United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Houston, TX, Employer
__________________________________________

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

Docket No. 10-1986
Issued: May 17, 2011

Case Submitted on the Record

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

JURISDICTION
On July 29, 2010 appellant filed a timely appeal from May 21 and July 26, 2010 merit
decisions of the Office of Workers’ Compensation Programs denying his traumatic injury claim.
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.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on October 20, 2009.
FACTUAL HISTORY
On October 20, 2009 appellant, then a 44-year-old clerk and assistant, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a left wrist and hand injury on that same
1

5 U.S.C. § 8101 et seq.

date when he was sorting and placing mail in the slots of the credenza and felt intense pain
radiating from his wrist down to his thumb and index finger. He noted that it was painful to
grasp anything. Appellant informed the employing establishment on October 20, 2009 and
stopped work the following day. He returned to work on October 22, 2009. The employing
establishment controverted the claim.
By letter dated October 27, 2009, the Office requested additional medical evidence from
appellant.
In an October 20, 2009 emergency room medical report, Dr. Hasmukh Sheth, Boardcertified in emergency medicine, noted that appellant was complaining of left hand pain when he
was sorting mail at work which had begun the previous day, October 19, 2009. Dr. Monica
Huang, a Board-certified diagnostic radiologist, reported that the radiology report of appellant’s
left hand showed that the punctuate radiodensity projected over the second metacarpal could
represent a small metallic foreign body. She also noted that small osteophystes were present at
the base of the proximal phalanx of the thumb and the head of the first metacarpal bone which
suggested mild degenerative changes. Dr. Sheth reported that the radiology report of appellant’s
left hand showed no fractures and diagnosed a hand sprain. Appellant was advised he could
return to work on October 22, 2009 with no restrictions.
In an October 20, 2009 duty status report, Dr. Steven Thompson, a Board-certified
orthopedic surgeon, stated that appellant must wear a cast/splint at work and was not to use his
hands. He noted appellant’s history as a bilateral hand injury when moving files at work and
diagnosed bilateral de Quervain’s tendinitis of the wrist.
In an October 21, 2009 medical report, Dr. Thompson stated that appellant was
transferring heavy files the week before his visit and developed severe pain on the radial aspect
of the right wrist for which he was given a splint for at the emergency room. In the same report,
he reported that pain and swelling in appellant’s left wrist began two days earlier, October 19,
2009 and had worsened significantly one day earlier, October 20, 2009. Dr. Thompson noted
that appellant had tenderness in his left wrist and diagnosed de Quervain’s tendinitis.
In an October 27, 2009 emergency room medical report, appellant complained of
continued left hand pain. Dr. Swapan Dubey, Board-certified in emergency medicine, noted that
appellant’s hand evaluation showed pain and tenderness along the tendons of the thumb
especially with abduction or movement of the thumb and diagnosed tendinitis.
By letter dated October 30, 2009, the employing establishment controverted appellant’s
claim. It noted that he had filed two traumatic injury claims in less than one month. The
employing establishment also stated that appellant allegedly injured his right hand on
September 28, 2009 when filing folders and again on October 20, 2009 when sorting documents.
Appellant was on light duty where he was not using his hands.
In medical notes dated November 4 and 11, 2009, Dr. Thompson reported that appellant’s
condition had improved with injections and anti-inflammatory medication and should continue to
wear his splint. He did not specify as to which wrist he was referring. Appellant also submitted
prescription slips dated October 21 to November 30, 2009 from Dr. Thompson.

2

By decision dated December 14, 2009, the Office denied appellant’s claim finding that
the evidence did not establish that the injury occurred as alleged. It specifically noted that there
were inconsistencies in the mechanism of injury described in the medical reports submitted. The
October 20, 2009 emergency room report stated that appellant’s pain began on October 19, 2009
and the x-ray showed a metallic foreign body embedded in the left hand. Dr. Thompson’s
October 21, 2009 report stated that appellant’s hand began to hurt two days earlier,
October 19, 2009.
On February 11, 2010 appellant requested reconsideration of the Office decision.
In an October 21, 2009 medical history report, Dr. Thompson noted that appellant was
sorting and filing mail in the office and felt pain in his left hand which started on Monday,
October 19, 2009 and began to worsen on Tuesday, October 20, 2009.
In an October 22, 2009 emergency medical report, Dr. Kenechukwu Ofordeme, Boardcertified in emergency medicine, noted that appellant’s left hand pain started Monday,
October 19, 2009 and continued to persist. He diagnosed tendinitis and arthralgia of the wrist.
By letter dated February 18, 2010, the employing establishment noted that, although
appellant reported that emergency room medical report conveyed the possible presence of a
small metallic foreign body, he had visited a second physician who did not detect any presence
of a foreign body. Dr. Thompson’s medical notes dated October 28 to April 26, 2010 were
submitted. In a January 12, 2010 addendum to his previous October 28, 2009 note, he stated that
appellant had presented x-rays of his left wrist and there was no evidence of any fracture, foreign
body or artifact identified.
By decision dated May 21, 2010, the Office affirmed its December 14, 2009 decision.
On June 21, 2010 appellant requested reconsideration of the Office decision.
By decision dated July 26, 2010, the Office affirmed its May 21, 2010 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of the Act, that the claim was filed within the applicable time
limitation period of the Act3 and that an injury was sustained in the performance of duty.4 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5

2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

James E. Chadden, Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyett, 41 ECAB 992 (1990).

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An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury while in the performance of duty. However, the
employee’s statements must be consistent with the surrounding facts and circumstances and his
or her subsequent course of action.6 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may cast doubt on an employee’s statements in
determining whether he or she has established a claim for compensation. However, an
employee’s statement alleging that an injury occurred at a given time and in a given manner is of
great probative value and will stand unless refuted by strong and persuasive evidence.7
When an employee claims that he sustained an injury in the performance of duty he must
submit sufficient evidence to establish that he experienced a specific event, incident or exposure
occurring at the time, place and in the manner alleged. He must also establish that, such event,
incident or exposure caused an injury.8 Once an employee establishes that he sustained an injury
in the performance of duty, he has the burden of proof to establish that any subsequent medical
condition or disability for work, for which he claims compensation is causally related to the
accepted injury.9
ANALYSIS
The Office denied appellant’s claim, finding that he did not establish that the October 20,
2009 incident happened at the time, place and in the manner alleged. It noted that there were
inconsistencies in the mechanism of injury described in the medical reports submitted. The
Board finds, however, that the evidence of record is sufficient to establish that the October 20,
2009 injury occurred, as alleged.
Appellant alleged a left wrist and hand injury on October 20, 2009 when he was sorting
and placing mail in the credenza and felt intense pain radiating from his left wrist down to his
thumb and index finger.10 The record reflects that he stopped work and sought immediate
medical treatment on that same date at Saint Lukes Hospital. Appellant also notified his
supervisor and filed a traumatic injury claim on the same date as the incident.
In his October 20, 2009 medical report, Dr. Sheth obtained a history that appellant was
complaining of left hand pain which had begun the previous day, October 19, 2009 when he was
sorting mail at work. He diagnosed left hand sprain. On October 21, 2009 Dr. Thompson
reported that appellant’s left wrist began to hurt and swell two days earlier, October 19, 2009 and
6

See Mary Jo Coppolino, 43 ECAB 988 (1992).

7

Allen C. Hundley, 53 ECAB 551 (2002); Early David Seal, 49 ECAB 152 (1997).

8

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
9

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

10

An employment factor which connects the alleged incident with appellant’s job is clearly described and not
disputed by the Office.

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worsened significantly one day earlier, October 20, 2009. He noted that appellant had tenderness
in the left wrist and diagnosed de Quervain’s tendinitis. In an October 22, 2009 medical report,
Dr. Ofordeme reported that appellant’s left hand pain started on Monday, October 19, 2009 and
continued to persist, diagnosing tendinitis and arthralgia of the wrist. X-rays were obtained on
October 20, 2009 and Dr. Huang reported that there could be a small metallic foreign body
embedded in the left hand. In a January 12, 2010 addendum, Dr. Thompson stated that appellant
had presented x-rays of his left wrist and there was no evidence of any fracture, foreign body or
artifact identified.
This evidence does not cast such inconsistencies as to cast doubt on the validity of
appellant’s claim. Dr. Thompson, Dr. Ofordeme and Dr. Sheth all noted that appellant
complained of left hand pain beginning on October 19, 2009. This does not preclude the fact
that appellant could have had a preexisting condition which was aggravated by the October 20,
2009 employment incident. The possibility of a metallic foreign body in appellant’s hand also
does not negate the possibility that he sustained a left hand injury on October 20, 2009. The fact
that he might have had a preexisting condition and complained about it does not, by itself, justify
the Office finding that the October 20, 2009 incident did not occur, as alleged.11
A prior injury will likely be relevant in the Office’s determination concerning whether
appellant sustained a continuing condition or disability resulting from the October 20, 2009
incident, but it does not preclude a subsequent injury from occurring. The mere fact that
appellant’s physicians noted a prior condition cannot be construed as a professional assessment
that no injury occurred on October 20, 2009. This is not a situation where the employee
continued to work without apparent difficulty or delayed in obtaining medical treatment and
notifying his supervisor. Appellant sought treatment, filed his traumatic injury claim and
informed his supervisor on the same date as the October 20, 2009 incident.
Consequently, the Board finds that the factual and medical evidence of record establish
that the injury occurred at the time, place and in the manner alleged. The inconsistencies as
found by the Office for rejecting the claim are insufficient for rejecting that the October 20, 2009
incident occurred, as alleged.12 The case will be returned to the Office for further development
of the medical evidence.
CONCLUSION
The Board finds that the October 20, 2009 injury occurred while appellant was in the
performance of duty. The case is returned to the Office for further development to determine
whether the event caused an injury.

11

See Willie J. Clements, 43 ECAB 244 (1991).

12

See M.H., 59 ECAB 461 (2008); Bill H. Harris, 41 ECAB 216 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the July 26 and May 21, 2010 Office of Workers’
Compensation Programs’ decisions are set aside. The case is remanded to the Office for further
action in conformance with this decision.
Issued: May 17, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Woodstown, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-481
Issued: October 6, 2011

Case Submitted on the Record

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

JURISDICTION
On December 21, 2010 appellant, through her representative, filed a timely appeal from a
September 20, 2010 decision of the Office of Workers’ Compensation Programs (OWCP)
regarding a schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained a ratable impairment of
both upper extremities related to accepted bilateral carpal tunnel syndrome.
On appeal, counsel asserts a conflict of medical evidence between an attending physician
and OWCP’s medical adviser regarding the appropriate percentage of permanent impairment.
Alternatively, counsel asserts that although appellant’s attending orthopedic surgeon found no
ratable impairment of the upper extremities, the medical evidence “should be read in the
[a]ppellant’s best light.”
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on or before August 29, 2007 appellant, then a 43-year-old clerk,
sustained bilateral carpal tunnel syndrome in the performance of duty.
Dr. Allen Berkowitz, an attending Board-certified orthopedic surgeon, performed a right
median nerve release on July 17, 2008 and a left median nerve release on October 20, 2008.
OWCP authorized both procedures and paid appropriate wage-loss compensation from July 17,
2008 through January 2009. Dr. Berkowitz submitted progress notes from July 29, 2008 through
February 10, 2009 finding that her preoperative complaints of pain and numbness in both hands
and wrists had resolved. He released appellant to full duty on February 11, 2009.
On February 11, 2009 appellant claimed a schedule award. She submitted an April 20,
2009 report from Dr. Berkowitz in which he stated that appellant had normal findings. On
examination of both hands and wrists, Dr. Berkowitz found well-healed surgical scars, normal
sensation in the thumbs and all fingers, full range of wrist motion and no thenar atrophy. He
opined that according to the sixth edition of the American Medical Association, Guides to
Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides), there was “no impairment
or disability following the bilateral carpal tunnel release.” Dr. Berkowitz released appellant from
treatment. In an April 28, 2009 report, OWCP’s medical adviser concurred with his rating as all
symptoms had resolved with no impairment of sensation or motion in either hand or wrist.
Counsel referred appellant to Dr. Arthur Becan, an orthopedic surgeon, for an impairment
rating. In an October 23, 2009 report, Dr. Becan provided a history of injury and treatment. He
related appellant’s account of bilateral wrist pain and difficulties with activities of daily living.
Dr. Becan administered a QuickDASH questionnaire demonstrating a 77 percent disability score
for the left upper extremity and 70 percent on the right. On examination of the right wrist, he
found palmar flexion limited to 60 degrees and ulnar deviation limited to 30 degrees. On the
left, Dr. Becan observed mildly positive Tinels’ and Phalen’s signs, dorsiflexion and palmar
flexion limited to 60 degrees and ulnar deviation limited to 30 degrees. He also noted mild
decreased sensation over the median nerve root distribution bilaterally, five kilograms (kg) grip
strength and two kg pinch key strength bilaterally. Dr. Becan diagnosed bilateral carpal tunnel
syndrome, bilateral de Quervain’s tenosynovitis and repetitive occupational trauma disorder. He
relied on Table 15-232 of the sixth edition of the A.M.A., Guides to evaluate appellant’s right
wrist, finding a grade modifier for Functional History (GMFH) of two , a grade modifier for
Clinical Studies (GMCS) of two, a grade modifier for Physical Examination findings (GMPE) of
three due to decreased pinch strength. Dr. Becan determined that these grade modifiers equaled
eight percent impairment of the right upper extremity. For the left wrist, he found a class 1
Diagnosis Based impairment (CDX) for de Quervain’s tenosynovitis, equaling one percent
impairment according to Table 15-3.3 Dr. Becan found a GMFH of three for the QuickDASH

2

Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is entitled “Entrapment/Compression
Neuropathy Impairment”
3

Table 15-3, pages 395-397 of the sixth edition of the A.M.A., Guides is entitled “Wrist Regional Grid: Upper
Extremity Impairments”

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score of 77 according to Table 15-74 and a GMPE of two according to Table 15-2.5 He then
calculated a net adjustment of two, resulting in two percent impairment of the left upper
extremity. Dr. Becan noted that appellant had reached maximum medical improvement as of
October 23, 2009.
OWCP referred the medical record to OWCP’s medical adviser for a schedule award
calculation. In a January 5, 2010 report, he reviewed the medical record and concurred with
Dr. Berkowitz’s opinion. OWCP’s medical adviser noted that he could not explain how or why
Dr. Becan observed abnormal findings six months after Dr. Berkowitz, the treating surgeon,
reported an entirely normal examination. He explained that Dr. Berkowitz’s opinion as the
original treating surgeon was entitled to considerable weight.
By decision dated March 2, 2010, OWCP denied appellant’s schedule award claim on the
grounds that the medical evidence did not establish a ratable permanent impairment of either
upper extremity. It accorded the weight of the medical evidence to Dr. Berkowitz.
In a March 9, 2010 letter, appellant requested an oral hearing, held June 24, 2010. At the
hearing, she asserted that she continued to have pain, numbness and weakness in both wrists and
thumbs. Appellant contended that Dr. Becan performed a more thorough examination than
Dr. Berkowitz. Counsel argued that OWCP wrongfully ignored Dr. Becan’s strength and
neurologic test results.
Appellant did not submit additional evidence prior to
September 20, 2010.
By decision dated and finalized September 20, 2010, OWCP’s hearing representative
affirmed the March 2, 2010 decision denying appellant’s schedule award claim. OWCP’s
hearing representative found that Dr. Berkowitz’s opinion continued to carry the weight of the
medical evidence. OWCP’s hearing representative noted that Dr. Becan diagnosed new
conditions without appropriate explanation.
LEGAL PRECEDENT
The schedule award provisions of FECA6 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board

4

Table 15-7, page 406 of the sixth edition of the A.M.A., Guides is entitled “Functional History Adjustment:
Upper Extremities.”
5

Table 15-2, pages 391-393 of the sixth edition of the A.M.A., Guides is entitled “Digit Regional Grid: Digit
Impairments.”
6

5 U.S.C. § 8107.

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has concurred in such adoption.7 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE
and GMCS.10 The net adjustment formula is GMFH - CDX + GMPE - CDX + GMCS - CDX.
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome.
Dr. Berkowitz, an attending Board-certified orthopedic surgeon, performed a right median nerve
release on July 17, 2008 and a left median nerve release on October 20, 2008. Appellant claimed
a schedule award on February 11, 2009.
Dr. Berkowitz opined on April 20, 2009 that appellant had entirely normal findings on
examination of both hand and wrists, with normal sensation and full range of motion. He
therefore opined that she had no ratable impairment according to the A.M.A., Guides and
released her from care. Counsel then obtained an October 23, 2009 impairment rating from
Dr. Becan, an orthopedic surgeon, who found two percent impairment of the left upper extremity
and eight percent impairment of the right upper extremity due to bilateral carpal tunnel
syndrome, bilateral de Quervain’s tenosynovitis and a repetitive trauma disorder. He did not
provide medical rationale supporting a causal relationship between these conditions and the
accepted bilateral carpal tunnel syndrome.11 The lack of explanation is particularly significant in
light of Dr. Berkowitz’s April 20, 2009 opinion finding no abnormality of either hand or wrist.
Additionally, Dr. Becan did not properly apply the A.M.A., Guides net adjustment formula to the
conditions he posited. He appears to have intermingled the concepts of grade modifier
designation with percentage of impairment and did not provide his calculations. As Dr. Becan
misapplied the A.M.A., Guides, his opinion is of diminished probative value.12

7

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

A.M.A., Guides (6th ed. 2008), page 3, Section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
10

Id. at page 494-531.

11

See Veronica Williams, 56 ECAB 367 Docket No. 04-2120 (issued February 23, 2005) (a schedule award can
be paid only for a condition related to an employment injury; the claimant has the burden of proving that the
condition for which a schedule award is sought is causally related to his or her employment).
12

S.K., Docket No. 10-2151 (issued July 8, 2011).

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Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
On appeal, counsel asserts a conflict of medical evidence between an attending physician
and OWCP’s medical adviser regarding the appropriate percentage of permanent impairment.
As stated, Dr. Becan misapplied the A.M.A., Guides, whereas OWCP’s medical adviser used the
appropriate tables and grading schemes to determine that appellant did not have ratable upper
extremity impairment. Alternatively, counsel asserts that although Dr. Berkowitz found no
ratable impairment of the upper extremities, the medical evidence “should be read in the
Appellant’s best light.” As stated, Dr. Becan’s opinion is of diminished probative value as he
misapplied the A.M.A., Guides and provided insufficient medical rationale. Dr. Berkowitz’s
opinion is entitled to greater weight.
CONCLUSION
The Board finds that appellant has not established that she sustained a ratable impairment
of either upper extremity due to accepted bilateral carpal tunnel syndrome.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 20, 2010 is affirmed.
Issued: October 6, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

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

Docket No. 16-0748
Issued: January 30, 2017

Case Submitted on the Record

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

JURISDICTION
On March 7, 2016 appellant filed a timely appeal from a January 27, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit
decision was the October 7, 2008 decision of the Board, which became final after 30 days of
issuance and is not subject to further review.1 Pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the
merits of appellant’s claim.3

1

20 C.F.R. § 501.6(d).

2

5 U.S.C. § 8101 et seq.

3

Appellant submitted additional evidence with his appeal to the Board. The Board cannot consider this evidence
as its review is limited to evidence which was before OWCP at the time of its decision. 20 C.F.R. § 501.2(c)(1);
P.W., Docket No. 12-1262 (issued December 5, 2012).

ISSUE
The issue is whether OWCP properly denied appellant’s requests for reconsideration of
the merits on the grounds that they were untimely filed and failed to demonstrate clear evidence
of error.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated October 7, 2008, the
Board affirmed February 22, 2008, July 10 and April 12, 2007 decisions of OWCP.4 In a
decision dated September 21, 2011, the Board affirmed a November 29, 2010 nonmerit decision
of OWCP denying her request for reconsideration as it was untimely filed and failed to
demonstrate clear evidence of error.5 In a November 13, 2013 decision, the Board affirmed an
April 8, 2013 nonmerit decision of OWCP denying her request for reconsideration as it was
untimely filed and failed to demonstrate clear evidence of error.6 In an April 10, 2015 decision,
the Board determined that appellant’s July 21, 2014 reconsideration request was also untimely
filed and failed to demonstrate clear evidence of error.7 The facts and circumstances surrounding
the Board’s prior appeals are incorporated herein by reference.
On November 6, 2015 appellant again requested reconsideration. She repeated her
previous arguments that the surveillance video which showed her engaged in various physical
activities, was tampered with and this tainted OWCP’s denial of the claim. Additionally,
appellant argued that the video was the fruit of the poisonous tree and an unlawful error of the
case. She contended that if the original unedited video was reviewed it would be revealed that
she was “not really using [her] left arm.” Appellant also indicated that she was “not aware
anyone was following me either.” She indicated that she was requesting a third party that was
“impartial.”
On December 31, 2015 appellant again requested reconsideration due to error of facts and
findings. She argued that she was challenging the claim because the surveillance video was
tampered with and this tainted OWCP’s denial. Appellant argued that her claim was not
properly reviewed. She indicated that she wanted OWCP to look at the unedited version of the
video and see if she was injured, but they refused to do so. Additionally, appellant argued that
4

Docket No. 08-1167 (issued October 7, 2008). On July 12, 2005 appellant, then a 46-year-old modified clerk,
filed a traumatic injury claim alleging that she injured her left hand and wrist on June 21, 2005 when using a
handgrip machine during a functional capacity evaluation (FCE). OWCP denied appellant’s claim and found that
appellant did not meet her burden of proof to establish that she sustained a left wrist injury during the June 21, 2005
FCE. The Board on October 7, 2008 affirmed the denial of the claim finding that appellant did not meet her burden
of proof to establish causal relationship. The Board denied appellant’s petition for reconsideration on June 17, 2009.
Order Denying Petition for Recon., Docket No. 09-1167 (issued June 17, 2009).
5

Docket No. 11-0685 (issued September 21, 2011). On August 30, 2012 the Board denied appellant’s petition
for reconsideration. Order Denying Petition for Recon., Docket No. 11-0685 (issued August 30, 2012).
6

Docket No. 13-1478 (issued November 13, 2013).

7

Docket No. 15-1298 (issued April 10, 2015). On October 14, 2015 the Board denied appellant’s petition for
reconsideration. Order Denying Petition for Recon., Docket No. 15-0298 (issued October 14, 2015).

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she was injured during an FCE in 2005. She indicated that the employing establishment failed to
take responsibility for a 1981 neck injury and the 2005 injury to her left wrist.
In a decision dated January 27, 2016, OWCP denied appellant’s requests for
reconsideration for the reason that they were untimely filed and failed to demonstrate clear
evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”8
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.9 However, OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the
claimant’s application for review shows clear evidence of error on the part of OWCP in its most
recent merit decision.10 To establish clear evidence of error, a claimant must submit evidence
relevant to the issue that was decided by OWCP. The evidence must be positive, precise, and
explicit and must be manifest on its face that OWCP committed an error.11
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.12 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
establish clear evidence of error.13 It is not enough merely to establish that the evidence could be

8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.607(a).

10

Id. at § 10.607(b).

11

Id.; Fidel E. Perez, 48 ECAB 663 (1997).

12

Annie L. Billingsley, 50 ECAB 210 (1998).

13

Jimmy L. Day, 48 ECAB 652 (1997).

3

construed so as to produce a contrary conclusion.14 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.15 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.16
ANALYSIS
The Board conducted a merit review of appellant’s case on October 7, 2008. Appellant
had one calendar year from the date of that decision, or until October 7, 2009, to file a
reconsideration request with OWCP.17 Her November 6 and December 31, 2015 requests for
reconsideration were received more than one year after the October 7, 2008 merit decision and
were, therefore, untimely.18 Consequently, appellant must demonstrate clear evidence of error
on the part of OWCP.
The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP. With the November 2 and December 26, 2015 requests for reconsideration, appellant
repeated arguments that were previously proffered. She argued that the surveillance video had
been tampered with and that this tainted OWCP’s denial of her claim. As a result, the video was
the fruit of the poisonous tree and an unlawful error of the case. Appellant argued that if the
original unedited video was reviewed it would be revealed that she was “not really using [her]
left arm.” She also indicated that she was “not aware anyone was following [her] either.”
Appellant indicated that she was requesting a third party that was “impartial.” Additionally, she
argued that their refusal to do so left her with a lifetime of injuries without any medical or
compensation due to a tainted and edited video without the master unedited version for
comparison. However, the underlying issue in the claim is whether she established a traumatic
injury June 21, 2005. These arguments are medical in nature. The claim was denied on a
medical component. These arguments therefore do not demonstrate clear evidence of error.19
Additionally, appellant argued that her left wrist was injured during an FCE in 2005 and
that the employing establishment failed to take responsibility for a 1981 neck injury and the 2005
injury to her left wrist. The Board notes that these arguments are unsupported by the evidence
and do not show clear evidence of error in OWCP’s denial of her claim.20

14

Id.

15

Id.

16

Nancy Marcano, 50 ECAB 110 (1998).

17

20 C.F.R. § 10.607(a).

18

Id. The reconsideration request must be received by OWCP within one year of the date of OWCP’s decision
for which review is sought.
19

See H.V., Docket No. 14-1210 (issued September 16, 2015).

20

See F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the
claim was denied is insufficient to demonstrate clear evidence of error).

4

On appeal, appellant repeated her arguments from her previous reconsideration request.
However, as found her requests for reconsideration were untimely filed and failed to demonstrate
clear evidence of error by OWCP.
CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for reconsideration of
the merits on the grounds that they were untimely filed and failed to demonstrate clear evidence
of error.
ORDER
IT IS HEREBY ORDERED THAT the January 27, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 30, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.A., Appellant
and
DEPARTMENT OF COMMERCE, BUREAU
OF THE CENSUS, Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Lenin V. Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1073
Issued: November 25, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 7, 2015 appellant, through her representative, filed a timely appeal from a
March 9, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to justify termination of
appellant’s wage-loss compensation and medical benefits for her accepted injuries effective
July 3, 2013; (2) whether appellant has established that she had continuing disability after
July 3, 2013.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 29, 1996 appellant, then a 44-year-old field representative, filed a claim for
traumatic injury (Form CA-1), alleging injuries to her head, back, shoulders, wrists, knee, foot,
ankle, and hand that occurred when she fell down stairs on October 9, 1996. OWCP accepted
the claim for lumbar sprain, right knee contusion, traumatic left temporomandibular joint injury,
traumatic bilateral carpal tunnel syndrome, right knee osteochondral fracture, ganglion cyst of
the right wrist, and loss of teeth.2 Appellant stopped work on October 10, 1996.
On April 28, 1997 appellant was placed on the periodic rolls for compensation benefits.
Through the years appellant continued to receive medical treatment from Dr. Reed Stone,
a Board-certified neurologist, and Dr. Jeffrey L. Katzell, an orthopedic surgeon.
In a progress report dated October 14, 2009, Dr. Katzell related that appellant was seen
for follow-up evaluation for flare up of back pain with radiation to the back of her knee and calf.
He related that appellant’s problems were caused by her work injury, over a decade ago.
Dr. Katzell explained that over five years ago a magnetic resonance imaging (MRI) scan showed
stenosis at L4-5, and L5-S1. He further related that appellant now had so much spasm,
recurrence of back pain and leg radiculopathy, that she could not even lie in bed without
exacerbation of her symptomatology. Dr. Katzell noted that a recent MRI scan showed herniated
discs with stenosis.
Dr. Stone related in a January 18, 2010 progress note that appellant was seen for ongoing
hand complaints, was being treated for carpal tunnel syndrome, and now had a trigger finger of
the right hand.
In a progress note dated March 3, 2010, Dr. Katzell related that appellant had developed
work-related post-traumatic knee arthritis, flexion contracture of the right knee with retropatellar
tenderness, a Baker’s cyst, posterior swelling, restricted knee flexion and extension. He also
noted that, because of the flexion contracture, she had altered her gait and had worse back pain,
with radiculopathy to the right leg with spasm, positive leg raise, and restricted flexion.
To obtain current medical evidence related to appellant’s capacity to work, OWCP
referred her for a second opinion examination. On June 9, 2010 a workers’ compensation
specialist for the employing establishment sent OWCP a letter and a video disc. The specialist
noted that “Although [appellant’s] physician has asserted that she is totally disabled from all
employment, the video [depicts appellant] walking, bending, stooping, lifting, carrying, twisting,
turning, sweeping, [and] reaching -- demonstrating her ability to do virtually the entirety of the
physical required of her regular job as a Field Representative.” Enclosed along with the letter
was an investigation report, which described the occurrences on the surveillance video.
In the second opinion report dated June 11, 2010, Dr. Kirk E. Maes, a Board-certified
orthopedic surgeon, stated “I believed that the predominance of her current symptoms are
exaggerated and primarily related to the degenerative process, and are no longer significantly
2

The Board notes that the original decision accepting appellant’s injuries does not appear in the case record.

2

related to the work injury. I believe the work injury should be closed and she should be left to be
disabled from an arthritic standpoint related to a primary degenerative process not a posttraumatic process.”
OWCP determined that a conflict in the medical evidence existed between appellant’s
treating physicians (Dr. Stone and Dr. Katzell) and Dr. Maes. It arranged for an impartial
medical examination in order to resolve the conflict, but canceled the appointment due to the
receipt of new video evidence from the employing establishment. OWCP sent the new evidence
and a statement of accepted facts to Dr. Maes’ for issuance of an addendum report.
On January 11, 2011 OWCP sent appellant’s former counsel, Paul Felser, a copy of the
case file on both CD-ROM and paper.
Dr. Maes issued his addendum report on February 17, 2011. In his report, he noted:
“I do not believe that any of [appellant’s] alleged disability stems from the work
injury. I originally believed that she was disabled, in large part from a
psychosocial standpoint, and not due to any physical abnormalities. I now believe
that [appellant] has no disability at all and is malingering. She has a 14-year
history of nonwork and complaints of chronic pain which is no longer causing any
obvious disability.[...] [Appellant’s] exaggeration of pain in the arms and knees,
and to a lesser extent in the back has been chronic. I believe that the cause of this
pain is predominantly degenerative and psychosocial and is not causing any
disability at all.[...] The current video surveillance totally supports this opinion.”
Dr. Maes also stated:
“I believe [appellant’s] prognosis is exceptionally poor. She has not returned to
work since the time of her original injury. [Appellant] has been classified as
totally and permanently disabled, but I believe this is an error. She is apparently
on social security and Medicare (according to her report.) I would not offer
[appellant] any further treatments from a Workers’ Compensation standpoint.
Her ongoing issues are degenerative and psychosocial, or fabricated, and are not
related to her original injury in 1996.”
On April 1, 2011 OWCP forwarded Dr. Maes’ report to Dr. Reed Stone, appellant’s
primary treating physician of record and a Board-certified psychiatrist and neurologist, for
commentary. On April 19, 2011 Dr. Stone responded, noting that appellant underwent
osteochondral grafting of her right knee medial femoral condyle in 1998, a procedure that he
stated would not have been performed but for a full-thickness cartilaginous lesion. He further
noted that a February 1, 2011 MRI scan performed on appellant’s left knee revealed objective
findings of chondromalacia of the patella, a focal cartilage fissure, and chondromalacia of the
lateral femoral condyle. Dr. Stone recommended additional MRI scans of the right knee and
arthroscopic evaluation of the left knee. He noted, “[A]t this time, I cannot clearly determine the
cause of her left knee condition and, in particular, determine whether or not it is related to her
[w]orkers’ [c]ompensation injury.”

3

By letter dated April 1, 2011, OWCP sent a copy of the video evidence submitted by her
employing establishment to appellant’s former counsel and enclosed it along with that letter.
In a second opinion report dated August 17, 2012, Dr. Sorrell I. Strauss, a dentist,
examined appellant’s right temporomandibular joint. He noted that she had 85 percent motion in
all normal directions. Dr. Strauss stated that appellant’s diagnosed condition was directly caused
by the 1996 injury and recommended additional treatment.
In a second opinion report dated August 13, 2012, Dr. Peter Millheiser, a Board-certified
orthopedic surgeon, examined the records of appellant’s treatment and conducted a physical
examination. He reviewed the video surveillance and opined that appellant’s subjective
complaints outweighed her orthopedic findings. Dr. Millheiser noted that appellant had related
that she could only perform minimal activities around her house and that if she went out or
worked in the garden she would have severe pain. However, the surveillance video obtained on
May 1 and October 18, 2010 showed that appellant was able to walk normally outside.
Dr. Millheiser noted:
“[Appellant] hung a basket full of plants. She stood bent over and could arise
from a bent over position apparently without problems. [Appellant] could carry
objects. She could help someone unload a framed door from the rear of a vehicle.
This involved lifting the door as well. [Appellant] carried half the door entering
into a garage. She bent over to look at objects to put into a garbage container.
[Appellant] was able to get in and out of a vehicle and lay and bend without
problems. She was noted to be bent over gathering things on numerous
occasions. [Appellant] walked without difficulty to a neighbor’s house. She was
able to carry some object to the neighbor’s house. [Appellant] was able to use a
broom and walk back in front of the garage. She could bend to pick up potted
plants and carry them to the side of the house with walking.”
Dr. Millheiser concluded that appellant exaggerated her complaints. He indicated that
[she] should be evaluated by a psychiatrist to make sure that she was taking the proper
medications. As far as activities were concerned, appellant’s only limitations would be due to
the right knee osteoarthritis. Therefore Dr. Millheiser concluded that appellant was capable of
performing light-duty work with restrictions.
On September 13, 2012 OWCP requested clarification of Dr. Strauss’ August 17, 2012
report. Dr. Strauss clarified by letter dated October 19, 2012, noting that appellant would need
continued splint therapy and possibly surgery, though noting that “surgery is highly unlikely.”
He clarified that her dental injury would not preclude her from performing her date-of-injury
position or participating in vocational rehabilitation.
By letter dated January 24, 2013, OWCP notified appellant that it had scheduled an
appointment with a referee examiner to resolve a conflict in the medical evidence.
On January 11, 2013 appellant requested a copy of her entire case record, including the
video surveillance provided by the employing establishment. She also requested to participate in
the process for selection of an independent medical examiner (IME). On January 17, 2013

4

OWCP replied, noting that appellant needed to provide a valid reason for requesting
participation, including but not limited, to documented bias.
On January 29, 2013 OWCP requested a copy of the surveillance video from the
employing establishment, noting that it had mailed its last copy with a referral to a referee
examiner. It informed appellant that it did not have an extra copy to provide to her by letter of
the same date.
By letter dated February 14, 2013, appellant stated that the selected IME physician,
Dr. Ian Fries, a Board-certified orthopedic surgeon, was biased because he appeared to rely
largely on IMEs for income, did not have a regular practice, and had addressed the American
Academy of Orthopedic Surgeons as a public speaker on the issue of work-related injuries.
OWCP responded to appellant’s February 14, 2013 letter on February 22, 2013. It noted
that she was allowed the opportunity to provide evidence regarding selection of Dr. Fries as an
IME. OWCP found that she had not provided a valid reason to support her request to participate
in the selection process, noting that her claim that Dr. Fries may be biased was unfounded. It
stated, “You have not provided any documented evidence to substantiate this. Your perceptions
do not have a factual basis.” Regarding appellant’s claim that Dr. Fries did not have a regular
practice, OWCP noted, “Dr. Fries is Board-certified [and] it is logical that any entity, which
requests an opinion from a specialist, regardless of the field of expertise [...] is willing to pay a
fee to obtain an unbiased expert’s opinion on the matter. This is nothing new. Dr. Fries is being
paid a fee to conduct an [i]ndependent [m]edical [e]xamination.”
In a referee report dated March 1, 2013, Dr. Fries extensively reviewed appellant’s
medical history and conducted an examination. He noted that “none of her current diagnoses are
medically connected to the October 9, 1996 slip and fall. Several diagnoses mentioned in
appellant’s records including right de Quervain’s tendinitis, complex regional pain syndrome,
and a right volar wrist ganglion are no longer viable considerations.” In reviewing Dr. Stone’s
reports, he noted that Dr. Stone had included a summary of a handwritten report from a
psychiatrist regarding appellant’s daughter’s psychiatric conditions. Dr. Fries did not use this
information in the evaluation of appellant’s conditions. He stated:
“The charade lasted more than sixteen years. [Appellant] does not have current
pathology reasonably related to her unwitnessed October 9, 1996 accident. She
does not have any condition -- related or unrelated to that fall -- rendering her
fully disabled from gainful employment. Degenerative arthritis of her knees
might be considered in restrictions of ambulation, stair climb, and squatting, as
well her age and obesity may be factors. However, video evidence does not
support any work restrictions.”
Regarding her capability to return to gainful employment, Dr. Fries noted, “Yes, she is capable
of gainful employment based upon the lack of objective findings of impairment, and video
evidence.” Regarding appellant’s capability for vocational rehabilitation, he concluded, “It is
unlikely rehabilitation will change her employability, as the main factor limiting her is her
claimed intolerance to any work.” Appellant noted to Dr. Fries that she had not seen the video,
and explained that on May 1, 2010, she took two Vicodin prior to helping her husband with a

5

garage door. Dr. Fries noted that this did not explain the findings of the March 18, 2010 video.
Regarding the findings of the video, he noted,
“On March 18, 2010 [appellant] is seen in her garden bending over to the ground.
May 1, 2010 outside her garage, she and her husband lift a full door and door
frame assembly from the back of an SUV, and move it into their garage.
[Appellant] later helps her husband place the door assembly in the door opening,
demonstrating good bilateral hand strength.
“[Appellant] ambulates normally during the entire video without resting, and
without knee supports. She bends to the ground multiple times, without
hesitation.
“[Appellant] folds towels on the SUV floor that were under the door assembly.
She picks up objects from the ground. [Appellant] carries a load of towels into
the garage from the SUV. She bends multiple times to 90 degrees over a garbage
can to inspect objects. [Appellant] reaches overhead to close the SUV hatch back.
“[Appellant] easily enters the SUV driver’s seat, and repositions it from the side
of the garage to the front garage section. She then exits the SUV with no
difficulty, flexing and extending her knees, and then uses right and left hands to
open the door latches, and then the back SUV door. [Appellant] shakes out a
towel with both hands. She carries a tool case across the street. [Appellant]
assists [in] placement of the door hardware using both hands. She sweeps the
front garage apron.
“[Appellant] dons work gloves, and carries garden supplies in both hands. She
bends over touching the bottom of a garden fence.”
In a report dated June 19, 2013, Dr. Samy Bishai, Board-certified in emergency medicine,
responded to Dr. Fries’ independent medical report. He stated that the length of the report and
medical history “in itself is a testament to [appellant’s] long-standing chronic problems that she
suffered as a result of the injuries of October 9, 1996. The majority of her treating physicians
have clearly indicated and diagnosed all the medical problems she is going through as a result of
the injuries of October 9, 1996.” Dr. Bishai noted that objective tests reviewed by Dr. Fries
indicated that appellant had severe disabling arthritis. He further took issue with Dr. Fries’
statement that she complained of her right knee joint injury 19 days after a fall, noting that she
filed a traumatic injury claim immediately. He stated, “It is my opinion, within a reasonable
degree of medical certainty, that the osteochondral fracture is directly the result of the injury that
the patient sustained in the accident of October 9, 1996.” Dr. Bishai opined that appellant
needed a total knee replacement, and noted that she had not been afforded the opportunity to
view the surveillance videos.
On May 24, 2013 OWCP proposed to terminate appellant’s compensation for medical
benefits and wage loss due to the orthopedic conditions, finding that the weight of the medical
evidence established no continuing residuals of her work-related conditions. It noted that
medical benefits for her oral injuries, i.e., temporomandibular joint disorder and broken teeth,

6

would not be terminated for additional medical treatment, and that these injuries did not preclude
her from full-duty work.
By letter dated June 23, 2013, appellant stated that she still had not received a copy of the
video surveillance evidence. She stated that her former attorney had requested a copy in writing,
but that it was never received. Appellant noted, “Without it I do not possess complete medical
evidence as I am entitled to. I wish to make comments about the video and enter the comments
into my file and cannot without first viewing the video.”
By decision dated July 2, 2013, OWCP terminated appellant’s medical and wage-loss
benefits effective July 3, 2013, based upon Dr. Fries’ independent medical examination.
By letter dated July 2, 2013, OWCP sent the original video surveillance of appellant from
the employing establishment to her, noting that it did not have another copy.
On July 6, 2013 appellant requested an oral hearing before an OWCP hearing
representative. Appellant resubmitted medical evidence from her physicians in support of her
request, as well as a statement noting that she had not received a copy of the surveillance video
and that the activities on the video were “emergency in nature.”
The hearing was held on December 9, 2013. Appellant repeated her claims that she had
not been provided with a copy of the video surveillance prior to OWCP’s decision to terminate
her compensation. She noted that Dr. Maes had not mentioned the video in his initial report, that
he had stated that she was totally disabled in his initial report, and that he had submitted an
addendum report after viewing the video. Appellant stated that she had never been charged with
fraud. Appellant’s representative stated that showing the physicians video surveillance of
appellant “tainted the doctors’ opinions.” Appellant’s current representative noted that her
response to her activities in the videos would be that “she was taking Vicodin when she was
helping her husband, and she didn’t do anything but drag a door for about three feet.” He further
noted that the video was edited, stating that “they only showed like segments that they wanted to
show.”
By letter dated January 7, 2014, the employing establishment offered comments in
response to the December 9, 2013 hearing. It noted that OWCP had sent a copy of the video
surveillance to appellant’s counsel along with a letter dated April 1, 2011. The employing
establishment further noted that the investigative report, including a full description of the
surveillance video, had been sent to appellant along with the entire case file on January 11, 2011.
By letter dated January 16, 2014, appellant’s former counsel, Paul Felser, noted that “Our
records do not reflect the receipt of any video documentation from either the Department of
Labor or your employing agency.”
On January 27, 2014 appellant provided OWCP with a statement, noting that she had not
yet received a copy of the transcript of the hearing, and stating, “I have never been charged with
any crime or fraud charges; therefore, that clears me of any wrongdoing.”
By decision dated February 5, 2014, the hearing representative affirmed OWCP’s July 2,
2013 termination of benefits. She noted that on April 1, 2011, OWCP sent a copy of the video
7

surveillance to “David Felser” at the correct address for Paul Felser. Appellant was also sent a
copy of the video at her correct address. The hearing representative found that the video
surveillance had been provided to appellant’s prior counsel and appellant and presumed received
under the mailbox rule and that appellant had been afforded an opportunity to comment and
actually weighed in on the contents of the video surveillance at the hearing.
On July 24, 2014 appellant, through her representative, requested reconsideration of the
decision dated February 5, 2014. He reiterated earlier arguments that appellant had not been
afforded the opportunity to comment on the contents of the video surveillance prior to
termination of her benefits. Along with the request, appellant resubmitted voluminous records of
evidence.
In an office note dated August 23, 2012, Dr. Steven Saslow, a Board-certified orthopedic
surgeon, noted that he had performed an injection on appellant’s right knee.
On March 14, 2014 Dr. Eduardo Gonzalez, an anesthesiologist, diagnosed appellant with
cervical disc syndrome with radiculopathy; lumbar disc syndrome with radiculopathy; internal
derangement of the right and left shoulder joints; internal derangement of the right and left knee
joints; internal derangement of the left hip joint; bilateral carpal tunnel syndrome; and
temporomandibular joint disorder and internal derangement.
In a report dated May 8, 2014, Dr. Stone diagnosed appellant with thoracic or
lumbosacral neuritis or radiculitis; displacement of lumbar intervertebral disc without
myelopathy; reflex sympathetic dystrophy of the upper limb; and carpal tunnel syndrome.
By decision dated March 9, 2015, OWCP performed a merit review of appellant’s entire
case file and found that she had not submitted sufficient medical evidence to overcome the
weight afforded to Dr. Fries’ medical opinion. It therefore denied modification.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability. To terminate authorization for medical treatment, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.5
FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
3

Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000).

4

Mary A. Lowe, 52 ECAB 223, 224 (2001).

5

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

8

a third physician who shall make the examination.6 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee or impartial examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.7
To be of probative value, a medical opinion must be based on a complete factual and
medical background, must be of reasonable medical certainty, and be supported by medical
rationale.8 Medical rationale is a medically sound explanation for the opinion offered.9
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.10
In the absence of evidence to the contrary, it is presumed that a notice mailed to an
addressee in the ordinary course of business was received by the addressee.11 The appearance of
a properly addressed copy in the case record, together with the mailing custom or practice of the
sender, will raise a presumption that the original was received by the addressee. This is known
as the mailbox rule.12
ANALYSIS -- ISSUE 1
In the present case, OWCP found that a disagreement existed between Drs. Katzell and
Stone, appellant’s primary physicians of record, and Drs. Maes and Millheiser, second opinion
physicians, as to whether appellant continued to have residuals of her October 9, 1996
employment injury.
In accord with 5 U.S.C. § 8123(a), OWCP referred the case to Dr. Fries for a referee
examination and an opinion as to whether appellant continued to have employment-related
residuals. In his March 1, 2013 report, Dr. Fries noted that “none of her current diagnoses are
medically connected to the October 9, 1996 slip and fall.[...] The charade lasted more than
sixteen years. [Appellant] does not have current pathology reasonably related to her unwitnessed
October 9, 1996 accident. She does not have any condition -- related or unrelated to that fall -6

5 U.S.C. § 8123(a).

7

20 C.F.R. § 10.321.

8

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

9

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB
641 (1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound, and logical).
10

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

11

See Larry L. Hill, 42 ECAB 596, 600 (1991).

12

S.A., Docket No. 14-1345 (issued December 15, 2014).

9

rendering her fully disabled from gainful employment. Degenerative arthritis of her knees might
be considered in restrictions of ambulation, stair climb, and squatting, as well her age and obesity
may be factors. However, video evidence does not support any work restrictions.”
Appellant previously had questioned Dr. Fries on the issue of bias and requested that
OWCP involve her in the referee selection process. OWCP responded formally on February 14,
2013, finding that appellant had not provided evidence of Dr. Fries’ bias such that OWCP was
required to involve her in the selection process. The Board finds that OWCP properly denied
appellant’s request.13
In a report dated June 19, 2013, Dr. Bishai responded to Dr. Fries’ independent medical
report. He stated that the length of the report and medical history “in itself is a testament to
[appellant’s] long-standing chronic problems that she suffered as a result of the injuries of
October 9, 1996. The majority of her treating physicians have clearly indicated and diagnosed
all the medical problems she is going through as a result of the injuries of October 9, 1996.”
Dr. Bishai noted that objective tests reviewed by Dr. Fries indicated that appellant had severe
disabling arthritis. He further took issue with Dr. Fries’ statement that she complained of her
right knee joint injury 19 days after a fall, noting that she filed a traumatic injury claim
immediately. Dr. Bishai stated, “It is my opinion, within a reasonable degree of medical
certainty, that the osteochondral fracture is directly the result of the injury that the patient
sustained in the accident of October 9, 1996.” He opined that appellant needed a total knee
replacement, and noted that she had not been afforded the opportunity to view the surveillance
videos.
The Board finds that Dr. Fries provided a rationalized medical opinion in this case. The
number of physicians finding disability and the length of time over which appellant’s case was
accepted is irrelevant to whether Dr. Fries’ opinion was rationalized. Only his reasoning and
interpretation of the evidence is relevant. Dr. Fries extensively documented appellant’s prior
medical history and gave well-supported reasons for finding that appellant was no longer
suffering residuals of her work-related injury. As a referee physician, Dr. Fries’ report is entitled
to special weight.
Regarding appellant’s accepted temporomandibular joint disorder, the Board notes that
Dr. Fries did not make findings regarding this condition. OWCP’s second opinion physician,
Dr. Strauss had related on August 17, 2012 that appellant still required medical treatment of this
condition. He clarified in his October 19, 2012 report that this condition did not disable
appellant. In the preliminary notice of termination of benefits OWCP stated that appellant would
continue to receive medical benefits for this condition. The Board concludes that while the final
termination decision of July 2, 2013 was silent regarding this condition, appellant remains
13

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.4(f) (July 2011). OWCP’s procedures provide that a claimant who asks to participate in selecting the referee
physician or who objects to the selected physician should be requested to provide his or her reason for doing so.
OWCP is responsible for evaluating the explanation offered. Examples of circumstances under which the claimant
may participate in the selection include (but are not limited to): (a) Documented bias by the selected physician;
(b) Documented unprofessional conduct by the selected physician; (c) A female claimant who requests a female
physician when a gynecological examination is required; or (d) A claimant with a medically documented inability to
travel to the arranged appointment when an appropriate specialist may be located closer.

10

entitled to medical benefits for her accepted temporomandibular joint disorder and the evidence
establishes that it does not prevent a return to work.
The Board finds that OWCP met its burden of proof to terminate wage-loss compensation
and medical benefits effective July 3, 2013, with the exception of medical benefits for her
accepted temporomandibular joint disorder.
On appeal, counsel argues that appellant’s procedural rights were deprived because she
was unable to view the surveillance video taken of her by the employing establishment before
her benefits were terminated. He further argues that Dr. Fries’ report improperly relies upon
medical evidence that actually belonged to appellant’s daughter.
As noted above, the mailbox rule provides that the appearance of a properly addressed
copy in the case record, together with the mailing custom or practice of the sender, will raise a
presumption that the original was received by the addressee.14 The record contains a properly
addressed copy of the video evidence submitted by her employing establishment to appellant’s
former counsel, dated April 1, 2011, which was also sent to appellant’s address of record.15 As
such, the Board finds that the mailbox rule raises the presumption that such video evidence was
received by appellant and her former representative. Mr. Felser’s letter of January 16, 2014 is
not sufficient to rebut this presumption. Furthermore, the Board notes that appellant received an
investigative report containing a full summary of the events on the surveillance tapes on
January 11, 2011, and that she was afforded the opportunity to respond, and actually responded
to, the contents of the tapes in her hearing of December 9, 2013. As such, she was not deprived
of any procedural rights.
Regarding counsel’s accusation that Dr. Fries’ report improperly relied upon medical
evidence belonging to appellant’s daughter, the Board notes that he was quoting from
Dr. Stone’s report and actually noted that this evidence did not belong to appellant. Dr. Fries did
not rely upon this evidence in his finding that appellant no longer suffered residuals of her workrelated injury.
The Board therefore finds that OWCP met its burden of proof to terminate appellant’s
wage-loss and medical benefits as of July 3, 2013.
LEGAL PRECEDENT -- ISSUE 2
After termination of benefits clearly warranted on the basis of the evidence, the burden
for reinstating compensation shifts to the claimant. To prevail, the claimant must establish by
the weight of the reliable, probative and substantial evidence that she had an employment-related
disability which continued after termination of compensation benefits.

14

Supra note 11.

15

The letter was properly addressed to Attorney Felser, at the correct P.O. Box, city, state and zip code.
Although the first name of Mr. Felser was David not Paul, the Board finds this harmless error. The Board notes that
the letter with the copy of the surveillance video was not returned to OWCP as undeliverable.

11

ANALYSIS -- ISSUE 2
Following the termination of her compensation benefits appellant submitted additional
medical evidence. In an office note dated August 23, 2012, Dr. Saslow noted that he had
performed an injection on appellant’s right knee. As this report predated the termination of
benefits and offered no opinion regarding causal relationship, it is of no probative value
regarding the issue of appellant’s continuing disability after July 3, 2013.
Appellant also submitted a March 14, 2014 report from Dr. Gonzalez and a May 8, 2014
report from Dr. Stone. These physicians diagnosed a number of cervical, lumbar, shoulder, knee,
and hip conditions, as well as carpal tunnel syndrome, and temporomandibular joint disorder.
Neither physician however offered a rationalized medical opinion explaining how these
conditions were causally related to appellant’s accepted October 9, 1996 employment injury, or
why any of these conditions would cause continuing disability. These reports are therefore of
diminished probative value.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate wage-loss compensation
and medical benefits effective July 3, 2013, except that appellant remains entitled to medical
benefits for her accepted right temporomandibular joint condition. The Board further finds that
appellant has not established continuing disability on July 3, 2013.

16

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

12

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 9, 2015 is affirmed as modified.
Issued: November 25, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
MEDICAL COMMAND, Portsmouth, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1390
Issued: August 1, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 22, 2016 appellant filed a timely appeal from a January 20, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $5,643.15 for the period April 1, 2010 through May 2, 2015; (2) whether OWCP
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 20, 2016 decision, OWCP received additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. Thus, the
Board is precluded from reviewing this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); M.B.,
Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly
deducted $125.00 every 28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decisions are incorporated herein by reference.
On April 28, 1992 appellant, then a 44-year-old diagnostic radiologic technician, filed a
traumatic injury claim (Form CA-1) alleging a left shoulder and humerus injury when she was
struck by items falling from the top of a metal cabinet that date.4 OWCP accepted the claim for
C5-6 herniated disc, C6 radiculopathy, left shoulder soft tissue trauma, and authorized anterior
cervical microdiscectomy interbody fusion surgery, which was performed on November 25,
1992 and C5-6 nerve root decompression surgery, which was performed on July 20, 1993. It
subsequently expanded acceptance appellant’s claim to include major depressive disorder and
pain disorder. In a letter dated May 13, 2009, OWCP informed appellant that she was being
placed on the periodic rolls for temporary total disability effective April 25, 2005.
Appellant was born in March 1948. When she turned 62 years of age in 2010, she was
eligible to receive age-related social security retirement benefits. The record indicates that she
was covered under the Federal Employees Retirement System (FERS) and was subject to Federal
Insurance Contributions Act (FICA) withholding.
In a letter dated February 18, 2010, OWCP noted that appellant was approaching 62 years
of age and advised her that FECA required a reduction in benefits if she received retirement
benefits from the Social Security Administration (SSA) attributable to federal service. It advised
her to contact OWCP promptly if she received SSA retirement benefits to avoid an overpayment
of compensation.
In an EN1032 form dated April 19, 2010, appellant indicated that she had been assigned a
Civil Service Annuity (CSA) number by SSA, but had not received SSA retirement benefits
during the past 15 months. She submitted an amended EN1032 form dated April 26, 2010 noting
she was in receipt of SSA disability benefits.

3

Docket No. 06-0750 (issued June 5, 2007). In a June 5, 2007 decision, the Board found that OWCP properly
denied modification of a December 23, 1997 loss of wage-earning capacity determination. The Board also affirmed
a June 7, 2005 decision which granted appellant a schedule award for three percent right upper extremity permanent
impairment. The Board, however, set aside an OWCP decision dated November 21, 2005 granting 10 percent
permanent impairment to her larynx. In Docket No. 08-0689 (issued November 17, 2008), the Board, by order dated
November 17, 2008, dismissed the appeal as it was found to be a duplicative claim. In Docket No. 08-0688 (issued
April 6, 2009), the Board found that modification of the December 23, 1997 loss of wage-earning capacity was
warranted and set aside a December 20, 2007 OWCP decision denying modification. The Board also set aside
decisions dated October 23 and 31, 2007 denying appellant’s claim for an increased schedule award for permanent
impairment to her larynx as there remained an unresolved conflict in the medical opinion evidence.
4

Appellant resigned from her position effective July 15, 1994, but returned to work as an office automation clerk
on September 15, 1997.

2

On July 26, 2010 SSA informed OWCP that the offset was not applicable to SSA
disability benefits.
OWCP subsequently received completed EN1032 forms dated April 10, 2011, May 9
and 10, 2012, May 4, 2013, March 18, 2014, and March 10, 2016 from appellant noting that she
had been assigned a CSA number, but was currently not receiving retirement benefits.
SSA, in forms dated May 2 and 4, 2015, provided the amount that appellant had actually
received in retirement benefits with FERS and also the hypothetical amount that she would have
received without FERS.
By letter dated May 13, 2015, OWCP advised appellant that it was adjusting her
compensation to offset that portion of her SSA retirement benefits attributable to her federal
service. It informed her that the portion of the SSA benefits earned as a federal employee was
part of the FERS retirement package and that FECA prohibited the simultaneous receipt of
workers’ compensation and federal retirement benefits.
In CA-110 notes dated May 19, 2015, appellant called OWCP contending that she was
not in receipt of SSA retirement benefits, but rather received SSA disability benefits. OWCP
informed appellant that SSA provided information that she was receiving SSA retirement
benefits based on her federal service. If appellant had contrary information from SSA in writing,
OWCP advised her to submit it.
On August 10, 2015 OWCP calculated the overpayment by determining the difference
between appellant’s SSA amount with and without FERS for each period. It then multiplied the
daily offset amount by the number of days in each period to find a total overpayment of
$5,643.15.
For the period April 1, 2010 to November 30, 2011, appellant received a monthly social
security payment (with FERS) of $1,455.50, but should have received a monthly payment
(without FERS) of $1,343.10. This was an overpayment of $112.40 per month or $103.75 per 28
days. For 609 days in that period, the overpayment amount was $2,256.65. For the period
December 1, 2011 to November 30, 2012, appellant received a monthly social security payment
(with FERS) of $1,501.80, but should have received a monthly payment (without FERS) of
$1,391.40. This was an overpayment of $110.40 per month or $101.91 per 28 days. For 366
days in that period, the overpayment amount was $1,332.08. For the period December 1, 2012 to
February 28, 2013, appellant received a monthly social security payment (with FERS) of
$1,532.40, but should have received a monthly payment (without FERS) of $1,415.00. This was
an overpayment of $117.40 per month or $108.37 per 28 days. For 90 days in that period, the
overpayment amount was $348.33. For the period March 15 to November 30, 2014, appellant
received a monthly social security payment (with FERS) of $1,556.40, but should have received
a monthly payment (without FERS) of $1,436.20. This was an overpayment of $120.20 per
month or $110.95 per 28 days. For 275 days in that period, the overpayment amount was
$1,089.73. For the period December 1, 2014 to May 2, 2015, appellant received a monthly
social security payment (with FERS) of $1,582.80, but should have received a monthly payment
5

This report appears to overlook the period from March 1, 2013 to March 1, 2014.

3

(without FERS) of $1,460.60. This was an overpayment of $112.20 per month or $112.80 per 28
days. For 153 days in that period, the overpayment amount was $616.37. This overpayment
($2,256.65 + $1332.08 + $348.33 + $1,089.73 + $616.37) was a total of $5,643.15.6
On August 10, 2015 OWCP notified appellant of its preliminary determination that she
received an overpayment of compensation in the amount of $5,643.15 as she had received
compensation benefits for the period April 1, 2010 through May 2, 2015 that had not been
reduced by the portion of her SSA benefits attributable to her federal service. It determined that
she had begun receiving regular retirement benefits under SSA effective April 1, 2010. OWCP
found that a portion of the SSA benefits she received due to her federal service, which was part
of FERS retirement package, was a prohibited dual payment. It further made a preliminary
determination that appellant was without fault in creating the overpayment. OWCP requested
that she complete the enclosed overpayment recovery questionnaire and submit supporting
financial documents. Additionally, it notified appellant that, within 30 days of the date of the
letter, she could request a telephone conference, a final decision based on the written evidence,
or a prerecoupment hearing.
On September 18, 2015 appellant requested a telephone conference with OWCP. She
stated that she disagreed with the amount of the overpayment and requested waiver of recovery
as she was not at fault in the creation of the overpayment. Appellant noted that March 2014 was
the correct date as that was when she reached the retirement age of 66. She also submitted a
letter dated March 24, 2014 from SSA informing her that she was entitled to monthly retirement
benefits beginning April 2014. SSA informed appellant that her first payment would be
$1,451.00, which was the money SSA owed her for March 2014, and that in the future she would
receive monthly payments of $1,451.00 around the third of each month.
In a January 20, 2016 memorandum of conference, OWCP noted the overpayment
occurred because appellant had been receiving SSA retirement benefits from April 1, 2010, but
that OWCP had received no SSA/FERS documents until May 8, 2015. In response to the
preliminary overpayment determination, appellant again requested a telephone conference, but
failed to submit any financial documentation. The telephone conference took place on
January 20, 2016. According to OWCP, appellant acknowledged that she had been overpaid and
agreed to a repayment amount of $125.00 from continuing compensation benefits.
By decision dated January 20, 2016, OWCP finalized its preliminary determination
regarding the fact and amount of the overpayment, as well as its finding that appellant was not at
fault. It found that the financial information received, however, was insufficient to warrant
wavier of recovery of the overpayment. OWCP also imposed a 28-day repayment of $125.00 to
be deducted for appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
6

The actual total is $5,643.16 but OWCP reduced that amount by one cent.

4

employee receives SSA benefits based on federal service, her compensation benefits shall be
reduced by the amount of SSA benefits attributable to her federal service.7
OWCP’s procedures provide that, while SSA benefits are payable concurrently with
FECA benefits, the following restrictions apply: in disability cases, FECA benefits will be
reduced by SSA benefits paid on the basis of age and attributable to the employee’s federal
service.8 The offset of FECA benefits by SSA benefits attributable to employment under FERS
is calculated as follows: where a claimant has received SSA benefits, OWCP will obtain
information from SSA in the amount of the claimant’s benefits beginning with the date of
eligibility to FECA benefits. SSA will provide the actual amount of SSA benefits received by
the claimant/beneficiary. It will also provide a hypothetical SSA benefit computed without the
FERS covered earnings. OWCP will then deduct the hypothetical benefit from the actual benefit
to determine the amount of benefits which are attributable to federal service and that amount will
be deducted from FECA benefits to obtain the amount of compensation payable.9
The possibility of dual benefits occurs when the claimant is at least 62 years old, had
FERS retirement, and is paid benefits based on age by SSA. The offset is that portion of SSA
benefits attributable to federal service.10
ANALYSIS -- ISSUE 1
OWCP accepted C5-6 herniated disc, C6 radiculopathy, left shoulder soft tissue trauma,
major depressive disorder, and pain disorder, and authorized C5-6 nerve root decompression and
anterior cervical microdiscectomy interbody fusion surgeries. It found that appellant had been
on the periodic rolls effective April 25, 2005. Retroactive compensation payments began
May 10, 2009.
Relying on information provided by SSA on May 2 and 4, 2015, OWCP determined that
appellant had been receiving a dual benefit beginning April 1, 2010, the date appellant began
receiving retirement benefits. SSA provided the total amount appellant received in retirement
benefits which included FERS and also the hypothetical amount that she would have received
without the benefits of FERS beginning that date.
The record supports that appellant received FECA wage-loss compensation continually
since May 10, 2009 and that she received SSA retirement benefits beginning April 1, 2010. The
portion of the SSA retirement benefits that was attributable to her federal service through her
7

5 U.S.C. § 8116(d). See D.S., Docket No. 12-689 (issued October 10, 2012); G.B., Docket No. 11-1568 (issued
February 15, 2012); see also Janet K. George (Angelos George), 54 ECAB 201 (2002).
8

See also R.C., Docket No. 09-2131 (issued April 2, 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Dual Benefits, Chapter 2.1000.4(a) (February 1995); Chapter 2.1000.4(e)(2) (February 1995); Chapter 2.1000.11
(February 1995). OWCP does not require an election between FECA benefits and SSA benefits except when they
are attributable to the employee’s federal service.
9

A.S., Docket No. 16-538 (issued September 14, 2016).

10

See M.H., Docket No. 13-825 (issued August 1, 2013).

5

FERS retirement package is prohibited dual benefit while also receiving compensation under
FECA.11
This dual benefit was not corrected or offset until May 3, 2015. SSA notified OWCP of
the amount of benefits she received and the amount she should have received for the period
April 1, 2010 to May 2, 2015. Based on these rates, OWCP was able to calculate the improper
dual benefit appellant had received for that period which yielded an overpayment of
compensation in the amount of $5,643.15. The record included an overpayment worksheet
explaining the overpayment calculation.
The Board finds that OWCP properly calculated the dual benefits for the period April 1,
2010 through May 2, 2015 in the amount of $5,643.15 for this period, thus creating an
overpayment of compensation in that amount.
Appellant contends on appeal that she did not receive retirement benefits from SSA for
the period April 1, 2010 through May 2, 2015. The record reflects that SSA verified the payment
of SSA retirement benefits effective April 1, 2010 and appellant has submitted insufficient
evidence to dispute the receipt of these benefits.
LEGAL PRECEDENT -- ISSUE 2
According to section 10.436,12 recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current income (including compensation benefits) to meet current, ordinary and necessary
living expenses and also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.13 For waiver under
this standard, a claimant must meet the two-pronged test and show that he or she both needs
substantially all of his or her current income to meet current ordinary and necessary living
expenses,14 and that his or her assets do not exceed the resource base.15

11

Supra note 8 at Chapter 2.1000.4(e) (February 1995).

12

20 C.F.R. § 10.436.

13

OWCP procedures provide that assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent, plus $960.00 for each additional dependent. Supra note 8 at
Chapter 6.200.6(a) (October 2004).
14

An individual is deemed to need substantially all of his or her income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio Martinez, 55
ECAB 245, 250 (2004).
15

See supra note 13. W.F., 57 ECAB 705, 708 (2006).

6

The burden is on the claimant to show that the expenses are reasonable and needed for a
legitimate purpose.16 OWCP’s regulations provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [OWCP]. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of [FECA] or be against equity and good conscience....
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”17
ANALYSIS -- ISSUE 2
As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery must be considered, and repayment is still required unless adjustment or recovery of the
overpayment would defeat the purpose of FECA or be against equity and good conscience.18 In
an August 10, 2015 preliminary notice of overpayment, it advised appellant of its preliminary
determination and instructed her to complete the enclosed overpayment recovery questionnaire
and submit supporting financial documents. Additionally, OWCP notified appellant that, within
30 days of the date of the letter, she could request a telephone conference, a final decision based
on the written evidence, or a prerecoupment hearing.
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
Appellant requested a telephone conference without submitting the overpayment
recovery questionnaire or supporting financial documents. Thus, OWCP did not have the
necessary financial information to determine if recovery of the overpayment would defeat the
purpose of FECA or if recovery would be against equity and good conscience such that it would
cause a financial burden.19
Consequently, as appellant did not submit the financial information it had properly
requested from her as required under section 10.438 of OWCP’s regulations, which was
necessary to determine her eligibility for waiver, OWCP properly denied waiver of recovery of
the overpayment in the amount of $5,643.15.20

16

Id.

17

See 20 C.F.R. § 10.438.

18

See id. at §§ 10.436, 10.437.

19

See R.L., Docket No. 16-1564 (January 4, 2017).

20

20 C.F.R. § 10.438(b) provides that: “Failure to submit the requested information within 30 days of the request
shall result in denial of waiver, and no further request for waiver shall be considered until the requested information
is furnished.”

7

LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.21 Section
10.441(a) of the regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [OWCP] the amount of the overpayment
as soon as the error is discovered or her attention is called to same. If no refund is
made, [OWCP] shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship”22
ANALYSIS -- ISSUE 3
The record reflects that appellant continues to receive wage-loss compensation under
FECA. When, as in this case, an individual fails to provide requested information on income,
expenses and assets, OWCP should follow minimum collection guidelines, which provide in
general that government claims should be collected in full and that, if an installment plan is
accepted, the installments should be large enough to collect the debt promptly.23 In the
memorandum of conference, appellant agreed to a deduction of $125.00 from continuing
benefits. The Board finds that OWCP did not abuse its discretion in following those guidelines
in this case, where appellant has not submitted complete financial information and agreed to the
deduction of $125.00 every four weeks.
CONCLUSION
The Board finds that OWCP properly found an overpayment of compensation in the
amount of $5,643.15 for the period April 1, 2010 through May 2, 2015. The Board also finds
that OWCP did not abuse its discretion in denying waiver of recovery of the overpayment. The
Board further finds that OWCP properly determined that it would recover the overpayment by
deducting $125.00 every 28 days from continuing compensation payments.

21

Lorenzo Rodriguez, 51 ECAB 295 (2000).

22

20 C.F.R. § 10.441(a).

23

Robin D. Calhoun, Docket No. 00-1756 (issued May 21, 2001); Gail M. Roe, 47 ECAB 268 (1995).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 20, 2016 is affirmed.
Issued: August 1, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9