).

10

See D.I., 59 ECAB 158, 162 (2007).

11

See M.H., Docket No. 16-0228 (issued June 8, 2016).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

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Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered physicians as defined under FECA.13
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.14
ANALYSIS
The Board finds that appellant has failed to establish that his claimed left shoulder
condition was causally related to the accepted February 19, 2014 employment incident. The
medical evidence of record contains no reasoned explanation of how the specific employment
incident on February 19, 2014 caused or aggravated an injury.15 The Board notes that this is
particularly important as appellant has a history of prior work injuries to his shoulder.
In the February 19, 2014 attending physician’s report, Dr. Harrigan noted that appellant
had pain in the left shoulder after abducting the left arm. He found tenderness and painful range
of motion in the left shoulder. Dr. Harrigan checked the box marked “yes” in response to
whether he believed that the condition was caused or aggravated by the employment incident.
The checking of a box marked “yes” in a form report, without additional explanation or
rationale, is insufficient to establish causal relationship.16
In a February 22, 2014 report, Dr. Harrigan noted that appellant’s chief complaint was an
injury to the left shoulder which occurred three days prior at work, as a twisting injury. He
diagnosed tendinitis of the left shoulder. However, this report is of limited probative value on
the relevant issue of the present case in that it does not contain an opinion on causal
relationship.17
Dr. Perlmutter provided reports dated February 24 and April 7, 2014 and noted that the
chief complaint was left shoulder pain. He also referenced the original left shoulder injury from
August 19, 2010 and advised that appellant was reinjured on February 19, 2014 due to trauma
from a twisting injury with quick motion. Dr. Perlmutter diagnosed calcific tendinitis, left
shoulder occupational bursitis, and left shoulder strain. However, he did not provide an opinion
on causal relationship.18 In the attending physician’s report, Dr. Perlmutter explained that
13

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

14

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a
physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified
physician. Supra note 12 at Chapter 2.805.3a(1).
15

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
16

Calvin E. King, 51 ECAB 394 (2000).

17

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
18

Id.

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appellant had left shoulder pain and limited range of motion from reaching up to push a button
for the garage door. He checked the box marked “yes” in response to whether he believed the
condition was caused or aggravated by an employment activity. Dr. Perlmutter also provided an
October 2, 2014 report in which he diagnosed left shoulder strain, calcific tendinitis, and
occupational bursitis of the left shoulder. As noted above, the checking of a box marked “yes” in
a form report, without additional explanation or rationale, is insufficient to establish causal
relationship.19
In the November 12, 2014 report, Dr. Perlmutter diagnosed left shoulder strain, calcific
tendinitis, and occupational bursitis of the left shoulder. He opined that, to a reasonable degree
of medical certainty, appellant’s left shoulder calcific tendinitis was directly caused by
appellant’s work-related left shoulder strain. Dr. Perlmutter explained that the strain functionally
disrupted the rotator cuff tendon, which healed with excessive calcifications that were currently
symptomatic. The Board notes that he did not explain how the activities of pushing a button on
the door controller would cause these conditions. This is also especially important as appellant
had preexisting shoulder conditions. Dr. Perlmutter failed to provide sufficient medical
reasoning, or rationale, explaining how this work incident caused or aggravated a particular
diagnosed condition.20 Similarly, he provided a December 31, 2014 report in which he indicated
that appellant’s shoulder was stable and the new injury caused weakness of the rotator cuff as
shown on examination and weakness of internal and external rotation. Dr. Perlmutter opined that
this injury of February 19, 2014 has caused increased pain with new weakness and the injury was
stable until injury on February 19, 2014. However, he did not explain how the work incident
caused or aggravated a particular diagnosed condition.
In his March 31, 2015 report, Dr. Michaud noted that appellant had a work-related injury
dating back to 2010 and had a history which included some elements of inflammation,
degeneration, capsulitis, and tendinitis. In his report dated July 16, 2015, he advised that
appellant was last seen and evaluated on June 2, 2015. Dr. Michaud noted that appellant had
evidence of a chronic AC joint arthritis, chronic rotator cuff pathology, glenohumeral arthritis,
and a chronic impingement syndrome. He advised that x-rays revealed a large inferior spur and
degeneration and arthritis in the glenohumeral joint, AC arthritis, and inferior spur formation
predisposing him to chronic impingement syndrome. Dr. Michaud also related that appellant had
a left shoulder MRI scan on February 13, 2015 which revealed AC joint and glenohumeral joint
arthritis as well as multiple loose bodies in the joint. He advised that it also showed a partial
thickness injury and tearing to the rotator cuff, but no full-thickness tear was noted. Dr. Michaud
noted that appellant had ongoing impingement and subacromial inflammation, subacromial
bursitis, and rotator cuff tendinitis. He explained that “any at, or above shoulder level activity or
repetitive movement requiring heavy demand utilizing this shoulder can and most likely will
exacerbate the patient’s impingement, pain, swelling and dysfunction.” Dr. Michaud indicated
that appellant’s preexisting condition of tendinitis, subacromial bursitis, and AC joint arthritis
was being aggravated with any at or above shoulder level activity. The Board finds that to the

19

See supra note 16.

20

See supra note 15.

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extent that he is asserting that a return to work might cause further injury, the Board has held that
fear of future injury is not compensable.21
Appellant also submitted physical therapy treatment records, notes from a physician
assistant, as well as nursing notes. However, these healthcare providers are not considered
physicians under FECA, and therefore, their respective reports will not suffice for purposes of
establishing entitlement to FECA benefits.22
Because the medical reports submitted by appellant failed to address how the
February 19, 2014 employment incident caused or aggravated a left shoulder condition, these
reports are of limited probative value and are insufficient to establish that the February 19, 2014
employment incident caused or aggravated a specific injury.23
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish a left
shoulder condition causally related to the February 19, 2014 employment incident.

21

I.J., 59 ECAB 408 (2008).

22

See supra notes 13 and 14.

23

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the August 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 27, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

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

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

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IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Administratrix of the Estate of L.W.,
Appellant
and
DEPARTMENT OF THE NAVY, BASE
MOTOR TRANSPORT, Camp Lejeune, NC,
Employer
__________________________________________

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Appearances:
George L. Collins, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1266
Issued: September 25, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 20, 2019 appellant, through her representative, filed a timely appeal from a
January 9, 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 to consider the merits of this case
ISSUES
The issues are: (1) whether OWCP properly determined that the employee received an
overpayment of compensation in the amount of $29,130.86 for the period April 2, 1983 through
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.; 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.

April 29, 2017, for which he was without fault, because life insurance premiums had not been
deducted from his FECA compensation; and (2) whether OWCP properly denied waiver of
recovery of the overpayment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
OWCP accepted that on May 19, 1981 the employee, then a 31-year-old automobile
mechanic, sustained a lumbosacral strain and herniated disc at L4-5 when he changed the
transmission in a bus while in the performance of duty. It paid him wage-loss compensation for
disability and medical benefits.
In a telephone of call memorandum (CA-110) dated May 30, 2018, the employee’s sister
informed OWCP that the employee passed away on March 8, 2018.
In an August 27, 2018 letter, entitled “life insurance adjustment request,” received on that
day, the Office of Personal Management (OPM) requested that OWCP refer to an attached OPM
document and make an adjustment, if necessary. In the attached document, OPM advised that the
employee was insured under the Federal Employees’ Group Life Insurance (FEGLI) plan. It noted
that he was enrolled in post-retirement basic life insurance (PRBLI) with no reduction, effective
April 2, 1983, and optional life insurance (OLI) based on coverage for code N1 with the family
option. OPM further indicated that the employee’s adjusted annual salary on which life insurance
deductions were based was $22,755.20.
In a preliminary determination notice dated October 23, 2018, OWCP informed the
employee’s estate that the employee had received an overpayment of compensation in the amount
of $29,131.13 because PRBLI and OLI premiums either had been improperly deducted or had not
been deducted from his FECA compensation payments for the period April 2, 1983 through
April 29, 2017. It explained that it had deducted insurance premiums for a lower annual base
salary than that provided by OPM and deducted for Code N1 for the period October 7, 2001
through October 7, 2004 only. OWCP found that the employee was without fault in the creation
of the overpayment because he was not aware, nor could he have been reasonably aware that it
had paid compensation incorrectly. It requested that the employee’s estate complete an
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documents. Additionally, OWCP informed it that, within 30 days of the date of the letter, it could
request a telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing.
In an overpayment worksheet dated October 23, 2018, OWCP noted that no deductions
were made for PRBLI for the period January 1, 1990 to October 6, 2001 and OLI for the period
April 2, 1983 to October 6, 2001. The correct deductions for this period totaled $10,196.47.
OWCP noted that no deductions were made for the period October 7, 2001 to October 7, 2004 for
PRBLI and OLI. The correct deductions for this period totaled $2,038.23. OWCP indicated that
3

Docket No. 02-1831 (issued January 23, 2003).

2

no deductions were made for PRBLI and OLI for the period October 8, 2007 to April 29, 2017.
The correct deductions for this period totaled $16,896.43. OWCP added $10,196.47, $2,038.23,
and $16,896.43 to calculate a $29,131.13 overpayment.4 Computer printouts revealed that no
deductions had been made for PRBLI and OLI premiums during the period April 2, 1983 through
April 29, 2017.
In a November 6, 2018 overpayment action request form, appellant, as administratrix of
the employee’s estate, requested that OWCP make a decision based on a review of the written
record. She also requested a waiver of recovery of the overpayment. Appellant contended that
the deceased employee had no reason to believe that he was being overpaid by the amount
determined by OWCP. She further contended that there was no evidence to show that he had
actual knowledge of the inadequate deductions made for his PRBLI and OLI premiums. In an
accompanying Form OWCP-20, appellant reported that the employee had no monthly income or
expenses, and no funds.
By decision dated January 9, 2019, OWCP finalized its preliminary overpayment
determination finding that the employee had received an overpayment of compensation, for which
he was not at fault, in the amount of $29,130.86 for the period April 2, 1983 through
April 29, 2017. It denied waiver of recovery of the overpayment as no financial information
establishing his income or expenses was submitted. OWCP directed repayment of the
overpayment in full.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of duty.5 When an
overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which the individual is entitled.6
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in BLI and one or more of the options.7 The coverage for BLI is effective unless

4

On the cover of its October 23, 2018 preliminary notice, OWCP indicated that the amount of the overpayment
was $26,005.36. However, in its calculations and conclusion, discussed infra, it noted that the overpayment amount
was $29,131.13. The Board notes that OWCP’s calculation of this overpayment contained a mathematical error.
Adding the overpayment amounts for no deductions for PRBLI from October 8, 2004 to April 29, 2017 yields an
amount of $8,119.67 rather than $8,119.94 as found by OWCP. Adding $8,119.67 with the overpayment amounts of
$8,776.49 for OLI deductions not made from October 8, 2004 to April 29, 2017 yields an overpayment amount of
$16,896.16 rather than $16,896.43 as found by OWCP. Adding the overpayment amount of $16,896.16 with the
amount of $10,196.47 for PRBLI and OLI not deducted from October 7, 2001 to October 7, 2004 and $2,038.23 for
PRBLI and OLI not deducted from October 7, 2001 to October 7, 2004 yields an overpayment of $29,130.86. The
Board deems this error harmless and will modify the amount of the overpayment to $29,130.86. See G.T., Docket No.
15-1314 (issued September 9, 2016).
5

5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8702(a).

3

waived,8 and premiums for BLI and OLI coverage are withheld from the employee’s pay.9 Upon
retirement or upon separation from the employing establishment or being placed on the FECA
periodic compensation rolls, an employee may choose to continue BLI and OLI coverage, in which
case the schedule of deductions made will be used to withhold premiums from his or her annuity
or compensation payments.10 BLI coverage shall be continued without cost to an employee who
retired or began receiving compensation on or before December 31, 1989.11 However, the
employee is responsible for payment of premiums for OLI coverage which is accomplished by
authorizing withholdings from his or her compensation.12
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided: an eligible employee had the option of choosing no life insurance;
Option A -- basic coverage (at no additional cost) subject to continuous withholdings from
compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium).13
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible unless, during earlier
employment, he or she filed an election or waiver that remains in effect.14 Any employee who
does not file a Life Insurance Election with his or her employing office, in a manner designated by
OPM, specifically electing any type of optional insurance, is considered to have waived it and does
not have that type of optional insurance.15

8

Id. at § 8702(b).

9

Id. at § 8707.

10

Id. at § 8706.

11

Id. at § 8707(b)(2).

12

Id. at § 8706(b)(3)(B); B.B., Docket No. 17-1733 (issued March 26, 2018); S.B., Docket No. 16-1795 (issued
March 2, 2017).
13
See C.A., Docket No. 18-1284 (issued April 15, 2019); James J. Conway, Docket No. 04-2047 (issued
May 20, 2005).
14

20 C.F.R. § 870.504(a)(1).

15

Id. at § 870.504(b).

4

When an underwithholding of life insurance premiums occurs, the entire amount is deemed
an overpayment of compensation because OWCP must pay the full premium to OPM upon
discovery of the error.16
OWCP procedures for recovery from a deceased debtor’s estate provides that, if the
claimant recently passed away, it should take prompt action because creditors who have not
properly asserted a claim before the estate is closed are generally precluded from any recovery.17
Thus, it should refer the debt to FMS for offset of the deceased claimant’s last Federal tax refund
under the Treasury’s Offset Program (TOP).18 OWCP has a special profile with FMS under TOP
for the collection of these specific estate debts. The CE should follow the referral procedures set
forth in PM 6.500.15(e), including sending the complete referral package to the National Office
for final review and forwarding to the FMS.19
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that the employee received an
overpayment of compensation in the amount of $29,130.86 for the period April 2, 1983 through
April 29, 2017, for which he was without fault.
OWCP found that an overpayment of compensation in the amount of $29,130.86 was
created because it failed to deduct PRBLI and OLI premiums from the employee’s wage-loss
compensation for the period April 2, 1983 through April 29, 2017. It reviewed the fiscal record
and determined that the employee had elected PRBLI and OLI and it explained that premiums had
not been deducted for the appropriate period. The record includes OPM’s August 27, 2018 letter
notifying OWCP that the employee had elected PRBLI and OLI. The record also includes
computer printouts showing that proper life insurance premium deductions were not made between
April 2, 1983 and April 29, 2017.
The Board finds, however, that OWCP failed to adequately support its determination that
the employee, now deceased, received a $29,130.86 overpayment due to its failure to properly
deduct premiums for PRBLI and OLI. While the record includes communications from OPM
regarding the employee’s PRBLI and OLI coverage, the record does not contain evidence that the
employee affirmatively signed a document electing PRBLI or OLI coverage. The record does not
contain a signed election form showing which coverage he actually selected or if he actually
selected coverage. The Board has previously found that OWCP must document whether and when
a claimant elected life insurance coverage after separation from federal service or retirement in

16

5 U.S.C. § 8707(d); I.J., Docket No. 19-1672 (issued March 10, 2020); D.H., Docket No. 19-0384 (issued
August 12, 2019).
17
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.15
(September 2018).
18

31 C.F.R. § 285.2.

19

Supra note 17 at Chapter 6.500.15(e).

5

order to establish the fact of overpayment of compensation.20 As OWCP has not factually
established the employee’s election of PRBLI and OLI on the relevant dates, it has not met its
burden of proof to establish that a $29,130.86 overpayment was created between April 2, 1983 and
April 29, 2017, as alleged.21
The Board therefore finds that OWCP has not met its burden of proof to establish that an
overpayment of compensation occurred.22
CONCLUSION
The Board finds that OWCP improperly determined that the employee received an
overpayment of compensation in the amount of $29,130.86 for the period April 2, 1983 through
April 29, 2017.23
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 25, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

J.P., Docket No. 18-1194 (issued April 28, 2020); P.K., Docket No. 18-0913 (issued March 5, 2020); C.P.,
Docket No. 19-0317 (issued July 1, 2019); R.F., Docket No. 18-0739 (issued January 2, 2019); D.T., Docket No.
17-0901 (issued January 29, 2018).
21

J.P., id.; R.F., id.

22

Id.

23

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, OFFICE OF
THE CHIEF COUNSEL, Washington, DC,
Employer
__________________________________________

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

Docket No. 20-0775
Issued: July 28, 2021

Case Submitted on the Record

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

JURISDICTION
On February 18, 2020 appellant filed a timely appeal from August 27, 2019 and
January 17, 2020 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 17, 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish an upper extremity
condition causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On June 19, 2019 appellant, then a 35-year-old management assistant, filed an occupational
disease claim (Form CA-2) alleging that on or before June 16, 2019 he sustained a ganglion cyst
of the left thumb when working on a print, copy, label, project while in the performance of duty.
He noted that a three-ring binder must have hit his hand. Appellant “noticed a knot of the wrist
over the weekend” and reported the condition to his supervisor on June 18, 2019.
In a June 18, 2019 report, Dr. Dani S. Boulattouf, a Board-certified family practitioner,
diagnosed a left thumb sprain.
In a development letter dated June 25, 2019, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence required and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary
evidence.
In response, appellant provided a July 9, 2019 statement asserting that on June 14, 2019
his left hand hit against a large binder while assisting an attorney with a “print and copy and label”
project. He noted that he performed these duties often for up to eight hours per day. Appellant
described constant left wrist pain, aggravated by typing.
In a July 19, 2019 statement, Supervisor T.B. confirmed that appellant’s job duties required
scanning and copying large case files, removing staples and binding clips from stacks of
documents, and placing documents into three-ring binders. The employing establishment provided
a September 26, 2017 official position description.
Appellant subsequently provided an additional portion of Dr. Boulattouf’s June 18, 2019
report, diagnosing a left thumb sprain with a small ganglion cyst. Dr. Boulattouf indicated that
appellant believed that the diagnosed conditions were work related. In an August 7, 2019 report,
he diagnosed a left wrist ganglion and left thumb sprain.
By decision dated August 27, 2019, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that the alleged employment factors
occurred as described.
On September 5, 2019 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review.
OWCP subsequently received a supplemental version of Dr. Boulattouf’s June 18, 2019
report, wherein he diagnosed a left wrist sprain with a small ganglion cyst.
During the hearing, held on December 6, 2019, appellant contended that he sustained
injuries to both upper extremities due to repetitive motion while typing, moving boxes, lifting
2

heavy case files, and working on binder projects while in the performance of duty. He identified
a June 14, 2019 incident when a binder fell on both of his hands. Appellant thereafter submitted
additional medical evidence.
In a December 15, 2019 report, Dr. Boulattouf explained that the exact cause of the
ganglion cyst on appellant’s left wrist was not known, but usually is related to tendon sheath
inflammation or irritation which can happen from a repetitive minor injury. He noted that appellant
had pain from repetitive motion such as typing, lifting cases, or moving boxes which “probably
irritated the whole thing.” He prescribed a left wrist splint.
By decision dated January 17, 2020, the hearing representative modified the August 27,
2019 decision to find that appellant had established the identified work factors as factual. The
claim remained denied, however, as the medical evidence of record was insufficient to establish
causal relationship between the diagnosed conditions and the accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 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.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (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.7
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.D., Docket No. 20-0413 (issued July 28, 2020); L.S., Docket No. 19-1769 (issued July 10, 2020); R.G., Docket
No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB
276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

3

opinion evidence.8 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee.9 The weight of the medical evidence
is determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an upper
extremity condition causally related to the accepted factors of his federal employment.
In support of his occupational disease claim, appellant provided June 18 and August 7,
2019 reports from Dr. Boulattouf diagnosing a left thumb sprain and left wrist ganglion cyst.
Dr. Boulattouf explained in a December 15, 2019 report that the cause of the ganglion cyst on
appellant’s left wrist was not known, but was usually related to tendon sheath inflammation or
irritation which can happen from a repetitive minor injury. He noted that appellant had pain from
repetitive motion such as typing, lifting cases, or moving boxes which “probably irritated the
whole thing.” His opinion is speculative in nature as he identified only a possible cause of the
ganglion cyst. The Board has held that medical opinions that are speculative or equivocal are of
diminished probative value.11 Also, without explaining how the frequent and repetitive actions of
appellant’s employment caused or aggravated his left thumb sprain and ganglion cyst,
Dr. Boulattouf’s reports are of limited probative value.12
As appellant has not submitted rationalized medical evidence establishing that his
diagnosed upper extremity conditions were causally related to the accepted factors of his federal
employment, the Board finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an upper
extremity condition causally related to the accepted factors of his federal employment.

8

S.D., id.; S.A., Docket No. 18-0399 (issued October 16, 2018); Robert G. Morris, 48 ECAB 238 (1996).

9
M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra
note 7.
10

D.R., Docket No. 19-0954 (issued October 25, 2019); James Mack, 43 ECAB 321 (1991).

11

J.I., Docket No. 20-1374 (issued March 3, 2021); H.A., Docket No. 18-1455 (issued August 23, 2019).

12

J.I., id.; see A.P., Docket No. 19-0224 (issued July 11, 2019).

4

ORDER
IT IS HEREBY ORDERED THAT the January 17, 2020 and August 27, 2019 decisions
of the Office of Workers’ Compensation Programs is affirmed.
Issued: July 28, 2021
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
U.S. POSTAL SERVICE, AIRPORT STATION,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 09-959
Issued: December 22, 2009

Case Submitted on the Record

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

JURISDICTION
On February 27, 2009 appellant filed a timely appeal of the April 24 and October 15,
2008 and January 30, 2009 merit decisions of the Office of Workers’ Compensation Programs
denying her recurrence claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability
commencing October 24, 2007 causally related to her October 22, 2004 employment injury.
FACTUAL HISTORY
On October 25, 2004 appellant, then a 56-year-old sales associate, filed a traumatic injury
claim alleging that on October 22, 2004 she injured her low back and left leg while bending
down to retrieve stamps from a safe. The Office accepted her claim for a lumbar strain.
On January 7, 2008 appellant filed a claim for a recurrence of disability. She noted that
she did not stop working until October 24, 2007.
Appellant returned to work on

November 27, 2007.1 She submitted a September 3, 2007 documentation of medical impairment
from Kaiser Permanente; an October 26, 2007 disability slip noting that she would be disabled
for four weeks; a November 27, 2007 disability note releasing her to light-duty work that day
and progress notes dated April 10 to November 27, 2007 from Dr. Jae H. Chon, a treating Boardcertified orthopedic surgeon, who noted that appellant had difficulty walking and was in pain.
Appellant related that she returned to work for financial reasons. Dr. Chon advised that
appellant could return to sedentary work with minimal lifting.
On September 4, 2007 Dr. Chon noted that appellant had been off work due to right leg
issues. Appellant also had pain radiating from her low back into her left leg. A physical
examination revealed that she walked with a cane and had an antalgic gait. On October 26, 2007
Dr. Chon related that appellant had increased low back pain radiating into both legs and
difficulty bending or walking. A physical examination revealed positive straight leg raising, pain
into her foot, and that she walked with a limp. Dr. Chon diagnosed bilateral lower extremity
symptomatic sciatica and recommended no work. In a November 27, 2007 report, he reiterated
that appellant had difficulty walking and was in pain. Appellant was released to sedentary work
with restrictions on lifting.
By letter dated January 17, 2008, the Office informed appellant that the evidence of
record was insufficient to establish her recurrence claim. Appellant was advised to submit
additional medical and factual evidence.
In a January 29, 2008 note, Dr. Chon diagnosed lumbar spine with sciatica and advised
that appellant was capable of working with restrictions, including no lifting more than three
pounds and sedentary work only. He listed the date of injury as October 27, 2004. On
January 29, 2008 Dr. Chon noted appellant’s complaint of increased low back pain radiating
bilaterally into her lower extremities since she returned to work. He diagnosed an L2-S1
herniated disc and bulging disc, facet joint subluxation, L2-L3 lateral recess stenosis and L5-S1
lateral recess stenosis based on a review of x-ray interpretations and magnetic resonance imaging
(MRI) scans. Dr. Chon reported that appellant’s low back and bilateral leg pain was worsening.
On March 24, 2008 the Office received an undated report from Dr. Chon in which he
noted appellant had retired. Appellant continued to have pain radiating into her leg.
By decision dated April 24, 2008, the Office denied appellant’s claim, finding that the
evidence of record was insufficient to establish that her back condition was due to her
October 22, 2004 work injury.
In an April 22, 2008 report, Dr. Chon stated that appellant continued to have pain
radiating into her left leg, difficulty walking and had retired.
On August 21, 2008 appellant requested reconsideration. She submitted a March 11,
2008 report and a June 5, 2007 disability note advising that she was capable of restricted work.

1

Appellant retired on disability from the employing establishment effective February 12, 2008.

2

By decision dated October 15, 2008, the Office denied modification of the April 24, 2008
decision.
On October 29, 2008 appellant requested reconsideration. She submitted reports from
Dr. Chon dated October 26, 2007 to April 22, 2008 and an April 5, 2005 form report from
Bruce A. Wasserman, Ph.D, diagnosing a history of disc bulged and decreased left knee reflex.
By decision dated January 30, 2009, the Office denied modification of the October 15,
2008 decision.
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 had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.2
Office procedures state that a recurrence of disability includes a work stoppage caused by
a spontaneous material change, demonstrated by objective findings, in the medical condition that
resulted from a previous injury or occupational illness without an intervening injury or new
exposure to factors causing the original illness. It does not include a condition that results from a
new injury, even if it involves the same part of the body previously injured.3
A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which she claims
compensation is causally related to the accepted employment injury.4 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between her recurrence of disability and her employment injury.5 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.6 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.7

2

20 C.F.R. § 10.5(x); see S.F., 59 ECAB ___ (Docket No. 07-2287, issued May 16, 2008).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).

4

Kenneth R. Love, 50 ECAB 193, 199 (1998).

5

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

6

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008); Ricky S. Storms, 52 ECAB 349 (2001); see
also 20 C.F.R. § 10.104(a)-(b).
7

Alfredo Rodriguez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

3

The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.8 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.9 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.10
ANALYSIS
Appellant claimed a recurrence of disability beginning October 26, 2007. As noted, her
burden is to furnish medical evidence from a physician who on the basis of a complete and
accurate factual and medical history explains how her disabling condition is causally related to
the accepted employment injury and supports that conclusion with sound medical reasoning.11
The Board finds the evidence of record is insufficient to establish that appellant sustained a
recurrence of disability due to her accepted lumbar strain.
Appellant submitted reports from Dr. Chon dated April 10, 2007 to April 22, 2008.
Dr. Chon did not provide any opinion as to the cause of appellant’s disability beyond noting her
date of injury as October 22, 2004. He did not provide any findings on physical examination
other than noting appellant’s problems with walking. The Board has held that medical evidence
offering no opinion regarding the cause of an employee’s condition is of limited probative value
on the issue of causal relationship.12 Medical evidence failing to provide a rationalized medical
opinion concerning the causal relationship between appellant’s alleged disability beginning
October 26, 2007 and her accepted lumbar strain in 2003 is of diminished probative value.13
Dr. Chon provided no opinion as to the cause of appellant’s disability or explanation regarding
the cause of her disability. His reports are insufficient to establish that she sustained a recurrence
of disability causally related to her accepted October 22, 2004 employment injury.
The Board notes that Dr. Wasserman’s report pertained to appellant’s condition in 2005,
which was prior to her claimed recurrence of disability in October 2007. As such, this report is
not probative in establishing whether she sustained a spontaneous recurrence of disability in
October 2007 causally related to the October 22, 2004 employment injury.

8

See Ricky S. Storms, supra note 6; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).
9

For the importance of bridging information in establishing a claim for a recurrence of disability, see Richard
McBride, 37 ECAB 748 at 753 (1986).
10

See Ricky S. Storms, supra note 6; Morris Scanlon, 11 ECAB 384, 385 (1960).

11

K.E., 60 ECAB ___ (Docket No. 08-1461, issued December 17, 2008).

12

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009)

13

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).

4

The Office advised appellant that it was her responsibility to submit substantive
competent medical evidence in support of her recurrence claim. As there was no probative
rationalized evidence of record, it properly denied her recurrence claim.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a recurrence of disability beginning October 24, 2007 causally related to her
October 22, 2004 employment injury.
ORDER
IT IS HEREBY ORDERED THAT decisions of the Office of Workers’ Compensation
Programs dated January 30, 2009, October 15 and April 24, 2008 are affirmed.
Issued: December 22, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Lewisburg, PA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2228
Issued: August 1, 2011

Case Submitted on the Record

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

JURISDICTION
On September 1, 2010 appellant, through counsel, filed a timely appeal of the August 3,
2010 merit decision of the Office of Workers’ Compensation Programs terminating
compensation and modifying a wage-earning capacity determination. Pursuant to the Federal
Employees’ Compensation Act1 and 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 the Office met its burden of proof to terminate appellant’s
compensation benefits and modify its determination of her wage-earning capacity effective
September 30, 2009; and (2) whether appellant established continuing disability after
September 30, 2009.
On appeal, appellant’s attorney contends that the Office’s decision is contrary to fact and
law.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The Office accepted that on April 27, 2000 appellant, then a 41-year-old correctional
officer, sustained a strain and traumatic arthritis of the left knee as a result of making repetitive
trips up stairs at work. Appellant stopped work on the date of injury and the Office paid wageloss compensation for temporary total disability.
On September 28, 2000 the Office referred appellant to a vocational rehabilitation
counselor. The counselor identified the position of receptionist, finding that it was within the
sedentary strength category and appellant’s work restrictions. Appellant qualified for the
position based on her education and work experience and it was reasonably available in her
commuting area.2
In a December 12, 2002 decision, the Office reduced appellant’s compensation effective
that date under 5 U.S.C. § 8115 to reflect her capacity to earn wages in the constructed position
of receptionist. By decision dated December 4, 2003, the Office’s Branch of Hearings and
Review found that appellant abandoned her January 10, 2003 request for an oral hearing as she
failed to appear at the scheduled hearing.
On June 12, 2009 the Office referred appellant, together with a statement of accepted
facts and the medical record, to Dr. Michael A. MacKay, a Board-certified orthopedic surgeon,
for a second opinion medical examination on the nature and extent of her employment-related
residuals and disability. In a July 7, 2009 report, Dr. MacKay reviewed a history of the April 27,
2000 employment injuries and the statement of accepted facts. He noted that appellant
underwent nonemployment-related left knee anterior cruciate ligament reconstruction in 1978
with arthroscopy and debridement in 1999. Appellant also sustained an apparent knee work
injury 1998 that was treated with arthroscopic surgery. She also had osteoarthritis of the left
knee for which she received treatment on November 19, 1999. On physical examination,
Dr. MacKay reported essentially normal findings with swelling, tenderness, and mild valgus
instability and flexion contracture of the left knee. X-rays of the left knee showed severe
degenerative arthritis. Dr. MacKay diagnosed osteoarthritis of the left knee. He advised that the
diagnosed condition predated the accepted April 27, 2000 employment injury and was treated
towards the end of 1999. Dr. MacKay stated that there may have been some exacerbation or
aggravation of the underlying arthritis in 2000, but her condition was not caused by the accepted
employment injury. He advised that any aggravation of the diagnosed condition was purely
subjective in nature. It was impossible for Dr. MacKay to determine how much aggravation
occurred due to the April 27, 2000 employment injury based on the medical records alone. He
opined that the employment-related left knee strain had resolved and appellant’s residual
symptoms were purely an arthritic pain. Dr. MacKay noted that she did not sustain traumatic
arthritis due to the accepted employment injury. He advised that appellant continued to be
totally disabled due to her arthritic left knee condition. Appellant was unable to perform her
work duties as a correctional officer due to her severely impaired mobility. Dr. MacKay stated
that appellant’s prolonged disability was essentially due to a lack of effective treatment. He
recommended total knee replacement surgery which could significantly improve her mobility,
2

The record reveals that appellant was unable to obtain a receptionist position.

2

pain and opportunity to return to work. Alternatively, appellant could perform sedentary work
with restrictions, eight hours per day.
On August 20, 2009 the Office issued a notice of proposed termination of appellant’s
wage-loss compensation and medical benefits. It modified the December 12, 2002 decision to
reflect that appellant had zero percent loss of wage-earning capacity based on Dr. MacKay’s
medical opinion.
Appellant submitted an August 18, 2009 treatment note from Dr. Timothy J. Mosher, a
Board-certified radiologist, who related that appellant had pain in both knees and right foot and
crepitus in the left knee. Dr. Mosher listed findings on physical examination and diagnosed
bilateral knee degenerative joint disease. On August 18, 2009 he obtained an x-ray of both knees
which demonstrated moderate tricompartmental osteoarthritis of the right knee and severe
osteoarthritis of the left knee.
In a September 30, 2009 decision, the Office terminated appellant’s wage-loss
compensation and medical benefits and modified its wage-earning capacity determination to
reflect that she had no wage loss effective that date. It found that the evidence she submitted was
insufficient to overcome the weight accorded to Dr. MacKay’s opinion.
By letter dated December 17, 2009, appellant, through counsel, requested
reconsideration. In an October 31, 2009 report, Dr. Charles M. Davis, III, a Board-certified
orthopedic surgeon, reviewed Dr. MacKay’s report. He reviewed prior findings from March 22,
2000 which included a history that appellant had a twisting injury in 1999. Appellant underwent
anterior cruciate ligament and arthroscopy procedures in June 1999. Dr. Davis stated that x-rays
performed on March 22, 2000 were consistent with considerable degenerative joint disease of the
medial compartment of the left knee. He stated that the arthritic condition was likely posttraumatic in origin. Dr. Davis noted that on May 3, 2000 appellant reported increased pain in the
left knee due to her work duties, which included walking and carrying heavy objects up and
down stairs many times per day. He stated that her work duties were the largest contributing
factor to her pain. Dr. Davis recommended a sedentary job as it was likely that appellant would
continue to have difficulties as long as her job required prolonged standing and walking. He
agreed with Dr. MacKay’s opinion that appellant was currently unable to perform her
correctional officer work duties. Dr. Davis concluded that her disability was causally related to a
1999 work injury.
In an August 3, 2010 decision, the Office affirmed the September 30, 2009 decision. It
found that the medical evidence appellant submitted was insufficient to establish that she had any
continuing employment-related residuals or disability.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability

3

causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.3
Once a loss of wage-earning capacity is determined, a modification of such a
determination is not warranted unless there is a material change in the nature and extent of the
work-related condition, the employee has been retrained or otherwise vocationally rehabilitated
or the original determination was in fact erroneous.4 The burden of proof is on the party
attempting to show the award should be modified.5
ANALYSIS
The Office accepted that appellant sustained a strain and traumatic arthritis of the left
knee while in the performance of duty on April 27, 2000. Appellant stopped working for the
employing establishment on April 27, 2000. In a December 12, 2002 decision, the Office
determined that appellant’s wage-earning capacity was represented by the constructed position of
receptionist. In decisions dated September 30, 2009 and August 3, 2010, it terminated
appellant’s wage-loss compensation and medical benefits and modified its wage-earning capacity
determination to reflect that she had no wage loss effective September 30, 2009 based on the
July 7, 2009 medical opinion of Dr. MacKay, an Office referral physician.
The Board finds that Dr. MacKay’s opinion is of diminished probative value and
insufficient to represent the weight of the medical evidence. To assure that the report of a
medical specialist is based upon a proper factual background, the Office provides information to
the physician through the preparation of a statement of accepted facts.6 The Office provided
Dr. MacKay with a statement of accepted facts indicating that it had accepted that appellant
sustained a strain and traumatic arthritis of the left knee. Dr. MacKay opined that appellant no
longer had any residuals of her employment-related left knee strain and, while she could not
perform her regular duties as a correctional officer, she could perform sedentary work with
restrictions, eight hours per day. He further opined that she did not sustain traumatic arthritis
due to the accepted April 27, 2000 employment injury. Dr. MacKay noted a diagnosis of left
knee osteoarthritis. He advised that appellant’s residual pain was arthritic. Dr. MacKay found
that her continued total disability was due to the left knee osteoarthritis which he found not to be
causally related to the April 27, 2000 employment injury. He advised that the diagnosed
condition predated the accepted employment injury, noting that appellant received treatment in
late 1999. Office procedures provide that accepted conditions must be included in a statement of
accepted facts and further provide that, when a second opinion specialist renders a medical
opinion based on a statement of accepted facts which is incomplete or inaccurate or does not use

3

Jason C. Armstrong, 40 ECAB 907 (1989).

4

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

5

Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

6

Helen Casillas, 46 ECAB 1044 (1995).

4

the statement of accepted facts as the framework in forming his or her opinion, the probative
value of the opinion is diminished.7
Dr. MacKay did not fully address the accepted left knee arthritic condition and disputed
that it was employment related. The Board notes that when the Office referred the medical
record to Dr. MacKay, it specifically requested that he provide the date when the employmentrelated left knee traumatic arthritis condition ceased if he believed that appellant no longer had
any residuals of the condition. The Board finds that his opinion is outside the framework of the
statement of accepted facts and of reduced probative value. Dr. MacKay’s report is insufficient
to meet the Office’s burden of proof.8 The Board finds, therefore, that the Office improperly
relied on his opinion to establish that appellant had no remaining residuals or disability from the
accepted employment injuries and that she had a material change in her work-related conditions
for the better such that she no longer had wage loss due to the work injuries.9
CONCLUSION
The Board finds that the Office has not met its burden of proof to terminate appellant’s
compensation benefits and modify its determination of her wage-earning capacity effective
September 30, 2009.

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
8

Willa M. Frazier, 55 ECAB 379 (2004).

9

In light of the disposition of the first issue, the second issue of continuing disability is moot.

5

ORDER
IT IS HEREBY ORDERED THAT the August 3, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 1, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PATROL,
Sonoita, AZ, Employer
__________________________________________

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

Docket No. 19-0770
Issued: March 5, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 22, 2019 appellant filed a timely appeal from a September 28, 2018 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 OWCP properly determined that appellant received an
overpayment of compensation in the amount of $2,896.81 for the period June 13, 2016 to
October 2, 2017, for which he was not at fault; (2) whether it properly denied waiver of recovery
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 28, 2018 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
evidence for the first time on appeal. Id.

of the overpayment; and (3) whether OWCP properly required recovery of the overpayment by
deducting $200.00 every 28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
On January 27, 2016 appellant, then a 35-year-old patrol agent, filed a traumatic injury
claim (Form CA-1) alleging that on January 26, 2016 he injured his ankles, knees, and left elbow
in the performance of duty. He explained that an unstable rock shifted and caused his ankles to
roll, and he fell forward and landed on his knees and left elbow. Appellant stopped work on
January 27, 2017. On March 26, 2016 OWCP accepted appellant’s claim for cervical region
radiculopathy, left elbow contusion, sprain of an unspecified ligament of the right ankle, and strain
of an unspecified muscle, fascia, and tendon in the left shoulder and upper left arm. Acceptance
of his claim was later expanded to include left ulnar nerve lesion. Appellant received wage-loss
compensation on the supplemental rolls as of June 13, 2016. He returned to part-time light-duty
work on July 19, 2016. OWCP paid appellant wage-loss compensation based upon his loss of
wage-earning capacity as of February 12, 2017.
In August 8, 2016 CA-110 notes, OWCP indicated that, as of June 13, 2016, appellant’s
annual base pay was $80,593.00.
An October 14, 2016 OWCP memorandum indicated that it updated appellant’s pay rate
information by listing appellant’s pay for the year prior to his date of injury of January 26, 2016.
OWCP listed appellant’s base pay as $80,593.00, night differential as $2,097.50, Sunday premium
pay as $2,691.81, holiday pay as $2,569.28 and administratively uncontrollable overtime (AUO)
as $5,589.36. The AUO was reflected as Integrated Federal Employees’ Compensation System
(iFECS) weekly rate of $107.49. OWCP noted that, as appellant was a level 1 border patrol agent,
his base salary was multiplied by 25 percent, equaling $100,741.25. It calculated the weekly
payment amount of appellant’s base pay multiplied by 25 percent, night differential, Sunday
premium pay, holiday pay, and AUO. It then added these totals, and multiplied by the augmented
compensation rate to calculate the weekly pay rate of $2,186.33
On an October 17, 2016 supplemental rolls payment worksheet, OWCP calculated the
difference between what it had already paid in wage-loss compensation benefits between June 13
and August 17, 2016, when it used appellant’s base pay rate of $80,593.00 in its calculations, and
the amount it would have paid appellant had it used $100,741.25 as appellant’s adjusted base
salary. On that date OWCP issued a compensation payment to correct its identified underpayment.
November 1, 2016 Form CA-110 notes reflect that the employing establishment related that level
1 and level 2 border agents were paid 8 hours of holiday pay/leave and that, as appellant was level
1 agent, he worked 10 hours a day, which included 8 hours of regular pay and 2 hours of overtime
pay.
In a January 25, 2018 letter, OWCP informed appellant that it made a preliminary
determination that he received an overpayment of compensation in the amount of $2,896.81 for
the period June 13, 2016 to October 2, 2017 because it included premium pay as calculated under
the Border Patrol Agent Pay Reform Act (BPAPRA) of 2014, but also included AUO in his
payments. It calculated the overpayment by subtracting appellant’s weekly AUO of $107.49 from
appellant’s weekly pay rate of $2,186.33 to find his correct weekly pay rate of $2,078.84. OWCP
recalculated appellant’s total wage-loss compensation from the period June 13, 2016 to October 2,
2

2017 using the corrected weekly pay rate and then subtracted that number from the total wage-loss
compensation appellant had received for that period. It found that appellant was not at fault in the
creation of the overpayment because he was not aware nor could he have reasonably been expected
to know that OWCP paid the compensation incorrectly. Additionally, OWCP informed appellant
that within 30 days he could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing. It requested that appellant complete an enclosed
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documentation.
On February 21, 2018 appellant requested a telephone conference with OWCP. He noted
that he contested the overpayment because he disagreed that it occurred. Appellant explained that
the information relayed to OWCP about his earnings was accurate, and the letter he received from
OWCP indicated that the overpayment was not his fault. He requested waiver of recovery of the
overpayment.
An accompanying February 20, 2018 OWCP-20 indicated that appellant’s total monthly
income was $4,600.00, with one dependent. Appellant’s total monthly expenses were noted as
$4,050.00 and he listed $1,600.00 in assets. He explained that he was without fault in the creation
of his overpayment because he was not involved in calculating his wage-loss compensation, and
that he was under the impression that he was being paid the correct amount.
By decision dated September 28, 2018, OWCP finalized the overpayment of compensation
in the amount of $2,896.81 for the period June 13, 2016 to October 2, 2017. It determined that
appellant was not at fault in the creation of the overpayment, but denied waiver of recovery of the
overpayment based on the financial information provided. OWCP required recovery of the
overpayment through monthly payments of $200.00.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 Section 8129(a) provides, in pertinent part: “When an overpayment has
been made to an individual under this subchapter because of an error of fact or law, adjustment
shall be made under regulations prescribed by the Secretary of Labor by decreasing later payments
to which an individual is entitled.”4
The pay rate for compensation purposes is defined in section 8101(4) as the monthly pay
at the time of injury, the time disability begins, or the time disability recurs, if the recurrence is
more than six months after returning to full-time work, whichever is greater.5
In computing pay rate, section 8114(e) provides for the inclusion of certain premium pay
received and, where the evidence indicates additional amounts received in Sunday premium or
night differential pay fluctuated or may have fluctuated, OWCP determines the amount of
3

5 U.S.C. § 8102(a).

4

Id. at 8129(a).

5

Id. at § 8101(4).

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additional pay received during the one-year period prior to injury.6 Section 8114(e)(1) provides
that, in computing an employee’s monthly pay for compensation purposes, overtime pay is not
included.7 OWCP has administratively determined that, while premium pay for AUO under 5
U.S.C. § 5545(c)(2), is not included in pay rate calculations, AUO pay is replaced by the
availability of the supplement of 25 percent of basic pay for criminal investigators pursuant to 5
U.S.C. § 5545.8
The relevant part of section 5545(c)(2) provides:
“The head of an agency, with the approval of the [Office of Personnel Management
(OPM)] may provide that -- an employee in a position in which the hours of duty
cannot be controlled administratively, and which requires substantial amounts of
irregular, unscheduled, overtime duty with the employee generally being
responsible for recognizing, without supervision, circumstances which require the
employee to remain on duty, shall receive premium pay for this duty on an annual
basis instead of premium pay provided by other provisions of this subchapter,
except for regularly scheduled overtime, night, and Sunday duty, and for holiday
duty. Premium pay under this paragraph is an appropriate percentage, not less than
10 percent nor more than 25 percent, of the rate of basic pay for the position, as
determined by taking into consideration the frequency and duration of irregular,
unscheduled overtime duty required in the position.”9
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
OWCP found that appellant received an overpayment of compensation in the amount of
$2,869.81 for the period June 13, 2016 to October 2, 2017 because it incorrectly included his AUO
pay of $5,589.36, a weekly FECA rate of $107.49 in calculating appellant’s pay rate. It has
administratively determined that premium pay for AUO under 5 U.S.C. § 5545(c)(2), is not to be
included in pay rate calculations for criminal investigators who receive the 25 percent premium
pay adjustment to their basic pay rate.10
OWCP has not properly explained how multiplying the number of weeks during the period
June 13, 2016 through October 2, 2017 by $107.49 results in the amount of $2,869.81. The Board
notes that the calculation of appellant’s overpayment should also explain how appellant’s receipt
6

5 U.S.C. § 8114(e); Lottie M. Williams, 56 ECAB 302 (2005).

7

Id. at § 8114(e)(1); L.C., Docket No. 19-0310 (issued July 26, 2019); Calvin E. King, 51 ECAB 394 (2000).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.6(b)(7)
(March 2011).
9

5 U.S.C. § 5545(c)(2); see also FECA Program Memorandum No. 106 (issued October 30, 1969) (provides for
inclusion of premium pay in pay rate for compensation purposes under section 5545(c)(2)); FECA Bulletin No. 89-26
(September 29, 1989) (by administrative determination, pursuant to section 5545(c)(2), OWCP includes premium pay
for AUO in computing compensation).
10

Supra note 8.

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of compensation based on his loss of wage-earning capacity during the period in question impacts
the overpayment calculation.
A claimant is entitled to an overpayment decision that clearly explains how the amount
was calculated.11 As OWCP has not provided a clear explanation of its calculations, the Board
finds that OWCP has not established the amount of the overpayment in question. Therefore, the
case will be remanded to OWCP for such further development as deemed necessary to be followed
by a de novo decision regarding the overpayment.12
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion.
Issued: March 5, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11

E.R., Docket No. 19-1365 (issued December 23, 2019); see M.M., Docket No. 17-0560 (issued August 23,
2017); R.H., Docket No. 08-2025 (issued July 20, 2009); see also O.R., 59 ECAB 432 (2008).
12
In light of the Board’s disposition of the first issue, the issues of waiver and recovery of overpayment are rendered
moot.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Crestline, OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2116
Issued: April 14, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 28, 2008 appellant filed a timely appeal of the July 3, 2008 nonmerit decision of
the Office of Workers’ Compensation Programs, which denied reconsideration. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d), the Board does not have jurisdiction over the merits of
appellant’s claim.1
ISSUE
The issue is whether the Office properly denied appellant’s June 22, 2008 request for
reconsideration under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 26, 2006 appellant, then a 43-year-old letter carrier, filed an occupational disease
claim for an injury to her cervical spine that reportedly arose on or about June 21, 2006. She had
1

The Office issued its most recent merit decision on June 5, 2007, which is more than a year prior to the filing of
the instant appeal. As such, the Board does not have jurisdiction over the June 5, 2007 decision.

just recently returned to her regular duties following a February 5, 2000 employment-related
cervical sprain (xxxxxx857).2 Appellant performed her unrestricted letter carrier duties for a full
day on June 21, 2006 and for approximately 6½ hours on June 22, 2006 before stopping work.
She claimed that carrying a mailbag around her neck aggravated her preexisting cervical
condition.3 After further development of the record, the Office denied appellant’s claim by
decision dated September 19, 2006. It found that there was no medical evidence linking her
cervical condition to her June 21 and 22, 2006 employment duties.
By decision dated June 25, 2007, the Branch of Hearings and Review affirmed the
Office’s September 19, 2006 decision.
Appellant requested reconsideration on
November 17, 2007. Along with the request, she resubmitted a May 17, 2007 medical report.
The Office denied reconsideration in a decision dated December 13, 2007; however, it used an
incorrect OWCP claim number, xxxxxx583, on its December 13, 2007 decision. Counsel
brought this error to the Office’s attention on December 25, 2007. Several days later, appellant
submitted an October 9, 2007 cervical magnetic resonance imaging (MRI) scan and a
November 2, 2007 functional capacity evaluation.
On June 22, 2008 counsel filed a second request for reconsideration of the hearing
representative’s June 25, 2007 decision. He commented about the incorrect OWCP claim
number on the Office’s December 13, 2007 decision. Counsel also submitted a copy of a
Dr. Robert M. Hess’ May 15, 2007 medical report, which he had already submitted on two prior
occasions.
In a decision dated July 3, 2008, the Office denied appellant’s request for reconsideration.
LEGAL PRECEDENT
The Office has the discretion to reopen a case for review on the merits.4 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
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 new evidence not previously considered by the Office.5
When an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.6
2

Effective June 9, 2006, the Office terminated compensation and medical benefits under claim number
xxxxxx857. Appellant also had cervical degenerative disc disease (C5-6); however, the Office had not accepted this
particular condition as being causally related to the February 5, 2000 employment injury.
3

Appellant said she first became aware of her cervical disc disease on December 10, 2001.

4

5 U.S.C. § 8128(a) (2006).

5

20 C.F.R. § 10.606(b)(2) (2008).

6

Id. at § 10.608(b).

2

ANALYSIS
Appellant’s June 22, 2008 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, it did not
advance a relevant legal argument not previously considered by the Office. Therefore, 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).7 She also failed to satisfy the third requirement under
section 10.606(b)(2). Appellant did not submit any relevant and pertinent new evidence with her
June 22, 2008 request for reconsideration. The record already included at least two copies of
Dr. Hess’ May 15, 2007 report, which the Office hearing representative discussed at length in his
June 25, 2007 decision. Submitting additional evidence that repeats or duplicates information
already in the record does not constitute a basis for reopening a claim.8 In addition to Dr. Hess’
report, the Office received a recent cervical MRI scan and a functional capacity evaluation.9
Although this latter evidence is new to the record, it does not address the essential issue on
reconsideration, which is whether there is a causal relationship between appellant’s current
cervical condition and her June 21 and 22, 2006 employment duties. As such, the newly
submitted evidence is neither relevant nor pertinent to the issue on reconsideration.
Consequently, appellant is not entitled to a review of the merits of her claim based on the third
requirement under section 10.606(b)(2).10
CONCLUSION
The Board finds that the Office properly denied appellant’s June 22, 2008 request for
reconsideration.

7

20 C.F.R. § 10.606(b)(2)(i) and (ii).

8

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

9

The Board notes that the November 2, 2007 functional capacity evaluation was not prepared by a physician, but
by a physical therapist. See 5 U.S.C. § 8101(2).
10

20 C.F.R. § 10.606(b)(2)(iii).

3

ORDER
IT IS HEREBY ORDERED THAT the July 3, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 14, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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