United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Cincinnati, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1007
Issued: August 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 20, 20141 appellant filed a timely appeal of the September 25, 2013 and
February 7, 2014 merit decisions of the Office of Workers’ Compensation Programs (OWCP)
denying her claim for compensation. Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit
decision was issued on September 25, 2013, the 180-day computation begins on September 26, 2013. One hundred
and eighty days from September 25, 2013 was March 24, 2014. Since using March 27, 2014, the date the appeal
was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is
considered the date of filing. The date of the U.S. Postal Service postmark is March 20, 2014, which renders the
appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty on June 4, 2013, as alleged.
FACTUAL HISTORY
On June 10, 2013 appellant, then a 51-year-old paralegal specialist, filed a traumatic
injury claim alleging that on June 4, 2013, when she was returning to her cubicle from using the
bathroom, another employee rounded the corner and walked directly into her wheelchair. The
employee made contact with appellant’s left knee before landing on her and then falling over
appellant’s right shoulder onto the floor behind her. Appellant’s wheelchair teetered on two
wheels before stabilizing back on the ground. As a result of the incident, her left knee was
bruised, with a puncture wound formed on the inside of her left leg, and she was unable to
straighten her knee. When she went to a chiropractor a few days later, appellant was told that her
knee had popped out of its socket.
By letter dated June 24, 2013, OWCP asked that appellant submit further information to
support her claim.
In a June 12, 2013 clinical provider note from Bluegrass Urgent Care, Dr. Robert R. So, a
general practitioner, stated under history of illness that “This was not a job-related problem.”
Dr. So indicated that appellant’s knee injury happened after a collision with someone at work
about one week prior. He listed her primary injuries as a soft tissue injury of the left knee and
contusion. Dr. So noted that the x-rays of appellant’s left knee taken on June 12, 2013 revealed
no evidence of an acute fracture. He noted no prior injury to her left lower extremity.
In a June 24, 2013 attending physician’s report, Dr. Klaude Kocan, a chiropractor,
described the history of the injury by noting that appellant was sitting in her wheelchair when a
coworker walked into her and fell over her. Appellant was in a wheelchair due to multiple
sclerosis. Dr. Kocan diagnosed lumbar hip strain/sprain and knee sprain. He noted that he
performed adjustments, rehabilitation stretching, manual therapy, stem therapy and rehabilitation
exercises. Dr. Kocan checked a box that he believed appellant’s condition was caused or
aggravated by her employment activity. Appellant also submitted chiropractic treatment notes
which reflect that she commenced chiropractic treatment on January 18, 2013. She complained
of weak legs and hips and noted that these symptoms began in 2002. Appellant also indicated
that she had multiple sclerosis with difficulty standing and walking. A January 21, 2013
treatment plan noted that appellant had neck pain with numbness in her left foot, left leg, right
foot and right leg. The chiropractic notes further indicated treatment to her legs, hip, shoulder
and neck. In a May 20, 2013 note, treatment is indicated for feet, ankles, knees and hips.
On July 10, 2013 the employing establishment controverted that the incident occurred as
alleged.
By decision dated September 25, 2013, OWCP denied appellant’s claim. It determined
that the June 4, 2013 incident occurred as alleged but found that the medical evidence was not
sufficient to establish a left knee injury as causally related to the accepted incident.

2

In a September 30, 2013 report, Dr. So advised that the statement in his June 12, 2013
report indicating “This was not a job-related problem” was a clerical error made by a medical
assistant. He noted that appellant was injured while working as stated in other sections of her
record. The addendum was not signed and contains the initials “J.P.”
In an October 7, 2013 report, Dr. Kocan stated that on June 7, 2013 appellant entered the
office complaining of left knee pain and right hip pain caused when a coworker ran into her
wheelchair. He noted that the impact caused a moderate-sized bruise on the inside of her left
knee which hindered her ability to walk without assistance, resulting in an increase in right hip
and lower back pain. Appellant’s initial diagnosis was left knee contusion, left knee strain/sprain
and hip -- lumbar strain/sprain. He noted that the diagnoses were determined by visual
evaluation with noted bruising and swelling with altered gait as well as ranges of motion
palpatation and corresponding orthopedic testing. Dr. Kocan stated that Kentucky law provided
for chiropractic care by adjusting or manipulating the subluxation of the articulations of the
human spine and its adjacent tissues. He noted that appellant’s diagnosis had been appropriately
found by the above-mentioned methods with no need for x-rays. Dr. Kocan concluded that
appellant was accurately diagnosed and her treatment was medically necessary for her work
injury and comorbidity factors.
On October 22, 2013 appellant requested reconsideration.
In a decision dated February 7, 2014, OWCP denied modification of the September 25,
2013 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.4
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.5 The medical evidence required to
3

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

5

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

3

establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
ANALYSIS
OWCP determined that appellant established that the June 4, 2013 incident occurred as
alleged. It denied her claim as it found that she did not establish a medical condition resulted
from the accepted employment incident.
Appellant submitted reports from her attending chiropractor, Dr. Kocan. Under FECA a
chiropractor is a physician only to the extent that the reimbursable services are limited to
treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.7 Dr. Kocan stated that an x-ray was not needed to make his
diagnosis under Kentucky law. The Board notes that under the federal regulations relevant to
claims under FECA, the diagnosis of spinal subluxation must be demonstrated by x-ray.8
Accordingly, the Board finds that Dr. Kocan does not qualify as a physician under FECA.
Dr. Kocan’s reports are not considered probative medical evidence to establish a causal
connection between a diagnosed medical condition and the accepted employment incident.
Appellant also submitted a June 12, 2013 report by Dr. So and an addendum with the
initials “J.P.” dated September 30, 2013. Dr. So diagnosed appellant with a soft tissue injury in
her left knee and a contusion. He advised that her knee injury happened after a collision at work
one week prior to the June 12, 2013 visit. The Board finds that the report of Dr. So does not
constitute a well-rationalized medical opinion addressing how the accepted employment incident
of June 14, 2012 caused her medical condition. OWCP noted that the addendum to the June 12,
2013 report was not signed by Dr. So but by a person identified only as “J.P.” Dr. So discussed
the employment incident and pointed out that the contrary general statement that the injury was
not work related was a mistake made by his medical assistant. The report is inadequate as it does
not provide a rationalized medical explanation as to how appellant sustained a medical condition
related to the accepted employment incident. Furthermore, the Board notes that while there are
indications in the record that appellant had received chiropractic treatment prior to the
employment incident and that this treatment included some work on appellant’s left lower
extremity, Dr. So stated that there was no prior injury to appellant’s left lower extremity. The
6

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

7

Section 8101(2) of FECA provides as follows: “(2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. The term physician includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulation by the Secretary.” See Merton J. Sills, 39 ECAB 572, 575 (1988).
8

See 20 C.F.R. § 10.311(b).

4

Board finds that the fact that Dr. So was unaware of prior treatment on appellant’s left lower
extremity and the fact that his opinion is not sufficiently well rationalized with regard to causal
relationship renders Dr. So’s report insufficient to establish causal relationship.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was caused by her employment is sufficient to
establish causal relationship.9 As appellant did not submit a rationalized medical opinion
establishing a causal relationship between her accepted employment activities and a diagnosed
medical condition, she did not meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty on June 4, 2013, as alleged.

9

Walter D. Morehead, 31 ECAB 188 (1986).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 7, 2014 and September 25, 2013 are affirmed.
Issued: August 13, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
VANDENBURG AIR FORCE BASE, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-1985
Issued: March 23, 2018

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 September 25, 2017 appellant filed a timely appeal from a September 6, 2017 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 the case.
ISSUES
The issues are: (1) whether appellant has received an overpayment of compensation in the
amount of $2,000.33 for the period February 21 through March 4, 2017; and (2) whether OWCP
properly denied waiver of recovery of the overpayment.
On appeal appellant contends that he had no reason to believe that his schedule award
compensation would expire on February 21, 2017. He claims that an OWCP letter dated
November 21, 2016 informed him that the expiration date was May 31, 2017. Appellant asserts
1

5 U.S.C. § 8101 et seq.

that repayment of the overpayment would cause him severe mental and financial hardship as he
has obligated personal and family expenses.
FACTUAL HISTORY
On January 15, 1997 appellant, then a 61-year-old supervisory electronics engineer, filed
a traumatic injury claim (Form CA-1) alleging that, on January 14, 1997, he wrenched his left knee
when he slipped on a wet sidewalk and twisted his left leg and knee while in the performance of
his work duties. OWCP accepted his claim for sprain of the left knee and left leg on
March 3, 1997. On November 29, 2002 it accepted that appellant sustained a recurrence of
disability on June 10, 2002.
By decision dated November 28, 2008, OWCP granted appellant a schedule award for 15
percent permanent impairment of the left leg. The period of the award ran from June 19, 2008 to
April 17, 2009, totaling 43.2 weeks.
On May 5, 2011 OWCP expanded acceptance of appellant’s claim to include loose body
in the left knee. It subsequently authorized a total left knee arthroplasty performed on October 28,
2013 by Dr. Robert K. Peterson, a Board-certified orthopedic surgeon.
On October 27, 2014 appellant filed a claim for an increased schedule award (Form CA-7).
In a decision dated February 6, 2016, OWCP granted appellant a schedule award for an
additional 21 percent permanent impairment of the left leg, totaling 36 percent permanent
impairment. The award covered a period of 60.48 weeks from October 29, 2014 to
February 21, 2017.
In a June 8, 2017 letter, OWCP advised appellant of its preliminary determination that he
had received a $2,000.33 overpayment of compensation because it did not terminate his schedule
award payments on February 21, 2017 and continued to make payments through March 4, 2017 in
the amount of $2,000.33. It also made a preliminary finding that he was without fault in the
creation of the overpayment because he was not aware or could have been reasonably expected to
know that OWCP had incorrectly paid compensation after February 21, 2017. OWCP advised
appellant that he could submit evidence challenging the fact and amount as well as requesting
waiver of recovery of the overpayment. It informed him that, within 30 days, he could request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
OWCP requested that appellant complete the enclosed overpayment recovery questionnaire (Form
OWCP-20) and submit supporting financial documents.
On June 27, 2017 appellant requested a decision based on the written evidence. He
submitted an April 17, 2017 letter informing OWCP that he had not received a schedule award
compensation check for the period March 17 through April 17, 2017. Appellant related that he
had expected to receive this check based on a November 21, 2016 OWCP letter which indicated
that his schedule award compensation would expire on May 31, 2017. He submitted a completed
Form OWCP-20. Appellant noted that he did not have any of the incorrectly paid checks in his
possession. He also noted that he had not transferred by loan, gift, sale, etc., any property or cash.
Appellant claimed that he had normal financial commitments and obligations which included his

2

personal and household expenses and expenses related to his former spouse,2 41-year-old daughter,
and 19-year-old grandson who he listed as dependents on the Form OWCP-20. He noted that he
assisted his former spouse with Medicare and health insurance, automobile and home maintenance,
property tax payments, and provided her with miscellaneous help. Appellant also assisted with
the payment of school tuition and expenses for his daughter and grandchildren. In addition, he
was committed and obligated to complete the installation of an “out” building that he started in
April 2017 and expected to complete it by the end of the summer. Appellant reported total monthly
income of $7,893.06 and assets totaling $5,172.28. He also described monthly expenses and
claimed that he had recently refinanced a loan to get cash to pay off credit cards and to restore a
rental property. Appellant submitted financial information. This included bank statements
indicating that appellant had a checking account balance of $781.36 and a money market savings
account balance of $5,127.73 as of June 13, 2017.
By decision dated September 6, 2017, OWCP finalized its preliminary determination that
appellant received a $2,000.33 overpayment of compensation for the period February 21 through
March 4, 2017. It explained that the overpayment occurred because it failed to terminate
appellant’s schedule award payments on February 21, 2017 and continued to make additional
payments through March 4, 2017. OWCP found appellant without fault and that he was not
entitled to waiver of recovery of the overpayment. It noted that there was no evidence to support
that recovery would be against good conscious or defeat the purpose of FECA. OWCP calculated
appellant’s monthly income from OPM retirement benefits and other unspecified income reported,
for a total monthly income of $7,893.06. For monthly expenses, it calculated $1,598.42 for
mortgage, $610.11 for food, and $713.72 for utilities. OWCP noted that there was no financial
documentation to support appellant’s other claimed expenses in the amount of $14,690.88. It
found that his monthly income exceeded the amount needed to meet ordinary and necessary living
expenses. OWCP determined that appellant’s assets included a home, rental property, $5,217.52
in a savings account, and $781.36 in a checking account and exceeded both resource bases of
$4,800.00 for an individual and $8,000.00 for an individual with dependents. It indicated,
however, that, although appellant listed his 41-year-old daughter and 19-year-old grandson, who
both had different addresses from him, as dependents, he did not submit any evidence of their
financial dependency. Recovery of the overpayment was requested in full.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
2
A March 2, 2002 judgment, from a Superior Court of California, dissolved appellant’s marriage effective
July 12, 2002. Appellant, in a November 18, 2002 letter, indicated that, based on a court order dated March 7, 2002
and amended on September 20, 2002, he had to pay his ex-spouse $425.00 monthly until his retirement. He contended
that, after his retirement, the Civil Service Retirement System (CSRS) under the Office of Personnel Management
(OPM) would continue to pay his ex-spouse $425.00 a month plus a cost-of-living adjustment (COLA) in dividing his
annuity. Appellant claimed that, after his death, CSRS would continue to pay his ex-spouse $425.00 a month plus a
COLA in a survivor annuity.
3

Supra note 1 at § 8107.

4

20 C.F.R. § 10.404.

3

loss or loss of use, of scheduled members or functions of the body. Section 10.404 states that
compensation is provided for specified periods of time for the permanent loss or loss of use of
certain members.5
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.6 When an overpayment has been made to an individual because of an error
of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which the individual is entitled.7
FECA procedures identify various situations when overpayments of compensation may
occur, including when a claimant receives schedule award compensation after the expiration of the
award.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $2,000.33, for the period February 21 through March 4, 2017.
OWCP granted appellant a schedule award for 15 percent permanent impairment of the left
leg on November 28, 2008 for the period June 19, 2008 through April 17, 2009. On February 6,
2016 it granted him an additional schedule award for 21 percent permanent impairment of the left
leg, totaling 36 percent permanent impairment that ran from October 29, 2014 through
February 21, 2017. The evidence of record establishes that appellant continued to receive schedule
award payments from OWCP after February 21, 2017, the date the award was scheduled to expire,
until March 4, 2017. Consequently, any concurrent payments appellant received from OWCP
beginning February 22, 2017 constituted an overpayment of compensation benefits. OWCP
properly calculated the $2,000.33 overpayment by totaling the amount of compensation checks
appellant received during the period February 21 through March 4, 2017. The Board affirms its
finding of fact and amount of overpayment.

5

Id. Effective May 1, 2009, OWCP began using the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009). Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and
Permanent Disability Claims, Chapter 2.808.5a (February 2013). See J.L., Docket No. 14-0898 (issued
March 26, 2015).
6

Supra note 1 at § 8102(a).

7

Id. at § 8129(a).

8
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2(c)
(May 2004); see V.F., Docket No. 10-1394 (issued February 23, 2011).

4

LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that
rests within OWCP’s discretion pursuant to statutory guidelines.9 These statutory guidelines are
found in section 8129(b) of FECA which provides: “Adjustment or recovery of an overpayment
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this subchapter
or would be against equity and good conscience.”10 If OWCP finds a claimant to be without fault
in the matter of an overpayment, then, in accordance with section 8129(b), it may only recover the
overpayment if it determined that recovery of the overpayment would neither defeat the purpose
of FECA nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, 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 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.11 According to 20 C.F.R. § 10.437,
recovery of an overpayment is considered to be against equity and good conscience when an
individual who received an overpayment would experience severe financial hardship attempting
to repay the debt and when an individual, in reliance on such payments or on notice that such
payments would be made, gives up a valuable right or changes his or her position for the worse.12
To establish that a valuable right has been relinquished it must be shown that the right was in fact
valuable, that it cannot be regained, and that the action was based chiefly or solely in reliance on
the payments or on the notice of payment.13
Section 10.438 of OWCP regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. This
information will also be used to determine the repayment schedule, if necessary. Failure to submit

9

See Robert Atchison, 41 ECAB 83, 87 (1989).

10

Supra note 1 at § 8129(b).

11

Supra note 4 at § 10.436. An individual is deemed to need substantially all of his or her monthly income to meet
current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
Desiderio Martinez, 55 ECAB 245 (2004). OWCP procedure provides 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. Federal (FECA) Procedure Manual, supra note 8 at Chapter 6.200.6(a) (June 2009); B.F., Docket No. 130785 (issued September 20, 2013).
12

Id. at § 10.437(a), (b).

13

Id. at § 10.437(b)(1).

5

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.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered. Repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because his assets exceed the resource base of $4,800.00 for an individual, as provided
in OWCP’s procedures.15 The Board notes that the applicable resource base is $4,800.00 as the
record establishes that appellant was divorced from his wife on July 12, 2002 and he failed to
submit any evidence to establish his claimed 41-year-old daughter and 19-year-old grandson as
dependents. In evaluating appellant’s assets, the Board notes that on the Form OWCP-20 he
completed, and in bank statements he submitted, appellant acknowledged that he had assets in his
checking and money market savings accounts totaling $5,909.09, which exceeds the resource base
of $4,800.00.16 Because appellant has not met the second prong of the two-prong test of whether
recovery of the overpayment would defeat the purpose of FECA, it is unnecessary to consider the
first prong of the test, i.e., whether his monthly income exceeded his monthly ordinary and
necessary expenses by more than $50.00.17 Appellant did not establish that he was entitled to
waiver on the basis of defeating the purpose of FECA.18
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because he has not shown, for the reasons noted above, that he would
experience severe financial hardship in attempting to repay the debt or that he relinquished a
valuable right or changed his position for the worse in reliance on the payment which created the
overpayment.19

14

Id. at § 10.438.

15

Id. at § 10.436.

16

The Board notes that appellant’s rental property is not included in the evaluation of his assets because the value
of this property is not contained in the case record. The Board furthermore notes that contrary to OWCP’s finding,
appellant’s primary home cannot be included in his assets. OWCP procedures specifically states that in evaluating
assets for purpose of a waiver determination, the value of a principal family home shall not be considered. Federal
(FECA) Procedure Manual, supra note 8 at Chapter 6.200.6.a(4)(b) (June 2009).
17

Supra note 4 at § 10.436; see M.H., Docket No. 17-0766 (issued July 3, 2017).

18

See K.K., Docket No. 09-0207 (issued October 2, 2009).

19

See William J. Murphy, 41 ECAB 569, 571-72 (1989).

6

Appellant generally contends on appeal that recovery of the overpayment would create a
financial hardship and thus be against equity and good conscience. As explained, the record does
not support this contention. Appellant has failed to establish that OWCP abused its discretion by
refusing to waive recovery of the overpayment.
With respect to recovery of an overpayment, the Board’s jurisdiction is limited to
reviewing those cases when OWCP seeks recovery from continuing compensation benefits under
FECA. As appellant is no longer in receipt of compensation benefits, the Board has no jurisdiction
over the recovery of the overpayment.20
CONCLUSION
The Board finds that appellant has received an overpayment of compensation in the amount
of $2,000.33 for the period February 21 through March 4, 2017. The Board further finds that
OWCP properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the September 6, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2018
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

20

See Lewis George, 45 ECAB 144, 154 (1993).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
REGIONAL OFFICE, Indianapolis, IN,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1525
Issued: January 13, 2012

Case Submitted on the Record

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

JURISDICTION
On June 16, 2011 appellant filed a timely appeal of a May 26, 2011 Office of Workers’
Compensation Programs’ merit decision denying an employment-related injury. 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 the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
back injury on May 12, 2010.2

1
2

5 U.S.C. § 8101 et seq.

On appeal to the Board appellant submitted a claim for an occupational disease dated June 7, 2011 and alleging
a back condition related to his employment beginning on February 3, 2010. As OWCP has not issued a final
decision regarding this claim, the Board will not review this claim on appeal. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On May 12, 2010 appellant, then a 35-year-old file clerk, filed a traumatic injury claim
alleging that he aggravated his preexisting back condition bending over to pick up a book on that
date. In support of his claim, he submitted a work release note from, Dr. Michael A. Phelps, a
chiropractor, dated May 19, 2010. Appellant also submitted x-rays dated May 14, 2010 which
demonstrated minimal degenerative osteophytes at L3 and L4.
On May 14 and 20, 2010 a nurse practitioner, Ruth Dwyer, provided work restrictions
and noted appellant’s work injury in February 2010. Appellant underwent a magnetic resonance
imaging (MRI) scan of the thoracic spine on May 24, 2010 which demonstrated multiple thoracic
disc protrusions. He also underwent a lumbar MRI scan on May 24, 2010 which exhibited no
disc protrusion, central canal stenosis or nerve root impingement. On May 17, 2010 Ms. Dwyer
diagnosed chronic back pain.
In a letter dated January 4, 2011, OWCP requested additional factual and medical
information from appellant including a report from a physician. By decision dated February 4,
2011, it denied his claim as he failed to submit the necessary medical evidence establishing a
diagnosed condition as a result of the May 12, 2010 employment injury.
Appellant requested a review of the written record on February 22, 2011. In support of
his request, he submitted a form report dated February 10, 2011 from Dr. John Lomas, a
physician Board-certified in physical medicine and rehabilitation, diagnosing low back pain with
lumbar degenerative disc disease and degenerative joint disease. Dr. Lomas attributed
appellant’s increasing pain to work duties. On June 22, 2010 he again examined appellant for
bilateral upper back pain. Dr. Lomas provided a date-of-injury of February 20, 2010 and
diagnosed sacroilitis and low back pain. He examined appellant on January 31, 2011 and
diagnosed low back pain and thoracic pain.
By decision dated May 26, 2011, OWCP’s hearing representative denied appellant’s
claim for a traumatic injury finding that appellant had failed to submit medical evidence
mentioning the alleged May 12, 2010 employment injury. He further noted that appellant had
not alleged an additional traumatic injury in February 2010 and suggested that if appellant’s back
condition was of a gradual onset related to work duties, that appellant should file an occupational
disease claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
3

5 U.S.C. §§ 8101-8193.

2

injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.8
ANALYSIS
The Board finds that appellant has submitted uncontroverted evidence that he sustained a
lifting incident on May 12, 2010 when he bent and lifted a book in the performance of duty.
However, the Board finds that he has not submitted the necessary medical evidence to establish
an injury resulting from this incident. Appellant submitted reports from a chiropractor and a
nurse practitioner in support of his claim. Under FECA neither a nurse practitioner9 nor a
chiropractor10 are physicians. As these notes were not signed by a physician the notes have no
probative value in establishing his claim.11 Therefore these reports are not sufficient to meet
appellant’s burden of proof.
Appellant also submitted a series of reports from Dr. Lomas regarding his back condition
beginning in January 2011. Dr. Lomas first examined appellant in June 2010 and attributed his
condition to his work duties in February 2010. He did not mention the May 12, 2010
employment incident and did not specifically describe the cause of appellant’s back pain. The
Board finds that these reports are not sufficient to meet appellant’s burden of proof as Dr. Lomas
did not attribute appellant’s diagnosed lumbar disc disease and joint disease to the established
employment incident on May 12, 2010. Without medical evidence indicating that his accepted
4

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

5

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

6

20 C.F.R. § 10.5(ee).

7

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

8

J.Z., 58 ECAB 529 (2007).

9

L.D., 59 ECAB 648 (2008).

10

5 U.S.C. § 8101(2). The term “physician” includes chiropractors only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation
demonstrated by x-ray to exist.
11

Merton J. Sills, 39 ECAB 572 (1988).

3

employment incident resulted in a diagnosed condition, appellant has failed to meet his burden of
proof to establish his traumatic injury claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical evidence to
establish a traumatic injury on May 12, 2010 as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 26, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 13, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
U.S. POSTAL SERVICE, TRUCK TERMINAL
ANNEX, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1429
Issued: October 22, 2007

Case Submitted on the Record

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

JURISDICTION
On May 1, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated November 2, 2006, finding that she was not disabled for the
period February 2, 1993 to April 8, 1999 due to her employment injury and a nonmerit decision
dated April 17, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over both the merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
was disabled from February 2, 1993 to April 8, 1999 due her accepted employment injuries; and
(2) whether the Office properly denied appellant’s request for review of the merits of her claim
in accordance with 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This the second appeal in this case. On September 2, 1992 appellant, then a 33-year-old
casual mail handler, filed a traumatic injury claim alleging that she sustained pain in her side

while working on a truck on August 27, 1992. The Office denied her claim by decisions dated
October 28, 1992 and January 11, 2004. Appellant requested review by the Board. By decision
dated July 8, 1996, the Board set aside the Office’s decisions and remanded the case for
additional development of the medical evidence regarding whether she had sustained an
umbilical hernia on August 27, 1992.1 The facts and the circumstances of the case as set forth in
the Board’s prior decision are adopted herein by reference.
In a letter dated August 21, 1996, the Office accepted appellant’s claim for aggravation of
umbilical hernia with repair. The Office noted that appellant was entitled to receive continuation
of pay from September 2 to October 15, 1992.
Appellant filed a claim for compensation requesting compensation for wage loss from
November 28, 1992 to February 1, 1993. In support of her claim, appellant submitted a report
from her attending physician, Dr. David Nicklin, a Board-certified family practitioner. On
April 8, 1999 Dr. Nicklin indicated that appellant was totally disabled from September 1, 1992 to
February 1, 1993 and that she was partially disabled beginning February 2, 1993. In a report
dated April 27, 1999, Dr. Nicklin diagnosed abdominal pain since the surgical repair of the
hernia on December 18, 1992. He indicated that appellant could currently perform light-duty
work lifting up to 20 pounds. The Office paid appellant compensation from October 16, 1992 to
February 1, 1993 based on Dr. Nicklin’s reports.
Appellant filed an additional claim for compensation requesting wage loss from
February 2, 1993 to April 19, 1999. The Office requested additional factual and medical
evidence regarding her periods of disability in a letter dated March 23, 2006. The Office
requested information regarding appellant’s employment history from the Social Security
Administration. Appellant’s records indicated that she worked during 1994 to 2001 and in 2004.
The employing establishment indicated that appellant was terminated on November 27, 1992 for
failure to follow instructions. Appellant worked from December 10 to 31, 1994 at the employing
establishment as a casual appointee. She also worked in a temporary position at the employing
establishment from August 2 to December 31, 1995 and from January 1 to March 18, 1996 when
she was again terminated for cause.
By decision dated November 2, 2006, the Office denied appellant’s claim for wage-loss
compensation for the period February 2, 1993 to April 8, 1999. It found that she failed to submit
the necessary factual and medical evidence to establish her disability for work.
Appellant requested reconsideration of the Office’s November 2, 2006 decision on
March 5, 2007. By decision dated April 17, 2007, the Office denied appellant’s reconsideration
request on the grounds that she failed to submit relevant new evidence or argument.

1

Docket No. 94-1738 (issued July 8, 1996).

2

LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Compensation Act,2 the term “disability” means the
incapacity, because of an employment injury, to earn the wages that the employee was receiving
at the time of injury.3 Disability is thus not synonymous with physical impairment, which may
or may not result in incapacity to earn wages. An employee who has a physical impairment
causally related to a federal employment injury, but who nevertheless has the capacity to earn the
wages he or she was receiving at the time of injury, has no disability as that term is used in the
Act.4 Appellant for each period of disability claimed, has the burden of proving by a
preponderance of the reliable, probative and substantial evidence that she is disabled for work as
a result of her employment injury. Whether a particular injury caused an employee to be
disabled for employment and the duration of that disability are medical issues which must be
provide by preponderance of the reliable probative and substantial medical evidence.5
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work. The Board has stated that, when a physician’s statements
regarding an employee’s ability to work consist only of a repetition of the employee’s complaints
that he or she hurts too much to work, without objective signs of disability being shown, the
physician has not presented a medical opinion on the issue of disability or a basis for payment of
compensation.6
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for aggravation of umbilical hernia and authorized
compensation benefits to February 1, 1993. Appellant requested additional compensation
benefits for wage loss from February 2, 1993 to April 8, 1995. The only medical evidence in the
record addressing appellant’s periods of disability consists of the two reports from Dr. Nicklin, a
Board-certified family practitioner, dated April 8 and 27, 1999. Dr. Nicklin indicated that
appellant could perform light-duty work beginning on February 2, 1993 lifting up to 20 pounds.
He did not provide any detailed findings on physical examination or any medical reasoning
supporting his opinion that appellant was partially disabled during the period in question. As
Dr. Nicklin merely repeated appellant’s claim that she was unable to work, his reports are not
sufficient to meet appellant’s burden of proof in establishing that she was disabled from
February 2, 1993 to April 8, 1995.
The Board further notes that the factual evidence of record establishes that the employing
establishment terminated appellant for good cause on November 27, 1992 and again on
March 18, 1996. The record further indicates that appellant could and did work for some periods
2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.5(f).

4

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

5

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

6

Id.

3

from February 2, 1993 to April 8, 1995. She has not submitted factual evidence alleging any
periods of total disability. The Board finds that appellant has not submitted the necessary factual
and medical evidence to establish that she was disabled from work during the period February 2,
1993 to April 8, 1995. The Office properly denied her claim.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,7
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.8 When a claimant fails to meet
one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.9
ANALYSIS -- ISSUE 2
Appellant requested reconsideration of the Office’s November 2, 2006 merit decision on
March 5, 2007. She did not submit any evidence or argument in support of her request for
reconsideration. Therefore, appellant failed to comply with the requirements of 10.606(b)(1).10
The Office properly denied her request for reconsideration of the merits in the April 17, 2007
decision.
CONCLUSION
The Board finds that appellant failed to submit the necessary factual and medical
evidence to establish that she was disabled from February 2, 1993 to April 8, 1995. The Board
further finds that the Office properly declined to reopen appellant’s claim for consideration of the
merits on April 17, 2007.

7

5 U.S.C. §§ 8101-8193, § 8128(a).

8

20 C.F.R. § 10.606(b)(2).

9

20 C.F.R. § 10.608(b).

10

Supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the April 17, 2007 and November 2, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 22, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Egg Harbor Township, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 15-0577
Issued: August 26, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 16, 2015 appellant, through counsel, timely filed an appeal from an
August 27, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish disability for the
period May 14, 2010 through January 30, 2012 causally related to her accepted conditions.
On appeal, counsel contends that the medical evidence is sufficient to establish that she
continues to suffer residuals of her employment injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. OWCP accepted that appellant, a 47-year-old
transportation security specialist, sustained contusions to both hands and both knees on June 28,
2003 after stepping into a hole and falling down in the performance of duty. Appellant was
placed on the periodic rolls. By decision dated May 14, 2010, OWCP rescinded the acceptance
of appellant’s claim. In a decision dated September 5, 2012, the Board set aside OWCP’s
December 27, 2010 decision, remanding the case for OWCP to further develop the evidence to
determine whether appellant’s injury was sustained in the performance of duty.2 The facts of the
case, as set forth in the prior decision, are incorporated by reference.
In a January 4, 2013 decision, OWCP reversed its May 14, 2010 rescission and
retroactively reinstated appellant’s medical benefits. It advised her that, if she wished to claim
wage-loss compensation, she must submit medical evidence supporting employment-related
disability.
Appellant, through counsel, filed a claim for compensation (Form CA-7) for the period
May 14, 2010 through January 30, 2012 and submitted a series of medical records dated
February 28, 2012 through May 13, 2013, which included a March 15, 2012 x-ray of the right
knee, March 22, 2012 magnetic resonance imaging (MRI) scan of the right knee, and an
April 27, 2012 electromyography (EMG) of the right leg. Appellant submitted reports from
Dr. Scott Sharetts, a neurologist, regarding her diabetic peripheral neuropathy and Dr. Kathleen
Ryan, a Board-certified pulmonologist, regarding her sleep apnea.
On September 28, 2011 Dr. Andre Hu, a Board-certified physiatrist, indicated that he saw
appellant regarding issues with her fibromyalgia. In a February 6, 2012 report, Dr. Asha
Vijayakumar, an internist, diagnosed asthma and diabetes. Appellant submitted emergency room
records dated June 9, 2012 from Lourdes Medical Center regarding her visit due to a respiratory
condition. In a June 14, 2012 report, Dr. Samuel Wasser, a general surgeon, stated that appellant
had a history of diabetes, gastroesophageal reflux disease (GERD), obstructive sleep apnea, and
asthma. In reports dated March 21, 2011 through August 21, 2012, Dr. Rebecca Moore, a family
practitioner, indicated that combined systolic and diastolic elevation was observed and diagnosed
asthma, diabetes, morbid obesity, familial hypercholesterolemia, numbness, peripheral
neuropathy, neck pain, knee joint pain, asthma, foot pain, and lower back pain. In a May 13,
2013 attending physician’s report, Dr. Moore diagnosed knee and lower back pain and stated that
the cause of appellant’s conditions were “unknown.”
In a July 30, 2013 letter, OWCP requested additional medical evidence establishing
appellant’s disability for work during the period claimed due to her employment injury and
afforded her 30 days to respond to its inquiries.
Appellant submitted reports dated May 26, June 23, and August 11, 2011 from Dr. Hu
who indicated that she had a history of multiple orthopedic issues, including left cervical
radiculopathy which he diagnosed in 2006. She presented with complaints of diffuse body pains
in the neck, back, arms, and legs, which she felt she had since she fell into a hole in June 2003.
2

Docket No. 11-1320 (issued September 5, 2012).

2

Dr. Hu opined that appellant had a chronic pain syndrome and reiterated his diagnosis of
fibromyalgia.
By decision dated January 30, 2014, OWCP denied appellant’s claim for disability for the
period May 14, 2010 through January 30, 2012 because the medical evidence submitted was
insufficient to support disability due to any employment injuries.
On February 10, 2014 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative, which was held on June 11, 2014.
By decision dated August 27, 2014, OWCP hearing representative affirmed the
January 30, 2014 decision.
LEGAL PRECEDENT
Section 8102(a) of FECA3 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”4 This meaning, for brevity, is expressed as disability for work.5
For each period of disability claimed, the employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.6 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable, probative, and substantial
medical evidence.7
Disability is not synonymous with physical impairment, which may or may not result in
an incapacity to earn wages. An employee who has a physical impairment causally related to his
or her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA and is not
entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to
pay compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.8

3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
5

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

6

See William A. Archer, 55 ECAB 674 (2004).

7

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

8

Id.

3

ANALYSIS
The Board finds that appellant has not established that she was disabled for work during
the period May 14, 2010 through January 30, 2012 causally related to her employment injuries.
While OWCP accepted that appellant sustained contusions to both hands and both knees,
appellant bears the burden to establish through medical evidence that she was disabled during the
claimed time periods and that her disability was causally related to her accepted injuries.9 The
Board finds that appellant has submitted no rationalized medical evidence explaining how the
employment injuries caused disability for work for the period May 14, 2010 through
January 30, 2012.
In his reports, Dr. Hu indicated that appellant had a history of multiple orthopedic issues,
including left cervical radiculopathy which he diagnosed in 2006. Appellant presented with
complaints of diffuse body pains in the neck, back, arms, and legs, which she felt she had since
she fell into a hole in June 2003. Dr. Hu opined that appellant suffered from a chronic pain
syndrome and diagnosed fibromyalgia. As he failed to offer any probative medical opinion on
whether she was disabled on the dates at issue due to her accepted conditions, his reports are of
diminished probative value.10 Further, OWCP has not accepted that appellant experienced an
employment-related left cervical radiculopathy or fibromyalgia condition under this claim. As
such, appellant has the burden of proof to establish that these conditions are employment
related.11
In her reports, Dr. Moore indicated that combined systolic and diastolic elevation was
observed and diagnosed asthma, diabetes, morbid obesity, familial hypercholesterolemia,
numbness, peripheral neuropathy, neck pain, knee joint pain, asthma, foot pain, and lower back
pain. In a May 13, 2013 attending physician’s report, he diagnosed knee and lower back pain
and stated that the cause of appellant’s conditions were “unknown.” The Board finds that
Dr. Moore failed to provide a probative medical opinion on whether appellant was disabled on
the dates at issue due to her accepted conditions.
In support of her claim, appellant also submitted emergency room records dated June 9,
2012 and reports from Drs. Sharetts, Ryan, Vijayakumar, and Wasser. The Board finds that this
medical evidence failed to provide a probative medical opinion on whether appellant was
disabled on the dates at issue due to her accepted conditions and, therefore, lacks probative value
to establish appellant’s claim.
The diagnostic reports of record, including the March 15, 2012 x-ray, March 22, 2012
MRI scan, and April 27, 2012 EMG, do not constitute competent medical evidence as they do
not contain rationale by a physician relating appellant’s disability to her employment.12

9

See supra notes 6 and 7. See also V.P., Docket No. 09-337 (issued August 4, 2009).

10

See Sandra D. Pruitt, 57 ECAB 126 (2005). See also V.P., id.

11

See Jaja K. Asaramo, 55 ECAB 104 (2004).

12

See, e.g., K.A., Docket No. 14-1626 (issued May 13, 2015) (discussing what makes a medical opinion
probative).

4

Appellant has not met her burden of proof through rationalized medical evidence to
establish disability for the period May 14, 2010 through January 30, 2012 causally related to the
accepted employment injuries.
On appeal, counsel contends that the medical evidence is sufficient to establish that she
continues to suffer residuals of her employment injuries. As noted, it is appellant who bears the
burden of proof to establish disability for the period claimed.13 Based on the findings and
reasoning stated above, the Board finds counsel’s arguments are not substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability for
the period May 14, 2010 through January 30, 2012 causally related to her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 26, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

See supra note 9.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SAFETY
ADMINISTRATION, FEDERAL AIR
MARSHAL SERVICE, Renton, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1055
Issued: March 30, 2022

Case Submitted on the Record

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

JURISDICTION
On July 7, 2021 appellant, through counsel, filed a timely appeal from a June 23, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

The Board notes that following the June 23, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to modify OWCP’s
September 28, 2018 loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On October 1, 2013 appellant, then a 46-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that on September 25, 2013 he injured his cervical spine when
participating in a mandatory high intensity interval training while in the performance of duty.
OWCP accepted the claim for a cervical strain. On August 6, 2014 it expanded the acceptance of
the claim to include cervical disc herniation at C6-7. Appellant stopped work on August 6, 2014
and OWCP paid him wage-loss compensation for disability from work on the supplemental rolls.
He sought treatment for his conditions with Dr. Jason Thompson, a Board-certified orthopedic
surgeon. On August 26, 2014 appellant underwent OWCP-authorized surgery for a C6-7 cervical
disc arthroplasty. Commencing October 11, 2014 OWCP paid appellant wage-loss compensation
on the periodic rolls.
In a January 29, 2015 report, Dr. Thompson discussed appellant’s status post C6-7 disc
arthroplasty. He opined that appellant could return to work in the public sector as he had no
restrictions on lifting, bending, twisting, or exercising. However, Dr. Thompson found that
appellant could not return to a law enforcement position where the potential for unexpected
physical violence to the head and neck could be anticipated.
On February 3, 2015 OWCP referred appellant to Dr. Louis Kretschmer, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a February 17, 2105 narrative report,
Dr. Kretschmer indicated that, although, appellant did not have any specific restrictions, he would
not be able to return to work as a federal air marshal as it would be unsafe for him to participate in
vigorous physical confrontation with fellow employees during training or aggressive passengers
on an airplane. He indicated that appellant would be an excellent candidate for vocational
rehabilitation. In an accompanying February 17, 2015 work capacity evaluation (Form OWCP5c), Dr. Kretschmer determined that appellant’s restrictions were permanent and that appellant
was capable of performing sedentary-, light-, and medium-duty work.
On March 19, 2015 OWCP referred appellant for vocational rehabilitation to find a suitable
position within the restrictions provided by Dr. Kretschmer on February 17, 2015. On June 15,
2015 appellant submitted a change of address and notified OWCP that h e was relocating from
Maple Valley, Washington to Chandler, Arizona. From September 8, 2015 through February 11,
2016, appellant underwent training to become a Certified Protection Professional (CPP). After
obtaining his CPP certification, he worked with his vocational rehabilitation counselor for job
placement. Beginning August 9, 2016 appellant sought treatment with Dr. Steven Berman, a
treating physician.

4

Docket No. 19-1410 (issued November 5, 2020).

2

In a September 29, 2016 memorandum, appellant’s vocational rehabilitation counselor
noted that the position of internal security manager was vocationally suitable for appellant. She
found that the position remained medically suitable as the duties were within appellant’s work
limitations and the position was available in sufficient numbers within appellant’s commuting area
based on an August 29, 2016 labor market survey. The vocational rehabilitation counselor
reported that appellant would expect to earn the average wage of $19.45 per hour due to his prior
experience and his recently acquired CPP industry certification.
On December 7, 2016 appellant submitted another change of address and notified OWCP
that he was relocating from Chandler, Arizona to Sparks, Nevada.
On December 7, 2017 OWCP requested that appellant’s treating physician evaluate his
functional capabilities by completing a Form OWCP-5c. On a December 12, 2017 Form OWCP5c, Dr. Berman reported that appellant had reached maximum medical improvement (MMI) and
his restrictions remained unchanged. He reported that appellant could perform sedentary-, light-,
and medium-duty work.
On February 2, 2018 OWCP asked appellant’s vocational rehabilitation counselor to
perform a labor market survey for the purpose of determining if the internal security manager
position was available in appellant’s new job market of Sparks, Nevada. On March 28, 2018 the
counselor confirmed that the internal security manager job still met appellant’s criteria based on
the March 23, 2018 labor market survey. She reported that appellant was capable of working as
an internal security manager and that labor market surveys showed that the position was reasonably
available in his commuting area of Sparks, Nevada. The Department of Labor, Dictionary of
Occupational Titles (DOT) describes the internal security manager position (DOT #378.137-0102)
as involving supervision and coordination of activities of store detectives, conducting private
investigations, and selling internal protective service to wholesale and retail businesses. The
position required assigning store detectives to shifts at various locations according to job
requirements and workers’ abilities, skills, and experience. The DOT, on a job classification report
(Form OWCP-66), described the physical requirements of the position as light work to include
exerting up to 20 pounds of force occasionally. The counselor reported that the salary for this
position ranged from $18.00 to $23.00 per hour based on the labor market survey. She
recommended the average wage of $20.50 per hour based on appellant’s previous experience
performing this position and his recently acquired CPP industry certification.
In a letter dated July 9, 2018, Dr. Berman verified that appellant had reached MMI and was
capable of working full time with the restrictions that had been in place since 2014. He reported
that appellant was in a permanent stationary status and there were no significant changes to his
condition since the last visit. Dr. Berman found that there were no changes in his work status or
the recommended work restrictions.
On August 23, 2018 OWCP notified appellant that it proposed to reduce his wage-loss
compensation pursuant to 5 U.S.C. §§ 8106 and 8115. It advised him that he was only partially
disabled from work and that the position of internal security manager (DOT #378.137 -0102) was
medically and vocationally suitable with regard to his medical limitations, work experience, and
education. OWCP explained that the physical requirements of the internal security manager did
not exceed the restrictions imposed by Dr. Berman’s December 12, 2017 and July 9, 2018 reports.
It found that appellant was capable of earning wages at the rate of $820.00 per week as an internal
security manager and that the position was reasonably available within his commuting area.
OWCP provided an attachment detailing the application of the formula set forth in Albert C.
3

Shadrick.5 It afforded appellant 30 days to submit evidence and argument challenging the
proposed action.
In a September 9, 2018 letter, counsel disagreed with the proposed reduction of
compensation. He argued that the job analysis was improper because it was based on appellant’s
prior residence in Seattle, Washington. Counsel asserted that the job availability and wage rate
should have been based on the job market for Sparks, Nevada, where appellant currently resided.
He further argued that the job availability and hourly wage was likely far less in Sparks, Nevada
and requested a new labor market survey.
By decision dated September 28, 2018, OWCP reduced appellant’s wage-loss
compensation benefits, effective September 30, 2018, based on his ability to earn wages of
$820.00 per week as an internal security manager. It verified that the March 23, 2018 labor market
study, was conducted for his commuting area in and around Reno, Nevada and not Seattle,
Washington as asserted by counsel for appellant. OWCP explained that the physical duties of the
position were in accordance with the restrictions provided by Dr. Berman’s July 9, 2018 report,
and that appellant’s rehabilitation counselor had determined that he was vocationally capable of
performing the constructed position. It further found that appellant was no longer totally disabled
from work and that the position of internal security manager was medically and vocationally
suitable, and represented his wage-earning capacity. OWCP applied the Shadrick 6 formula to
determine appellant’s LWEC and adjust his compensation.
On October 9, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on
January 25, 2019, appellant testified that he was unable to accept most of the jobs in the labor
market study due to other conditions.
By decision dated March 29, 2019, OWCP’s hearing representative affirmed the
September 28, 2018 decision. She concluded that the position of internal security manager
reasonably and accurately reflected his wage-earning capacity and his compensation was properly
reduced effective September 30, 2018.
Appellant appealed to the Board and, by decision dated November 5, 2020,7 the Board
affirmed OWCP’s March 29, 2019 decision.
On December 7, 2020 appellant, through counsel, requested modification of OWCP’s
September 28, 2018 LWEC determination. He submitted an October 20, 2020 report from
Dr. Paul Fry, a Board-certified orthopedic surgeon serving as an OWCP referral physician, who
advised that, during a September 22, 2020 physical examination, appellant had examination
findings of “a diminished cervical range of motion.” Dr. Fry noted that appellant’s clinical
examination showed that all measurements of his cervical range of motion were symmetrical on
the right and left. He indicated that range of motion measurements of the shoulders were optimal
and symmetrical, and that bilateral upper extremity strength measurements were optimal at 5/5.
Dr. Fry opined that appellant had residuals of his work injury resulting from cervical disc surgery
and indicated that he was unable to perform the duties of his date-of-injury position as a federal
5

5 ECAB 376 (1953).

6

Id.

7

Supra note 4.

4

air marshal. He completed a Form OWCP-5c confirming appellant’s ability to work full time with
restrictions, including lifting no more than 25 pounds intermittently.
In a January 13, 2021 report, Dr. Berman noted appellant’s subjective complaints of dull
aching, throbbing, squeezing, and cramping, but noted that as to the head and neck he had “full
range of motion, no abnormal findings.” He also indicated that appellant had no neurological
abnormalities and that he had normal strength and flexion of the bilateral upper extremities.
Dr. Berman advised that the musculature of appellant’s neck was noted to be of “normal strength
and tone.” He indicated that he would refer appellant for x-ray testing to determine if there had
been any changes in his cervical spine.
Appellant also submitted an x-ray report of his cervical spine, obtained on February 1,
2021, which contained an impression of status post artificial disc replacement at C6 -7 without
evidence of dynamic instability, as well as mild straightening of cervical lordosis in neutral
position.
By decision dated June 23, 2021, OWCP determined that appellant has not met his burden
of proof to modify OWCP’s September 28, 2018 LWEC determination. It found that the evidence
submitted by appellant on reconsideration did not show that his injury-related condition prevented
him from working as an internal security manager.
LEGAL PRECEDENT
Once OWCP accepts a claim it has the burden of proof to justify termination or
modification of compensation benefits. 8 An injured employee who is either unable to return to the
position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed based on his or her
LWEC.9 An employee’s actual earnings generally best reflect his or her wage-earning capacity. 10
Absent evidence that actual earnings do not fairly and reasonably represent the employee ’s wageearning capacity, such earnings must be accepted as representative of the individual’s wageearning capacity. 11 But if actual earnings do not fairly and reasonably represent the employee’s
wage-earning capacity or the employee has no actual earnings, then wage -earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, the
employee’s usual employment, age, qualifications for other employment, the availability of
suitable employment and other factors and circumstances that may affect wage -earning capacity
in his disabled condition. 12
OWCP must initially determine the employee’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her vocational wage -earning capacity. 13
The medical evidence OWCP relies upon must provide a detailed description of the employee’s
8

James B. Christenson, 47 ECAB 775, 778 (1996); Wilson L. Clow, Jr., 44 ECAB 157 (1992).

9

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

10

Hayden C. Ross, 55 ECAB 455, 460 (2004).

11

Id.

12

5 U.S.C. § 8115(a); Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

13

M.A., 59 ECAB 624, 631 (2008).

5

condition and the evaluation must be reasonably current. 14 Where suitability is to be determined
based on a position not actually held, the selected position must accommodate the employee’s
limitations from both injury-related and preexisting conditions, but not limitations attributable to
post-injury or subsequently acquired conditions. 15
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position listed in the Department of Labor’s Dictionary of Occupational Titles
(DOT) or otherwise available in the open labor market that fits the employee ’s capabilities with
regard to his or her physical limitations, education, age and prior experience.16 Once this selection
is made, a determination of wage rate and availability in the open labor market should be made
through contact with the state employment service or other applicable service. 17 Finally,
application of the principles set forth in the Shadrick decision will result in the percentage of the
employee’s LWEC.18
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous. 19 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination. 20
ANALYSIS
The Board finds that appellant has not met his burden of proof to modify OWCP’s
September 28, 2018 LWEC determination.
By decision dated November 5, 2020, 21 the Board affirmed OWCP’s March 29, 2019
decision, finding the September 28, 2018 LWEC determination was proper. Findings made in

14

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.4d (June 2013).
15

N.J., 59 ECAB 171, 176 (2007); Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning
Capacity Based on a Constructed Position, Chapter 2.816.4c (June 2013).
16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.7b
(February 2011).
17

The job selected for determining wage-earning capacity must be a position that is reasonably available in the
general labor market in the commuting area in which the employee resides. David L. Scott, 55 ECAB 330, 335 n.9
(2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.6 (June 2013).
18

20 C.F.R. § 10.403(d); see also Albert C. Shadrick, supra note 5.

19

C.R., Docket No. 14-111 (issued April 4, 2014); Sharon C. Clement, 55 ECAB 552 (2004).

20

See T.M., Docket No. 08-975 (issued February 6, 2009).

21

Supra note 4.

6

prior Board decisions are res judicata absent further review by OWCP under section 8128 of
FECA.22
The Board finds that appellant has not shown that modification of the September 28, 2018
LWEC determination is warranted by establishing that a spontaneous worsening of his injuryrelated condition after the issuance of the September 28, 2018 LWEC determination prevented
him from working as an internal security manager. 23
Appellant submitted an October 20, 2020 report from Dr. Fry, an OWCP referral physician,
who advised that, during a September 22, 2020 physical examination, appellant had examination
findings of “a diminished cervical range of motion.” He further discussed appellant’s examination
findings and opined that appellant had residuals of his work injury which prevented him from
performing the duties of his date-of-injury position as a federal air marshal. Dr. Fry completed a
Form OWCP-5c confirming appellant’s ability to work full time with restrictions, including lifting
no more than 25 pounds intermittently. In a January 13, 2021 report, Dr. Berman noted appellant’s
subjective complaints of dull aching, throbbing, squeezing, and cramping, but indicated that as to
the head and neck he had “full range of motion, no abnormal findings.” He also noted that
appellant had no neurological abnormalities and that he had normal strength and flexion of the
bilateral upper extremities. Dr. Berman advised that the musculature of appellant’s neck was noted
to be of “normal strength and tone.” Appellant also submitted an x-ray report of his cervical spine,
obtained on February 1, 2021, which contained an impression of status post artificial disc
replacement at C6-7 without evidence of dynamic instability, as well as mild straightening of
cervical lordosis in neutral position.
The Board finds that the submitted reports of Dr. Fry and Dr. Berman, as well as the
diagnostic testing report, are of no probative value in showing that a worsening of appellant’s
injury-related condition prevented appellant from working as an internal security manager, i.e., the
position that served as the basis for the September 28, 2018 LWEC determination. These reports
do not provide an opinion that appellant was unable to work as an internal security manager.
Dr. Fry’s report contains restrictions that would allow him to work in the position. The Board has
held that medical evidence that does not offer an opinion regarding a given medical matter, such
as the inability to perform a given position, is of no probative value on that matter.24 Therefore,
these reports are insufficient to establish appellant’s request for modification of the September 28,
2018 LWEC determination.
The Board further finds that appellant has not shown that modification of the September 28,
2018 LWEC determination is warranted by establishing that he was subsequently retrained or
otherwise vocationally rehabilitated. 25 Therefore, appellant has not met any of the three prongs of
the standards for modifying an LWEC determination.

22

C.D., Docket No. 19-1973 (issued May 21, 2020); B.W., Docket No. 17-0366 (issued June 7, 2017); Clinton E.
Anthony, Jr., 49 ECAB 476 (1998).
23

Id.

24

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

25

See supra note 19.

7

Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden of proof to modify OWCP’s
September 28, 2018 LWEC determination.
ORDER
IT IS HEREBY ORDERED THAT the June 23, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8