United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Jacksonville, FL, Employer
__________________________________________

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Appearances:
Victor A. Walker, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0378
Issued: March 9, 2021

Case Submitted on the Record

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

JURISDICTION
On December 9, 2019 appellant, through her representative, filed a timely appeal from a
September 11, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from OWCP’s last merit decision, dated June 27, 2018,
to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 24, 2017 appellant, then a 54-year-old administrative officer, filed a traumatic
injury claim (Form CA-1) alleging that on that date at 8:40 a.m. she injured her head, neck, back,
left shoulder, and left leg while in the performance of duty. She explained that she fell backwards
off a step stool, hitting her head, left shoulder, and back. Appellant indicated that pain radiated
down her left leg and that her shoulder, back, and left leg ached. On the reverse side of the claim
form, appellant’s supervisor, M.F., indicated that appellant stopped work on October 24, 2017.
Appellant’s supervisor indicated by check mark that appellant was injured on October 24, 2017
while in the performance of duty; however, she also checked the box “Yes” in response to the
question of whether appellant’s injury was caused by her willful misconduct, intoxication, or intent
to injure herself or another. She contended that the claim was questionable because appellant had
a pending termination action and appellant had sedentary work accommodations. M.F. further
related that her knowledge of the facts regarding the alleged injury did not comport with
appellant’s statements, and she related that she had tried to place appellant on administrative leave
because her termination was pending the next day, and the employing establishment could no
longer accommodate her work restrictions.3 She also asserted that while appellant’s notice of
injury was dated October 24, 2017, she first received medical care on October 27, 2017.
In an October 24, 2017 authorization for examination and/or treatment (Form CA-16), the
employing establishment authorized examination and medical treatment of appellant’s head, neck,
left shoulder, back, and left leg, pending further advice with regard to whether appellant’s
condition was caused by an injury in the performance of duty.
In an October 24, 2017 medical report, Gerardo Montanez Galvis, a nurse practitioner,
indicated that appellant complained of dull neck pain and back pain related to a trauma, which
started earlier that day. He conducted a physical examination and diagnosed cervicalgia and a
sprain of cervical spine ligaments. Mr. Galvis signed a state workers’ compensation form on that
same date indicating that appellant sustained a work-related injury on October 24, 2017, and he
noted that appellant had a preexisting condition that contributed to her neck sprain and contusion
diagnoses. He additionally listed work restrictions for appellant.
OWCP also received an undated list of witnesses who appellant alleged heard or saw her
fall.

3

In an April 14, 2017 memorandum, the employing establishment denied appellant’s reasonable accommodation
request for transfer to a vacant position. In an August 4, 2017 memorandum, it affirmed its April 14, 2017 denial of
appellant’s reasonable accommodation request. In a September 26, 2017 memorandum, the employing establishment
notified appellant of her proposed termination of employment due to the medical inability to perform the essential
functions of her position. In an October 25, 2017 memorandum, it informed appellant of her termination of
employment. The effective date of termination was listed as October 28, 2017.

2

In an October 27, 2017 report, Dr. Richard Blecha, a Board-certified orthopedic surgeon,
indicated that on October 24, 2017 appellant was standing on a two-step stool and fell backward,
landing on the back of her head and posterior aspect of her left shoulder. He indicated that she did
not lose consciousness, but, experienced head pain; low back pain radiating into her posterior
thighs and knees; neck pain radiating into her left shoulder, arm, and forearm; tingling in her left
hand; nausea; and dizziness. Dr. Blecha stated that an employing establishment nurse saw
appellant immediately after her injury and administered pain medication, and she was seen the
next day at an urgent care facility. He conducted a physical examination, noted preexisting
conditions, and ordered additional diagnostic testing. In an October 27, 2017 duty status report
(Form CA-17), Dr. Blecha indicated that appellant was injured on October 24, 2017, noted clinical
findings, diagnosed a cervical/thoracic/lumbar sprain, and stated that appellant should not work
for 30 days.
OWCP also received November 7, 2017 magnetic resonance imaging (MRI) scans of
appellant’s head and the cervical, thoracic, and lumbar areas of her spine.
Mr. Galvis, in a November 6, 2017 attending physician’s report (Form CA-20), noted that
he examined appellant on October 24, 2017. He and diagnosed a neck sprain and contusion, and
provided work restrictions.
In a November 13, 2017 duty status report (Form CA-17), Dr. Blecha indicated that
appellant was injured on October 24, 2017, noted clinical findings, diagnosed cervical/lumbar/
thoracic sprains, and related that appellant could not return to work for five weeks.
By letter dated December 28, 2017, M.F., appellant’s supervisor, controverted appellant’s
claim indicating that she doubted whether appellant’s conditions were caused by her alleged
workplace fall. She noted that appellant had been involved in six previous car accidents and
sustained all of the medical conditions she was currently alleging prior to her purported fall. M.F.
noted that no one saw appellant fall, and she indicated that she was just turning a corner when she
and a contractor heard a noise a few feet away that sounded like someone hit a file onto a surface.
She immediately went to see what was going on and saw appellant kneeling by a stool with a file
in her hand. M.F. stated that if appellant had fallen then she was able to recoup quickly, and she
noted that the files on the top shelf could be reached without a stool. She indicated that appellant
had clear instructions not to file or use a stool. M.F. had informed her of this several times and
another supervisor had also informed her of this and indicated that another employee would pull
and file cases. She related that the employing establishment questioned the timing of appellant’s
alleged fall since her employment was about to be terminated, and she indicated that appellant
engaged in willful misconduct.
In a January 15, 2018 report, Dr. Blecha indicated that appellant continued to complain of
head, neck, shoulder, and low back pain. He conducted a physical examination, reviewed
diagnostic studies, and indicated that appellant’s October 24, 2017 fall from a two-tiered stool
aggravated her preexisting conditions of cervical spondylosis with radiculopathy and lumbar
spondylosis and directly caused her left-sided occipital neuralgia. Dr. Blecha stated that appellant
should not return to work for at least the next month.

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By development letter dated January 25, 2018, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit additional evidence and respond to its inquiries.
OWCP subsequently received an October 30, 2017 statement, wherein J.L., a manager,
indicated that on March 1, 2017 she told appellant that she could not engage in any heavy lifting,
and appellant acknowledged and agreed. In mid-June appellant began working on a new project
where J.L. rolled a cart with case files to her desk, she would remove tabs from case files, and she
would then inform J.L when she was done and J.L. would return the case files and bring her new
ones. J.L. reminded appellant again that she should not lift any case files and should call J.L. or
another employee to return cases to the shelf and get her a new batch. Appellant acknowledged
she understood and agreed. J.L. saw appellant getting her own files and reminded her not to do
that and reiterated that appellant should not perform any lifting, and appellant stated that she
understood and nodded in agreement. On October 24, 2017 she was told that appellant stated that
she fell from a step stool when she tried to put a case back onto the file shelf. J.L. immediately
went to see appellant, who was sitting at her desk. She asked if appellant was okay or wanted to
see the nurse, and appellant stated that she did not know. A few moments later J.L. reminded
appellant that she had told her on several occasions that she was not supposed to retrieve or return
her own cases, and appellant stated that she was aware of that. J.L. again asked if she needed
anything and appellant again stated that she did not know.
In a February 8, 2018 response to OWCP’s development questionnaire, appellant, through
her representative, indicated that she needed to use the two-tiered step stool to reach the top shelf
of a five-tiered metal bookcase in order to return case files to their proper place. She indicated
that the stool was provided by the employing establishment for this exact purpose. Appellant
related that when she finished removing sticky tabs and staples from a file, she would place the
file on a cart, and when she finished with all the files she would push the cart across the hall to the
bookcase. She alleged that when she stepped up onto the stool to place the files on the top shelf
she fell backward and landed on her left shoulder, which caused a whiplash reaction that caused
the left side of her head to hit the floor. Appellant’s lower back and buttocks also hit the floor.
She indicated that because she was in the process of putting a file away she was unable to use her
hands to break her fall. She stated that there were three employees who heard her fall and saw her
after she fell, but she could not get statements from them because she was terminated from her
employment and could not return to her prior workplace. Appellant noted that immediately after
falling she felt pain in her left shoulder that radiated into the left side of her neck and pain in her
lower back that radiated into her lower extremities and the rest of her back. She related that she
got up off of the floor a minute or two after her fall. Appellant noted that M.F. walked by and
appellant told her that she was going to the nurses’ station because she fell and felt severe back
pain. She went to the nurses’ station and was given pain medication and icepacks, and appellant
remained there for two hours. Appellant then returned to her desk, filled out worker’s
compensation forms, and went to an urgent care center. She also indicated that she had preexisting
conditions due to six nonwork-related car accidents.
Dr. Blecha, in a February 12, 2018 medical report, indicated that appellant reported that
her symptoms worsened. He conducted a physical examination and opined that appellant’s
October 24, 2017 fall from a two-tiered stool directly caused the aggravation of her cervical and

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lumbar spondylosis and her occipital neuralgia. A February 12, 2018 duty status report (Form CA17) he noted that appellant was injured on October 24, 2017 and stated that she would be unable
to work for two months.
By decision dated June 27, 2018, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish that she was injured in the performance of
duty, as alleged. It noted that she did not provide any factual evidence in order to substantiate her
claim.
On June 26, 2019 appellant, through her representative, requested reconsideration. In an
accompanying letter, the representative asserted that OWCP failed to properly develop the factual
evidence in the claim, as it accepted the allegations of the employing establishment as factual
without any supporting evidence, in violation of FECA and OWCP’s procedure manual. He
alleged that since OWCP was the employing establishment, it failed to properly develop the
evidence in order to protect itself. Appellant’s representative indicated that one of the reasons
OWCP denied appellant’s claim was due to lack of witnesses; however, the law states that to
establish that an injury occurred as alleged, eyewitnesses were not necessary, but an appellant’s
statements must be consistent with the surrounding facts and circumstances and her subsequent
course of action. He stated that appellant’s statements regarding her injury had been consistent
with the surrounding facts and circumstances, as she notified her supervisor, which her supervisor
acknowledged, sought medical treatment on the date of her injury, and provided medical
documentation indicating that she sustained an injury when she fell. Appellant’s representative
additionally noted that appellant provided a valid reason for her inability to provide witness
statements from the witnesses she listed, namely that she was unable to access the employing
establishment’s premises due to the termination of her employment. He stated that as OWCP is
not a disinterested arbiter and shares the responsibility in the development of evidence to see that
justice is done, it should have requested witness statements from the employing establishment, and
he referred to a section of OWCP’s procedure manual indicating that witness statements can be
obtained by a claimant or an employing establishment. Appellant’s representative also indicated
that appellant’s supervisor, M.F., failed to provide any documentation indicating that appellant
was restricted to sedentary duty, and that appellant stated that she was never told by supervisors to
not engage in lifting, pushing, and pulling, as she never had those restrictions. He stated further
that the restrictions listed by appellant’s doctors in the additional medical evidence provided and
in the functional capacity evaluation did not include any restrictions on appellant’s ability to lift,
push, or pull. The representative indicated that M.F. provided incorrect information on appellant’s
CA-1 form when she indicated that appellant first received treatment on October 27, 2017, which
he indicated reflected the willingness of the employing establishment to provide incorrect
information, which was a violation of federal law. He also indicated that the medical evidence
submitted to date showed that appellant suffered an aggravation of her preexisting conditions.
In support of her reconsideration request, appellant submitted medical records that predated her alleged workplace fall, an October 3, 2016 functional capacity evaluation.
Appellant additionally submitted a May 30, 2017 e-mail from J.L. indicating that appellant
would soon be pulling cases from files. J.L. stated that appellant would send an e-mail noting the
last name and the last four (digits) of the files she pulled.

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By decision dated September 11, 2019, OWCP denied further merit review of appellant’s
claim. It found that her request for reconsideration neither raised substantive legal questions, nor
included new and relevant evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
On reconsideration, appellant’s representative alleged that appellant’s statements regarding
her injury were consistent with the surrounding facts and circumstances, as she notified her
supervisor, which her supervisor acknowledged, sought medical treatment on the date of her
injury, and provided medical documentation indicating that she sustained an injury when she fell.
The representative alleged that appellant did not have to provide witness statements to establish
her claim if her own allegations were consistent with the surrounding facts and circumstances.
4

5 U.S.C. § 8128(a); H.A., Docket No. 18-1253 (issued April 23, 2020); see also V.P., Docket No. 17-1287 (issued
October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
5

20 C.F.R. § 10.606(b)(3); L.S., Docket No. 19-1790 (issued March 11, 2020); see also L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the originally contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(a); see J.W., Docket No. 19-1795 (issued March 13, 2020); see also M.S., 59 ECAB 231 (2007).

8
Id. at § 10.608(b); C.L., Docket No. 20-0410 (issued October 29, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).

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These assertions do not show a legal error by OWCP or constitute a new and relevant legal
argument.9 These allegations are a reassertion of the facts which OWCP considered in weighing
the evidence presented in the case and finding that appellant had not met her burden of proof. The
Board has held that the submission of evidence or argument which repeats or duplicates evidence
or argument already in the case record does not constitute a basis for reopening a case.10
Appellant’s representative additionally contended that appellant provided a valid reason
for her inability to provide witness statements, namely that she was unable to access the employing
establishment’s premises due to the termination of her employment. He asserted that OWCP
should have requested that the employing establishment provide statements from additional
witnesses. The representative, however, has not explained why appellant could not have otherwise
contacted witnesses via other means outside of the workplace. This argument, therefore, lacks a
reasonable color of validity.11 As such, appellant’s request for reconsideration did not show that
OWCP erroneously applied or interpreted a specific point of law, and it did not advance a new and
relevant legal argument not previously considered. Accordingly, appellant is not entitled to a
review of the merits of her claim based on the first and second above-noted requirements under 20
C.F.R. § 10.606(b)(3).
In support of her request for reconsideration appellant submitted medical records that predated her alleged workplace fall, an October 3, 2016 functional capacity evaluation, and a May 30,
2017 e-mail from J.L. indicating that appellant would soon be pulling cases from files. The Board
finds, however, that this evidence is not relevant to the underlying factual issue of the present case,
i.e., whether appellant submitted probative factual evidence supporting that she fell on October 24,
2017 as alleged. Thus, appellant is not entitled to a review of the merits of her claim based on the
third above-noted requirement under 20 C.F.R. § 10.606(b)(3).12
The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3).13 Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

9

See. Y.K., Docket No. 18-1167 (issued April 2, 2020).

10

G.D., Docket No. 18-1665 (issued March 12, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

11

V.R., Docket No. 19-1761 (issued April 15, 2020); E.R., Docket No. 18-0446 (issued November 6, 2019).

12

M.B., Docket No. 19-0596 (issued August 6, 2019); see H.H., Docket No. 18-1660 (issued March 14, 2019).

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D.M., Docket No. 18-1003 (issued July 16, 2020); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for
reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b), OWCP will
deny the request for reconsideration without reopening the case for a review on the merits).

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ORDER
IT IS HEREBY ORDERED THAT the September 11, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1789
Issued: July 19, 2016

Case Submitted on the Record

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

JURISDICTION
On August 27, 2015 appellant, through counsel, filed a timely appeal of a May 19, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that her
lumbar radiculopathy, lumbar spondylosis, and right hip injury were causally related to her
1

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

5 U.S.C. § 8101 et seq.

employment injury; and (2) whether appellant met her burden of proof to establish total disability
for the period June 1, 2013 to June 13, 2014 and from June 14, 2014 forward causally related to
her accepted employment condition.
FACTUAL HISTORY
On April 16, 2013 appellant, then a 56-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on the same day she was lifting trays of flats from the back of a
postal vehicle for delivery and injured her ribs, groin, and hip. She stopped work on
April 17, 2013.
Appellant was initially treated by Dr. Joseph Cipriano, a Board-certified family
practitioner, from April 16 to May 29, 2013, for pain to the ribs, groin, and right hip.
Dr. Cipriano noted that appellant was totally disabled from work.
By letter dated May 13, 2013, OWCP advised appellant that her claim was originally
administratively handled to allow medical payments up to $1,500.00, but the merits of the claim
had not been formally adjudicated. It advised that, because she had not returned to full duty, her
claim would be formally adjudicated. OWCP advised appellant of the type of evidence needed
to establish the claim. No additional evidence was received.
In a decision dated June 13, 2013, OWCP denied appellant’s claim for compensation
finding the medical evidence insufficient to establish a diagnosed medical condition causally
related to the claimed event.
On November 6, 2013 appellant requested reconsideration. She submitted a magnetic
resonance imaging (MRI) scan of the right hip dated July 5, 2013 which revealed moderate right
gluteus medius and minimus tendinosis strain, and right adductor strain. A lumbar spine MRI
scan revealed multilevel lumbar spondylosis, annular tears at L3-4, L4-5 with disc desiccation,
and mild bilateral neural foraminal stenosis at L2-3 through L5-S1.
Dr. Bruce H. Grossinger, an osteopath and Board-certified neurologist, treated appellant
on June 28, 2013. A July 26, 2013 electromyogram (EMG) was normal. Dr. Grossinger noted
that appellant underwent platelet rich plasma (PRP) injections into her right hip on July 26,
September 6 and December 11, 2013 and March 12, 2014 for severe right hip injury with joint
effusion, moderate right trochanteric bursitis with gluteus medius, and gluteus minimus
tendinosis with interstitial tearing of the right adductors. In June 28 and September 10, 2013
reports, he noted that she was injured at work on April 16, 2013 when lifting trays of flats from
the back of a truck and felt pulling in her ribs, the right intercostal area, the hip, and groin.
Dr. Grossinger indicated that appellant sustained a severe hip injury with a joint effusion as well
as intercostal neuralgia. He opined that all of appellant’s injuries were causally related to her
April 16, 2013 work injury. Dr. Grossinger recommended a sacroiliac joint MRI scan to further
evaluate her condition. In reports dated October 18, 2013 and January 29, 2014, he treated
appellant for severe right hip injury referable to the accident of April 16, 2013. Dr. Grossinger
noted that appellant underwent PRP injections of the right hip with 20 percent reduction of pain.
Appellant reported pain in the intercostal area of the right rib cage. Dr. Grossinger diagnosed
right hip injury with joint effusion, trochanteric bursitis, gait disturbance, intercostal neuralgia,

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neuritis, and costochondritis attributable to the April 16, 2013 accident. He noted that appellant
was disabled from gainful employment.
Appellant was treated by Dr. Jason Brajer, a Board-certified anesthesiologist, for rightsided thoracic cage pain, hip, and groin pain. Dr. Brajer noted that her symptoms, injuries, and
treatment were referable to an April 16, 2013 workers’ compensation incident. He performed
eight intercostal nerve blocks from August 1, 2013 to February 7, 2014. Dr. Brajer diagnosed
low back pain, sacroiliac joint dysfunction, groin pain, and intercostal neuralgia.
Appellant was treated by Dr. Ray S. Abdallah, a chiropractor, from July 3 to
October 7, 2013. She reported sustaining an injury at work on April 16, 2013 when she was
lifting heavy trays of mail. Dr. Abdallah diagnosed L1-2 lumbar spine disc bulge, L5-S1 lumbar
spine disc bulge, post-traumatic right hip joint pain and dysfunction, and post-traumatic bilateral
intercostal musculature strain. He noted that appellant was totally disabled due to the injuries
sustained on April 16, 2013.
Appellant’s record was referred to an OWCP medical adviser and, in a report dated
November 22, 2013, he recommended a second opinion evaluation.
Appellant submitted a March 7, 2014 report from Dr. Grossinger who noted that
appellant had undergone three facet block injections with limited benefit. Dr. Grossinger
diagnosed objective and confirmatory findings consistent with low back pain secondary to
sacroiliac joint dysfunction and opined that the above symptoms, injuries, and treatments were
referable to the workers’ compensation incident of April 16, 2013.
On March 16, 2014 OWCP referred appellant to Dr. Robert A. Smith, a Board-certified
orthopedist, for a second opinion examination. In a March 14, 2014 report, Dr. Smith noted
findings on examination which demonstrated nonphysiologic pain behavior suggesting
embellishment of her symptoms. He noted objectively that the rib cage was symmetric with no
evidence of retraction in the intercostal musculature, the ribs were normal with inspiration and
expiration, the back revealed no spasm, rigidity or atrophy, and there were no trigger points or
deformities present. Examination of the hips revealed full range of motion, there was no
evidence of any crepitation or instability, the trochanteric area revealed no swelling or
crepitation, there was no evidence of any disruption of the sacroiliac joints, and the neurologic
examination was normal. Dr. Smith diagnosed a mild sprain of the right rib cage. He further
noted that there was no evidence in the record that appellant had any disruption of her sacroiliac
joints in relation to the incident. Dr. Smith noted that studies revealed age-related degenerative
disease in the spine and tendinosis in the musculature about the hip. He opined that appellant
sustained simple soft tissue sprains and strains that have long since resolved since this incident
on April 16, 2013. Dr. Smith opined that appellant sustained a right rib strain, but he did not see
any causal connection between appellant’s subsequent complaints of pain in her groin, hip, back,
and sacroiliac joints as causally related to the April 16, 2013 incident. He noted that appellant
received injections into her rib cage area for intercostal nerve block and sacroiliac joint, which he
opined was not medically necessary for a simple rib strain. Dr. Smith advised that, if appellant
had sustained soft tissue injuries to her back, hip, or groin in the incident in April 2013, they had
long since resolved based on his benign objective examination and review structural studies. He
noted that there was no structural aggravation of appellant’s preexisting degenerative disease and

3

no objective residuals related to the work incident. Dr. Smith indicated that any soft tissue injury
had resolved and appellant’s continued symptoms were not related to any organic factors. He
noted total disability for a simple soft tissue sprain was 7 to 10 days at which time appellant
could have returned to work with short-term restrictions over a few weeks. Dr. Smith advised
that appellant did not require any further treatment including chiropractic manipulation, physical
therapy, injections, or any type of surgery due to this incident. In a work capacity evaluation, he
noted that she reached maximum medical improvement and could work without restrictions.
In a decision dated March 24, 2014, OWCP vacated the decision dated June 13, 2013 and
accepted appellant’s claim for sprain of the right ribs.
On May 16, 2014 appellant sought to expand her claim to include lumbar radiculopathy,
lumbar spondylosis, and right hip injury.
Appellant submitted CA-7 forms claiming compensation for total disability for the period
June 1, 2013 to June 13, 2014 and from June 14, 2014 forward.
In a letter dated July 9, 2014, OWCP requested that appellant submit additional
information to support her claim for compensation. It asked that she submit medical evidence
establishing that the total disability was due to the accepted condition for the period claimed.
Appellant submitted reports from Dr. Grossinger, dated April 23 to May 16, 2014, who
opined that appellant had objective and confirmatory findings consistent with low back pain
secondary to sacroiliac joint dysfunction with lumbar spondylosis, lumbar facet dysfunction,
intercostal neuralgia, and hip pain. Dr. Grossinger noted that the conditions were causally
related to the April 16, 2013 work injury. On May 21, 2014 he indicated that on April 16, 2013
appellant was injured while repetitively lifting mail trays and injured her ribs, low back, hips,
and groin. Dr. Grossinger noted that Dr. Smith limited appellant’s pain to her ribs but that
appellant consistently noted issues with her back, hips, ribs, and groin throughout treatment. He
noted that appellant had guarding and tenderness in the right costal margin, restricted lumbar
mobility, and groin tenderness. Dr. Grossinger opined that appellant’s examination was clear,
coherent, and without embellishment. He advised that her injuries including trochanteric
bursitis, right rib injuries, antalgic gait, restricted lumbar mobility, and multifactorial pain
syndrome were causally related to her work injury. Dr. Grossinger noted that appellant was
disabled from gainful employment.
By report dated July 23, 2014, Dr. Grossinger performed a comprehensive neurological
and orthopedic evaluation of appellant and reviewed Dr. Smith’s report. He disagreed with
Dr. Smith, noting that he had minimized appellant’s injuries and improperly concluded that her
injuries were merely a “soft tissue injury.” Dr. Grossinger opined that Dr. Smith was incorrect
and noted that, if appellant merely had a soft tissue injury, she would have recovered
immediately after the accident and would not be undergoing intensive neurological and
regenerative treatment. He noted that appellant continued to have severe low back pain radiating
to the right leg and foot, right hip pain, and difficulty sitting and standing. Dr. Grossinger found
no evidence of symptom magnification or embellishment. He diagnosed a severe right hip injury
with joint effusion, trochanteric bursitis, and tendinosis with right lumbosacral radiculopathy and
sacroiliac dysfunction, which were all causally related to the April 16, 2013 employment injury.

4

Dr. Grossinger disagreed with Dr. Smith and indicated that the employing establishment position
required appellant to stand, bend, lift, and twist and opined that these activities were beyond her
physical capabilities. He determined that appellant remained disabled from gainful employment.
In a decision dated August 11, 2014, OWCP denied appellant’s claim for compensation
for the period beginning June 14, 2014. In a letter dated August 11, 2014, it requested that
appellant submit additional evidence to support her earlier claims for compensation for the
period June 1, 2013 to June 13, 2014.
Appellant submitted an August 27, 2014 report from Dr. Grossinger who noted that
appellant presented with sharp pain in her back extending to the right leg and foot.
Dr. Grossinger noted findings of right hip tenderness with evidence of trochanteric bursitis,
hypertonicity, restricted movement in the right hip, and gait antalgic. He diagnosed hip injury
with right trochanteric bursitis, right sacroiliac dysfunction, and lumbar radiculopathy.
Dr. Grossinger noted that appellant remained totally disabled.
In a decision dated September 25, 2014, OWCP denied appellant’s claim for
compensation for the period June 1, 2013 to June 13, 2014.
On September 30, 2014 appellant requested an oral hearing for the August 11 and
September 25, 2014 decisions. The hearing was held on January 28, 2015. Appellant submitted
October 1 and 31, 2014 reports from Dr. Grossinger who noted appellant’s right rib, right-sided
groin, and hip symptoms. Dr. Grossinger diagnosed right trochanteric bursitis, sacroiliac
dysfunction, lumbar radiculopathy, and right intercostal neuralgia causally related to the
April 16, 2013 work injury. On March 6, 2015 he advised that appellant continued to be
symptomatic with her diagnosed conditions causally related to the April 16, 2013 work injury.
Dr. Grossinger indicated that generally, as a postal employee, appellant was required to take
heavy parcels and items weighing up to approximately 50 pounds and lift them to waist level,
twist at the hips, and place them from one end of the vehicle to another and subsequently deliver
them. Appellant reported moving heavy parcels and trays around in her vehicle multiple times a
day and Dr. Grossinger opined that the repetitive nature of her job, which involved constant
twisting and carrying heavy materials and having to raise them to rib level could cause rib pain.
He further noted that repetitive heavy lifting, carrying, bending, pushing, and pulling can affect
the low back and hip areas causing unleveling of the hips and tailbone area which can result in
groin pain.
In a decision dated May 19, 2015, an OWCP hearing representative affirmed OWCP’s
decisions dated August 11 and September 25, 2014. He also found that Dr. Grossinger’s opinion
was not sufficient to establish that additional conditions were employment related.
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.3
3

Jaja K. Asaramo, 55 ECAB 200 (2004).

5

Causal relationship is a medical issue that must be established by rationalized medical
opinion evidence.4 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.5 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested, and the medical rationale
expressed in support of the physician’s opinion.6
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.7 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.8 When there exist opposing medical reports
of virtually equal weight and rationale and the case is referred to an impartial medical specialist
for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight.9
ANALYSIS -- ISSUE 1
Appellant alleges that she developed work-related lumbar radiculopathy, lumbar
spondylosis, and a right hip injury as a result of lifting trays of flats from her postal truck on
April 16, 2013. OWCP accepted the claim, as noted, for sprain of right ribs. It did not accept
lumbar radiculopathy, lumbar spondylosis, and right hip conditions. The Board finds that there
is a conflict in medical opinion between Dr. Smith, OWCP’s referral physician, and
Dr. Grossinger, appellant’s treating physician, both of whom are Board-certified specialists in
their respective fields, regarding whether appellant developed lumbar radiculopathy, lumbar
spondylosis, and a right hip injury as a result of her work injury.
In his March 14, 2014 report, Dr. Smith diagnosed a mild sprain of the right rib cage. He
noted an essentially normal examination with no evidence of retraction in the intercostal
musculature. The ribs were normal, the back had no spasm or trigger points, the hips were
4

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
7

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

8

20 C.F.R. § 10.321.

9

V.G., 59 ECAB 635 (2008).

6

without any crepitation or instability, and the trochanteric area had no swelling or crepitation,
and there was no evidence of disruption of the sacroiliac joints. Dr. Smith noted appellant’s
demonstrated nonphysiologic pain behavior suggesting symptom embellishment. He opined that
appellant had a right rib strain, but he saw no causal connection between appellant’s subsequent
complaints of pain in her groin, hip, back, and sacroiliac joints as causally related to the April 16,
2013 employment injury. Dr. Smith opined that appellant had simple soft tissue sprains and
strains that would have resolved in 7 to 10 days of the April 16, 2013 incident and appellant’s
continued symptoms did not relate to any organic factors. He found no objective residuals of her
employment-related injuries and advised that appellant required no further treatment.
By contrast, on July 23, 2014 Dr. Grossinger disagreed with Dr. Smith, noting that he
improperly concluded appellant’s injuries were merely “soft tissue injury.” He opined that
appellant continued to have severe low back and hip pain radiating to the right leg and foot, and
difficulty sitting and standing. Dr. Grossinger noted objective findings of difficulty sitting and
standing, antalgic gait, right trochanteric region tenderness, spasm in the iliac crest, lumbar
paraspinous regions, and sacroiliac dysfunction, positive straight leg test, and tenderness over the
costal region. He found no evidence of symptom magnification. Dr. Grossinger opined that
appellant had a severe right hip injury with joint effusion, trochanteric bursitis, and tendinosis
with right lumbosacral radiculopathy and sacroiliac dysfunction, which were all causally related
to the April 16, 2013 work injury.
The Board therefore finds that a conflict in medical opinion has been created regarding
whether OWCP should accepted additional conditions as being employment related.
Section 8123 of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the employee’s physician, OWCP shall
appoint a third physician who shall make an examination.10
The case will be remanded to OWCP to refer appellant, the medical record, and a
statement of accepted fact to an appropriate specialist, to obtain an impartial opinion regarding
whether the April 16, 2013 work injury caused or aggravated additional diagnosed conditions.
Following this and all other development deemed necessary, OWCP shall issue a de novo
decision in the case.
CONCLUSION
The Board finds that the case is not in posture for decision.11

10

Supra note 7.

11

The Board finds that it is unnecessary to address the second issue, regarding compensable disability, in view of
the Board’s disposition of the first issue.

7

ORDER
IT IS HEREBY ORDERED THAT the May 19, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
action consistent with this decision.
Issued: July 19, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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Appearances:
John Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2233
Issued: March 19, 2008

Oral Argument February 19, 2007

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 3, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 24, 2007 decision determining his wage-earning capacity.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether the Office properly found that appellant’s actual earnings in the
temporary position of traffic control person fairly and reasonably represented his wage-earning
capacity.
FACTUAL HISTORY
This is the second time this case has been before the Board. In an August 6, 2007
decision, the Board reversed the Office’s August 30, 2006 decision denying wage-loss claims for

the period March 24 to April 21, 2006. The facts and the conclusions of law contained in that
decision are incorporated herein by reference.1
On May 16, 2005 appellant filed an occupational disease claim alleging that he had
developed carpal tunnel syndrome as a result of employment activities. At the time his claim
was filed, he was employed in a permanent position as a marine machinery mechanic. On
September 13, 2005 appellant’s claim was accepted for right carpal tunnel syndrome. The Office
subsequently authorized carpal tunnel surgery, which was performed on February 3, 2006.
Appellant submitted March 13, 2006 progress notes from Dr. Brian Wicks, a Boardcertified orthopedic surgeon, who indicated that appellant’s fingers were much improved from
the carpal tunnel release and that he was no longer experiencing numbness or cramping. In a
March 13, 2006 patient status update form, Dr. Wicks stated that appellant was able to return to
limited duty. Work restrictions included: a five-pound lifting limit with his right hand
(occasionally); very limited repetitive twisting or gripping with his right hand (less than ½ hour
per day); limited squatting and kneeling (occasionally); no vibratory and impact tools; no vertical
ladders; and no overhead reaching.
The record contains a March 13, 2006 light-duty job offer from the employing
establishment. The position offered was “traffic controller.” Duties included monitoring traffic
on a pier while industrial work was accomplished nearby. Appellant would be permitted to sit or
stand. The position would require: no use of vibrating or impact tools; no use of his hands on a
repetitive basis; no twisting or gripping motions; no climbing vertical ladders; no squatting; no
kneeling; and no reaching overhead. The employing establishment stated that the position would
remain available until appellant was released by his doctor to return to his position of record. On
April 26, 2006 the Office informed appellant that it found the temporary position offered by the
employing establishment to be medically suitable. Appellant accepted the limited-duty position
and returned to work on April 26, 2006.
On May 2, 2006 the Office informed appellant that the March 13, 2006 job offer was
incomplete. The Office provided appellant with pages one through four of the limited-duty
assignment, which were not included in the original offer. Page two of the job offer reflected
that the assignment was “temporary.” Appellant continued to work in the modified position until
June 27, 2007, when he underwent left carpal tunnel release surgery.2
By decision dated August 24, 2007, the Office terminated appellant’s entitlement to
compensation benefits under 5 U.S.C. §§ 8106 and 8115. Finding that his actual earnings met or
exceeded the current wages of the date-of-injury job, the Office concluded that appellant had no
loss in wage-earning capacity. The Office also stated that the position of traffic control person
was considered suitable because appellant had demonstrated the ability to perform the duties of
the job for two months or more.
1

Docket No. 06-2033 (issued August 6, 2007).

2

Claim No. 142054287 was accepted by the Office for left carpal tunnel syndrome and left medial epicondylites.
Appellant underwent left carpal tunnel release surgery on June 27, 2007, and the Office began paying compensation
for disability at that time. IFECS records reflect that appellant was terminated by the employing establishment on
July 16, 2007, due to his physical inability to perform the assigned duties of his date-of-injury position.

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of his duty.3
Disability means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.4
When an employee cannot return to the date-of-injury job because of disability due to
work-related injury or disease but does return to alternative employment, the wage-earning
capacity of the employee is determined by his actual earnings if his actual earnings fairly and
reasonably represent his wage-earning capacity.5 To determine whether the employee’s work
fairly and reasonably represents his wage-earning capacity, the Office should consider whether
the kind of appointment and tour of duty are at least equivalent to those of the job held on date of
injury. Unless they are, the Office may not consider the work suitable. The reemployment may
not be considered suitable when the job is temporary where the employee’s previous job was
permanent.6
ANALYSIS
The Board finds that the Office improperly determined that appellant’s limited-duty
position of traffic control person was suitable. Therefore, the Office’s August 24, 2007 decision
must be reversed.
The evidence establishes that the position offered to appellant was a temporary job. On
March 13, 2006 the employing establishment offered appellant a position as a traffic control
person. The job was not identified as permanent. The Board notes that the offer stated that the
position would remain available until appellant was released by his doctor to return to his
position of record. However, in its April 26, 2006 letter, finding the position suitable, the Office
described the position as temporary. On May 2, 2006 the Office informed appellant that the
employing establishment had failed to provide a complete copy of the job offer on
March 13, 2006. Page two of the complete job offer clearly indicated that the assignment was
temporary.
Office procedures are clear. When determining whether earnings in alternative
employment fairly and reasonably represent the employee’s wage-earning capacity, the Office
may not consider the work suitable when the job is temporary and the employee’s previous job
was permanent. Appellant’s date-of-injury position as a marine machinery mechanic was a
permanent position. Because the record establishes that the position to which he returned in

3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f) (1999).

5

5 U.S.C. § 8115(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7.a (July 1997).

3

April 2006 was not permanent, the Office may not consider the work suitable for a determination
of wage-earning capacity.
The employing establishment’s statement -- that the position would remain available until
appellant was released by his doctor to return to his position of record -- does not convert the
offer into one of permanent employment.7 It does not erase the clear language of the complete
job offer reflecting that the position offered was temporary, or the Office’s characterization of
the job as temporary in its suitability letter. Accordingly, the August 24, 2007 wage-earning
capacity was erroneous and must be reversed.
CONCLUSION
The Office has not met its burden of establishing that appellant’s actual earnings as a
traffic control person fairly and reasonably represented his wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the August 24, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 19, 2008
Washington, DC
Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7

The Board notes that appellant’s termination by the employing establishment on July 16, 2007, due to his
physical inability to perform the duties of his job, corroborates the temporary nature of the limited-duty position.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 14-1028
Issued: September 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 1, 2014 appellant filed a timely appeal from a January 31, 2014 merit decision
and a March 18, 2014 nonmerit decision of the Office of Workers’ Compensation Programs’
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant established back and left eye injuries causally
related to factors of his federal employment; and (2) whether OWCP properly denied appellant’s
request for further merit review of his claim pursuant to 5 U.S.C § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted new evidence. The Board, however, cannot consider evidence that was not
before OWCP at the time of the final decision. Appellant may resubmit this evidence and legal contentions 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. See 20 C.F.R. § 501(c)(1); 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).

FACTUAL HISTORY
On December 2, 2013 appellant, then a 47-year-old forklift operator, filed an
occupational disease claim (Form CA-2) alleging that he first became aware of his back injury
and his detached retina and realized that they were caused by driving through potholes at work,
on April 11, 2012. He worked from 6:30 a.m. to 5:00 p.m., Monday through Thursday.
Melvin Fagan, a supervisor, stated that he was not aware of the conditions described by
appellant. He stated that appellant did very little forklift work.
Diagnostic test reports dated April 15, 2003 to October 21, 2010 addressed appellant’s
cervical and thoracic spine conditions.
Medical reports dated April 8 and 15 and August 20, 2003 addressed appellant’s right
and left eye conditions and left eye surgery.
In an April 11, 2012 magnetic resonance imaging (MRI) scan report, Dr. D. Scott
Campanini, a radiologist, found mild dextroscoliosis in the mid-to-lower thoracic spine and
minimal degenerative disease.
In reports dated May 3, July 25 and December 4, 2013, Dr. J. David Bradford, a Boardcertified surgeon, advised that appellant had scleritis, ocular hypotony and pain of the left eye.
Appellant also had total retinal detachment of the left eye for which he was status post pars
plana vitrectomy, membrane peel and seleral buckle. Dr. Bradford stated that the retina was still
attached.
An April 8, 2013 Equal Employment Opportunity negotiated settlement agreement
between appellant and the employing establishment cancelled the employing establishment’s
April 1, 2013 letter proposing to suspend him for two workdays for failure to follow instructions
and March 21, 2013 letter notifying him of the nonextension of his time-limited appointment as a
forklift operator. The employing establishment also agreed not to mention or annotate the
canceled letters on his official records or files maintained by management. Appellant agreed to
voluntarily resign without coercion or duress effective April 8, 2013.
In an October 28, 2013 letter, the Office of Personnel Management (OPM) stated that it
had reviewed appellant’s medical records and determined that he was disabled for his forklift
operator position due to thoracic spine degenerative disc disease and total retinal detachment of
the left eye.
By letter dated December 3, 2013, Ann Harmon, an injury compensation program
administrator, controverted appellant’s claim, contending that he resigned from his job in lieu of
further administrative action by his employing establishment and applied for disability retirement
on April 8, 2013.3 Appellant had worked for the employing establishment since 2008 and during
this time he never reported an injury or filed an injury claim related to his thoracic spine or left
eye. Ms. Harmon noted OPM’s letter approving his disability retirement due to his thoracic
3

A notification of personnel action form (SF 50-B) dated April 11, 2013 indicated that appellant resigned from
the employing establishment effective April 8, 2013 due to medical reasons.

2

spine and left eye conditions. She reviewed a report of medical history completed by appellant
during a preplacement examination for employment on April 11, 2008. Appellant reported no
history of eye disorder or trouble or loss of vision in either eye. He answered no to the question
whether he had or had been advised to have any operations or surgery. Ms. Harmon stated that,
at the time he filed his CA-2 form, appellant had a history of a recurrent left retinal detachment
several years prior to his employment. Appellant had three surgical procedures in 2003, one in
Shreveport, Louisiana and two in Dallas, Texas. He had denied any prior medical problems with
his eyes and surgeries of any type during his preplacement examination. Ms. Harmon contended
that the medical evidence submitted by appellant failed to establish that he sustained left eye and
thoracic spine injuries while working at the employing establishment from 2008 to 2013.
By letter dated December 11, 2013, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It gave him 30 days to submit a factual statement
describing the employment factors that contributed to his injury and a medical report from a
physician explaining how his employment activities caused, contributed to or aggravated his
condition. OWCP also requested that the employing establishment submit factual evidence
regarding appellant’s claim and medical evidence, if he had been treated at its medical facility.
On December 17, 2013 appellant contended that his physician placed him on total
disability in 2012 because he was worn down by his work. He stated that it was too aggressive
and he was not prepared to work that hard. Appellant related that he had not worked since
March 2013 because metal fragments got into his left eye causing a loss of vision in the eye. He
further related that his claim was also for a back injury. Appellant contended that he was
exposed to airborne metal and chemicals while driving a forklift on roads with bad potholes. He
stated that his exposures were found during testing by the Occupational Safety and Health
Administration (OSHA). Appellant claimed that he worked 10 hours a day, 6 to 7 days a week.
He drove a forklift, tow motor and Humvees. Appellant usually drove a forklift approximately
10 hours a day due to a heavy workload. He stated that his last day at work was March 25, 2013
as ordered by his physician. Appellant drove as needed as he only had one eye and a severely
damaged spinal cord. He had numbness in his entire left leg and sharp pains and tingling that
radiated down his entire spinal cord and both arms. Appellant also had difficulty walking. His
physician prescribed a permanent disability parking sticker on October 8, 2012 so that he could
park closer to his work building to avoid painful long walks to the building. Appellant
contended that his exposures to metal and chemicals caused infections and the removal of a piece
of fine metal from his eye by “Dr. Fenton of [T]exarkana [Texas]”4 Which both led to darkness
and loss of sight in his left eye. He realized his injuries were severely aggravated by his federal
employment in October 2012. Appellant’s left eyesight had decreased severely and he had
difficulty walking due to a severely damaged spine, which made it difficult to perform his job.
He contended that his employment-related loss of left eyesight and severely damaged spine
resulted in his permanent disability. Appellant further contended that he did not have a spinal
cord or left eye condition when he started work at the employing establishment.

4

The Board notes that Dr. Fenton’s full name and professional qualifications are not contained in the case record.

3

In a May 23, 2003 computerized tomography (CT) scan report, Dr. Steven W. Holman, a
Board-certified radiologist, found no signs of a fracture. He found mild reversal of the normal
lordotic curves of the cervical spine that were probably due to muscle spasm or positioning.
In an April 11, 2012 CT scan report, Dr. Rudy M. Braza, a Board-certified radiologist,
found intrinsic narrowing of the cervical spinal canal with multilevel degenerative changes. He
also found a small focus of hyperintense signal within the spinal cord at C4-5 on the right
suggestive of myelomacia. In an April 11, 2012 MRI scan report, Dr. Braza found degenerative
disease and levoscoliosis of the lumbar spine.
By decision dated January 31, 2014, OWCP denied appellant’s occupational disease
claim. It found that the evidence was insufficient to establish that the conditions were caused by
work factors
In a February 18, 2014 letter, appellant requested reconsideration. He contended that
Jerry Blocker, his former supervisor, failed to respond to his request for documents showing the
dates he complained about bad potholes and the dates Mr. Blocker submitted orders to
maintenance to have them repaired. Appellant stated that this information was also needed so
that his physician could submit a proper medical summary to the Department of Labor. He
contended that he never received the requested documents, which was a denial of due process
and caused his 30-day response limitation to expire and the denial of his claim. Appellant
further contended that medical evidence clearly showed that his medical condition was not
severe or disabling during his 2008 employing establishment examination. He asserted that
OPM’s October 28, 2013 letter granted him disability due to his thoracic degenerative disc
disease and he was fully aware that his injuries were directly related to his work at the employing
establishment. Appellant alleged that an OWCP claims examiner denied his claim because he
was African American. He further alleged that the claims examiner was biased against him in
his decision because he had knowledge about the existence of documents that he could have
obtained prior to ruling against him.
In a January 23, 2014 report Dr. John H. Dodson, a radiologist at Forest Park Medical
Clinic, Little Rock, AR advised that appellant had an acute cervical and lumbar sprain and
chronic cervical and lumbar pain secondary to herniated nucleus pulposus. He further advised
that appellant was permanently and totally disabled and could never return to work.
A document from Arkansas Spine and Pain listed instructions to follow before the
performance of a February 25, 2014 procedure.
A description of appellant’s forklift operator position required him to operate, among
other things, an electric, gasoline or diesel powered forklift truck. The physical requirements of
the position consisted of moderate physical effort to operate hand and foot controls while
driving, turning and stopping the forklift truck and raising, lowering and tilting the loads being
moved. The physical requirements also required frequent lifting, positioning and carrying
supplies and equipment weighing from 20 to 50 pounds and occasionally up to 70 pounds. Work
duties were performed inside and outside in cold, damp, drafty and hot areas. An employee was
subject to injury from falling objects, collisions, shifting loads and overturning.

4

Appellant resubmitted a duplicate copy of OPM’s October 28, 2013 letter.
In a March 18, 2014 decision, OWCP denied further merit review of appellant’s claim. It
found that he had failed to establish that it had erroneously applied or interpreted a point of law
or to submit new and relevant evidence or argument not previously considered. OWCP found
that the evidence submitted was cumulative in nature.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA5 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 filed within the applicable time
limitation; that an injury was sustained while 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.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty and must be supported by
medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.8 Neither the fact that appellant’s
condition became apparent during a period of employment nor, his or her belief that the
condition was caused by his or her employment is sufficient to establish a causal relationship.9
ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet his burden of proof to establish that his
federal employment caused or aggravated his back and left eye conditions. Appellant identified
the factors of employment that he believed caused his claimed conditions, including driving a
5

See supra note 1.

6

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

7

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id. at 351-52.

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

5

forklift through bad potholes and being exposed to airborne metal and chemicals while driving a
forklift 10 hours a day, 6 to 7 days a week. He alleged that OSHA testing confirmed his work
exposures. Appellant contended that Dr. Fenton removed a piece of fine metal from his eye. His
CA-2 form indicated that he worked 10 hours a day, 4 days a week and not 6 to 7 days a week as
alleged. Mr. Fagan, a supervisor, advised that appellant performed very little forklift work. He
further advised that he was not aware of the driving conditions described by appellant. The
record does not contain any OSHA test results finding the existence of airborne metal and
chemicals during the period appellant worked at the employing establishment. It also does not
contain a report from Dr. Fenton providing a history that he removed a piece of metal from
appellant’s left eye as a result of driving a forklift truck. Additionally, none of the medical
evidence of record contains a history of injury consistent with appellant’s description of the
alleged employment factors.
There is no probative evidence that appellant rode through potholes or was exposed to
airborne metal and chemicals while driving a forklift 10 hours a day, 6 to 7 days a week at work.
Because he did not meet his burden of proof to establish the existence of any employment factors
which he believed caused or aggravated his claimed back and left eye conditions, he did not meet
his burden of proof to establish any employment-related conditions.10
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128 of FECA,11
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.12 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.13 Section 10.608(b) of the implementing regulations states that any
application for review that does not meet at least one of the requirements listed in 20 C.F.R.
§ 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.14
ANALYSIS -- ISSUE 2
On February 18, 2014 appellant disagreed with OWCP’s January 31, 2014 decision,
denying his occupational disease claim on the grounds that he had failed to establish fact of
injury, indicating that he had not submitted evidence to support that the claimed injury occurred

10

See M.H., Docket No. 07-1453 (issued October 18, 2007).

11

See supra note 1. Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
12

20 C.F.R. § 10.606(b)(3).

13

Id. at § 10.607(a).

14

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

6

as described and he had not submitted any medical evidence to support his claim. He requested
reconsideration. The underlying issue on reconsideration is factual in nature.
In his request for reconsideration, appellant contended that he was denied due process
because the failure of Mr. Blocker, his former supervisor, to respond to his request for
documents regarding the dates he complained about bad potholes and the dates Mr. Blocker
submitted orders to maintenance to have them repaired caused OWCP’s 30-day response
limitation for submitting the requested evidence to expire and the denial of his claim. However,
Mr. Blocker’s alleged behavior does not demonstrate an error in the decision under review.
Appellant did not cite legal precedent or specific supportive evidence. Where the legal argument
presented has no basis in fact or precedent, OWCP is not required to reopen the case for merit
review.15
Appellant contended that medical evidence clearly showed that his condition was not
severe or disabling during his 2008 employing establishment examination. As the basis of
OWCP’s decision denying his claim was factual in nature, the Board finds that his contention
regarding the weight of the medical evidence is not relevant to the issue at hand. The submission
of evidence or argument that does not address the particular issue involved does not constitute a
basis for reopening a case.16 The Board finds, therefore, that appellant’s contention is
insufficient to reopen his claim for merit review.
Appellant alleged discrimination by the claims examiner who denied his claim because
he was African American. He also alleged that the claims examiner was biased against him
because he had knowledge about the existence of documents that he could have obtained prior to
ruling against him.17 Moreover, appellant’s arguments are not supported by any additional
evidence submitted to the record. The Board finds, therefore, that her arguments do not establish
a legal error on a specific point of law or advance a relevant legal argument. Consequently,
appellant was not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(3).18
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered. Appellant’s position description, while new, does not address the
employment factors which he claimed caused his back and left eye conditions. The position
description required him to operate, a forklift truck inside and outside under hazardous work
conditions, but it did not provide whether he was required to ride through potholes or whether he
was exposed to airborne metal and chemicals while driving the vehicle. Thus, the Board finds
that the position description is not relevant and pertinent and thus, insufficient to reopen
appellant’s claim for a merit review.19
15

See Norman W. Hanson, 40 ECAB 1160 (1989).

16

R.M., 59 ECAB 690 (2008); Betty A. Butler, 56 ECAB 545 (2005).

17

Id.

18

20 C.F.R. § 10.606(b)(3).

19

See cases cited, supra note 17.

7

Dr. Dodson’s January 23, 2014 report addressed appellant’s diagnosed cervical and
lumbar conditions and resultant total disability. The document from Arkansas Spine and Pain
listed instructions to follow before the performance of a February 25, 2014 procedure. The
submitted medical evidence is not relevant as the underlying issue is factual in nature; whether
appellant has established employment factors which he claimed caused his back and left eye
conditions.20 The Board finds, therefore, that Dr. Dodson’s report and the Arkansas Spine and
Pain document are insufficient to reopen appellant’s claim for a merit review.
Appellant submitted a duplicate copy of OPM’s October 28, 2013 decision letter. This
evidence was previously of record and considered by OWCP in its January 31, 2014 decision. It
is well established that evidence which is duplicative or cumulative in nature is insufficient to
warrant reopening a claim for merit review.21 Further, the Board has long held that findings of
other federal agencies are not dispositive with regard to questions arising under FECA.22 The
Board finds, therefore, that OPM’s letter is insufficient to reopen appellant’s claim for a merit
review.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP
or submit relevant and pertinent new evidence not previously considered by OWCP. Pursuant to
20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained back and left eye
injuries causally related to factors of his federal employment. The Board further finds that
OWCP properly denied his request for further merit review of his claim pursuant to 5 U.S.C
§ 8128(a).

20

Id.

21

Denis M. Dupor, 51 ECAB 482 (2000).

22

See also J.F., 59 ECAB 331 (2008); see D.I., 59 ECAB 158 (2007).

8

ORDER
IT IS HEREBY ORDERED THAT the March 18 and January 31, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 17, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Arlington, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0872
Issued: September 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 18, 2019 appellant filed a timely appeal from a March 13, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.1
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $2,435.95 for the period December 13, 2018
through January 5, 2019 for which he was without fault; and (2) whether it properly denied waiver
of recovery of the overpayment.

1

The Board notes that, following the March 13, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On February 5, 2011 appellant, then a 58-year-old sales and services associate (a.k.a., SSA
clerk), filed a traumatic injury claim (Form CA-1) when he was reportedly struck on the left
drivers’ side of his vehicle during a motor vehicle collision while in the performance of duty on
that date. He allegedly sustained a soreness and hurting in his lower back, tailbone, and entire left
side of his body. Appellant stopped work on that date and received continuation of pay beginning
February 6, 2011. On the reverse side of the claim form the employing establishment indicated
that appellant was in the performance of duty when injured, that he had received medical treatment,
and that he had not yet returned to work. On March 30, 2011 OWCP accepted his claim for left
shoulder rotator cuff sprain. It expanded acceptance of his claim to include lumbar sprain, lumbar
spondylosis without myelopathy, thoracic and lumbosacral neuritis/radiculitis, and a herniated disc
at L4-S1.
OWCP paid appellant wage-loss compensation benefits for temporary total disability on
the supplemental rolls, beginning March 23, 2011, and on the periodic rolls beginning
June 5, 2011.
On June 3, 2015 appellant underwent OWCP-approved lumbar surgery.2
Appellant returned to work in a part-time, limited-duty capacity for four hours per day on
December 13, 2018.3 Appellant retired from federal employment, effective December 24, 2018.
He continued to receive wage-loss compensation benefits for total disability through
January 5, 2019.
On January 30, 2019 OWCP advised appellant of its preliminary determination that he had
received an overpayment of wage-loss compensation in the amount of $2,435.95 because he
received total disability compensation for the period December 13, 2018 through January 5, 2019
after he had returned to part-time, limited-duty work. It noted that for the period December 9,
2018 to January 5, 2019 appellant received $2,841.94 in wage-loss compensation, but he was only
entitled to receive $405.99, resulting in an overpayment of $2,435.95. Included in the record was
a copy of OWCP’s manual adjustment form, which indicated that, during the period December 9,
2018 to January 5, 2019, appellant received compensation in the amount of $2,841.94. It also
noted that, for the period December 9 to 12, 2018, appellant should have received $405.99,
resulting in a net difference of $2,435.95. OWCP also made a preliminary finding that appellant
was without fault in creation of the overpayment of compensation as he was not aware or could
not have reasonably known that he continued to receive wage-loss compensation for total disability
after he had returned to part-time limited duty. It requested that he complete an enclosed
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documents. Additionally, OWCP notified appellant that, he could request a prerecoupment
telephone conference within 30 days of the date of the letter.
2

A June 3, 2015 operative report indicated that appellant underwent left L5-S1 foraminotomy and discectomy and
left L4-L5 discectomy.
3
In a report dated September 7, 2018, Dr. Robert Squillante, a Board-certified orthopedic surgeon, indicated that
appellant could return to work with restrictions of lifting up to 10 pounds and sitting, walking, or standing up to 30
minutes continuously.

2

OWCP did not receive a completed Form OWCP-20 or any additional documents
regarding appellant’s preliminary overpayment determination.
By decision dated March 13, 2019, OWCP finalized the preliminary determination that
appellant received an overpayment of compensation in the amount of $2,435.95 for the period
December 13, 2018 to January 5, 2019 because he returned to part-time, limited-duty work on
December 13, 2018, but continued to receive wage-loss compensation for total disability until
January 5, 2019. It continued to find that appellant was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment because he did not submit any
evidence in response to the January 30, 2019 preliminary determination to support that recovery
of the overpayment should be waived. OWCP requested payment in full within 30 days from the
date of the decision.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.5
Section 8116 of FECA defines the limitations on the right to receive compensation benefits.
This section of FECA provides that, while an employee is receiving compensation, he may not
receive salary, pay, or remuneration of any type from the United States, except in limited
circumstances.6 Section 10.500 of OWCP’s regulations provides that compensation for wage-loss
due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.7 A claimant is not entitled to receive temporary total disability (TTD) benefits and actual
earnings for the same time period.8 OWCP procedures provide that an overpayment of
compensation is created when a claimant returns to work, but continues to receive wage-loss
compensation for TTD.9

4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 8116(a).

7

20 C.F.R. § 10.500.

8

See K.E., Docket No. 18-0687 (issued October 25, 2018); M.S., Docket No. 16-0289 (issued April 21, 2016); L.S.,
59 ECAB 350, 352-53 (2008).
9
K.E., id.; B.H., Docket No. 09-0292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 -Debt Management, Initial Overpayment Action, Chapter 6.200.2(a) (May 2004).

3

ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
OWCP found that appellant received an overpayment of compensation because he received
wage-loss compensation for total disability from December 13, 2018 through January 5, 2019 after
he returned to part-time, limited duty on December 13, 2018. The evidence of record establishes
that appellant returned to part-time, limited-duty work for the employing establishment on
December 13, 2018, but continued to receive TTD compensation through January 5, 2019. As
noted above, a claimant is not entitled to receive compensation for total disability during a period
in which he or she had actual earnings.10 Therefore, an overpayment of compensation was created
in this case.11
The Board further finds, however, that this case is not in posture for decision with regard
to the amount of overpayment. In its January 30, 2019 preliminary overpayment determination,
OWCP found an overpayment of compensation in the amount of $2,435.95 for which appellant
was without fault because he returned to part-time, limited-duty work on December 13, 2018, but
continued to receive TTD wage-loss compensation until January 5, 2019. It noted that, for the
period December 9, 2018 through January 5, 2019, appellant received $2,841.94 in wage-loss
compensation. OWCP also indicated that, for the period December 9 through 12, 2018, appellant
should have received $405.99 in wage-loss compensation. It calculated this amount by dividing
the gross amount that appellant had received from December 9, 2018 through January 5, 2019 of
$3,046.00 by 28 days, which equaled $108.79 per day ($3,046 ÷28 = $108.785). OWCP then
multiplied the daily rate by four days, which equaled $435.14. After subtracting appellant’s health
benefits, it determined that appellant should have received $405.99 from December 9 to 12, 2018.
OWCP subtracted $405.99 from $2,841.94 and calculated that appellant received an overpayment
of compensation in the amount of $2,435.95.
OWCP did not, however, calculate the amount of compensation that appellant should have
received for the remaining period December 12, 2018 to January 5, 2019. It is unclear from the
record why OWCP multiplied appellant’s daily rate by 4 days, from December 9 to 12, 2018, when
he was overpaid for 24 days from December 12, 2018 to January 5, 2019. Furthermore, OWCP
considered the amount of wage-loss compensation that appellant had received from December 9,
2018 to January 5, 2019 even though he did not stop work until December 13, 2018. Due to the
lack of financial information in the record, the Board is unable to adequately review this aspect of
the case. A claimant is entitled to an overpayment decision that clearly explains how the amount
was calculated.12 The Board finds that, as the overpayment decision in this case does not provide
such an explanation, the amount of overpayment has not been established.
On remand OWCP shall determine the exact amount of overpayment of compensation,
which occurred when it continued to pay appellant wage-loss compensation for TTD from
10

Supra notes 8 & 9.

11

See J.L., Docket No. 18-1266 (issued February 15, 2019).

12
See C.G., Docket No. 18-1655 (issued June 14, 2019); A.J., Docket No. 18-1152 (issued April 1, 2019); see also
O.R., 59 ECAB 432 (2008) (the Board determined that with respect to overpayment decisions, OWCP must provide
clear reasoning showing how the overpayment was calculated).

4

December 13, 2018 to January 5, 2019 even though he had returned to part-time, limited-duty
work on December 13, 2018. It should then issue a new preliminary overpayment determination,
with an appropriate overpayment action request form, an overpayment recovery questionnaire, and
instructions for him to provide supporting financial information. After OWCP has further
developed the case record, a de novo decision shall be issued.13
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 13, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded
for further proceedings consistent with this opinion.
Issued: September 12, 2019
Washington, DC

Janice B. Askin, 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
As this case is not in posture for decision regarding the amount of overpayment, the issue of waiver is moot. See
S.F., Docket No. 18-0003 (issued April 19, 2018); see also R.L., Docket No. 11-1251 (issued January 27, 2012).

5